No Government, No Force

Sovereignty Of The People

This came today from a post by Autarchic at It will trigger some thinking by those who can think!

1. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.

2. For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable on any country where freedom prevails, as being the essence of slavery itself. See: Yick Wo v. Hopkins , 118 U.S. 356 (1886) .

3. “He is not to substitute even his jester will for theirs; otherwise it would not be the ‘common will’ which prevails, and to that extent, the people would not govern.” See: Speech by Judge Learned Hand at the Mayflower Hotel in Washington, D.C. May 11, 1919, entitled, “Is there a Common Will?”

4. “. . . The Congress cannot revoke the Sovereign power of the people to override itself as thus declared.” See: Perry v. United States , 294 U.S. 330, 353 (1935).

5. “In the United States, Sovereignty resides in the people, who act through the organs established by the Constitution.” See: Chisholm v. Georgia , 2 Dall 419, 471; Penhallow v. Doane’s Administrators, 3 Dall 54, 93; McCullock v. Maryland, 4 Wheat 316, 404, 405; Yick Wo v. Hopkins , 118 U.S. 356, 370 (1886).

6. “We the people . . . do ordain and establish the Constitution for the United States of America.” See: Preamble to the U.S. Constitution (1789).

7. “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” See: Article IX, U.S. Constitution.

8. “As men whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intent to convey; the enlightened patriots who framed our constitution and the people who adopted it must be understood to have employed the words in their natural sense, and to have intended what they have said.” See: Gibbons v. Ogden, 27 U.S. 1

9. No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. See: New Orleans Gas Co v. Louisiana Light Co , 115 U.S. 650 (1885).

10. For it can never be maintained in any tribunal in this country that the people of a State, in the exercise of the powers of sovereignty, can be restrained within narrower limits than that fixed by the Constitution of the United States . . . the people of a State may, by the form of government they adopt, confer on their public servants and representatives all the power and rights of sovereignty which they themselves possess; or may restrict them within such limits as may be deemed best and safest for the public interest. See: Ohio Life Ins. & Trust Co. v. Debolt , 16 How 415, 428-9.;

11. The phrase as used in the constitution does not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory. The people would be made to say to the houses, ‘You shall be vested with the legislative power of the state, but no one shall be disfranchised or deprived of any of the rights or privileges of a citizen, unless you shall not do the wrong unless you choose to do it.’ See: Per Bronson, J., In Taylor v. Porter, 4 Hill (N.Y.) 140, 40 AM, Dec 274.

12. People are supreme, not the state. See: Waring v. the Mayor of Savannah, 60 Georgia at 93.

13. Strictly speaking, in our republican form of government, the absolute sovereignty of the nation is in the people of the nation; and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state. See: 2 Dall. 471; Bouv. Law Dict. (1870).

14. I believe there are more instances of the abridgment of the freedom of the people by the gradual and silent encroachment of those in power than by violent and sudden usurpations. See: James Madison.

15. The theory of the American political system is that the ultimate sovereignty is in the people, from whom all legitimate authority springs, and the people collectively, acting through the medium of constitutions, create such governmental agencies, endow them with such powers, and subject them to such limitations as in their wisdom will best promote the common good. See: First Trust Co. v. Smith, 134 Neb.; 277 SW 762.

16. What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established.” See: Vanhorne’s Lessee v. Dorrance , 2 U.S. 304 (1795).

17. A constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state. A constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. See: Ellingham v. Dye, 178 Ind. 336; 99 NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

18. The question is not what power the federal government ought to have, but what powers, in fact, have been given by the people. . . . The federal union is a government of delegated powers. It has only such as are expressly conferred upon it, and such as are reasonably to be implied from those granted. In this respect, we differ radically from nations where all legislative power, without restriction of limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members. See: U.S. v. William M. Butler , 297 U.S. 1.

19. The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal in arms. An act of usurpation is not obligatory: It is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government; yet only his fellow citizens can convict him. They are his jury, and if they pronounce him innocent, not all powers of congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation. See: 2 Elliot’s Debates, 94; 2 Bancroft, History of the Constitution, 267.

20. But it cannot be assumed that the framers of the Constitution and the people who adopted it did not intent that which is the plain import of the language used. When the language of the Constitution is positive and free from all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid hardships of particular cases, we must accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign powers. See: State v. Sutton, 63 Minn. 147, 65 WX N.W., 262, 101, N.W. 74; Cook v. Iverson, 122, N.M. 251.

21. In this state, as well as in all republics, it is not the legislation, however transcendent its powers, who are supreme— but the people— and to suppose that they may violate the fundamental law is, as has been most eloquently expressed, to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that the men acting by virtue of delegated powers may do, not only what their powers do not authorize, but what they forbid. See: Warning v. the Mayor of Savannah, 60 Georgia, P. 93.

22. There have been powerful hydraulic pressures throughout our history that bear heavily on the court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today. Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. See: Terry v. Ohio , 392 U.S. 39 (1967).

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