by Michael Maharrey
In order to truly understand how the framers intended the U.S. federal government to function, one must first come to grips with a simple, yet fundamental, question.
Who reigns sovereign?
In other words, who gets the final say?
Is it Congress? The president? The best looking Hollywood actor?
The U.S. military action in Libya illustrates the importance of understanding the concept of sovereignty. Americans’ ignorance as to who really has the final say opens the door for all kinds of rationalizations, justifying a clearly unconstitutional war.
Calling it a humanitarian effort, a multinational intervention or a “kinetic military action†doesn’t change reality. Killing people and blowing up things inside the borders of a sovereign nation constitutes an offensive act of war.
And the Constitution delegated the power to declare war to Congress alone.
At this point in the conversation, supporters of military intervention in Libya will cite the War Powers Resolution.
Passed in 1973, the act grants the president the power to unilaterally engage in military action, provided he “notify†Congress within 48 hours of committing forces to battle. The War Powers resolution also limits the action to 60 days, with an additional 30 day withdrawal period, absent congressional authorization.
In essence, Congress redefined executive power by resolution. It transferred part of its authority to declare war to the president, at least on a temporary basis.
On the surface, this seems like a reasonable action. Congress has a specific delegated power. A two-thirds majority got together and voted to cede some of its authority to the executive branch. Fair enough.
But Congress doesn’t possess the power to arbitrarily redefine constitutional division of power by resolution.
Why not?
Because Congress is not sovereign. It derives its authority and power by a grant from the legitimate sovereign – the people. And only the people have the authority to change the grant of power.
St. George Tucker was an early American legal scholar who wrote one of the first complete legal analysis of the Constitution. He provides a good guiding definition of sovereignty.
“By the sovereign power is meant the making of laws, and wherever that power resides, all others must conform to and be directed by it.â€
The United States was built upon a unique foundation. In most nations, the king reigned sovereign. In England, the parliament was the final authority. But the framers built the United States on the principle that the people themselves are sovereign. Thomas Jefferson made this clear in the Declaration of Independence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governedâ€
If all men (and women) are created equal, meaning each individual possesses the same natural, or God given, rights, then no person or group of people has a right to rule.
“Since no person possess any inherent right to govern, or rule over the rest: and since the few cannot possess, naturally power enough to subdue the many; the majority of the people, and much more, the whole body, possess all the powers, which any society, state or nation possesses in relation to its own immediate concerns,†Tucker wrote. Thus, “Legitimate government can therefore be derived only form the voluntary grant of the people and exercised for their benefit.â€
We the people delegated specific powers to the federal government through the Constitution, and only we the people possess the power to change the arrangement. Congress lacks any authority to rearrange the chairs on the deck. It merely functions as an agent of the people. It does not have the right to cede any power to the executive, therefor rendering the War Powers resolution an illegal act.
When we come to grips with the reality that we actually reign sovereign, not the government, the concept of limited, delegated powers becomes clear. By right, we possess all authority. By right, we grant the federal government its power. It must remain restrained by our will as expressed in the Constitution. And if the will of the people should change, the framers created a mechanism to facilitate that change – amend the Constitution.
The federal government envisioned by the framers has gown and morphed into a monster they never conceived. It functions as if reigning sovereign, forcing the people and the states to bend to its will. It accumulates power as it sees fit, disregarding the very instrument that created it. Like some kind of Frankenstein monster, the fed rampages out of control through the fruited planes, from sea to shining sea.
Tucker warned us of the consequences of runaway government.
“But no people can ever be free, whose government is founded upon the usurpation of their sovereign rights; for by the act of usurpation, the sovereignty is transferred from the people, in whom alone it can legitimately reside, to those who by that act have manifested a determination to oppress them.â€
We the people reign sovereign.
It’s time we act like it.
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