Malcolm Rivera
The concept of sovereignty, one of the most controversial ideas in political science and international law, is closely related to the difficult concepts of state and government and of independence and democracy. The question of where sovereignty lies in a constitution has been widely debated, with various theories and interpretations emerging over the centuries. The idea of sovereignty has evolved and taken on different meanings, with key figures such as Rousseau, Locke, Hobbes, and Montesquieu contributing to the development of this concept. The complexities of federal structures and the historical context of nations also play a role in shaping the understanding of sovereignty within a constitutional framework.
| Characteristics | Values |
|---|---|
| Sovereignty | Inalienable, indivisible, infallible, and acting through laws |
| Who possesses sovereignty? | The people, a body of persons, or the state |
| Transference of sovereignty | Sovereignty cannot be transferred from the people to the ruler, but it can be transferred to a representative body |
| Legislative sovereignty | The national legislature does not have supreme power, but is subject to important restrictions |
| Judicial sovereignty | The Supreme Court can declare laws unconstitutional through judicial review, but this does not vest sovereign power in the Court itself |
| Constitutional sovereignty | The authority to propose and approve changes to the Constitution is vested in Congress, the states, and special conventions |
| Dual sovereignty | Both the union and its component units can be considered sovereign |
| Pooled sovereignty | Unions such as the European Union have resulted in shared sovereignty between member states |
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What You'll Learn
The erosion of traditional state sovereignty
The concept of sovereignty has evolved since the creation of the state system in 1648 and the birth of the United Nations in 1945. The 21st-century state differs from its predecessors due to the forces of globalization and global transformation. The processes of change have adversely impacted states, gradually eroding their sovereignty and effectiveness. This has led to conflicts, an inability to meet social needs, and a loss of autonomy and authority.
Globalization has brought about alternatives to state sovereignty, such as international and multilateral institutions, which have taken over issues previously handled by states. The fear of declining sovereignty has led to a need for urgent action to align international norms and institutions with global needs.
One example of the erosion of traditional state sovereignty is the European Union, a pooled sovereignty union where member states have voluntarily given up certain sovereign rights for the common good. Another example is the Universal Declaration of Human Rights, signed by most states in 1948, which rejected the prior permissiveness towards supremacist power-based sovereignty formulations after World War II and the Holocaust.
The concept of sovereignty can be divided into empirical sovereignty and juridical sovereignty. Empirical sovereignty deals with the legitimacy of who controls a state and how they exercise their power. Juridical sovereignty emphasizes the importance of other states recognizing a state's right to exercise control freely with little interference. Both aspects of sovereignty are essential in understanding the erosion of traditional state sovereignty.
In conclusion, the traditional state sovereignty has been eroding due to globalization, the rise of international institutions, and the need to address global challenges. The impact of these changes has manifested in conflicts, social needs not being met, and a loss of state autonomy. To maintain stability and effectiveness, states must adapt to the changing global landscape and find new ways to assert their sovereignty while collaborating on international issues.
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The rejection of the doctrine of inherent sovereign authority
The doctrine of inherent sovereign authority is a hypothesis that the federal government, its departments, and officials hold powers unenumerated in the Constitution because they are inherent in the federal government's sovereignty. James Wilson of Pennsylvania popularized this doctrine in 1785 in an effort to liberate the Confederation Congress from the restrictions imposed by the Articles. However, Wilson did not apply this doctrine to the new federal government erected by the Constitution.
The central fallacy in the doctrine of inherent sovereign authority is petitio principii, or begging the question. Advocates of the federal doctrine usually begin with the premise that states were never severally sovereign, and that upon the issuance of the Declaration of Independence, sovereignty vested in the Continental Congress, representing the Union. From that premise, they argue that sovereignty passed to the Confederation Congress and then to the federal government, unimpaired by the restrictions on central power imposed by the Articles of Confederation or the Constitution. However, this argument assumes that the Founders vested authority over all matters of common interest in the central government, which is not explicitly stated in the Constitution.
In 1907, the Supreme Court firmly rejected the doctrine of inherent sovereign authority, citing its clear inconsistency with both the Constitution's enumerated-power scheme and the explicit language of the Tenth Amendment. The Court emphasized that the federal government has only the powers that are expressly granted to it by the Constitution, and any powers not enumerated are reserved for the states or the people. Despite this rejection, the doctrine has resurfaced in several Supreme Court cases and continues to be referenced by commentators and scholars.
The concept of sovereignty has evolved over time, with early thinkers believing that sovereignty should be vested in a single person, a monarch. This view was rejected by Jean-Jacques Rousseau, who favored public sovereignty, where the ultimate authority is vested in the people and expressed through the idea of the general will. The UK parliament system is an example of a form of government that combines elements of both internal and public sovereignty, with sovereignty vested in the "Queen-in-Parliament" rather than solely in the Crown or the people.
Empirical sovereignty deals with the legitimacy of who controls a state and how they exercise their power, while juridical sovereignty emphasizes the recognition of a state's rights to exercise control by other states. Transnational institutions, the globalized economy, and pooled sovereignty unions have eroded the sovereignty of traditional states, as seen in the curtailment of sovereign state rights after World War II and the signing of the Universal Declaration of Human Rights in 1948.
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The sovereignty of the people
The concept of sovereignty is one of the most controversial ideas in political science and international law. It is closely related to the concepts of state, government, independence, and democracy. In political theory, sovereignty is the ultimate overseer or authority in the decision-making process of a state and in the maintenance of order.
The idea of sovereignty has evolved over time, with English philosopher Thomas Hobbes (1588-1679) arguing that in every true state, a person or body of persons must have the ultimate and absolute authority to declare the law. Hobbes' theory states that dividing this authority would destroy the unity of the state. Other key figures in the development of the concept of sovereignty include John Locke, Jean-Jacques Rousseau, and Montesquieu, whose views differ on the issue of alienability. Rousseau, for instance, considered sovereignty to be inalienable and rejected the distinction between its origin and exercise, which forms the basis of constitutional monarchy or representative democracy.
The doctrine of inherent sovereign authority, popularized by James Wilson in 1785, asserts that upon the issuance of the Declaration of Independence, sovereignty vested in the Continental Congress, and then passed to the Confederation Congress and the federal government. However, this doctrine has been rejected by the Supreme Court, which pointed to the Constitution's enumerated-power scheme and the explicit language of the Tenth Amendment. The unique histories of states like North Carolina and Rhode Island, which operated as de facto independent nations before ratifying the Constitution, also challenge this doctrine.
The complexity of sovereignty is further demonstrated in the United States Constitution, where sovereignty is restricted by the constitutional law of the state and higher laws considered binding upon every human being, such as natural and divine laws. Additionally, the authority to propose and approve changes to the Constitution is vested in Congress, the states, and special conventions, making it challenging to identify a sole repository of sovereignty within the federal structure. This has led to the concept of dual sovereignty, recognizing the sovereignty of both the union and its component units.
Empirical sovereignty and juridical sovereignty are two additional components of sovereignty. Empirical sovereignty deals with the legitimacy of who controls a state and how they exercise their power, while juridical sovereignty emphasizes the importance of other states recognizing a state's rights to exercise control freely without interference.
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Empirical sovereignty
Overall, empirical sovereignty is concerned with the legitimacy and exercise of power by those in control of a state, and it plays a crucial role in understanding the changing nature of sovereignty and statehood in the modern world.
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Juridical sovereignty
The concept of sovereignty has evolved and changed over time, influenced by global values and the interests of powerful states. In the context of the constitution, sovereignty refers to the legitimacy of who holds power and how that power is exercised. This is known as empirical sovereignty.
The recognition of juridical sovereignty can be complex and ambiguous. Some territorial entities find themselves in a legal grey area, with an uncertain legal status, indefinite international standing, and a relative legal existence. This can lead to challenges in the international arena, as these entities may not clearly fall under the traditional categories of juridically sovereign or non-sovereign entities.
The recognition of juridical sovereignty can have significant implications for a state's survival and influence. For example, the sovereignty of African states has been influenced more by legal recognition from other states than by material aid. Additionally, the actions of transnational governance institutions and multinational corporations can also impact the sovereignty of traditional states.
Overall, juridical sovereignty is a crucial aspect of a state's existence and recognition in the international sphere, shaping its rights, obligations, and interactions with other entities.
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Frequently asked questions
Sovereignty is the ultimate overseer or authority in the decision-making process of a state. It is a highly controversial idea in political science and international law.
There are two types of sovereignty: empirical sovereignty and juridical sovereignty. Empirical sovereignty deals with the legitimacy of who controls a state and how they exercise their power. Juridical sovereignty deals with the recognition of a state's rights by other states, allowing them to exercise control freely with little interference.
The doctrine of inherent sovereign authority is the idea that upon the issuance of the Declaration of Independence, sovereignty was passed from the Continental Congress to the Confederation Congress and then to the federal government. This doctrine was popularized by James Wilson in 1785 but was rejected by the Supreme Court in 1907.
The Constitution of the United States imposed restrictions on the national legislature, complicating the idea of legislative sovereignty. The authority to propose and approve changes to the Constitution is vested in Congress, the states, and special conventions. This has led to a complex federal structure with dual sovereignty of both the union and its component units.
Philosophers such as Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and Montesquieu have contributed to the concept of sovereignty. Hobbes argued for absolute authority in declaring the law, while Locke and Rousseau developed the doctrine of popular sovereignty, stating that the state is based on a social contract between its citizens. Rousseau considered sovereignty to be inalienable, indivisible, and determined by the common interest.
