The Problem with Federal Courts and “Sovereignty”

by
Lysander Spooner
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From Section XXIII of “A Letter to Grover Cleveland” (1886).

If anything could add to the disgust and detestation which the monstrous falsifications of the constitution, already described, should excite towards the court that resorts to them, it would be the fact that the court, not content with falsifying to the utmost the constitution itself, goes outside of the constitution, to the tyrannical practices of what it calls the “sovereign” governments of “other civilized nations” to justify the same practices by our own. 

It asserts, over and over again, the idea that our government is a “sovereign” government; that it has the same rights of “sovereignty” as the governments of “other civilized nations”; especially those in Europe. 

What, then, is a “sovereign” government? It is a government that is “sovereign” over all the natural rights of the people. This is the only “sovereignty” that any government can be said to have. Under it, the people have no rights. They are simply “subjects,”—that is, slaves. They have but one law, and one duty, viz., obedience, submission. They are not recognized as having any rights. They can claim nothing as their own. They can only accept what the government chooses to give them. The government owns them and their property; and dis poses of them and their property, at its pleasure, or discretion; without regard to any consent, or dissent, on their part. 

Such was the “sovereignty” claimed and exercised by the governments of those, so-called, “civilized nations of Europe,” that were in power in 1787,1788, and 1789, when our constitution was framed and adopted, and the government put in operation under it. And the court now says, virtually, that the constitution intended to give to our government the same “sovereignty” over the natural rights of the people, that those governments had then. 

But how did the “civilized governments of Europe” become possessed of such “sovereignty”? Had the people ever granted it to them? Not at all. The governments spurned the idea that they were dependent on the will or consent of their people for their political power. On the contrary, they claimed to have derived it from the only source, from which such “sovereignty” could have been derived; that is, from God Himself. 

In 1787, 1788, and 1789, all the great governments of Europe, except England, claimed to exist by what was called “Divine Right.” That is, they claimed to have received authority from God Himself, to rule over their people. And they taught, and a servile and corrupt priesthood taught, that it was a religious duty of the people to obey them. And they kept great standing armies, and hordes of pimps, spies, and ruffians, to keep the people in subjection. 

And when, soon afterwards, the revolutionists of France dethroned the king then existing—the Legitimist king, so-called—and asserted the right of the people to choose their own government, these other governments carried on a twenty years’ war against her, to reestablish the principle of “sovereignty” by “Divine Right.” And in this war, the government of England, although not itself claiming to exist by Divine Right,—but really existing by brute force,—furnished men and money without limit, to reestablish that principle in France, and to maintain it wherever else, in Europe, it was endangered by the idea of popular rights.

The principle, then, of “Sovereignty by Divine Right”—sustained by brute force—was the principle on which the governments of Europe then rested; and most of them rest on that principle today. And now the Supreme Court of the United States virtually says that our constitution intended to give to our government the same “sovereignty”—the same absolutism—the same supremacy over all the natural rights of the people — as was claimed and exercised by those “Divine Right” governments of Europe, a hundred years ago! 

That I may not be suspected of misrepresenting these men, I give some of their own words as follows: 

It is not doubted that the power to establish a standard of value, by which all other values may be measured, or, in other words, to determine what shall be lawful money and a legal tender, is in its nature, and of necessity, a governmental power. It is in all countries exercised by the government. — Hepburn vs. Griswold, 8 Wallace 615. 

The court call a power, 

To make treasury notes a legal tender for the payment of all debts [private as well as public] a power confessedly possessed by every independent sovereignty other than the Uni ted States.—Legal Tender Cases, 12 Wallace,p. 529. 

Also, in the same case, it speaks of: 

That general power over the currency, which has always been an acknowledged attribute of sovereignty in every other civilized nation than our own.—p. 545. 

In this same case, by way of asserting the power of congress to do any dishonest thing that any so-called “ sovereign government” ever did, the court say: 

Has any one, in good faith, avowed his belief that even a law debasing the current coin, by increasing the alloy [and then making these debased coins a legal tender in payment of debts previously contracted], would be taking private property? It might be impolitic, and unjust, but could its constitutionality be doubted?—p. 552. 

In the same case, Bradley said: 

As a government, it [the government of the United States] was invested with all the attributes of sovereignty.—p. 555. 

Also he said: 

Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers, which, at the time of adopting the constitution, were generally considered to belong to every government, as such, and as being essential to the exercise of its functions.—p. 556. 

Also he said: 

Another proposition equally clear is, that at the time the constitution was adopted, it was, and for a long time had been, the practice of most, if not all, civilized governments, to employ the public credit as a means of anticipating the national revenues for the purpose of enabling them to exercise their governmental functions.—p. 556. 

Also he said: 

It is our duty to construe the instrument [the constitution] by its words, in the light of history, of the general nature of government, and the incidents of sovereignty.—p. 55. 

Also he said: 

The government simply demands that its credit shall be accepted and received by public and private creditors during the pending exigency. Every government has a right to demand this, when its existence is at stake.—p. 560. 

Also he said: 

These views are exhibited . . . . for the purpose of showing that it [the power to make its notes a legal tender in payment of private debts] is one of those vital and essential powers inhering in every national sovereignty, and necessary to its self-preservation.-—p. 564. 

In still another legal tender case, the court said: 

The people of the United States, by the constitution, established a national government, with sovereign powers, legislative, executive, and judicial.—Juilliard vs. Greenman, 110 U. 8. Reports, p. 438. 

Also it calls the constitution: 

A constitution, establishing a form of government, declaring fundamental principles, and creating a national sovereignty, intended to endure for ages.—p. 439. 

Also the court speaks of the government of the United States: 

As a sovereign government.—p. 446. 

Also it said: 

It appears to us to follow, as a logical and necessary consequence, that congress has the power to issue the obligations of the United States in such form, and to impress upon them such qualities as currency, for the purchase of merchandise and the payment of debts, as accord with the usage of other sovereign governments. The power, as incident to the power of borrowing money, and issuing bills or notes of the government for money borrowed, of impressing upon those bills or notes the quality of being a legal tender for the payment of private debts, was a power universally understood to belong to sovereignty, in Europe and America, at the time of the framing and adoption of the constitution of the United States. The governments of Europe, acting through the monarch, or the legislature, according to the distribution of powers under their respective constitutions, had, and have, as sovereign a power of issuing paper money as of stamping coin. This power has been distinctly recognized in an important modern case, ably argued and fully considered, in which the Emperor of Austria, as King of Hungary, obtained from the English Court of Chancery an injunction against the issue, in England, without his license, of notes purporting to be public paper money of Hungary.—p. 447. 

Also it speaks of: 

Congress, as the legislature of a sovereign nation.— p. 449. 

Also it said: 

The power to make the notes of the government a legal tender in payment of private debts, being one of the powers belonging to sovereignty in other civilized nations, . . . we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts, is an ap propriate means, conducive and plainly adapted to the execution of the undoubted powers of congress, consistent with the letter and spirit of the constitution, etc.--p. 450.

On reading these astonishing ideas about “sovereignty” — “sovereignty” over all the natural rights of mankind—”sovereignty,” as it prevailed in Europe “at the time of the framing and adoption of the constitution of the United States” — we are compelled to see that these judges obtained their constitutional law, not from the constitution itself, but from the example of the “ Divine Right” governments existing in Europe a hundred years ago. These judges seem never to have heard of the American Revolution, or the French Revolution, or even of the English Revolutions of the seventeenth century—revolutions fought and accomplished to overthrow these very ideas of “sovereignty,” which these judges now proclaim, as the supreme law of this country. They seem never to have heard of the Declaration of Independence, nor of any other declaration of the natural rights of human beings. To their minds, “the sovereignty of governments” is everything; human rights nothing. They apparently cannot conceive of such a thing as a people’s establishing a government as a means of preserving their personal liberty and rights. They can only see what fearful calamities “sovereign governments” would be liable to, if they could not compel their “subjects”—the people — to support them against their will, and at every cost of their property, liberty, and lives. They are utterly blind to the fact, that it is this very assumption of “ sovereignty” over all the natural rights of men, that brings governments into all their difficulties, and all their perils. They do not see that it is this very assumption of “sovereignty” overall men’s natural rights, that makes it necessary for the “Divine Right” governments of Europe to maintain not only great standing armies, but also a vile purchased priesthood, that shall impose upon, and help to crush, the ignorant and superstitious people. 

These judges talk of “the constitutions” of these “sovereign governments” of Europe, as they existed “at the time of the framing and adoption of the constitution of the United States.” They apparently do not know that those governments had no constitutions at all, except the Will of God, their standing armies, and the judges, lawyers, priests, pimps, spies, and ruffians they kept in their service.

If these judges had lived in Russia, a hundred years ago, and had chanced to be visited with a momentary spasm of manhood—a fact hardly to be supposed of such creatures—and had been sentenced therefor to the knout, a dungeon, or Siberia, would we ever afterward have seen them, as judges of our Supreme Court, declaring that government to be the model after which ours was formed? 

These judges will probably be surprised when I tell them that the constitution of the United States contains no such word as “sovereign,” or “sovereignty”; that it contains no such word as “subjects”; nor any word that implies that the government is “sovereign,” or that the people are “subjects.” At most, it contains only the mistaken idea that a power of making laws—by lawmakers chosen by the people—was consistent with, and necessary to, the maintenance of liberty and justice for the people themselves. This mistaken idea was, in some measure, excusable in that day, when reason and experience had not demonstrated, to their minds, the utter incompatibility of all lawmaking whatsoever with men’s natural rights. 

The only other provision of the constitution, that can be interpreted as a declaration of “ sovereignty “ in the government, is this: 

This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. —Art. VI. 

This provision I interpret to mean simply that the constitution, laws, and treaties of the United States, shall be “the supreme law of the land”—not anything in the natural rights of the people to liberty and justice, to the contrary notwithstanding—but only that they shall be “the supreme law of the land,” “anything in the constitution or laws of any State to the contrary notwithstanding”—that is, when ever the two may chance to conflict with each other. 

If this is its true interpretation, the provision contains no declaration of “sovereignty “ over the natural rights of the people. 

Justice is “the supreme law” of this, and all other lands; anything in the constitutions or laws of any nation to the contrary notwithstanding. And if the constitution of the United States intended to assert the contrary, it was simply an audacious lie—a lie as foolish as it was audacious—that should have covered with infamy every man who helped to frame the constitution, or afterward sanc tioned it, or that should ever attempt to administer it. 

Inasmuch as the constitution declares itself to have been “ordained and established” by 

We, the people of the United States, in order to form a more perfect union, establish jus tice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity,

everybody who attempts to administer it, is bound to give it such an interpretation, and only such an interpretation, as is consistent with, and promotive of, those objects, if its language will admit of such an interpretation. 

To suppose that “the people of the United States” intended to declare that the constitution and laws of the United States should be “the supreme law of the land,” anything in their own natural rights, or in the natural rights of the rest of man kind, to the contrary notwithstanding, would be to suppose that they intended, not only to authorize every injustice, and arouse universal violence, among themselves, but that they intended also to avow themselves the open enemies of the rights of all the rest of mankind. Certainly no such folly, madness, or criminality as this can be attributed to them by any rational man—always excepting the justices of the Supreme Court of the United States, the lawmakers, and the believers in the “Divine Right” of the cunning and the strong, to establish governments that shall deceive, plunder, enslave, and murder the ignorant and the weak. 

Many men, still living, can well remember how, some fifty years ago, those famous champions of “sovereignty,” of arbitrary power, Webster and Calhoun, debated the question, whether, in this country, “sovereignty” resided in the general or State governments. But they never settled the question, for the very good reason that no such thing as “sovereignty” resided in either. 

And the question was never settled, until it was settled at the cost of a million of lives, and some ten thousand millions of money. And then it was settled only as the same question had so often been settled before, to wit, that “the heaviest battalions” are “sovereign” over the lighter. 

The only real “sovereignty,” or right of “sovereignty,” in this or any other country, is that right of sovereignty which each and every human being has over his or her own person and property, so long as he or she obeys the one law of jus tice towards the person and property of every other human being. This is the only natural right of sovereignty, that was ever known among men. All other so called rights of sovereignty are simply the usurpations of impostors, conspirators, robbers, tyrants, and murderers. 

It is not strange that we are in such high favor with the tyrants of Europe, when our Supreme Court tells them that our government, although a little different in form, stands on the same essential basis as theirs of a hundred years ago; that it is as absolute and irresponsible as theirs were then; that it will spend more money, and shed more blood, to maintain its power, than they have ever been able to do; that the people have no more rights here than there; and that the government is doing all it can to keep the producing classes as poor here as they are there.

From Section XXIII of “A Letter to Grover Cleveland” (1886).