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On Sovereignty and Legislature

This brief essay is Tucker’s Appendix A to the first volume of Blackstone’s Commentaries. In it he wishes to make the point that, with the Revolution, a new basis of sovereignty was established—that of the people, in contrast to the states of the Old World. This was a necessary preface to the succeeding essay “Of the Several Forms of Government.”

Blackstone’s Com. page 46. “Sovereignty and Legislature are indeed convertible terms; one cannot subsist without the other.”

THE GENERALITY OF EXPRESSION in this passage might lead those who have not considered with attention the new lights which the American revolution has spread over the science of politics, to conclude with the learned commentator, that, “By the sovereign power, is meant the making of laws; and where-ever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of justice may put on. It being at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions. … or else the constitution is at an end.”

Before we yield our full assent to this conclusion, we must advert to a fact, probably truly stated by the learned author at the time he wrote; “That the original written compact of society had, perhaps, in no instance, been ever formally expressed, at the first institution of a state.”

In governments whose original foundations cannot be traced to the certain and undeniable criterion of an original written compact. … whose forms as well as principles are subject to perpetual variation from the usurpations of the strong, or the concessions of the weak; where tradition supplies the place of written evidence; where every new construction is in fact a new edict; and where the fountain of power hath been immemorially transferred from the people, to the usurpers of their natural rights, our author’s reasoning on this subject will not easily be controverted. … But the American revolution has formed a new epoch in the history of civil institutions, by reducing to practice, what, before, had been supposed to exist only in the visionary speculations of theoretical writers. … The world, for the first time since the annals of its inhabitants began, saw an original written compact formed by the free and deliberate voices of individuals disposed to unite in the same social bonds; thus exhibiting a political phenomenon unknown to former ages. … This memorable precedent was soon followed by the far greater number of the states in the union, and led the way to that instrument, by which the union of the confederated states has since been completed, and in which, as we shall hereafter endeavor to show, the sovereignty of the people, and the responsibility of their servants are principles fundamentally, and unequivocally, established; in which the powers of the several branches of government are defined, and the excess of them, as well in the legislature, as in the other branches, finds limits, which cannot be transgressed without offending against that greater power from whom all authority, among us, is derived; to wit, the PEOPLE.

To illustrate this by an example. By the constitution of the United States, the solemn and original compact here referred to, being the act of the people, and by them declared to be the supreme law of the land, the legislative powers thereby granted; are vested in a congress, to consist of a senate and house of representatives. As these powers, on the one hand, are extended to certain objects, as to lay and collect taxes, duties, &c. so on the other they are clearly limited and restrained; as that no tax or duty shall be laid on articles exported from any state … nor any preference given by any regulation of commerce or revenue to the ports of one state over those of another, &c. These, and several others, are objects to which the power of the legislature does not extend; and should congress be so unwise as to pass an act contrary to these restrictions, the other powers of the state are not bound to obey the legislative power in the execution of their several functions, as our author expresses it: but the very reverse is their duty, being sworn to support the constitution, which unless they do in opposition to such encroachments, the constitution would indeed be at an end.

Here then we must resort to a distinction which the institution and nature of our government has introduced into the western hemisphere; which, however, can only obtain in governments where power is not usurped but delegated, and where authority is a trust and not a right … nor can it ever be truly ascertained where there is not a written constitution to resort to. A distinction, nevertheless, which certainly does exist between the indefinite and unlimited power of the people, in whom the sovereignty of these states, ultimately, substantially, and unquestionably resides, and the definite powers of the congress and state legislatures, which are severally limited to certain and determinate objects, being no more than emanations from the former, where, and where only, that legislative essence which constitutes sovereignty can be found.