An oldie by Daniel Larison

Popular “Sovereignty”

Someone cites St. Robert Bellarmine.

CHAPTER VI.
The Same Inference is Drawn from the Efficient Cause
The fourth argument is taken from the efficient cause. For it is certain that political power is of God, from Whom proceeds nothing that is not good and lawful. St. Augustine proves this.61 For the Wisdom of God proclaims, “By Me kings reign.”62 And below, “By Me princes rule.”63 And, “The God of heaven hath given thee a kingdom, and strength, etc.”64 And, “Thy dwelling shall be with cattle and with wild beasts, and thou shalt eat grass as an ox, and shalt be wet with the dew of heaven; and seven times shall pass over thee, till thou know that the most High ruleth over the kingdom of men, and giveth it to whomsoever He will.”65

But in this place other matters should be noted. First, political power considered in general, not descending in particular to Monarchy, Aristocracy, or Democracy, comes directly from God alone; for this follows of necessity from the nature of man, since that nature comes from Him Who made it; besides, this power derives from the natural law, since it does not depend upon the consent of men; for, willing or unwilling, they must be ruled over by some one, unless they wish the human race to perish, which is against a primary instinct of nature. But natural law is Divine law, therefore, government was instituted by Divine law, and this seems to be the correct meaning of St. Paul when he says, “He that resisteth the power, resisteth the ordinance of God.”66

Note, secondly, that this power resides, as in its subject, immediately in the whole state, for this power is by Divine law, but Divine law gives this power to no particular man, therefore Divine law gives this power to the collected body. Furthermore, in the absence of positive law, there is no good reason why, in a multitude of equals, one rather than another should dominate. Therefore, power belongs to the collected body. Finally, human society ought to be a perfect State, therefore, it should have the power to preserve itself, hence, to punish disturbers of the peace, etc.

Note, in the third place, that, by the same natural law, this power is delegated by the multitude to one or several, for the State cannot of itself exercise this power, therefore, it is held to delegate it to some individual, or to several, and this authority of rulers considered thus in general is both by natural law and by Divine law, nor could the entire human race assembled together decree the opposite, that is, that there should be neither rulers nor leaders.

Note, in the fourth place, that individual forms of government in specific instances derive from the law of nations, not from the natural law, for, as is evident, it depends on the consent of the people to decide whether kings, or consuls, or other magistrates are to be established in authority over them; and, if there be legitimate cause, the people can change a kingdom into an aristocracy, or an aristocracy into a democracy, and vice versa, as we read was done in Rome.

Note, in the fifth place, that it follows from what has been said that this power in specific instances comes indeed from God, but through the medium of human wisdom and choice, as do all other things which pertain to the law of nations. For the law of nations is a sort of conclusion drawn from the natural law by human reason;67 from which are inferred two differences between the political and the Ecclesiastical power, one in view of the subject, for political power resides in the people, and Ecclesiastical power in the individual, as it were immediately in the subject (on whom it devolves); the other difference is in view of the efficient cause, because political power considered in general is by Divine law, but considered in particular it is by the law of nations. Ecclesiastical power, however, considered from every point of view, is by Divine law, and immediately from God.

To which Mr. Larison responds:

I am well aware that some theologians have advanced a view contrary to that of Bonald. It should be noted that Bonald and Bellarmine are in agreement that the source of all political sovereignty is God. Sir Robert Filmer made it a point to specifically reject Cardinal Bellarmine’s arguments as part of his defense of monarchy in his Patriarcha. He was being polemical in his approach to Bellarmine, because he took Bellarmine’s position as a demonstration of the inherent hostility to monarchy in Catholicism. Bonald, a very serious Catholic, shows that such a view is false. Having taken care of those little details, let me see if I can answer Scholastic’s objections.

To turn to Bellarmine’s writings above, let me respond first to this: “Note, secondly, that this power resides, as in its subject, immediately in the whole state, for this power is by Divine law, but Divine law gives this power to no particular man, therefore Divine law gives this power to the collected body.” Why does Divine law give this power to no particular man? That may be true, but why is it necessarily so? Note that Bellarmine has to hurry to make the distinction between ecclesiastical and political orders, because he immediately sees the potentially subversive and presbyterian conclusions that might be drawn from his theory of consent, if it were applied to the Church. The question I have for Bellarmine and Scholastic is this: why does political sovereignty follow a different set of principles than when God bestows authority on particular churchmen?

What does Bellarmine mean when he refers to the “whole state”? A monarchist might understand the state and the monarch to be identical, which almost immediately dismisses his conclusion. If the state here means all of the governing institutions, then this still does not identify the state with the “collected body.” If the state means, as I assume it must, the entire polity, I see little reason why sovereignty would have to devolve and diffuse throughout the entire polity if it is not designated to any particular man.

Institutions and laws–which must have been made by some particular sovereign or sovereigns at some time in the past–are the persistence and continuing manifestation of past sovereignty. Sovereignty could continue to reside in these until a particular man or a group of men took up the task of governing. It need never devolve to the level of the subjects, and one would be hard-pressed to find an example when this has happened.

This all still leaves Bonald’s basic objection unanswered: how can subjects be sovereign, and if they are sovereign, who then obeys the laws the sovereign makes? In theory, the sovereign people are not bound to obey any law. At the very least, the claim that the people are sovereign introduces a serious confusion into the political order.

It might perhaps be theoretically possible that sovereignty would diffuse to the entire polity first, but when has it ever happened? That is not an idle question. If the theory of consent were true, then we should have real examples of when it has happened, since regimes have been changing for millennia. Yet sovereignty has never actually devolved down to the level of every person in a polity. Even mass voting of the kind we find in the world today is not really the diffusion of sovereignty of this type, except in the case of referenda, where direct democracy does actually occur. Otherwise, voting for a candidate is simply the selection of which person will wield a sovereignty that “the people” do not possess. Properly speaking, political participation itself is not really sovereignty, though it may be an act of consent to what the selected sovereign does. There was never a time in the past when a whole polity ceded its sovereignty to a theoretically representative ruler, and there has not been a time since when a whole polity has withdrawn that ancient consent.

To take the example of Rome, which Bellarmine invokes, a particular man founded it (according to the legends recorded by Livy), and set up a monarchy, which persisted until the leading senatorial families abolished the monarchy and assumed control themselves. This control persisted until such time as one among them became the supreme ruler after defeating his rivals. At no time were “the people” deciding anything. Their consent, or lack thereof, was relevant, but it was not decisive, and “the people” were not sovereign. The patrician families allowed plebeians to participate in government to a limited extent, but at no time did a change in government occur because of popular initiative, much less could anyone confuse plebeian powers with popular sovereignty. Even those leading political figures who may have acted in what they regarded to be the interests of the plebeians, such as a Marius or Caesar, were nonetheless aristocrats wielding authority themselves. Except for the office of tribune, the plebeians had essentially no say, much less the ultimate power, in the affairs of the state. The state and the people were not synonymous, and even today when this identity is theoretically accepted as the official doctrine it is still not true. This is not just a practical reality of government (i.e., that some elite must always govern), but a reality that disproves any and all theories of consent or power derived from the people.

Bellarmine also says: “Furthermore, in the absence of positive law, there is no good reason why, in a multitude of equals, one rather than another should dominate.” There is rarely an absence of positive law concerning this matter, but let’s leave that aside for the moment. I might ask where such a “multitude of equals” has ever existed. How are they equal? Not in political or martial talents–some will excel others in these. Their excellence in political arts would seem to provide a “good reason” for their dominance. All are not equal in wisdom or virtue or intelligence. There are plenty of “good reasons” why some should be rulers or leaders rather than others. Even if sovereignty did somehow devolve to the entire polity, how often has it happened that this polity (even allowing for the traditional exclusionary rules about who actually belongs to a polity) has actually chosen its leader? One might cite ancient German tribes in time of war–which is obviously an exceptional situation–or ancient Athens, but even this selection of leaders by the leading men of a community has been relatively unusual before the modern age. It is hard to understand how natural law could require something that has failed to obtain in virtually every polity in history, including more than a few Christian polities (which have the best chance of being in accord with natural law of any, I would think).

But I would also insist on remembering that Bonald here is discussing sovereignty primarily in terms of the actual power to rule and make laws–even in Athens, those tribes or any current democratic republic this sovereignty does not, and could not, reside in the people. This is clear in the quote. An extension of this is that “the people” do not form the government in some primordial time, nor is it necessary for them to choose their governors (though there is nothing in Bonald’s quote that necessarily rejects this–he addresses the problems of republics and democracies elsewhere).

When has popular sovereignty ever really existed? It sounds nice in a way, but so do many falsehoods. In an interregnum or in a transition from one regime to another, the leading men of the major families, or a senate or a council of nobles would be the ones to decide the future of the government. Changes in government, even our own, have never occurred because “the people” withdrew their consent from the existing authority and created their own. Changes occur because men already in or near positions of power alter their relationship with the existing authority, and then present subjects with a new authority to which they then submit themselves. Their consent, such as it is, is nothing other than their submission to a different set of governors. In America, some of “the people” actually chose the individuals who govern them, but this is just a practical convention. It does not demonstrate that sovereignty derives from the people.

In fact, the sovereignty of the rebel legislatures and Continental Congress, whence our own government originally comes, was simply seized by the men who made up these bodies. At best, according to the rebels, their right to seize this power stemmed from English constitutional law, which is to say that the sovereignty claimed by the rebels of 1776 derived from concessions extracted from the English sovereign by Parliament and/or the nobility. If we were to grant the legality of the rebellion, even then we would have to say that it was legal only because of a sovereign act of a past monarch, whose authority never really ascended from “the people.” In the case of Charles I (Petition of Right of 1628), he claimed his authority to be by the grace of God, and in the case of William III (Bill of Rights of 1689) the most that anyone could say about him is that he possessed his authority through inheritance and the authority of Parliament. The people simply don’t enter into it, even when parliamentarians may become very serious and claim to represent “the people.”

Submission to an authority is the sign of consent, even if it is only tacit and grudging, and consent includes, at the very least, this obedience to an authority. In this sense, one might speak of popular consent to a regime without implying that “the people” created or chose the regime. They may either accept it, or reject it, which is rebellion. There are conditions, I agree, where rebellion may be justified in a time of genuinely unjust rule, but this is not “the people” reclaiming their delegated sovereignty. It is the rebellion of subjects who are demanding redress of the injustices committed against them. Most historical rebellions prior to the democratic age invoked the king as their protector, because they did not suppose that they possessed any right to rule or govern, and in many monarchical states liberal revolutionaries did not actually topple their monarchs but beseeched them to grant subjects a constitution and representative government. It is even conceivable that a province or area might rebel against one ruler and then adhere itself to another ruler, or have its own ruler, but at no time is sovereignty really possessed by “the people.”

Looking at it another way, one might grant that republican or democratic regimes do rely on the principle of popular sovereignty, even if it is never realised in fact, and that these regimes are maladaptive and dysfunctional regimes precisely because they base themselves on a false foundation.

Someone else asks Mr. Larison to reconcile his quote from De Bonald with a passage from the Declaration of Independence. The first reply:

To answer your question more directly, Jon, I think the War for Independence could be defended as the legitimate rebellion of subjects against what they deemed to be tyrannical government, and that they were claiming only those rights due them as English subjects. Ignoring for the moment that I don’t believe their rights were really violated (certainly not to the point where it could be called tyranny), I would then say that the War for Independence was justified under the English constitution, provided that we recognise that popular sovereignty has nothing to do with it. I regard the theory that government is based on the consent of the governed to be an unfortunate deformation of the traditional right to rebel against tyranny. It serves as a valuable safeguard against abusive government, but I do not regard it as an entirely true statement about the origin or legitimacy of government.

I refer you to David Hume’s view of this theory: “And nothing is a clearer proof, that a theory of this kind is erroneous, than to find, that it leads to paradoxes, repugnant to the common sentiments of mankind, and to the practice and opinion of all nations and all ages. The doctrine, which founds all lawful government on an original contract, or consent of its people, is plainly of this kind…” Or here he argues again: “I maintain, that human affairs will never admit of this consent; seldom of the appearance of it. But that conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones, which were ever established in the world. And that in the few cases, where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority.”

and:

One final follow-up: the Declaration refers to the purpose of government as securing “natural rights,” which introduces another problem. It is true that government is established to secure the necessities of society and life, so there is some basic agreement with Jefferson about the things to be protected (I would have kept property in the document instead of ‘pursuit of happiness’). However, I don’t know that I would call any of those things “natural rights,” but that is a debate for another day.

Incidentally, if life, liberty and ‘pursuit of happiness’ are the things the government must protect, lest it lose the consent of the governed, then the rebellion really had no serious basis. No fundamental liberty was threatened, the government was not endangering the lives of the colonists through either oppression or negligence, and their lawful commerce and way of life was not noticeably impeded in any meaningful way. I grant that they perceived it very differently, but that does not change that they were really greatly overreacting.

Clyde Wilson on the Federal Union

CHT: From Union to Empire by Clyde N. Wilson. I believe this essay appears in the book of the same name, but the book is in storage and not here so I cannot check.

That happy old Union was a friendly contract—the states managing their own affairs, joining together in matters of defense, and enjoying free trade among themselves, and indeed, enjoying free trade with all the world, because the Constitution, as it sometimes forgotten, required all taxes to be uniform throughout the Union and absolutely forbade taxation of the exports of any state. The federal government was empowered to lay a modest customs duty to raise revenue for its limited tasks, but otherwise had no power to restrict or assist enterprises.

That is what the States United meant to our Founders—a happy Union of mutual consent and support. It did not mean a government that dictated the arrangement of every parking lot in every public and private building in every town, and the kind of grass that a citizen must plant around his boat dock. It did not mean the incineration of women and children who might have aroused the ire of a rogue federal police force, unknown to the Constitution and armed as for a foreign enemy. It did not mean that billions would be spent (as in Kuwait) restoring an oriental despot to his throne; or that a hero would be made out of the successful general who killed more women, children, soldiers trying to surrender, and his own men than he did armed enemies. Had George Washington been confronted with these things, he would have reached for his sword.

The American Founders knew that republican societies were fragile—that they tended to degenerate into empires if extended beyond a small state, though they hoped the federal principle would block this tendency in America. Their definition of self-government was the superiority of the community to its rulers. In a reversal of the age-old pattern of mankind, the rulers (a necessary evil) became delegates of the community temporarily assigned to take care of some part of the public business. In an empire, like the one from which they had seceded, the public business. In an empire, like the one from which they had seceded, the community existed for the support and gratification of the rulers. A republican America was to be governed in interest of the communities that made it up; its rulers were ‘responsible.’ An empire, to the contrary, was governed by the needs, ideas, interests, even whims, of the rulers. A republic passes over into empire when political activity is no longer directed toward the well-being of the people but for the benefit of their rulers. That is to say, an empire’s government reflects management needs, and reflects the desires and will of those who control the machinery, rather than the interests and will of those being governed. Who can doubt that we are now an empire? The American people no longer think of the government as theirs, but as a hostile, manipulative, unjust, and unresponsive distant ruler.

A republic goes to war to defend itself and its vital interests, including possibly its honour. Empires go to war because going to war is one of things irresponsible rulers do. The point of reference for a republic is its own well-being. An empire has no point of reference except expansion of its authority. Its foreign policy will be abstract, and will reflect on the vagaries of mind of the rulers, who might, for instance, proclaim that it is their subjects’ duty to establish a New World Order, whatever the cost to their own blood and treasure. Who can doubt that once-proud republican Union of the states is now an empire?

An empire contains not free citizens, but subjects, interchangeable persons having no intrinsic value except as taxpayers and cannon fodder. So, if the governors of an empire should feel it easier for them to placate criminals that to punish them, they will turn over the neighborhoods and schools of their subjects to criminals, and even punish officers of the law for acting too zealously against the criminal class, thus violating the first rule of good government, which is the preservation of order. A people’s culture may be changed by imperial edict to reflect a trumped-up multiculturalism (a sure sign of an empire), or their religion persecuted. And, of course, violating one of the essential rules of republicanism, that the laws be equal to all, the imperialists exempt themselves from the commands they lay down for the rest of us. The republican right of self-government and the right of self-determination both necessarily incorporate the right of secession—that a people may withdraw from an imperial power to defend its liberty, property, culture, and faith.

We know the problems. Where should we look for solutions? Changing the personnel of the White House, the Congress, and the Supreme Court has been of little avail. Thomas Jefferson gives the answer: our most ancient and best tradition, states’ rights. In his first inaugural address, Jefferson remarked that in most ways American were happily situated, and then asked:

What more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits… and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.

But to preserve this form of government? What should we do, or not do? Jefferson answered: preserve elections (not the party system), maintain equal justice under the law, rely on the militia, avoid the debt, maintain the freedoms of speech, religion, and trial by jury, and avoid entangling alliances. And most important: ‘the support of the state governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies.

These past few days I've been thinking about writing whether conservatives can really do anything about reform...

Should we make ourselves noticeable (by joining certain movements and groups), or should we strive to be virtuous? Those who are in the position to should work for a reinvograted state sovereignty and relocalization, especially those in state governments, should do so, even if they attract the notice of the Federal Government and the elites. The rest of us can be virtuous citizens without fanfare, by contributing to the buildling up of community. Even if we are stuck in a community with which we do not share much in common in terms of moral ideals, to practice charity and love of the common good is paramount.

Still, the question of the end of society and its implications for culture of has not been settled in my mind yet. Relative cultural homogeneity seems necessary for a political community to persist, but even if there was not a problem of unassimilated immigrants, there is the problem of the loss of traditional Anglo-American culture in many states. It has been supplanted by liberalism, antagonistic to traditional morals and destructive of communal life.

Many have judged that the old American Union is gone, and restoring the old constitutional order is impossible because those who enter the Federal Government, even so-called conservatives, even on the Supreme Court, do not respect the limits set by the Constitution. (Most recently, Paul Gottfried has reminded us that most Americans are content with the existence of the welfare state, even if they quibble about certain programs or dollar amounts: Is Big Government Here to Stay?)

Dr. Wilson continues:

The sovereignty of the people, in which we all believe, can mean nothing except, purely and simply, the people of each state acting in their sovereign constitution-making capacity—as they did in the American Revolution when they threw off their king and assumed their own sovereignty, making their constitutions. This was a revolution in the sense of a transfer of the locus of sovereignty, not in the sense of social upheaval. The people of each state ratified the Constitution as freely consenting sovereigns, agreeing to make an instrument, limited and precise, for some of their common business.

The case of South Carolina is illustrative but not unusual. The people of South Carolina were sovereign and independent before the Declaration of Independence. Through their own governor, legislature, courts, and armed forces they were exercising every sovereign power—taxation, war, treaty-making, and the execution of felons. The week before the Declaration of Independence, Colonel Moultrie and the South Carolina forces, from their palmetto log fort on Sullivan’s Island, repulsed and defeated a British fleet that threatened to suppress their sovereign self-government.

The question is not altered by the fact that the Union has been expanded to fifty states. The founding fathers wisely made the Union expansible. The Congress may admit new states (or not), but the federal government does not create new states. States create themselves. The federal government may administer the territory, the land, before statehood, but only the sovereign people can adopt a constitution and incorporate themselves into a political society. Only by a sovereign act of free consent can a state ratify the U.S. Constitution—if we believe in government of the people. This is as true of the new states as of the old, of Montana as of South Carolina—if we believe the people are sovereign.

Americans are natural republicans, not monarchists or aristocrats. That is, we believe government rests upon consent of the governed—that is the key phrase of the Declaration of Independence. Government is legitimate in just so far as it rests upon consent, that is, the people accede to the government. The opposite of accede is to secede—the withdrawal of consent from an oppressive government. That is the only really effective restriction on power, in the final analysis.

One may be critical of the rhetoric employed in the Declaration of Independence. But it would be wrong to criticize the notion that the consent of the governed is required with respect to the Federal Government, or to say that the social compact theory of the Federal system is incorrect.
Social contract/social compact theory with respect to a particular political community is probably wrong (I haven't seen a version articulated that harmonizes with classical political theory or the Natural Law). To apply it to the states, which were sovereign, would be wrong. However, the Federal Government does get its authority from the people, as mediated by the states. (As for the source of the authority of the states, how was that answered by the Founding Fathers? From the people alone? Or from God, mediated by the people?) Those powers not delegated to the Federal Government remain reserved to the states. It is wrong to think of the Federal Union as being a single nation-state and making negative judgments accordingly about the rhetoric employed concerning authority, liberty, and so on. And yet this is the mistake that many Catholics make in their analysis.

The question of revolution and removing authority from those holding office is a tricky one--we should be careful about leaping to conclusions in a zeal to oppose liberalism lest we overlook what might be true in certain writings, especially if they may be consonant with what medieval and modern Catholic theologians wrote about political theory. (Which is not to say that attempts to link St. Robert Bellarmine to the Declaration of Independence are historically correct or the attempts to appropriate his writings in defense of the American "Revolution" are faithful to what he thought. I remain undecided on these questions.)

From Union to Empire: Essays in the Jeffersonian Tradition
South Carolina League of the South

The Essential Aims and Ends of Government by Richard E. Wagner
(via The Western Confucian)


The Role of Robert Bellarmine in the Filmer-Locke Debate
Answers.com
The Bellarmine-Jefferson Legend and the Declaration of Independence By David Schley Schaff

I haven't been able to find the exact title for that short book about Bellarmine that I was thinking of when I wrote the last part of the post...

Catholic Founder: Charles Carroll by Bradley J. Birzer
How Charles Carroll Influenced U.S. Founding Fathers (Part 1)
Part 2
EWTN archive

A discussion of Dr. Rao's Founding Fathers vs. Church Fathers

Started on July 28.