The Limits of Sovereignty
Baldwin, Summerfield
428 THE LIMITS OF SOVEREIGNTY By SUMMERFIELD BALDWIN THE wide-spread disregard of the Eighteenth Amendment and the statutes intended to give it effect, serves to underline certain political...
...By nature also, he is incapable of acting against the fundamental law of the state...
...The Eleventh Amendment is an explanation of the federal judicial power...
...God "cannot" do evil...
...Even the most ardent opponents of the whole prohibitory system find it difficult to present really impregnable arguments in support of their opposition...
...Why cannot the sovereign break the divine or natural law...
...Some argue that it is unenforceable, but forget that all laws are unenforceable in the sense that their existence prevents their breach...
...What has never been noted about the Eighteenth Amendment is that it attempts to introduce new matter into an already solidified cement...
...It is needless to observe that this proposition holds, no matter what number of persons may at any given time exercise sovereignty...
...The test is ultimately empirical in such matters...
...Arnesaeus, following Bodin, illustrated this non posse more forcefully still...
...To understand this phenomenon it is necessary to reexamine the nature of the governing power by which laws are made and enforced...
...The commonwealth shrugs its shoulders, puts up with the petty tyranny of coercion, and goes its way...
...Acts of the sovereign power not directed to the common good, or directed against the common good, are in contravention of the fundamental law...
...Singularly unconvincing, for example, is the argument that what the law itself calls a malum in se, an evil automatically repulsive to the moral codes of all moral men, should alone be the subject of positive legislation...
...There was no legal power to veto this command of the sovereign, but the tide went on rising...
...The Fourteenth Amendment is substantially a reenforcement of this Bill of Rights...
...It is urged that the Constitution should not be made the vehicle of positive legislation, but it is forgotten that a number of statutes, notably that relating to the slave trade, are embedded in the original document...
...He is free from law...
...Bodin illustrates this last type of restraint by the Salic law...
...All legislation infringes upon liberty, and even if it be granted that there ought to be a line where such legislation stops, there is no rule by which this line can be settled upon, nor is there any reason to suppose that the line itself is a constant one from generation to generation...
...God is omnipotent, but God "cannot" destroy Himself...
...These arguments, in short, are not convincing...
...There is no certainty that personal liberty has been unduly infringed...
...It is manifestly in excess of sovereign capacity, and we are reduced to the conclusion that it is an infraction of the fundamental law of the state...
...No other change in the Constitution has done this...
...Of course it is not...
...He cannot in precisely the same way that the sovereign Canute could not command the tide...
...The answer leaps to the eyes...
...They are accustomed to argue that, because Christ made wine at Cana, there is an actual moral duty to make wine resting upon all Christians...
...establishing Mor-monism as a compulsory religion...
...That very wide-spread disregard, that want of any conscientious stigma attached to its breach, is evidence that the sovereign has been like Canute in this matter...
...Where, as in the case of the Eighteenth Amendment, the decree is merely ridiculous, we in this country know what happens...
...It is daily broken by other millions who go their Way with light hearts, who enjoy the friendship and admiration of even their most fanatically dry neighbors, who are in every other respect model members of their communities...
...Bodin has given us the most successful definition of sovereignty when he calls it the supreme power over citizens and subjects unrestrained by laws...
...but substantially it is no law at all...
...There is no power to restrain God, but it would be contrary to the divine nature, destructive of the very definition of Godhead, if He were to "do evil...
...The very number of those who regard the community as rather hurt by it than benefited, may be offered as proof...
...Yet the Eighteenth Amendment is contrary neither to the divine nor to the natural law...
...Others object that the Eighteenth Amendment is unworthy of obedience because it never received popular assent...
...There is much reason for contending that the Eighteenth Amendment is not directed to the common good...
...In its accidents the command was a sovereign act...
...his decree has all the forms of a valid act...
...It can no more be embedded in our fundamental law than an extraneous brick can be made part of a solid and symmetrical wall...
...It was not foreign to the fundamental law to prohibit slavery also...
...excluding the electors of the state of New York from participation in the next presidential election...
...He has attempted to command the tide, and his command has no more value than the breath which uttered it...
...The Fifteenth and Nineteenth elaborate the meaning of the constituent body, the electorate...
...in its substance it was nonsense...
...Despite fines, prisons, enforcement agents, the impossible cannot be done...
...Yet Bodin recognizes that while sovereignty is supreme and cannot be legally coerced into doing or refraining from any act, it is by no means a universal power...
...It is legally possible for an amendment to be enacted forbidding the manufacture and sale of foodstuffs...
...The community is the ultimate judge of the common good, and there must be substantial unanimity in its judgment...
...it is being constantly enforced, for the courts are crowded with offenders...
...A sovereign's decree contrary to fundamental law is again accidentally an act of his power...
...If the assault upon the fundamental law is more serious, the commonwealth destroys its sovereignty as inevitably as the tides would have drowned Canute had he not moved his throne...
...There is no real need to show the folly of this contention...
...The Bill of Rights, the first ten amendments, are only amendments in form...
...It is the law of which Saint Augustine spoke when he asked what kingdoms were, if not great robber bands once justice was removed...
...nothing can touch him...
...Even the Thirteenth Amendment, supposedly the parallel of such an act as the prohibition of liquor, is not really new matter...
...and formally it has as good a right in the Constitution as anything else...
...428 THE LIMITS OF SOVEREIGNTY By SUMMERFIELD BALDWIN THE wide-spread disregard of the Eighteenth Amendment and the statutes intended to give it effect, serves to underline certain political truths which democratic politics has generally tended to ignore...
...It cannot seriously be contended that the Eighteenth Amendment is more of an infringement upon personal liberty than any other legislation...
...but substantially it may be exactly nothing at all...
...The ratification of the original implement was conditioned upon their immediate adoption...
...Even the thief is likely to admit that laws against theft are for the common good...
...So the sovereign, whom no man legally can coerce, is by nature incapable of acting contrary to divine and natural law...
...On the other hand, it is equally evident that positive legislation has never been employed, cannot be employed, to enforce some of the greatest of moral evils...
...He took it to be fundamental to the French monarchy that the crown could not be inherited by or through a woman, and there was no power in the French sovereign to change this law...
...What, then, is the result ? The Eighteenth Amendment demonstrates, it would seem, that the most democratic governmental machinery, the greatest pains in distributing the exercise of sovereignty, cannot prevent the sovereign on occasion from attempting to decree what he cannot decree, from using mere coercion to make those who refuse to obey him suffer for their rebellion...
...Is it substantially a sovereign decree...
...The slave trade had been constitutionally prohibited...
...The democratic method of counting heads is a makeshift device for discovering these judgments, but mere majorities in elections, even substantial majorities, are by no means a proof that the community is agreed...
...There are and have always been countless mala prohibita—evils created by statute for the common good but finding no certain authority in any system of private ethics...
...But whichever organ of sovereignty enacted it, the Eighteenth Amendment to the Constitution is, at least accidentally, a sovereign decree...
...making the Presidency an hereditary office...
...What is the sense of this non posse, this "cannot" applied to the supreme power...
...This constitution is the cement of the commonwealth...
...The Sixteenth enlarges or restates the ordinary sovereign power of taxation...
...It cannot act contrary to divine law or the law of nature...
...A few enthusiasts have gone so far as to contend that the Eighteenth Amendment contravenes the moral law...
...It will at once be urged that the Constitution is the fundamental law, that the Eighteenth Amendment is part of the Constitution, and that therefore it cannot be held in contravention of the fundamental law...
...Yet there is some reason for suggesting a criterion of fundamental law in a country possessing such a written constitution as ours...
...Furthermore, it cannot act contrary to the fundamental law of the state...
...Furthermore, the essence of the fundamental law is simply the common good of all, and the sovereign power is consequently limited as to its end...
...the Eighteenth Amendment was legally adopted by stupendous majorities...
...What puzzles conscientious people is the constant and apparently cynical neglect of civic duty manifested by respectable persons whose views of the generally binding force of law are otherwise unimpeachable...
...Yet any such amendment would contravene either the natural or the fundamental law and be void of force...
...Yet this law, having behind it the enthusiastic support of millions of citizens, commands no real respect whatever...
...Slavery was considered a matter within the purview of constitutional action when the Constitution was adopted...
...In our country, sovereignty has been so morselated that publicists hardly know where to allocate it...
...The Twelfth and Seventeenth are mere alterations in the mechanics of choosing officers...
...This fundamental law is the cement by which a congeries of men become a commonwealth...
...The Eighteenth Amendment, then, is an innovation...
...there is no moral duty to make alcoholic liquors...
Vol. 5 • February 1927 • No. 16
