Popular Sovereignty at Last!

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Published on: June 1, 2016

The operating thesis of AmericaAgain! is popular sovereignty: the idea that We The People rule ourselves by consent of the governed and by governing governors. This was the operating premise of the framers of the Constitution. That ‘supreme Law of the Land’ demands a self-governing people who govern themselves and their public servants, who represent and serve the self-governing sovereigns while also governing the incompetent and the lawless.

Human beings are created equal in the eyes of God. But being a fallen race, we begin even in childhood – with the influence of parents and others – to self-select into a behavioral bell curve, by our choices and actions. From the lowest standard of human conduct to the loftiest, history proves that intellect and wealth have very little to do with the human bell curve.

Despite this reality of human nature, American civilization was unique because it is grounded in the New Testament. Yet, the atheist who asserts the opposite of America’s ethos still enjoys the same liberty as the devout Christian. The instructions and example of Jesus Christ are largely antithetical to other religions, and scriptural self-government is antithetical to anarchy. Since our founders believed that mankind is basically sinful as noted above, ungovernable individuals must be restrained through God-ordained coercion – the sword of Romans 13.

The Need for AmericaAgain!

I found it unbelievable that popular sovereignty is perspicuous in the U.S. Constitution from its opening phrase to Amendment X, yet I could not find a single book explaining or even substantively treating the practice of popular sovereignty. How do We The People actually perform this?  (He who responds, “By voting, of course!” only embarrasses himself.)

It was in this popular sovereignty vacuum that I published my latest book, Fear The People. Although I could find no book about the practice of American popular sovereignty, former Stanford Law School dean Larry Kramer came closest to the mark with The People Themselves: Popular Constitutionalism and Judicial Review.  That masterful work appears to have made Mr. Kramer a pariah in the eyes of the ConLaw guild. But it articulates Madison’s nuanced popular sovereignty, which was never as populist as Jefferson’s. While the book never explains how the American people should perform ‘popular constitutionalism’, it does explain the bedrock principle conveyed in, “We The People…do ordain”: quite simply, we are the highest authority in government.

In Fear The People, I unpack the process in detail, how even half of 1% of We The People can exercise the duty and power of popular sovereignty for the first time in history, as the world watches. A free people actually self-governing, by merely enforcing our U.S. Constitution, without resorting to civil war, rebellion, or even civil disobedience – the most ludicrous form of abdication in American civic life.

Finally living out American popular sovereignty is vital to the trajectory of the entire world at this time in history. As responsible sovereigns, we must learn to graduate from social media slacktivism (futile ‘likes’ and ‘views’); to overcome the whirl and din of manufactured geopolitical saber-rattling and media manipulation. We must punch through the systemic criminality of Congress, papered over with electoral nostrums and lawyerly gobbledygook. And presently, we must leave behind today’s public debate at the intellectual and emotional level of a kindergarten playground.

AmericaAgain! has a profound, historic mission. As the responsible remnant of We The People actually enforce the stipulated terms of the U.S. Constitution against violations by our state and federal servants, we will roll out our first tactical action, called Ratify 28. That will create about 6400 small districts in ‘the People’s House’, creating the first opportunity in 200 years for congressmen to actually represent their neighbors – and to do so while working full-time in their districts.

That historic reform will be followed by our AmericaAgain! Good Guys™ project, which will have as many as 6400 House candidates and 33 new Senate candidates publicly support or reject the 22 reform laws proposed by AmericaAgain!, detailed in Chapter 12 of Fear The People. Once we have completely revolutionized the People’s House, we will have the first ‘big Congress’ in history report to Washington D.C. for perhaps as little as one week, with only one final task for Congress in that idolatrous, corrupt city: enact our Bring Congress Home Act, and return home – where Congress will serve us as the world’s first distributed legislature, a model for the 21st century. Finally, the world will witness true American popular sovereignty.

The Sovereign’s Prerogative: Power to Command and Coerce

If popular sovereignty is to have meaning, We The People must actually enforce the Constitution. One cannot accurately say that our ancestors refused to do this; they simply could not find a mechanism to do it. Whatever the source of their abdication, our ancestors did abdicate their duty. Now the abdication must end, with us.

John Taylor of Caroline was a rabid States’ Rights fundamentalist in Patrick Henry’s cohort, who maintained that the word sovereignty should not even be used in this way, asserting that God alone is Sovereign. Yet the framers of the Constitution knew human nature, and that someone always rises to the top, either to govern or extort the masses. Whatever label one uses, history and law traditionally used the term sovereign.

In Philadelphia during the sultry summer of 1787, after a long iterative process (773 years since the Compact of Ethelred in 1014 A.D.), the term sovereign was transformed from monarchs to a collective of the people. But it only retained meaning to the extent that the sovereign could enforce its prerogatives. This is what Ben Franklin meant in responding to Lady Powell that they had given us, “A republic, madam, if you can keep it”. The elder statesman sensed what subsequent history proved: a collective sovereign was unprecedented and would be exceedingly difficult to maintain.

Obviously, man cannot exhibit in several persons the perfect unity of intent and action as does our Triune God – so how does a human collective act as a sovereign?

The Founding Fathers designed a servant government with enumerated powers clearly stipulated in our Constitution from its opening phrase to Amendment X, yet offering the new sovereigns no direction on how to actually enforce the ‘supreme Law of the Land’ when violated by our unique new servant-governors. Yet the fact remains: until We The People do in fact enforce the exact, written stipulations of that highest law – no more and no less – our corrupt servants will continue to fool and pillage us on behalf of the wily top 1% of 1% of Americans, who have no qualms about living beyond the laws.

The late atheist scholar Edmund S. Morgan in his classic Inventing The People: The Rise of Popular Sovereignty in England and America suggests that ‘We The People’ will always be elusive; that it was merely a pleasant grail rather than a way of life actually to be pursued. In his American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War, Professor Christian Fritz does not fare much better, surveying three occasions on which America’s sovereign collective, as a mob, sought to amend the U.S. Constitution – but never to simply enforce it!

The same is true today: most disgruntled or disenfranchised Americans – including staunch constitutionalists – now see fit to call for ‘revolution’. If the problem is that the servants are violating the highest law, how can the solution be for the sovereigns to act as a lawless mob, in ‘revolt’? America’s War for Independence and our founders’ U.S. Constitution formed the clearest historical antithesis to the French Revolution and the social and economic retrogression that followed that mob revolt. No mob of serfs will ever exercise the duty and power of the sovereign! We The People granted ourselves a staggering level of authority and power, even as we created our federal servant in the Constitution. Now, we must finally meet our responsibility, as no generation before us has done.

Can it be done, in the face of every Washington D.C. arrogation – tyrannical agencies, bureaus, departments, regulations, programs, fees, fines, taxes, and a pompous new assertion every month?

If we are repentant and responsible, yes!

As an engineer by profession for three decades, I saw computer technology and social media – both of them, staggeringly powerful tools – not being put to their highest and best use. What I refer to as tactical force-massing is simply applying Information Age technology and mass communication to the largest-scale, most obvious crimes being committed on earth today.

Of course, criminality in public office is not limited to Washington D.C., but is found wherever people have access to money or other valuables, without requisite supervision. I should think the people of Mexico, China, Pakistan, Italy, Russia and countless other nations will continue to suffer corruption at the hands of their governments – but it need not be so with us.

We The People stipulate precisely what our servant government can provide for us as services, and we retain all other conceivable powers and activities for ourselves. Thus, the mission of AmericaAgain! is to restore American popular sovereignty by helping America’s responsible remnant become the first population to apply modern technology to its highest and best use.

Some academicians may reject my using the term ‘restore’, contending that Americans have never truly practiced popular sovereignty, nor do the American people exhibit the characteristics of a sovereign, even if they grant that by opening the Constitution, “We The People…do ordain…”, the framers truly did seek to institute sovereignty in the historic sense of the term, somehow.

I respond that, as mentioned earlier: even half of 1% of the American population will be sufficient to exercise the oversight function of a sovereign.

Problem: The One and The Many

There is no point in remaining mired in the historic sense of the term sovereignty, in which a monarch or other potentate or oligarchy alone could possibly enjoy the benefits of sovereignty, at the expense of the many. This may have been true prior to the creation of the American constitutional republic, but it only remains true for today’s 1,980 American billionaires and few hundred top corporations because We The People have not employed the tactical force-massing power of tens of millions of disgruntled, angry Americans.

Now, with the inimitable Mr. Trump keeping the stage lights on, we will.

Witness the very incremental progress of human liberty entailed in the 1,000-year gestation of our Constitution. Many authors and speakers including KrisAnne Hall (popular TEA Party speaker, author and former assistant state prosecutor, with whom I can only find this one fault) have taught that the wellspring of English Common Law began at Runnymede in the summer of 1215 AD. This is not so; as I explain on page 11 of Fear The People, our rule of law had its origin in the Compact of Ethelred in 1014 AD, followed by the Charter of Liberties in 1100 AD, and then came Magna Carta and the others.

From this long process of iterations both bloody and peaceful, came our rule of law: sovereignty from a single monarch to various arrangements of oligarchy, but never yet a true collective sovereignty.

Consider the constitution just prior to the current one; Articles of Confederation between 13 sovereign states (countries) that had received signed originals, a Treaty of Paris from George III, after our War for Independence. It is important that there were 13 such sovereign countries (new American states) with which George III and Parliament had to seal terms for peace. Note that the Founding Fathers consistently wrote, “the United States do…” and never, “the United States does…”. We are many sovereign states in one constitutional republic; not a unitary ‘nation’.

Due to the difficulties between the newly-sovereign states operating as a collective (e.g., against foreign attacks, claims, or encroachments), Madison and his cohort pushed for the new Constitution. But it would be inaccurate to suggest that he – or any of the delegates to the 1787 convention – knew how the system would flesh out over time. How was this new, sovereign ‘We The People’ to keep its new-hatched creature at bay? Patrick Henry, John Taylor, and their ‘Anti-Federalist’ cohort maintained that we could never do so.

Hamilton Against America; Hamilton Against Himself

James Madison was surely not the rank Federalist that Washington or Adams were; but still, Madison was initially more Federalist than Republican. Republican was the name of the party that Jefferson and Madison founded after Hamilton led Washington to approve the First Bank of the United States and Adams to acquiesce in the unconstitutional standing ‘New Army’. Although Madison later authored the Virginia Resolutions, seeking to shunt the power of the federal government in favor of the states, the ‘Father of the Constitution’ was not always for actual popular sovereignty. It took a snake in the grass to push Madison to Jefferson’s camp, as a practical populist who finally supported state sovereignty if not popular sovereignty.

But it is important to note here that the Constitutional Convention summarily rejected the ‘British Plan’ proposed by Hamilton. It would have dissolved the sovereign states into a ‘nation’ with one parliament – and with a king. As Thomas DiLorenzo explains in his superb book Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution–and What It Means for Americans Today  and John Ferling concurs in his biographical survey,  Jefferson and Hamilton: A Rivalry That Forged a Nation, Hamilton and his cohort may not have won their holy grail – American subjects ruled by a king and parliament – but Hamilton did establish his beloved banking cartel, a central government predicated on financial speculation and plunder, and a full-time standing army – all institutions that violated the Constitution and the bedrock principles of the Founding Fathers.

The Sovereign Individual: Pure Lunacy

In a 2007 essay entitled The People or The State?, Georgetown University Professor Randy Barnett contends that the U.S. supreme Court ruling in Chisolm v. Georgia was a more vital precedent than John Marshall’s dictum in Marbury v. Madison.  Barnett contends that American law schools studiously omit Chisolm in the Constitutional Law courses, because to teach the interpretation of the founding-era justices in that seminal ruling would render The People much more powerful and the federal courts much less so.

My response to Professor Barnett at the time was (and still remains) that he goes too far in asserting individual sovereignty of the People, repeatedly conflating the words ‘joint’ and ‘individual’, which are of course mutually exclusive. At AmericaAgain! we continually stress that when one speaks of popular sovereignty, one is specifically NOT contending that every American is a sovereign, individually! Such unsupported ideas give rise to such lunacy as the ‘sovereign individual’ groups forming ad hoc ‘people’s grand juries’ and other novelties, with no result other than to be jeered off the stage, or worse.

Professor Barnett couches his discussion in terms of the Chisolm decision, and the Eleventh Amendment.  His conclusion is that the Eleventh Amendment only establishes that states have limited sovereign immunity (specifically, against litigation by individuals) but that Americans individually retain all other benefits conferred on sovereignty other than the power relinquished in Amendment XI (power to sue a state).

In the practice of statutory interpretation, the Plain Meaning Rule was designed to keep courts from taking sides in legislation. The principle is: A statute is to be interpreted using the ordinary meaning of the words contained in the statute, read word for word and interpreted according to the ordinary, everyday meaning of the words unless that statute explicitly defines some of its terms otherwise*, or unless the result of using the plain meaning of a word would produce a cruel or absurd result. Ordinary words are given their ordinary meaning, technical terms their technical meaning, and local colloquialisms their local meaning.

Since the U.S. Constitution does not contain a definitions section, nor does it apply ‘people’ as referring to an individual American, one must apply the Plain Meaning Rule to that supreme Law of the Land, every word in it. Thus as one reads the opening phrase, ‘We The People of the United States’, who in that highest law, ‘do ordain’…one must conclude that ‘We The People’ can only refer to the collective sovereign of our republic. I here assert that this collective sovereign need not be a majority or even a significant plurality, but only a tactical remnant, when we engage in enforcing the Constitution as written. I further assert that this holds true, regardless how many contented Americans may be benefitting from Washington D.C.’s violations of the law.

Make of it what you will, we have no other course open to us as history unfolds – and economies collapse.

* It is not uncommon in American law, to encounter absurd definitions. For instance, if the word door is defined in a particular law as meaning, “a teacup made of fine bone china (soft-paste porcelain composed of bone ash, feldspathic material, and kaolin)”, then wherever in that law the word door appears, one must read, “teacup made of fine bone china”. Yes, this is very silly, but lawyers are an odd folk.

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