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Victor Nuovo: Establishing the rule of law in America

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Posted on September 21, 2017 |
By Victor Nuovo



Editor’s note: This is the 25th in a series of essays by Middlebury College Professor Emeritus Victor Nuovo on the origins of western political thought.

The United States of America came into existence on July 4, 1776, when delegates to the second Continental Congress adopted a resolution declaring that the original thirteen colonies were no longer colonies of Great Britain, but “Free and Independent States,” and that as such, they had “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”

This was the conclusion of the Declaration of Independence.  But it was only the beginning, for the thirteen colonies — now by their own declaration, independent states — intended to stay together. Unity was deemed necessary for neither of them alone had power enough to defend themselves against their former sovereign, Great Britain, and it was clear that the British government was not about to let any of them go.

The Continental Congress continued to meet, and two years later, on July 9, 1778, it voted to form a confederacy, “a perpetual Union,” to be named “The United States of America.” To that end, Congress enacted the Articles of Confederation.

By these articles, each state committed itself to mutual friendship and assistance, and the citizens of one state became citizens of them all, with all rights and immunities. Paramount authority was given to Congress (“The United States in Congress Assembled”) to wage war and make peace, enter into treaties with foreign powers, to regulate commerce, and to create currency.

A common treasury was created, as well as a standing executive committee (the Committee of the States) consisting of one member from each state, which would carry on the business of government.

However, neither the Congress nor the Committee of the States was empowered to act in any of these ways without the consent of a super majority of 9 of the 13 states. No standing army or navy was established. Assembling and arming militias and building warships remained the responsibility of each state; in time of war, Congress was empowered to requisition them and to appoint a commander-in-chief to lead them.

These arrangements proved sufficient to allow the United States to wage war successfully against Great Britain and gain its independence. In 1783, the Treaty of Paris was signed, which ended the war and granted The United States territorial rights to an area bounded by the Mississippi on the West, Canada on the North, and Florida on the South.

But, in spite of this victory, the United States remained a mere gathering of states, each jealous of its freedom and independence, obsessed with self interest, willful, irrational and each with its own militia. What seemed to be irresolvable conflicts continually arose within and among them. And there was no national agency with power enough to establish and maintain peace.

It soon became clear to some cooler heads that if the United States of America was to endure, it was necessary to find a more durable legal way to make them into an indivisible nation, to form a more perfect union. To accomplish this, it was necessary to begin at the beginning, to rely on an authority that was prior to or more fundamental than the states and their constitutions.

Taking a page from Locke, they looked to the people, and fashioned the notion of “the People of the United States,” whose sovereignty they regarded as more fundamental than the sovereignty of any individual state. It was concluded that the United States of America could become one nation only by the authority of the People, and that this must be accomplished by creating and adopting a constitution, one that did not depend merely on a consensus of delegations from the states, but was “ordained and established” by the People.

It is important to recognize that the Constitution presents itself as a public declaration, with a voice, the people’s voice, that addresses the world in its magnificent preamble, which states its action and clarifies its purposes:

“We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

And in Article VI, it is declared that this Constitution would become a fundamental law, the supreme law of the land, with which all laws and treaties, as well as all judicial decisions, if they are to count as law, must be consistent.

Also in Article VI it was directed that all office holders of the legislative, executive, or judicial branches of government, either of the states or the nation, shall be bound by oath “to preserve, protect, and defend” the Constitution.

There is an essential difference between the Articles of Confederation and the Constitution. The former is like a treaty between constituent states, which claim nevertheless to be sovereign and independent. The latter, which negates this claim, is more binding; it is an enactment by the People of a fundamental law, indeed it is presented as their original creation, as their primary will. It is noteworthy in this respect that, unlike the Declaration of Independence and the Articles of Confederation, there is no mention in the Constitution of a higher authority than the People, no references to divine providence. The Constitution is pure law and purely secular.

But who are “the People” credited with its creation?

Remember that the United States was from the outset conceived as a republic rather than as a direct democracy. Madison maintained that the will of the people is the foundation of any true republic, but it is filtered through representatives, who are, to be sure, popularly elected or, in the case of appointment of judges, are selected in a public and open process.  

So is the notion of “The People” a fiction? Perhaps, yes, if one takes the expression literally. But in another respect, no, because “The People” refers to something very real.

Representatives are not private persons, but bearers of the people’s will, which wills the public good. Sovereignty of the people transcends all other claims to sovereignty or presumed rights to exclusive power, whether that power is wielded by a hereditary monarch, a tyrant, a dictator, a religious prophet or the privileged few; it overrules them all.

The People’s sovereignty is established by a fundamental law, the Constitution. Indeed, “We the People of the United States” means nothing without the Constitution. Together, they may be our surest defense against tyranny, the surest antidote to fractious conflicts, and an effective instrument, perhaps the only one yet designed, to secure for us and our posterity the blessings of liberty. 

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