This week, I've been working on the section about the powers of Congress. But before Mr. Amar really talks about the powers of Congress, he talks about sovereignty, and that's been a very interesting discussion. Jefferson wrote in the Declaration of Independence that governments function by "deriving their just Powers from the Consent of the Governed." Ezra Taft Benson discusses this in his essay, The Proper Role of Government, so I was already familiar with the idea of popular sovereignty. What I hadn't considered before was what a huge departure from established ideas of government at the time.
Mr. Amar begins by laying some historical background information:
Prior to 1763, a rough working arrangement had emerged within the [British] empire, whereby each provincial American assembly decided matters of taxation and internal affairs while London regulated trade among different parts of the whole and promulgated general foreign policy. In most colonies, a resident governor appointed in England could irreversibly veto all assembly bills, which could also be set aside by the British Privy Council. Then came the 1765 Stamp Act, the 1767 Townshend Duties, the 1773 Tea Act, and the 1774 Coercive Acts, by which Parliament asserted authority to saddle colonists with newfangled internal taxes, other revenue-seeking duties, and a variety of intrusive internal regulations. Outraged, some advanced American thinkers in the mid-1760s laid the intellectual framework for complete American independence from Parliament. ... Most American patriots before 1775 took a more moderate position. Essentially, moderates proposed to constitutionalize an early version of federalism by codifying the working arrangement that had prevailed before 1763: Provincial assemblies should retain power over internal matters and taxes while Parliament and the king could continue to manage imperial trade, continental defense, and foreign affairs.
British authorities countered American moderates' proposals with the absolutist logic of parliamentary sovereignty. Sovereignty implied legal omnipotence - plenary power over all colonial matters, whether external or internal. (Page 105)
From the perspective of Parliament and King George, it actually kind of makes sense: absolute rule had been the rule for a very long time, and they saw no reason why it should change now. The colonists were in a snit over some taxes, but those taxes had been levied in order to pay for the French and Indian War - essentially, to protect the colonists - and they'd get over it. In the mean time, it makes sense to assert their proper authority over the colonies, lest things get out of hand. Only that wasn't the way things happened. The colonies didn't get over it. They created new ideas about how sovereignty works, and a whole new form of government to go with it.
In response, Americans ultimately declared their independence not just from the old empire but also from old ideas of sovereignty. Led by Wilson, American legal theorists in the 1780s conceptually relocated sovereignty from Parliament to the people themselves, and thereby fashioned an intellectual framework facilitating the constitutionalization of federalism, separation of powers, and limited government. In this new framework, no single government entity had, or of right ought to have, all power. Sovereignty originated and remained with the people, who could parcel out and reclaim discrete chunks of power as they saw fit. Thus, the people could divide power howsoever they chose between their state and continental officers, or among different branches within the continental government. Or they could choose to withhold some powers from all governments.
The challenge confronting America in 1787 was to avoid both a dangerously strong central government (Parliament) and a dangerously weak one (the Confederation Congress). (Page 105-106)
There are a couple of ideas in here that I find intriguing. One of them is that the main arguments of the anti-federalists was not that there would be too little government, but that the Constitution would create a central government that was much to strong. Given the current opposition to limiting government - to a live and let live culture - objecting that the proposed federal government would be too big and too strong, particularly when it was so small compared to current levels of federal intrusion, was not something that had occurred to me.
Another idea worth of some time and effort is this idea of Popular Sovereignty. As I watch what happens in our nation, politically, I am struck by how little "We the People" pay attention. I certainly didn't pay attention much, prior to the 2008 election! I think that the People are too little aware of their sovereignty, or of the powers and responsibilities that go with it. We talk about Congress as if they have the powers that Parliament asserted they owned: unquestionable right to do whatever they want. And when the People do speak up, as they did in the 2009 Townhall Meetings about health care, Congress (particularly Democrats this time) belittles the People when they do show up and chastise their elected officials, as is their right. Congress reacted as if such chastisement was beneath them and was completely out of line. In reality, that was the People of these United States acting in their proper, sovereign capacity. Congress blew it off, saying it was the work of a few well-organized malcontents. I think - I fervently hope - that Congress has dramatically misjudged the mood of the nation. The recent election of Scott Brown is, in my eyes, an encouraging sign that the People are awakening and becoming more willing to act in their proper capacity: as the ultimate "check" on our out-of-control federal government.