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Popular Sovereignty and Seven Fundamental Principles of Constitutional Law

by Professor Will Huhn on March 15, 2011

in Constitutional Law,Wilson Huhn

The foundation principle of Constitutional Law is that the people are sovereign – all just powers of the government are derived from the consent of the governed.

In an article recently published by William & Mary Bill of Rights Journal I propose that seven fundamental principles of Constitutional Law are derived from the notion of "popular sovereignty" – the idea that the people are sovereign.   Those principles are:

1. The Rule of Law. The people are sovereign and their will is expressed through law. The Constitution is ordained and established as law â the supreme law of the land.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government is bound to respect.

4. Equal Political Rights. Each person is a sovereign political actor; therefore each person has an equal right to participate in government. Accordingly, the Constitution protects freedom of political expression, freedom of political association, the equal right to vote, and the principle of majority rule.

5. Separation of Church and State. The people are sovereign, not God. Laws reflect the will of the people, not the presumed will of God. Religious authority is not a legitimate basis to support the enactment or interpretation of any law or the adoption of any official practice.

6. The Power of the National Government Over the States. The American people are sovereign, not the states. No state has the power to secede from the union or to nullify any federal law. The states retain only those powers not granted to the federal government or reserved to the people.

7. National Independence and the Limited Authority of International Law. The American people as a whole are sovereign and independent and are not subject to any foreign law or power. The political representatives of the American people have the power to abrogate treaties or other forms of international law.

The historical evolution of the principle of popular sovereignty and its influence on Constitutional Law is discussed in the article  Constantly Approximating Popular Sovereignty: Seven Fundamental Principles of Constitutional Law, 19 William & Mary Bill of Rights Journal 291 (2010)

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

{ 7 comments }

larry d. March 15, 2011 at 12:04 pm

Number six sounds like a stretch, professor. I don't doubt that the national government has power over the states, but I can't see any rationale supporting that from the popular sovereignty angle. I'd think the idea of popular sovereignty would work in the opposite direction. Home rule and all that.

Agroprom Research March 15, 2011 at 1:03 pm

I am Sovereign by birth, and I do not bestow any power upon any entity to impose its will or law upon me. The Constitution is a manifesto drafted by people from a bygone era, THAT do not reflect my interests, and amended by criminals to fit their needs. Interpreted by law professors to advance their political agenda.

Dan S. March 15, 2011 at 1:30 pm

I may be missing something in your post AR, so am I correct in understanding that you believe that all humans on the face of the planet known as Earth are totally without obligation to acknowledge and/or adhere to any rules, laws, or policies that were promulgated by any entity other than themselves?

CAV March 15, 2011 at 4:53 pm

It sounds like that to me also. I don't think I would want AR as a neighbor.

Ken Jacobson March 16, 2011 at 6:47 am

It's good to know that 2000 years of human experience means NOTHING now that YOU are here.

Ken Jacobson March 16, 2011 at 6:59 am

Professor, an interesting take. I think 1-4 as well as 7 are right on the money. I think no. 5 is unnecessarily provacative, potentially offensive, and a complete misunderstanding of what it is that our founding fathers believed. You are a far more credible constitutional scholar that I am, but I think 5 should read:

"The people are soverign, because God has made it so. The laws reflect the will of the people because God has made this so. God is a legitimate source of the basis of natural law, from which all of our liberties derive. Chief among these liberties is the freedom to worship God free from government interferance."

Clearly I am biased on this issue, but I think my wording better reflects the ideas of the founding fathers.

Also I think 6 has way too federal a bent, and aside from a bloody war, I am not sure what the constitutional basis is for this idea of states not being allowed to opt out. Surely we do not want the union to fall apart, but which constitutional provision said once you are in, you are in forever? What if the soverign people of a state no longer want to be part of the Union. If they can't leave, then they aren't really soverign…. the federal government is. I think you need to rework 6.

Brian Stewart March 16, 2011 at 11:45 pm

3. "which the government is bound to respect" i'd say more like will not infringe…ever.

5. its just all bad. thought the 10 commandments were the basis for all laws

6. The states retain only those powers not granted to the federal government or reserved to the people. ya i think you have it backwards… the 10th amendment at least used to be pretty clear. i think youre gonna see alot more nullification by the states.

i really like 7. course i like most of it! Eh what do i know…just a fireman. Darn supreme court cant even agree.

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