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Sovereignty and the New Executive Authority$

Claire Finkelstein and Michael Skerker

Print publication date: 2018

Print ISBN-13: 9780190922542

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780190922542.001.0001

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Sovereignty and Executive Power

Sovereignty and Executive Power

Chapter:
(p.85) 5 Sovereignty and Executive Power
Source:
Sovereignty and the New Executive Authority
Author(s):

Christopher W. Morris

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190922542.003.0006

Abstract and Keywords

States claim sovereignty, that is, to be the ultimate source of political authority in their realm. The classical conception of sovereignty defended by early modern thinkers such as Hobbes and Rousseau would give the sovereign extraordinary powers, the authority to rule on just about any matter concerning its subjects and territory. Few today defend this classical conception of sovereignty as unconstrained authority; most everyone thinks that the powers of the state are constrained and limited. Constrained states can still be very powerful, and today many argue that the power of the executive branch of government, in particular, ought to be less constrained than it is thought to be. This chapter argues that the concept of the sovereignty of the state, whether understood in a classical way or as limited, gives little support to those who argue that the executive branch ought to be relatively unconstrained in the realm of security and foreign affairs. The doctrine of the sovereignty of the state does not single out any branch of government for distinctive powers. While there may be reasons intrinsic to sovereignty to attribute greater powers to states, these reasons don’t privilege the executive branch of government. Our executive branches are not sovereigns.

Keywords:   Hobbes, Rousseau, authority, sovereignty, executive branch

“[W]‌hen the president does it that means that it is not illegal.” Richard Nixon’s oft-quoted remark provides a focus for some of the recent debates about the power of the president in the American system. The context of Nixon’s claim suggests that it may be less radical a challenge to the rule of law than it is often thought to be.1 He is often thought of as a president who believed the chief executive officer of the United States is sometimes “above the law,” and this interpretation may be uncharitable. There are, however, many modern thinkers who have thought that the sovereign is above the law, that is, not bound by the law. And, we may add, many political actors have claimed to answer only to the Deity (or to History). They may also be thought to deny the old principle, nemo est supra legem. So we use the famous quotation to introduce our topic.

Early modern conceptions of sovereignty would place the sovereign above the law; indeed, they would endow sovereigns with quite extraordinary powers. Speaking of the monarch-in-Parliament, William Blackstone wrote that

It hath sovereign and uncontrollable authority in making, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession of the crown. . . . It can alter the established (p.86) religion of the land. . . . It can change and create afresh even the constitution of the kingdom and of parliaments themselves . . . It can, in short, do every thing that is not naturally impossible. . . .2

Blackstone also thought, as have many theorists, that in every form of government there must be a sovereign. Interestingly this thesis may have been influential amongst the founders of the American system. Gordon Wood writes that “By the early 1770’s, particularly with the introduction of Blackstone’s Commentaries into the colonies, the doctrine that there must be in every form of government ‘a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or rights of sovereignty, reside,’ had gained such overwhelming currency that its ‘truth,’ many Americans were compelled to admit, could no longer ‘be contested.’ ”3 I mention this for two reasons. The first is that the idea that every state must have a sovereign is not dead today, and it often influences debates about sovereignty. The second is that the powers of the executive have long been a concern to many. Many of the American founders and the anti-Federalists were quite worried about the possibility that the new framework of government would permit the executive to acquire the powers of a monarch: in the words of George Mason, “if strong and extensive Powers are vested in the Executive, and that Executive consists only of one Person, the Government will of course degenerate, (for I will call it degeneracy) into a Monarchy.”4

Today in the context of debates about executive powers and privilege, the concept of sovereignty has been invoked in defense of allowing the executive branch of government more power.5 There are reasons it might be good to endow the executive branch of government in systems such as that of the United States with more power, and there are reasons it might not be good to do so. I will not take a stance on this debate. Rather I propose to ask first whether traditional modern doctrines of sovereignty lend support to either side of this debate about strong and relatively unconstrained executives. I shall argue they do not. In fact, they may support constraints on the executive. I shall conclude by arguing that it is a mistake to frame contemporary debates about executive power in terms of the notion of sovereignty. Instead I shall suggest that these debates concern difficult questions about institutional design as well as the rule of law.

The first part of this essay will offer an analysis of the classical conception of sovereignty, as well as more attractive conceptions of limited sovereignty. I consider (p.87) the question of who, if anyone, might be sovereign, that is, possess the powers of sovereignty. The second part of the essay focuses on the question of the possible connections between notions of sovereignty and debates about executive power.

The concept of sovereignty has played an important role in modern politics and political thought. The origins of the notion are ancient, in Roman times, but it comes to life and acquires its shape in modern times, in seventeenth and eighteenth century Europe. It continues to play a role in contemporary politics, but its importance today is primarily in international affairs and law. It is a complex notion, and it is not clear how best to understand it. A commonplace distinction is often made between “internal” (or “vertical”) and “external” (or “horizontal”) sovereignty, the first pertaining to the governance of a state, the second to a state’s independence from other states. These two kinds of sovereignty were once connected. It is said that states are or ought to be the ultimate authorities in their territories while being independent of the authority of other states. The notion of external sovereignty figures centrally in international relations and associated areas of government and law. But today the relation between the two and indeed the concept unifying them are not always clear. Many questions in politics and law turn on how we understand the concept. The rights of states or international agents to intervene in the “internal” affairs of another state may depend on how we conceptualize the central notion of sovereign authority. The autonomy of peoples, such as American Indian tribes, or the powers of branches of government may also be affected by our understanding of the notion. Perhaps our understanding of the powers of the executive branch of government will as well.

I propose an analysis of the concept. Basically, something has sovereignty insofar as it is the ultimate source of authority within a realm. I explicate this understanding and show how the internal and external conceptions are related. Elsewhere I discuss what is problematic about the concept and how it is not easy to determine who or what might possess it; I have argued that it is not clear that anything is in fact sovereign or whether anything has all of the authority that makes up sovereignty.6 But I won’t emphasize my skepticism here. Our focus will be on sovereignty and the power of the executive branch of government in systems such as that of the United States. I propose now to ask whether traditional modern doctrines of sovereignty lend support to partisans of a strong and relatively unconstrained executive, and I shall argue they do not.

Our interest here in sovereignty is primarily in the idea of a ruler or government that is not itself legally constrained. This is a feature of what I shall call classical sovereignty. By contrast, the kinds of sovereignty that tend to appeal to us today are all forms of limited sovereignty. These do not claim that the sovereign is legally unconstrained. They do, however, claim that the legal limits on sovereign power are to be ascertained by the sovereign itself, and so these conceptions of sovereignty raise some of the same concerns as the classical conception. I shall first lay out an account of sovereignty.7

(p.88) What is sovereignty? It is a mistake to think that modern sovereignty is merely a restatement of ancient ideas about power and authority. Some elements may be present in different forms, especially in Roman law and of course in certain theological accounts of the Deity’s power. But the conception of political power attached to a new type of political order is novel: “at the beginning, the idea of sovereignty was the idea that there is a final and absolute political authority in the political community . . . and no final and absolute authority exists elsewhere.”8 The concept of the modern state in fact develops along with that of sovereignty, as is evident in the work of the master theorist of the modern state, where “Soveraignty is an Artificiall Soul” of “that great LEVIATHAN called a COMMON-WEALTH, or STATE, (in latine CIVITAS).”9

States not only claim ultimate power within their realms, they also claim independence of one another (“external sovereignty”). In rejecting the authority of popes and emperors, sovereigns asserted the state’s autonomy from other states. Not only is the state the author of its own laws—the etymological meaning of autonomos—the laws of others have no claim on it. With the advent of the sovereign state, relations between states or “international relations” become possible. Prior to this, there were no “foreign affairs” or distinction between internal and external, and the modern conception of the nature of world politics as a “anarchical” or unregulated was not yet possible. Once the sovereignty of states is recognized, their relations are thought to constitute a state of nature, one which, for many early modern theorists, was beyond law, a thesis defended now by some “realists”. For some, to such a state (of nature), “this also is consequent; that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have there no place. Where there is no common Power, there is no Law: where no Law, no Injustice.”10

In the early modern quarrel between monarchs and lords on the one side and popes on the other, the kings for the most part won, and they claimed what we now call sovereignty for themselves or their estates: they were to be the ultimate source of political authority within a realm.11 Their realm (or kingdom) was theirs, and unlike in medieval times, their authority over it was to be shared with no one. In the writings of early modern thinkers such as Bodin, Hobbes, and Rousseau, what we now think of as internal and external sovereignty are tightly connected. These thinkers thought sovereignty to have three important properties. It is absolute (legally unconstrained or unlimited), indivisible (unique and undivided), and inalienable (cannot be delegated or “represented”). It is the first that is of concern (p.89) here. If absolute sovereignty is attributed to states, then their authority cannot be constrained by international law or possibly even by the rights of individuals. Conceiving of sovereignty as absolute thus requires granting states considerable autonomy or liberty in their “international relations”: nothing is forbidden.

The core idea of sovereignty, that of the ultimate source of political authority within a realm, requires unpacking. Sovereignty is associated with modern kingdoms and states; the “realms” in question are the well-defined territories of such states. The relevant notion of political authority is more controversial. Something is an authority, in the sense relevant here, only if its directives are (and are intended to be) action-guiding. The law forbids us from doing certain things, and it intends these prohibitions to guide our behavior; specifically, these prohibitions obligate and are (meant to be) reason-providing. Authorities, then, mean to guide behavior by providing reasons for action to their subjects. On this view, political authority is not to be understood simply as justified coercion or force; sanctions or force may frequently be necessary as a means to make effective this authority, but the two are not to be conflated.12

Sovereignty is a kind of authority. The key to the notion is the idea of ultimate authority. What is it for a source of authority to be ultimate? An authority may be ultimate if it is the highest in a hierarchy of authorities. Such an authority may also be final: there is no further appeal after it has spoken (it has “the last word”). Lastly, an ultimate authority may be one that is supreme in a particular sense: it has authority over all other authorities in its realm. The state’s authority is thought to be sovereign in this sense; it takes precedence over competing authorities (e.g., corporate, syndicate, church, conscience). Summarizing, then, sovereignty is the highest, final, and supreme political authority within a modern territorial realm.

States claim sovereignty and also demand considerable loyalty from their subjects and citizens. Their power is considerable, and they frequently appear to resort to the use of force in securing their will. Presumably this is the source for the common characterization of states in terms of their concentrated power and their control over the use of force, and specifically, the source of the appeal of misleading Weberian characterizations (monopolies of legitimate force).13 The social order or, rather, orders from which the modern state emerged were ones in which governance was decentralized, fragmented, varied, overlapping and nonexclusive, mediated, and personal. These social orders were also part of Christendom, which constrained them, though its power and practical unity should not be exaggerated. Governance in the modern state is, by contrast, relatively centralized, unified, uniform, hierarchical and exclusive, non-mediated or direct, penetrating, impersonal and territorial. This is the home for the modern concept of sovereignty.14

(p.90) Why endow anything with sovereignty? Why entrust humans or human institutions with that power? The answer to this question will help us see how the notion might figure in debates about executive power. A common view is that while humans form large societies because of the benefits made possible by size, large societies are also threatened by conflicts (interests, values, culture, identities, religions). In addition, even in many shared projects that have considerable support, there may be significant incentives to “free ride” on the contributions of others. So a sovereign is needed to settle conflicts and to force free riders to support beneficial collective projects. Both require an authority whose directives (e.g., laws) can settle conflicts and deter behavior that would undermine the common good. Many political thinkers have offered reasons of this kind for the establishments of modern states, and thinkers such as Hobbes and Rousseau have argued that sovereignty is needed for these purposes.15 We shall return to this general conception of state activity later.

Concerns about endowing humans or human institutions with such power are ancient. Among Hobbes’s contemporaries there were many who were not persuaded that it was wise to give rulers this power or that human rulers could have such authority. Leibniz argued that “Hobbesian empires . . . [are] neither possible nor desirable, unless those who must have supreme power are gifted with angelic virtues. . . . Hobbes’ demonstrations have a place only in that state whose king is God, whom alone one can trust in all things.”16 No contemporary takes seriously the prospect of attributing to mere mortals the classical sovereignty that Hobbes and others defended; our partisans of sovereignty all think that sovereignty is limited, not absolute in the sense characterized above. But, as I noted earlier, our states recognize that their powers are limited, but also claim that these limits are set by law and that the state ascertains what these are. Some of the concerns we have about absolute sovereignty carry over to more attractive notions of limited sovereignty.

Let us now turn to the question as to who or what might possess sovereignty. This question is important for the larger topic about the powers of executives. The original claimant was of course the Sovereign , that is the ruler who achieved dominance in his or her realm over lords, emperors, and popes. As no serious thinker advocates a single ruler today, we shall put this candidate to the side for now. In British history sovereignty is attributed to the trinitarian being, the monarch-in-Parliament. Given the important role of the judiciary in the American system, the president-and-Congress has never been thought to have sovereignty, but we are merely canvassing the historical candidates for this role. The state is perhaps the most common candidate for possession of sovereignty. The notion that states are sovereign is widely accepted today, though this is not to say that everyone adopts my characterization of the concept.

(p.91) The next candidate appears in the opening words of the Preamble to the U.S. Constitution, “We the People”. The People here are the set of members of a political society (e.g., a state). In the American and French political traditions, the People are often said to have a foundational role: ultimate political power rests with them, and they create or authorize the state. The doctrine is usually dubbed that of popular sovereignty. The French Declaration of the Rights of Man and of Citizen expresses a similar view in Article III: “Le principe de toute Souveraineté réside essentiellement dans la Nation. Nul corps, nul individu ne peut exercer d’autorité qui n’en émane expressément.17 The term “nation” is ambiguous, then as now. We might take it to refer to the state or nation-state, and it might refer to the People in the sense above. We can’t resolve these questions of textual interpretation here. Instead I wish merely to read this famous sentence in a nationalist spirit: sovereignty resides with the nation, that is, with the people in the sense of a national group. To make this idea clearer, let us distinguish the People from a people. The first notion is a political one: the People is the set of members of a state (whom we may think of as citizens). The other notion, that of a people (indefinite article, small “p), is that of a set of individuals with common histories, cultures, language, and the like, who recognize one another by virtue of these shared characteristics.18 Our last view, then, is “nationalist”; it attributes sovereignty to national peoples. It is a nineteenth and twentieth century view, but an early statement is found in the less-cited opening paragraph of the American Declaration of Independence: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them . . .” On Jefferson’s view, separate peoples are entitled by natural law to separate and equal stations.19

Who might possess sovereignty? We have several candidates then; these are:

  1. (1) the ruler (e.g., the monarch),

  2. (2) the monarch-in-Parliament, or the executive + legislature,

  3. (3) the state,

  4. (4) the nation or the national people, or

  5. (5) the People (popular sovereignty).

I assume that most readers of this piece will be unsympathetic to alternatives 1 and 4. Alternative 2 is ill-suited to the American constitutional system as it would involve rejecting the distinctive role the judiciary has had at least since Marbury (p.92) v. Madison. Our interest lies in determining the significance of traditional understandings of sovereignty for contemporary debates about executive power. Supporters of expanded executive powers certainly don’t endorse the first option (or 2 or 4). Consider then alternative 5, the sovereignty of the People. Suppose we endorse that view; what are the implications for the power of the executive? It’s not clear how this view could help the proponent of unconstrained or relatively unconstrained executive power. Surely the executive would then be constrained by the will of the People (i.e., the general will). We note that Rousseau, one of the greatest theorists of popular sovereignty, conceived of the People’s power as essentially legislative; for him executive power does not belong to the sovereign.20 We need not explore the details of Rousseau’s view here, and it seems quite clear that the view that the executive branch of government should be unconstrained or relatively unconstrained gains no support from attributions of sovereignty to the People.21

The last view is that the state is sovereign. As is probably already clear, state here is not to be identified with government. The distinction between the two is commonplace in European settings, especially in countries with parliamentary systems; in the United States, government and state are not always clearly distinguished.22 In any case, it is hard to see how attributing sovereignty to the state or to the American federal government would help partisans of an unconstrained or less constrained executive. Why would the other branches of government wish to abandon their role in the sovereign body? Legislation, the making of law, is an essential power of sovereignty; it’s hard to conceive a sovereign who would lack it. We have said nothing about the traditional inalienability of sovereignty. Classical thinkers such as Hobbes and Rousseau claim that sovereignty can be destroyed but not alienated. It’s not obvious we need to endorse the inalienability of sovereignty, but if we do, then the constitutive members of the sovereign body cannot give up their power—that is, they lack the (Hohfeldian) power to do so.

(p.93) None of these attributions of sovereignty, aside from the first, offer support to lessening the constraints on executive power in a system such as ours. Ours are systems of mixed government, with different branches sharing state power. There may be good reasons for relaxing some of the constraints on the executive in the American system or for giving this branch of government more power, but traditional doctrines of sovereignty don’t seem to have any clear implications for these matters. Classical sovereignty would have the sovereign be unconstrained by human-made law, but absolute sovereignty is widely rejected today and was already controversial in early modern Europe. There is reason to want executives to have considerable discretion as well as certain powers in times of emergency. A famous model of an arrangement of this kind is Roman dictatorship. Appointed magister populi for a limited time to address a particular task, the office of dictator was fashioned for different kinds of emergency situations. But these offices were constrained and limited, in extent and in duration.

I should mention a way of thinking about sovereignty, popular at different times in different circles, which some might expect would lend some support to partisans of unconstrained sovereigns. John Austin, influenced by Bentham’s views about law and sovereignty, was puzzled by federal systems such as the American one as it was hard to locate the sovereign. Federal states were composite polities where “the several united governments of the several united societies, together with a government common to those several societies, are jointly sovereign in each of those several societies, and also in the larger society arising from the federal union.” But “the common or general government is not sovereign or supreme.” Sovereignty “resides in the united governments as forming one aggregate body.” Given the multiple governments in the United States and the different ways of amending the Constitution, the sovereign turns out to be a peculiar and somewhat haphazard group of persons.23 This kind of view leads to the identification of the sovereign with the members who happen at any time to make up the set of persons and bodies of persons with the power to make law (including the power to change the Constitution). It is an odd view, and it certainly gives no support to partisans of an unconstrained or less constrained executive.

Another unusual view is Carl Schmitt’s muscular account of sovereignty that attributes it to whoever decides in exceptional circumstances: “Souverän ist, wer über den Ausnahmezustand entschneidet.24 Sovereigns act by intervening occasionally. They can be confidently identified only after the fact, after they have assembled and asserted their power, and sometimes they can be identified counterfactually as in the case of a very powerful military that intervenes when there is disorder or political uncertainty. If partisans of an unconstrained (p.94) executive were to adopt Schmitt’s view, they could say that “the executive” is who or what decides in exceptional circumstances. But it’s not clear this would pick out the designated executive. There are also just too many exceptional circumstances and too many people deciding when these circumstances occur. But the important point is a view such as this merely becomes a version of the first attribution of sovereignty. When the executive “decides” in exceptional circumstances, it has become a sovereign ruler. This is hardly an attractive view or one that would appeal to partisans of executive power.

There may be several reasons that we might want to expand the powers of the executive in the American system. But sovereignty traditionally understood seems to play no part in making the case for expanding the power of the executive. The legislative power is an essential element of sovereignty, and we have seen that no one attributes sovereignty to the executive alone. We have to now considered the concept of sovereignty abstractly and its classical form. Let us now consider whether the notion could be adapted in some way to bolster the case for expanded executive powers.

We might start by asking why might expanded executive powers be desirable and justified? In many contexts, there are reasons to fear an executive with expanded powers, and the American tradition in particular was founded on a fear of strong executives. Let us step back for a minute and ask quite generally: Why have governments and law in the first place? Historically an important reason for government was the need of the few to control the many, an urgent need when the many were conquered and unhappy about this. But our interest is in normative and not mere explanatory reasons for government, so we shall focus on just governments. An influential tradition, already referred to in this essay, would think of one of the main tasks of government and law as being “conflict resolution,” as it were. There is much conflict amongst humans, and much of it can lead to serious losses to many. This may be an antiseptic way of referring to homicide and war and related ills of the human condition. But addressing conflicts affecting a population, including external threats, is usually the primary explanatory and normative reason for government. Governments are protective.25 The first task of a government is protecting its subjects, securing persons and possessions. The “resolution” of important conflicts can benefit most members of a population, especially in the case of what we now think of as national defense. This first task of government consists in the provision of a good to a group of people, one that is difficult for individuals to provide for themselves. The first task of government is thus the provision of an important collective or public good, to invoke the technical concept of political economy.26 Why have governments and law in the (p.95) first place, we ask; a familiar and influential answer is the provision of important public goods.27

We have talked quite generally about government and law. Now let us ask: Why have an executive branch of government? For much of human history our familiar distinctions among legislative, judicial, and executive powers were not drawn, and all these powers were in effect attributed to the same individuals. The main purpose of the executive came to be recognized to be the enforcement of law. Why have an executive branch of government? Enforcement. Contemporary debates about lessening the constraints on the executive might then be said to be about enforcement broadly understood. But I think it more useful to think of them as about certain features of the different parts of government. The decisions of legislatures and judicial bodies are often compromises and thus not always as “decisive” as we might wish. More importantly, they are not always swift. In certain contexts, we may want government to act decisively and swiftly. The executive may so act, especially if its head is a single individual as it often is. In classical and contemporary writings, the acts of great leaders and sometimes tyrants are praised for their decisiveness and swiftness, at least as compared to their legislative and judicial rivals. When action, especially decisive and swift action, is needed, less restrained executive powers may be desirable. And such action may secure an important collective or public good and consequently be justified.

It is not surprising that the powers of executives are often much less constrained in emergency settings, for instance, insurrection and war. The “emergency powers” of executives are traditionally the most expansive. It is clear how emergencies often call for swift and decisive action, and that this may require lessening restraints on those who are tasked with addressing them.28 Similarly, negotiating with foreign powers is often facilitated by giving individuals powers that normally might be reserved for legislatures.

We can all appreciate how a case can be made for lessening the constraints on executives in certain settings. My objective, however, is not to adjudicate the debate about executive power, but to see how the concept of sovereignty might be enlisted in support of those who seek to lessen the constraints. The first point to make concerns the irrelevance here of the classical notion of sovereignty. This notion would have the sovereign unconstrained by law and, on some reading of the classical thinkers, unconstrained by justice. This understanding of sovereignty leaves no room for international law and makes familiar understandings of constitutions impossible. As I mentioned earlier, the notions of sovereignty (p.96) espoused today are all “limited.” The sovereign is not unconstrained by law (and justice), nemo est supra legem.

We should also recall that sovereignty today is never attributed to the executive branch of government. Even in the British system, said to be a constitutional monarchy, the sovereign is not the monarch but the trinity of the “monarch-in-Parliament.” Further, the executive is constituted by law or tradition as one of several branches of government and is thereby authorized to act in various ways, and this authorization is legally constituted and typically constrains. A paradigmatic example of the legal constitution of a powerful executive is Roman dictatorship, and it was highly constrained.

It is very hard to see how the notion of sovereignty helps support a case for lessened constraints on the executive. We may appreciate the reasons for wanting executives to face fewer constraints in certain settings. But it is also easy to understand the reasons for concern. Executive powers are entrusted to humans, and these creatures are fallible in multiple and familiar ways. The judgment of executives may often be poor, and their powers may often be abused. The concerns that many had about classical sovereignty—Leibniz: “Hobbes’ demonstrations have a place only in that state whose king is God, whom alone one can trust in all things”—spill over to limited sovereigns and to relatively unconstrained executives. Strong leaders, even if constrained, may be a source of concern.

An appreciation of the reasons we might want to lessen the constraints on executive power in some settings, coupled with an appreciation of the dangers of so doing, point to familiar and difficult problems with institutional design. We want our institutions to do many things and to strike a balance between different capacities, to be not too hot and not too cold. In some contexts we need an executive that can act decisively and swiftly, but we also worry about abuse and excess. The right balance, here and elsewhere, is often hard to achieve. Trade-offs between multiple institutional elements is as difficult a problem as that between competing ends or values, perhaps more difficult. Institutions also change and are often transformed and subverted.

There may also be some tensions here between the need for decisive and swift executive action and the rule of law. Executives may exceed their powers, sometimes clearly violating the law. As David Frost said to President Nixon, “where the president can decide that it’s in the best interests of the nation or something, and do something illegal.” The latter’s reply was that “Well, when the president does it that means that it is not illegal.” We think neither that the sovereign is above the law (i.e., not subject to the law) nor that the president is sovereign. We might believe that the president is permitted to act illegally in some circumstances, or that if the president were to so act, he or she would be immune from prosecution. But that would be determined by the law. Nemo est supra legem—no one and no office need be above the law.29

(p.97) Appendix: Nixon (Frost interviews)

FROST: So what in a sense, you’re saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it’s in the best interests of the nation or something, and do something illegal.

NIXON:

  • Well, when the president does it that means that it is not illegal.
  • FROST:

  • By definition.
  • NIXON:

  • Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they’re in an impossible position.
  • http://landmarkcases.org/en/Page/722/Nixons_Views_on_Presidential_Power_Excerpts_from_a_1977_Interview_with_David_Frost. (p.98) (p.99)

    Notes:

    (1.) Quoting Nixon out of context is misleading, so I have reproduced the short section of the interview in an appendix.

    (2.) William Blackstone, The Sovereignty of the Law, in Selections from Blackstone’s Commentaries on the Laws of England, G. Jones (ed), (University of Toronto Press, 1973) 36, 71.

    (3.) Gordon Wood, The Creation of the American Republic, 1776–1787 (Norton, 1969) 350; see also 345.

    (4.) The Founders’ Constitution, Philip B. Kurland & Ralph Lerner (eds), (University of Chicago Press, 1987), vol 4, George Mason on Article 2, Section 2, Clause 1, http://press-pubs.uchicago.edu/founders/documents/a2_2_1s1.html.

    (5.) See the description of the Conference on Sovereignty and the Rule of Law held at the Center for Ethics and the Rule of Law of the University of Pennsylvania School of Law, April 19–20, 2013: https://www.law.upenn.edu/institutes/cerl/conferences/sovereignty/.

    (6.) I have defended this skeptical thesis in my Essay on the Modern State (Cambridge University Press, 1998).

    (7.) See An Essay on the Modern State ch. 7.

    (8.) “If we are to appreciate the significance of the idea we must also add to this thought. With the notion of sovereignty, a new or at least an altered meaning has been acquired by every element in this statement—by ‘political authority’, by ‘political community’, by ‘final and absolute’.” F.H. Hinsley, Sovereignty, 2nd ed (Cambridge University Press, 1966) 25–26.

    (9.) Thomas Hobbes, Leviathan,Richard Tuck (ed), (Cambridge University Press, 1991 [1651]), “Introduction,” 9.

    (10.) Hobbes, Leviathan, ch. XIII, 90.

    (11.) In the UK of course, the monarchs reached a settlement with the nobles that eventually led to attributing sovereignty to the monarch-in-Parliament.

    (12.) Here and elsewhere I move quickly over very large topics and controversies, familiar to contemporary political and legal philosophers. See Morris, “State Coercion and Force,” [2012] Social Philosophy & Policy 28–49, and the references therein.

    (13.) Morris, An Essay, 43–44 and “How (Not) to Define the State” (unpublished).

    (14.) Even if elements of the notion of sovereignty are ancient, the concept as I analyze it is modern.

    (15.) See Morris, An Essay, ch. 7.

    (16.) Georg Wilhem Leibniz, Caesarinus Fürstenerius (De Suprematu Principum Germaniae) [1677], in Political Writings, P. Riley (ed), 2nd ed. (Cambridge University Press, 1988) 120.

    (17.) “The principle of any sovereignty resides essentially in the Nation. No body, no individual can exert authority which does not emanate expressly from it.”

    (18.) See Morris, An Essay, 230–54.

    (19.) See Morris, “Peoples, Nations, and the Unity of Societies,” in Cultural Identity and the Nation-State, Carol C. Gould and Pasquale Pasquino (eds) (Lanham, MD: Rowman & Littlefield, 2001), 19–29.

    (20.) “Nous avons vu que la puissance législative appartient au peuple, & ne peut appartenir qu’à lui. Il est aisé de voir au contraire, par les principes ci-devant établis, que la puissance exécutive ne peut appartenir à la généralité comme législatrice ou souveraine, parce que cette puissance ne consiste quʼen des actes particuliers qui ne sont point du ressort de la loi, ni par conséquent de celui du Souverain, dont tous les actes ne peuvent être que des loix.” (“We have seen that the legislative power belongs to the people and can only belong to it. On the contrary, it is easy to see, by the principles established above, that the executive power cannot belong to the whole as legislator or sovereign, since this power consists solely of particular acts that are not in any way proper to law, nor consequent of that of the Sovereign, all of whose acts can only be laws.”) Jean-Jacques Rousseau, Du Contrat social, Oeuvres completes, vol 3, Bernard Gagnebin and Marcel Raymond (eds) (Bibliothèque de la Pléiade 1964), vol III, ch. I.

    (21.) See Morris, “The Very Idea of Popular Sovereignty: ‘We the People’ Reconsidered,” [2000] Social Philosophy & Policy 1–26.

    (22.) One of the reasons is that the original American political societies were “states” or “commonwealths” and thus the term “state” is now used for the subunits of the American federal system. For further discussion of the distinction, see Morris, An Essay, 20–23.

    (23.) John Austin, The Province of Jurisprudence Determined, Wilfrid E. Rumble (ed) (Cambridge University Press, 1995 [1885]) 206–11. John Dewey thought that Austin’s view represents “a confusion of sovereignty with the organs of its exercise . . . ” See John Dewey, “Austin’s Theory of Sovereignty,” [1894] Political Science Quarterly 31–52.

    (24.) Carl Schmitt, Politische Theologie: Vier Kapitel zur Lehre von der Souveränität (Duncker & Humblot, 1996 [1922]) 13.

    (25.) See James Buchanan on the notion of the “protective state” in The Limits of Liberty (University of Chicago Press, 1975).

    (26.) Collective or public goods are defined by indivisibility (or jointness of supply) and nonexcludability. Once produced, a collective or public good is available to everyone at no additional cost (indivisibility), and it is not feasible or efficient to exclude individuals from the benefits of the good (nonexcludability).

    (27.) A rival view is often thought to be that which posits justice as the first or most important task of government. This view is also very influential today, and a discussion of it here would distract from our main topic. But I should say that justice must be a constraint on governments and states, and that where the provision of justice is itself a collective or public good, it may and usually should be provided by government.

    (28.) And, it should be noticed, that many ethical norms are widely thought to be suspended or less binding. Fire fighters may invade and damage dwellings because of the urgency of their job. And of course everyday norms governing the taking of human life are suspended in time of war.

    (29.) Sharon Lloyd’s insightful chapter in this volume, “Locating Sovereignty in Systems of Divided and Limited Government,” takes up a number of questions about sovereignty parallel or similar to those considered in this essay. I am grateful to her for showing me a draft of this essay.