Thursday, January 30, 2014

Is the American Congress a Hobbesian Sovereign?

Since I am teaching a graduate seminar on Thomas Hobbes, I found myself thinking about Hobbes as I watched the State of the Union Address on C-SPAN.  This is usually the only time that all of the chief officers of the federal government are in the same room--the members of both Houses of Congress, the President and his Cabinet, the Supreme Court, and the military chiefs.  The question for any reader of Hobbes's Leviathan would be: Who's the sovereign? 

Considering President Obama's speech, in which he implicitly conceded that he would not be able to do much on his own without the cooperation of Congress, one might conclude that if sovereignty is to be located anywhere, it's to be found in Congress.  Looking at the text of the Constitution, and disregarding the history of the Supreme Court's interpretations of the Constitution, one might properly conclude that the clear meaning of the constitutional text favors the sovereignty, or at least supremacy, of the Congress.  Remarkably, however, this sovereignty or supremacy of the Congress has rarely been fully recognized or exercised by the Congress itself.

According to Hobbes, in the state of nature without government, human beings have an absolute natural liberty to do anything they can to preserve themselves, but this leads them into a state of war where the lives of all are insecure.  To escape that state of war, human beings must consent to the establishment of a State that has the sovereign power to act as a common judge over them for the sake of protecting their lives and securing peace.  To protect themselves from foreign enemies and from the injuries of one another, the multitude of individuals must unite their wills into the will of one artificial person--one man or assembly of men--acting as the representative of all the subjects with sovereign power over them for their protection.

There are three kinds of States depending on whether the sovereign power is vested in one person (monarchy), in an assembly of a few selected people (aristocracy), or in a general assembly of all the subjects (democracy) (Leviathan, ch. 19, 121 [129], 125 [133]).  Despite these differences in where sovereignty is located, every form of government has the same end--the protection of the lives of the subjects--and the same means to that end--sovereign power that ought to be absolute.  Even where there is no sovereign monarch, there can  be a "sovereign assembly" (ch. 23, 156-57 [166-67]). 

Hobbes admits that allowing a government to have such absolute power has many "evil consequences" or "inconveniences," but the consequences of a weak government, which are all the miseries coming from the perpetual war of everyone against his neighbor, are much worse.  In practice, Hobbes concedes, most governments have not had absolute sovereign power, but one should notice, he points out, that these weak governments have not endured for long without falling into disorder and civil war, and that the most enduring governments have been those with all the power necessary for protecting their subjects from both domestic and foreign threats (ch. 20, 136 [144-45]).

By Hobbes's definitions, the American regime is not a democracy but an aristocracy, because American citizens do not rule directly through a general popular assembly (as in Athenian democracy), but rather they elect their representatives.  That organization of government through popularly elected representation is prescribed by the Constitution, which serves as what Hobbes calls "fundamental law" (ch. 26, 188-89 [200]).

The Constitution never uses the words "sovereignty" or "sovereign."  The principle of sovereignty was affirmed in the Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled" (Article II).  Significantly, the sovereignty of the states was not affirmed in the Constitution.  But then the Constitution of the Confederate States of America reversed this change by declaring in its Preamble: "We the people of the Confederate States, each State acting in its sovereign and independent character . . . ."

While the Constitution does not speak directly of sovereignty, it does declare the supremacy of national law over the states.  "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the contrary notwithstanding" (Article VI).  This supremacy of national law carries with it the supremacy of Congress insofar as "all legislative powers" are vested in the Congress (Article I, sec. 1), and Congress is granted the power "to make all laws" necessary and proper for executing all the powers of the government of the United States (Article I, sec. 8).  Moreover, notice that the "supreme-Law" status is not given to the acts of the President or the decisions of the Supreme Court, except insofar as those presidential acts and judicial decisions are sanctioned by congressional legislation.

The supremacy of the Congress as the legislative body is also indicated by the fact that the first and longest article of the Constitution is the legislative article.  William Blackstone, in his Commentaries on the Laws of England, declared the common understanding in the eighteenth century that "sovereignty and legislature are indeed convertible terms; one cannot subsist without the other," because "sovereignty" is identified with "the supreme power in a state" for making laws (I, 44, 46). Similarly, Hobbes declared: "The legislator in all commonwealths, is only the sovereign, be he one man, as in a monarchy, or one assembly of men, as in a democracy, or aristocracy. . . . the sovereign is the sole legislator" (ch. 26, 173 [184]).

The second and the second-longest article of the Constitution is the executive article.  Even if the Congress was once supreme, it often seems that the growth of presidential power, especially over the past hundred years, has elevated the President over the Congress.  One obvious example would be the preeminence of the President in foreign affairs and war.  Although the Constitution clearly gives Congress the power to declare war, that congressional power has not been exercised since World War II, and the President has in effect taken over that power.  Declaring war was a power of the British Monarch, and it was important for Alexander Hamilton in The Federalist (Number 69) to be able to argue that the American President could not become a King without this power.  But now it seems that the President has become almost an elected monarch in his role as Commander in Chief.  At any time, however, the Congress could reclaim its power for declaring war.  And even when it does not exercise this power, Congress can use its other powers--such as its control over military appropriations--to enforce its will over the President in war.

Hobbes recognized that a "Sovereign Assembly," in times of great disorder or war, could appoint someone as a temporary dictator with the power to deal with the emergency (ch. 19, 125 [133]).  In effect, this is what Congress has done.  Abraham Lincoln in the Civil War would be the best example of this.  But even with his extraordinary powers in the Civil War, Lincoln was constrained by his need for Congress to authorize his actions.

The President participates in the legislative process by making legislative recommendations and through the threat of using his veto power.  But any veto can be overridden by a two-thirds vote of the two Houses of Congress.  And as we can see with President Obama, any president's legislative agenda can be frustrated by congressional opposition.

Unlike the British Monarch in the seventeenth century, the President has little control over the convening of the legislature.  Hobbes believed that a Parliament could be sovereign only if it could not be assembled or dissolved but by its own power (ch. 26, 175 [186]).  The American Constitution prescribes that Congress must meet at least once a year, and the two Houses are to prescribe the rules for their own proceedings (Article I, secs. 4-5).  The President has the power to convene Congress for special sessions "on extraordinary occasions," and if the two Houses disagree about the time of adjournment, he can set the time of adjournment (Article II, sec. 3).

Moreover, we should never forget the power of the Congress for impeaching the President, which is the ultimate weapon for subordinating the President to the Congress.

The third and third-longest article of the Constitution is the judicial article.  If the Constitution is the fundamental law, and if the Supreme Court is the final interpreter of the Constitution, with the power to overturn laws of Congress as unconstitutional, then one might think that, in some sense, this makes the Supreme Court sovereign.  Hobbes does say that "the interpretation of the law dependeth on the sovereign power" (ch. 26, 179 [190]).

We should notice, however, that the power of judicial review is not stated in Article III or anywhere else in the Constitution.  And even though this power of the Supreme Court has been well-established by tradition, Congress has powers that can be used to work its will against the Court.  The Congress can impeach federal judges.  The Congress has complete power "to constitute tribunals inferior to the Supreme Court" (Article I, sec. 8).  And the Congress controls the appellate jurisdiction of the Supreme Court, which could be used to restrict the exercise of judicial review (Article III, sec. 2).

In the case of Ex parte McCardle (1868), a newspaper editor had challenged the constitutionality of the Reconstruction Acts.  After the Supreme Court had heard arguments in the case, the Congress feared that the Court might declare these Acts unconstitutional, and so the Congress repealed the habeas corpus provision that had allowed this issue to be appealed.  The Court then had to say that it had no power to decide the case.

In all of these and other ways, the Constitution gives the Congress all the powers necessary to be supreme if not sovereign over all other branches of government.  But what's remarkable about this is that the Congress has almost never exercised these powers fully, and as a consequence of the long disuse of its powers, and of the Supreme Court decisions that have endorsed this tradition of disuse, it is now hard for people to see how the text of the Constitution provides for congressional supremacy.

The two scholars who have argued most persuasively for how the constitutional text establishes congressional supremacy are William Crosskey (in Politics and the Constitution in the History of the United States, 2 volumes [University of Chicago Press, 1953]) and George Anastaplo (in The Constitution of 1787: A Commentary [Johns Hopkins University Press, 1989]).

Crosskey collected a massive amount of evidence centered on the reading of the text of the Constitution itself to support his claim that the Constitution establishes national governmental powers under the general legislative power of Congress.  He concluded: "The scheme of the Constitution is simple and flexible: general national power, subject only to a few simple limitations, with the state powers, in the main, continuing for any desired local legislation.  So, if the Constitution were allowed to operate as the instrument was drawn, the American people could, through Congress, deal with any subject they wished, on a simple, straightforward, nation-wide basis; and all other subjects, they could, in general, leave to the states to handle as the states might desire" (1172).

He recognized, however, that this scheme of the Constitution had not been executed because of the unwillingness of the Congress to exercise fully all of its powers.  He dedicated his book "TO THE CONGRESS OF THE UNITED STATES IN THE HOPE THAT IT MAY BE LED TO CLAIM AND EXERCISE FOR THE COMMON GOOD OF THE COUNTRY THE POWERS JUSTLY BELONGING TO IT UNDER THE CONSTITUTION."  Crosskey's hope has yet to be fulfilled.

George Anastaplo, who studied under Crosskey at the University of Chicago Law School, has reiterated Crosskey's arguments for seeing congressional supremacy in the Constitution.  But the work of both Crosskey and Anastaplo has been largely ignored by the scholars of constitutional law.

While I agree that the Constitution does provide for the supremacy of Congressional power, I am still not sure that this constitutional supremacy corresponds to Hobbesian sovereignty.  In the American system of separated powers, the supremacy of Congress does not necessarily give it the absolute power that Hobbes thinks is necessary for sovereignty. I wonder whether the American constitutional tradition rejects Hobbes's principle of sovereignty--the idea that any political order must ultimately be ruled by one supreme and absolute power.  By contrast with Hobbes, we might see the American Constitution as based on the principle of countervailing power--the idea that political order can arise from a network of separated entities that check and balance one another.  (This is the argument of Scott Gordon's Controlling the State: Constitutionalism from Athens to Today [Cambridge: Harvard University Press, 1999].)

Some of these points are developed in prior posts here, here., here, and here.

1 comment:

Orion said...

Professor Arnhart, thank you for this. And Happy Easter. A Facebook friend of mine brought you to my attention yesterday and I am spending my Easter morning reading your excellent work.

With regard to this particular post, I would commend the scholarship of Vincent and Elinor Ostrom to help flesh out Gordon's work.

A 2002 review of Gordon's book over at The Independent Review states:"In short, someone interested in exploring how ideas about polycentricity can be brought to bear on the constitution of governance will have to look outside of Gordon’s Controlling the State."

A Spring 2014 special edition of Publius: The Journal of Federalism on the "The Federalism Scholarship of Elinor and Vincent Ostrom: Applications and Reflections" is now available. In 2009, In 2009, Elinor shared the Nobel Memorial Prize in Economic Sciences with Oliver E. Williamson for her analysis of economic governance, especially the commons.

Here is the lead essay: "Vincent Ostrom’s Contributions to Political Economy":

The editor of the special edition, John Kincaid, has penned this useful piece at the Oxford University Press blog; "Elinor and Vincent Ostrom: federalists for all seasons."

In short, and in answer to your question: "In the American system of separated powers, the supremacy of Congress does not necessarily give it the absolute power that Hobbes thinks is necessary for sovereignty. I wonder whether the American constitutional tradition rejects Hobbes's principle of sovereignty--the idea that any political order must ultimately be ruled by one supreme and absolute power."

Vincent and Elinor would answer emphatically in the affirmative.

Thanks again.

Jeff Steele
Washington, DC