Sovereignty Not Impaired by WorldFederation
DELEGATION IS NOT SURRENDER; IT IS ASSERTION
By FRANK G. TYRRELL, Judge, Municipal Court of City of Los Angeles
Delivered at Open Forum, K.F.A.C, Los Angeles, January 23, 1944
Vital Speeches of the Day, Vol. X, pp. 370-372.
THIS debate but reflects the intense, widespread public interest in the subject. It is of immediate, vital and transcendant importance. The existing "Society of Nations" is in reality a horde of nations, having no law, no sovereign, no judge. As improved means of transport and communication continue to reduce practically the dimensions of the physical globe, the subject grows in importance and urgency. It dwarfs domestic problems and processes, serious and vital though they be, because it is proximately connected with them, and may dislocate, transform, or suspend then at any moment.
Air transport is still in its early beginnings, but already it has eliminated rivers, mountains, oceans and the polar icecaps as barriers between nations. The world has become integrated, and will become more closely integrated. This question of national sovereignty touches vitally every man, woman and child on earth, and all coming generations. Under conditions that have obtained since nations emerged on the scene four centuries ago, millions are at any moment liable to be sentenced to death, without appeal or escape, as they have been in two World Wars.
The popular conception of sovereignty is utterly unreal sad illusory, a mere abstract theory, without concrete expression anywhere. For sovereignty is not absolute. If in any government there is found power legally and absolutely sovereign, with no Constitutional limitation, even there that so-called absolute power must be exercised with reference and deference to the moral restraints which inhere in enlightened public opinion, called by early jurists the Law of Nature.
Forty years ago, James Bryce began his discussion of "sovereignty" with the observation that there is a great deal of confusion in regard to it. Through the years since, that confusion has not cleared up; rather it has been deepened, darkened, and extended. Yet it has been pointed out again and again that upon these subjects of sovereignty and international law, so-called, there is more nebulous thinking, loose talking, and word-jingling writing, than on any other subject of human concern.
Black's Law Dictionary tells us that "sovereignty" is "the supreme, absolute and uncontrollable power by which any independent state is governed." And again, Political independence is the attribute of a nation or state which is entirely autonomous, and not subject to the government, control, or dictation of any exterior agency." In an early case the Supreme Court of California said, "The incidents of sovereignty are those powers of which a state cannot divest itself without materially impairing its efficient action. All the powers necessary to accomplish the legitimate ends and purposes of government must be sovereign, and therefore must exist in all practical governments." A few years later that court in another case held, "Sovereignty" is a term used to express the supreme political authority of an independent state or nation. Whatever rights are essential to the existence of this authority are rights of sovereignty. Thus the right to declare war, to make treaties of peace, to levy taxes, to take private property for public uses . . . are all rights of sovereignty, for they are rights essential to the existence of supreme political authority. In this country, this authority is vested in the people, and is exercised through the joint action of their Federal and State governments . . . with respect to sovereignty, rights and powers are synonymous terms."
The prevailing idea of sovereignty is that it is absolute, uncontrolled, subject to no restraint whatever. As some of the discerning writers of history tell us, there has never existed on earth any person, or any body of persons, vested with this utterly uncontrolled power, with no external force to fear, and nothing to regard except the exercise of mere will. Let me add in all reverence, God Almighty does not possess such power; He is limited and restrained by the moral law. In the old Hebrew legend, Abraham challenges Him: "Shall not the judge of all the earth do right?"
It seems evident that the timidity and aversion shown by those who think they are opposed to a world federation arises from taking these definitions of sovereignty at their face value. But they are abstract definitions of an abstraction. In the sense of these definitions there is not and cannot be a sovereign nation anywhere; least of all is the United States sovereign. "Uncontrollable power"? it does not exist. Without let or hindrance Japan exercised a sort of very definite control over the United States at Pearl Harbor, which we obeyed, eo instanti!
Here at home the Congress has "sovereign" legislative power; but that power is limited, as to subject, matter and form. There's the barrier of the Constitution, and even when legislating definitely within their limits, they are bound by certain artificial rules, and can command obedience only when they comply with those rules. . . . And the Bill of Rights explicitly declares, "Congress shall make no law" respecting religion, freedom of the press or of speech, the right of public assembly and of petition, etc. It is absurd to talk about the legislative sovereignty of Congress.
It is superfluous to point out that the President is likewise bound about by rule and precedent, and also the Supreme Court. It is clear that "sovereignty" as popularly conceived, does not exist in the United States; that if it can be found at all, it is in the people. Prof. John Chipman Gray in "The Nature and Sources of Law," says categorically that there is no sovereign, with these powers, in the United States of America.
The Government is merely the agency of the sovereign people. The men who from time to time compose it as legislators, judges, presidents, governors, sheriffs, and so on, are only agents or attorneys-in-fact, to whom the people have temporarily delegated certain authority and power. I am not stating my opinion, or opinion at all, no matter whose, but obvious facts. Since the United States is not sovereign, how can you impair or surrender what is non-existent?
Delegation of Power
Power, or sovereignty, rests with the people, and is dormant unless and until it is set into motion by a delegation to chosen representatives. Thus only can it be exercised. ^ The plain historical fact is that when the people of the thirteen colonies, acting through chosen conventions, adopted the Constitution, all they did was to delegate to the central government certain strictly limited powers. This they did, because there were common interests which could best be served in that way, and some interests that could not otherwise be served at all.
By this delegation they did not lose, they gained; dormant powers came to life. Thus to provide for the common defense was far more effective and far less costly than for each to retain its power and provide for its own defense.
When the States delegated those powers, they were not impaired or sacrificed; they were simply made operative and effective. In other words, it was not an impairment or surrender of State sovereignty or of popular sovereignty; it was the placing of it by the respective ratifying States in an organization by and through which it could effectively operate. As it was the act of the people in delegating the power, so it still is the act of the people when the central Government as their agency proceeds to its exercise; for what is done by an agent is done by the principal.
What more than this is required for the world federation? It too will be composed of delegates chosen and empowered by the peoples of the participating nations, and those delegates will be able to act in the international area only by virtue of the power with which the people clothe them. It should be understood once for all that the co-operation of the several Nations through such a world organization, so far from being the impairment or surrender of sovereignty, is the exercise of it, in the only way it can be exercised, by delegation of power. It will be a manner of exercise to which we are unaccustomed, but a new method of declaring and exercising power does not impair, it increases and extends power.
There is no diminution of sovereignty when we assert it in co-operation with other sovereign states. The United Nations are at this very moment co-operating in a horrendous global war, and each and everyone thereby gains tremendously in power. What intelligent person will contend that when the United States joined the United Nations we surrendered our sovereignty? or that by so doing, this delicate sovereignty and proud independence were in any measure impaired? Unless we had joined, we would have placed our national existence in deadly hazard.
Can it be that co-operation in a war of survival can be had without loss, surrender, or impairment of sovereignty, but not in an agreed establishment for co-operation to keep the peace we shall have so dearly won? The idea is absurd.
After centuries of toil, bloodshed and martyrdoms, the peoples of the various civilized nations wrested irresponsible power from their rulers. They thought, poor souls, that was the end of it on earth. And it was the end within the territorial boundaries of each nation. But the same irresponsible power was left to the independent nations, everyone of which has the right at any time, impelled by greed, ambition, whim or caprice—for any reason or without reason—to declare war. And this right to declare war is claimed as one of the attributes of sovereignty!
As night follows day, this theory negates and annuls the hard-won sovereignty and independence of every nation, and leaves them all subject to the caprice of any bellicose Power. This is a terribly shrunken world. My parents crossed the plains in covered wagons, six months from Rock County, Wisconsin, to Humboldt County, California, one hundred and eighty days, four thousand, three hundred and thirty hours. Now you can start anywhere and reach any other point on earth in sixty hours, or in .0138 of the time then required to cross half the continent.
In a world so small, war anywhere dislocates the world economy, robs the nations of their right to freedom from war, and sooner or later involves them all in a Euroclydon of destruction and devastation. The only possible remedy for this state of dread and deadly peril is to deprive all nations of irresponsible power; and this can be done only by the fed-
eration, association, of nations numerous and strong enough to compel the gangster and bandit Powers to keep the peace.
In such a momentous and challenging enterprise, it is for the sovereign people to act. If they are finally tired of being cannon-fodder, if they have at long last had their fill of war —mass murder and destruction—they will now rise in their might and end it I Rulers cannot be depended on, nor politicians. In the discussion of sovereignty to which I have alluded, Mr. Bryce says in a closing paragraph that it lies where the Romans placed it two thousand years ago, with the people. History evidences this fact. Successful revolutions attest it. A measure of civilization exists because of it. The people have the power, by sheer weight of numbers. What they have heretofore lacked has not always been intelligence; often it has been merely the lack of a determination to enforce their will against the machinations of reactionary politicians—as occurred twenty-five years ago. And for that deplorable lack they have paid and are paying with their lives, dying at the dawn of manhood, every life purpose and promise defeated and annihilated.
To end the irresponsible power of nations is our immediate task. So far from requiring a surrender of sovereignty, it demands the exercise of it by delegation of power to a central government of the associated peoples.
Assurances and Protection of Sovereignty
Each separate people desires to be and should be sovereign in the organization and administration of its domestic affairs. Under present conditions this desire is unrealized and unrealizable. What was the practical and peremptory significance of Japan's sneak attack at Pearl Harbor? It was an impertinent and imperious order to the United States to suspend instantly its peaceful and normal way of life, to halt its every-day industry, and turn its immense productive power from the manufacture and marketing of consumer goods to the making of munitions and all the costly mechanism of war. And the "independent" "sovereign" United States meekly obeyed!
We experienced the same utter impossibility of sovereign independence in the first World War, when in her brutal unrestricted submarine warfare, Germany attacked the United States—another display of irresponsible power. And this will be the continuous performance of certain greedy, upstart Powers, unless the Governments that insist on civilization organize to control and suppress the international banditti. Until then, national sovereignty in the domestic area is impossible; all will be subject to dictation and attack by ambitious aggressors.
To talk about a method of international co-operation which alone can make domestic sovereignty possible, as a surrender or impairment of sovereignty, is indeed to "darken counsel by words without knowledge."
Present world conditions are in many respects precisely analogous to those of the thirteen Colonies before the adoption of the Constitution. As Hamilton in the Federalist, No. XXI, and following, points out, the Confederation's fundamental defect was "the total want of a SANCTION to its laws," no "power to exact obedience, or punish disobedience—either by pecuniary mulcts, by a suspension or divestiture of privilege," or by any other mode. Precisely this has been the condition in world affairs, ever since Nations emerged upon the scene.
What we call "International Law" as the leading jurists remind us, is "law only by courtesy." The department of International Law in any university will insist that it is law, because national courts sometimes enforce it. But these courts have no jurisdiction in the international area; and even when they recognize some rule of International Law, they are bound by the law of their limited jurisdiction. The most obvious characteristic of "law" is that it is coercive. As we read in The Vedas, "Law is the King of kings, far more powerful and rigid than they."
The Federalist emphasizes another incongruity which was found in the Confederation, and exists likewise in International Law, ". . . the want of a mutual guaranty of the State governments." On the world scene this can be supplied only by an international league, federation—call it what you will; but the fait? accompli is imperative, as "a mutual guaranty" of domestic nationalism and sovereignty.
Even if there were a surrender of some part of sovereign power, the gains to the participating nations would more than offset it. That there would be or need be any such surrender I deny, for delegation is not surrender; it is assertion, exercise, demonstration. This appears in still clearer light when we remember that in the international area there is now no sovereign, no law, but only custom, consensus, convention, treaty or contract. So, to extend our sovereignty in combination with that of other Nations, is merely to extend and initiate the reign of law in an area where at present there is no vestige of authority, or coercive power of law. It is but the next step in the orderly evolution of law, a sort of cosmic process which cannot be forever halted by human arrogance and ignorance, and which is imperiously demanded if law, order and civilization are to continue anywhere on earth. The horrors and tragedies of two world wars are shouting to the Nations. "Form an invincible alliance to establish justice and maintain peace; build no more human hecatombs!"