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Divided Sovereignty

Federalist #51 (Madison): “Ambition must be made to counteract ambition.” 

Federalist #46 (Madison): "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes."

Max Weber: Definition of the state: "monopoly of the legitimate use of physical force within a given territory"

Thomas Paine's opening to Common Sense: "SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher."

Natural law is unrestrained violence of "eat or be eaten". We form communities to collaborate in gathering energy and propogating life.

To punish violence within our communities we grant governments sovereignty, a Monopoly of Violence to coerce compliance with law. We purposefully sacrifice some natural rights and liberties in exchange for civil rights and protections.   

Federalist #51 (Madison):  If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

To limit the violcence applied by the men seeking to control the power of government, in America, We the People, Divided Sovereignty in the Constitution so that "Ambition must be made to counteract ambition."  The Federal government was granted a monopoly of violence to coerce behaviors that create paths to war, when possible, and effective wage war, when necessary. 

Federalist #45:

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

During the Revolution and after Shay's Rebellion, it was clear to us that the States and Congress under the Articles of Confederation were incompetent at waging war and preventing domestic insurrection (read all the Federalist Papers). In ratifying the Constitution, We the People,

  • Stripped the States of sovereignty to wage war, form foreign alliances, print money, violate the commercial interests of other states, and deny liberty to their citizens.
  • Granted the Federal government the soul power to wage war, control actions that create the path to war, punish individual Americans for treason, piracy, counterfieting, and run away slaves (this police power was removed by Amendment 13). We granted the Federal government sovereignty to apply violence against foreign powers and domestic states that violate the liberty of citizens or secede from the mutual agreement of We the People. Because we created a Federal whose nature is to monopolize power and wage war, we limited Federal Governing to only enumeraged powers.
  • Retained all liberties and sovereignty not enumerated as sacrificed in the Constitution to We the People.
  • Granted State govenments sovereignty to apply violence against the Federal Governing for criminal actions that violate our written Constitution and to apply violence to enforce civil and criminal laws.

In ratifying the Constitution, We the People became one people with a single shared obligation to "provide" for the defense of liberty for ourselves and our Posterity. Because we were creating governments whose nature is to monopolize and apply violence, we set the Federal government and State governments to oppose the usurpations of the other.

 

Divided Sovereignty pits Federal ambition and sovereignty to tax for making war in conflict with State ambitions to tax for welfare. Divided Sovereignty pits the lust for power of the Federal Governing against the lust for power by the State Govering. We the People have directed these governments to oppose each other throughout our history.

Divided Sovereignty is America's ethical and legal solution to self-government. It is and has always been a work in progress with conflicts between Consolidation and Secession. The balance of forces is a work in progress, a nullify spectrum from grudging compliance, to the exercise of free speech to condemn, civil disobediance, jury nullification, state nullification, to rebellion.

  • Secession (Rebellion): Between 1754 and 1791 America's Founders repeatedly tinkered with the how natural rights, civil rights, and the nature of government could be combined. They got it wrong a lot, fought multiple wars, internal rebellions, and skirmishes between States.
  • Secession (Rebellion): Civil War was required between 1861 and 1865 to correct the difference between The Declaration of Independence and the Constitutiion's accommodation for slavery.
  • Secession (Rebellion): Riots and the Civil Rights Movement was required in the 1860's to 1970's to correct the difference between "States Rights" violations of Constitutionally protected individual liberties.
  • Consolidation: Currently, consolidation is responsible for creating Civilization Killers (examples Oil Famine, Climate Change, and $18 trillion in Federal debt, more in another paper). In direct violation of the Constituton's Divided Sovereignty, Federal averous is taxing to provide "internal improvements." Consolidation created a collution with State governments and a Tyranny of the Majority sacrificing the liberty of Posterity for cheaper gasoline prices today.

How much institutional violence do we need in our lives? Unlimited government results in unlimited institutional violence.

Divided Sovereignty is mandated by America's written ethics and Law of the Land. It is essential for:

  • Democracy to be made useable.
  • Government coercion of liberty constrained.
  • Governments kept in the proper orbits to each other, niether flying away from or being absorbed by another. Each jealously defending their ambitions from encroachment by other governments. The Civilization Killers facing Posterity result from consolidation, Federal and State goverments colluding to tax wages. The Federal governments was never to tax where it had no sovereignty and never to tax wages to give grants to States as suplicants.

America's founding documents recognize the difference between community and government as stated in Common Sense:

SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness POSITIVELY by uniting our affections, the latter NEGATIVELY by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others

Our founding ethic, The Declaration of Independence, clearly distinquishes between community and government:

  • Community: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
  • Governments: "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

"Wild democracy" of the Articles of Confederation

Under the "wild democracy" of the Articles of Confederation, the Framers came to understand the two facets of democracy:

  • Wisdom from the Many

Wisdom from the Many is the brilliant facet of democracy. In his book, The Wisdom of Crowds, James Surowiecki, provides case after case of how the aggregated self-interest of all of us, with each of us acting in our own self-interest, is wiser than the wisest of us at choosing between choices. When there is liberty to choose, when all costs are capitalized into the price of use, our aggregated wisdom is genius.

  • Tyranny of the Majority

Tyranny of the Majority is the vile facet of democracy. American examples of Tyranny of the Majority are: 

  • Slavery of African Americans.
  • Annihilation of the American Indians.
  • Internment of Japanese Americans
  • And today, Climate Change, resource depletion, and our mortgaging the liberty and labor of every child in America for $53,000 each for cheaper gasoline prices today. The correlation between slavery and mortgaging the liberty of children is expanded in another paper on Illicit Energy

Tyranny of the Majority was well understood by the Framers. Many were or had been slave holders. They villified the institution of slavery while indulging in the economic advantage of using the coercise powers of government to alienate slaves from their unalienable Rights. How Americans today are repeating this crime against our children is expanded later in this paper on Civilization Killers.

Benjamin Franklin: "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!"

Thomas Jefferson: "A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine."

John Adams: "Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide."

John Quincy Adams: "Democracy has no forefathers, it looks to no posterity ; it is swallowed up in the present, and thinks of nothing but itself."

Thomas Jefferson, Letter to Joseph C. Cabell, February 2, 1816, explains what was achieved in the first 3 decades of the United States of America:

"The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to.

Let the national government be entrusted with the defense of the nation, and its foreign and federal relations;

the State governments with the civil rights, law, police, and administration of what concerns the State generally;

the counties with the local concerns of the counties, and each ward direct the interests within itself.

It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man"s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body."

I have thought it proper to quote at length these interesting passages, because they contain a luminous abridgment of the principal arguments in favor of the Union, and must effectually remove the false impressions which a misapplication of other parts of the work was calculated to make. They have, at the same time, an intimate connection with the more immediate design of this paper; which is, to illustrate the tendency of the Union to repress domestic faction and insurrection.

 

Democracy: The Essential and Flawed Tool

This graphic is an effort to illustrate the two faceted nature of democracy, how Divided Sovereignty between Federal and State Governments allow Wisdom from the Many to be useful while constraining Tyranny of the Majority.  

 

In Federalist #9 Hamilton extensively quotes Montesquieu:

So far are the suggestions of Montesquieu from standing in opposition to a general Union of the States, that he explicitly treats of a CONFEDERATE REPUBLIC as the expedient for extending the sphere of popular government, and reconciling the advantages of monarchy with those of republicanism.

"It is very probable,'' (says he) "that mankind would have been obliged at length to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC.

"This form of government is a convention by which several smaller STATES agree to become members of a larger ONE, which they intend to form. It is a kind of assemblage of societies that constitute a new one, capable of increasing, by means of new associations, till they arrive to such a degree of power as to be able to provide for the security of the united body.

"A republic of this kind, able to withstand an external force, may support itself without any internal corruptions. The form of this society prevents all manner of inconveniences.

"If a single member should attempt to usurp the supreme authority, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great influence over one, this would alarm the rest. Were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped and overpower him before he could be settled in his usurpation.

"Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

"As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.''

In Federalist #10 Madison explains how the Constitution was to be empower by Wisdom from the Many while defending against Tyranny of the Majority (faction:

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

 

In Federalist #39 Madison illustrates Divided Sovereignty as part federal and part national government.

First. In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.

The next relation is, to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the government it appears to be of a mixed character, presenting at least as many FEDERAL as NATIONAL features.

The difference between a federal and national government, as it relates to the OPERATION OF THE GOVERNMENT, is supposed to consist in this, that in the former the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. On trying the Constitution by this criterion, it falls under the NATIONAL, not the FEDERAL character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a NATIONAL government.

But if the government be national with regard to the OPERATION of its powers, it changes its aspect again when we contemplate it in relation to the EXTENT of its powers. The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government. Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it wholly national, the supreme and ultimate authority would reside in the MAJORITY of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and principles. In requiring more than a majority, and particularly in computing the proportion by STATES, not by CITIZENS, it departs from the NATIONAL and advances towards the FEDERAL character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the FEDERAL and partakes of the NATIONAL character.

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

Federalist #51 (James Madison):

"It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

Common Sense, The Declaration of Independence, and the Constitution make clear distinction between community and government. One is based on human goodness, the other on the need to coerce human defects. Sovereignty to collect taxes and power apply coercion was to be divided:

  • All rights belong to the People.
  • We sacrifice some natural rights to government coersion to create civil rights.
  • To constrain government coercion, Ambition must be made to counteract ambition”, we divided sovereignty, sacrificing to different liberties to restricted soveriegnty in multiple layers of governments.
  • We restricted, the Federal government to only "promote" welfare. Providing welfare is retained by the people, or assigned by the people in State Constitutions to the States.
  • We granted Federal sovereignty unlimited taxing powers for the limited sovereignty to "provide" for the defense of liberty, issues of war and the path to war. Because governments are soulless institution, hungry to accumulate ever more power, "Ambition must be made to counteract ambition”  was used by further separating powers into three branches of goverment:
    • The Executive,
    • The Judicary.
    • Congress. The power of Congress is further divided into:
      • The House to represent the passions of the people, aggregating the Wisdom from the Many.
      • The Senate, to represent the states, aggregating the wisdom of governing ourselves in states as laboratories of democracy. The 17th Amendment removed this 

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