http://humanityjournal.org/blog/can-a-citizen-be-sovereign/
What is this Government, whose power is here being asserted? And what is the source of that power? The answers are the foundation of our Republic. To secure the inalienable rights of the individual, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” I do not believe the passage of time has lessened the truth of this proposition. It is basic to our form of government. This Government was born of its citizens, it maintains itself in a continuing relationship with them and, in my judgment, it is without power to sever the relationship that gives rise to its existence. I cannot believe that a government conceived in the spirit of ours was established with power to take from the people their most basic right . . . with power to decree this fate. The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government.[25]
In Warren’s opinion, the sovereignty of the citizen was contained in the Fourteenth Amendment:
The basic constitutional provision crystallizing the right of citizenship is the first sentence of section one of the Fourteenth Amendment. It is there provided that ‘All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ United States citizenship is thus the constitutional birthright of every person born in this country.[
This is a very fascinating article!
In the majority opinion he delivered, Black stated:
We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.[38]
Black additionally gave significance to this interpretation of the Fourteenth Amendment, which went beyond the absolute protection it provided to the citizen, by reiterating its link to the sovereignty of the citizen:
Other nations are governed by their own constitutions, if any, and we can draw no support from theirs. In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones.[39] …. Citizenship in this nation is a part of a cooperative affair. Its citizenry is the country, and the country is its citizenry.[40]
Warren started by borrowing from Hannah Arendt the concept of citizenship as the right to have rights, which she uses in The Origins of Totalitarianism. Her terminology made its way to the Supreme Court—in the Perez dissent and Trop decision—along an interesting path. Jon Newman, Warren’s senior clerk who worked on the Chief Justice’s opinion, borrowed the words “right to have rights” from Chief Judge Charles E. Clark’s dissent from the Second Circuit’s decision in Trop.[58] In that decision, Clark quoted from, and highly praised, a brief article on “The Expatriation Act of 1954,” published by the Yale Law Journal in 1955,[59] which argued that no description of expatriation as a loss of particular rights is adequate. Expatriation represents a loss of the right to have rights—a loss of membership in an organized community capable of guaranteeing any right at all; in advancing this claim, Arendt is cited as its source.[60]
Black and Warren were, perhaps, reacting to this new draft opinion—which they found to be overly “philosophical”—and, in the process, developing fresh ideas. This may have pushed them, after reading the draft opinion, to reply by turning the relationship between citizens and the state on its head: citizens are themselves sovereign and no organ of the government can strip an American of her citizenship.[76]
Black “discovered”—or rediscovered[77]—a concept of the sovereignty of the citizen which was percolating within the theory of the American Republic since its foundation. He anchored it within jurisprudence by connecting it to the Citizenship Clause of the Fourteenth Amendment. This was more than just a way to guarantee protection over American citizenship for its bearers. Employing the concept of the sovereign citizen also served as a reminder that individual sovereign citizens stood at the origins of the American republic: while delegating many powers, they retained some basic rights along with a way to reorganize the classic hierarchical relationship between the state and its citizens.
negative liberty which “is involved in the answer to the question ‘What is the area within which the subject—a person or a group of persons—is or should be left to do or be, without interference by other persons.”[79] Negative rights stand against certain sorts of aggressive and invasive acts. These were the kinds of rights that the justices wanted to guarantee by declaring the citizen sovereign. Such a position rendered the citizen a bearer of an absolute negative right. Regarding the question of status, the citizen had “the quality of a power that has no superior,” which was one of the definitions of sovereignty.[80]
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While possibly relying on citizens understood as a collective body, they never envisioned the possibility of the individual citizen as being sovereign.
So was it a pure fantasy on the part of Justice Black and the US Supreme Court to proclaim the sovereignty of the individual citizen? Or was it just a metaphor which could not survive the real test of sovereign power? Their position was, at the least, not a complete conceptual invention: it had been already envisioned by political theorists, and by the Supreme Court itself in previous important decisions.
First, Rousseau invokes a kind of “sovereignty” which the individual citizen possesses during “the moment the people are legitimately assembled as a sovereign body, [when] the jurisdiction of the government wholly lapses, the executive power is suspended, and the person of the meanest citizen is as sacred and inviolable as that of the first magistrate; for in the presence of the person represented, representatives no longer exist.”[89] Sacred and inviolable are attributes and consequences of the sovereignty of the citizen.
Since the Rights of Man were proclaimed to be “inalienable” irreducible to and undeducible from other right or laws, no authority was invoked for their establishment; Man himself was their source as well as their ultimate goal. No special law, moreover, was deemed necessary to protect them because all laws were supposed to rest upon them. Man appeared as the only sovereign in matters of law as the people was proclaimed the only sovereign in matters of government. The people’s sovereignty (different from that of the prince) was not proclaimed by the grace of God but in the name of Man, so that it seemed only natural that the “inalienable” rights of man would find their guarantee and become an inalienable part of the right of the people to sovereign self-government. [emphasis added][90]
The way Arendt uses the term sovereign and applies it to the individual is significant, even if it has never been mentioned in the numerous commentaries that address these famous pages. In her view, the sovereignty of Man—proclaimed by the French National Assembly in the 1789 Declaration of the Rights of Man and of the Citizen—pre-existed the adoption of constitutional rules for governing; it constituted negative liberties. Yet she describes how, in the century and a half that followed, the sovereignty of man was swallowed by the sovereignty of the people and with them—in two stages—the rights of men. Man was no longer sovereign in law because human rights were first made dependent on national citizenships and then, a little more than one century after the French revolution, the rulers of nation states established the power to deprive citizens of their citizenship.
However, when the concept of the “sovereign citizen” suddenly reemerged in Warren’s mid-1950s Perez dissent and then became key to the Court’s decision ten years later in Afroyim, it was not reversed; to the contrary, it was and continues to be reaffirmed. How and why is this the case?
The answer can first be traced to the scope of sovereignty as it was affirmed. In Afroyim, the sovereignty of the citizen does not mean the possibility of blocking the entrance of new members into the citizenry, like in Dred Scott; of refusing protection given to public institutions, like in Chisholm; or of resisting majoritarian public policies as it is sometimes claimed today in the name of the “sovereign citizen.”[110]
Yet to ensure the absolute protection of citizenship, Arendt encountered a problem also raised by Michael Walzer, who points out that in order to ensure negative rights—like the right not to be murdered or enslaved—an entity must provide protection for these rights. For Walzer these entities are states. But how can protection of the citizen be guaranteed when it is the state and only the state that a citizen requires for protection? By proclaiming the sovereignty of the citizen, the Supreme Court offered an answer: instead of placing human rights outside of the state and its citizens, it inscribes human rights within the state—at its very core. The revocation or suspension of one’s citizenship is not permitted, even under exceptional circumstances.
Patrick Weil is a senior research fellow at the French National Research Center at the University of Paris 1 (Panthéon-Sorbonne) and a visiting professor of law at Yale Law School. Professor Weil's work focuses on comparative citizenship, immigration, and church-state law and policy. His most recent books are Le sens de la République, (with Nicolas Truong, Paris Gallimard-Folio, 2016) and The Sovereign Citizen: Denaturalization and the Origins of the American Republic (Pennsylvania, 2013). Among his other recent publications are "Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts,'' Yale Law Journal Forum 123 (2014); ''Headscarf versus Burqa: Two French Bans with Different Meanings,'' in Constitutional Secularism in an Age of Religious Revival, ed. Susanna Mancini and Michel Rosenfeld (Oxford, 2014); and ''From Conditional to Secured and Sovereign: The New Strategic Link Between the Citizen and the Nation-State in a Globalized World,'' International Journal of Constitutional Law (2011).
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