Where exactly does sovereign authority rest?

“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.”
--Constitution of the United States, Article VI, Section 2

Of the many principles and institutional practices incorporated into the United States system of governing ourselves that I learned while studying Constitutional Law in graduate school, the most unexpected and, even now, decades later, the most unexpected and compelling is reflected in the single sentence of Article VI, Section 2. In part, Article VI, Section 2 took on special importance, then as now, because of the extraordinary emphasis given to it by my Constitutional Law professor. He began his commentary on this section by asking a straightforward and, yet, profoundly important question: According to the U. S. Constitution, where does sovereign authority rest in this society?

As we entered the mid-point of our studies toward our Ph.D. degrees in political science and as we entered the final days of our second semester’s study of the Constitution, we advanced graduate students, we, who with others like us, would comprise the core of this and the next and the next generation’s best and brightest, offered up a number of possibilities: the people; the substantive freedoms (speech, press, religion, assembly, petition of the government) of the First Amendment; the people; the U.S. Congress (because the legislative authority of Article I, the authority to make law, takes precedence over the authority to carry out laws of the president and executive branch outlined in Article II and over the courts’ judicial authority, presented in Article III, to interpret and apply laws); the people.

As I have considered our political history and as I reflect on this time in our society, I think there are three profoundly important implications that flow from an acknowledgment that ultimate authority in this society resides in the U.S. Constitution and the ongoing processes for its interpretation and implementation. First, this means the values and beliefs and their associated practices of all other social institutions are secondary to and subordinate to the requirements and decision-making processes that flow from the Constitution. Stated differently, our most fundamental obligation, as a matter of how we conduct ourselves, is to the Constitution and to decisions guided by in-place, if evolving interpretations of the Constitution. This means that, as a matter of conduct, our primary obligation is not to the values and processes and decisions that flow from other social institutions (markets, religious institutions, political parties, communities, families) or even that result from our individual conceptions of right and wrong. Rather, if we are to live in a free and open and republican society, our overriding obligation is to the U. S. Constitution. On this point, it is important to recall that Martin Luther King, Jr. reminded his detractors of his, and their, profound obligation to uphold fundamental values embedded in the United States Constitution—an obligation made more essential because these constitutional values are based on and reflect the deepest commitments of a shared moral heritage. His extraordinary, caring, and peaceful political actions were taken, at unimaginable sacrifice, in defense of the Constitution. His eloquent call was for everyone, including his detractors, to honor the Constitution in their words and in their deeds.

Second, and following from this, an acknowledgment of the Constitution’s sovereign authority means that there will be occasions when, as individuals, we will need to revise or suspend our own deeply-held beliefs and values in ways that meet the requirements of public policy. So, too, there will be occasions when the long-cherished values and beliefs we hold as members of groups or institutions (religious, business, fraternal, professional, political parties, class- or race- or gender-based, educational, and more) and that are of profound importance to us will also need to be altered or suspended so that our decisions and actions are in compliance with newly enacted public policies. To place this for a moment into our present circumstances, quite critical policy choices are now being made in this society related to health care and the economy, education and the environment, the conduct of war and the carrying out of diplomacy, and more. As citizens, the Constitution provides opportunities to participate in many ways in these decisions. As individuals and as members of groups, many of us have deeply held beliefs about how markets processes and religious beliefs and our own individual values should enter into and be respected as these policy decisions are made. Yet as citizens, our primary obligation is to honor the Constitution and its decision-making processes, to place these, if needed, above commitments we have related to market processes, to a favored political figure or party, or even to our deeply held religious or personal beliefs.

A third point I want especially to emphasize relates to the important distinction between the constitutional level of governance and other levels of the governing process. The Constitution, by its character and function, identifies and reflects a society’s fundamental beliefs and values as related to how we govern ourselves as a free people. Within the context of these beliefs and values, the institutions and processes of governing (legislative, executive, administrative, electoral) and their decision-making processes have been established, on the basis of the Constitution and its interpretation, as vehicles for addressing and resolving or managing a myriad of concerns related to our more ordinary desires and preferences. For now, I can only point briefly to two implications of the important distinction between our fundamental beliefs and values incorporated into and protected by the Constitution and our more specific, ordinary values and beliefs which, if and as we choose, we seek to realize, in part, through the support of government. First, matters that relate to fundamental values and beliefs, if we believe they are in jeopardy or are being threatened by others or by public policies or by the agents of government, are appropriately taken to the courts—and, ultimately, the U.S. Supreme Court—because, by the Constitution, the judiciary holds the authority to interpret the constitutionality of the legislative and executive branches. A second implication is that great caution needs to be exercised in our decisions about where and how to place our requests to the various levels of government. Quite simply, our system of governance and the very possibility of governing ourselves under the Constitution are jeopardized when, with partisan or group purposes in mind, we try to have our specific values or beliefs enacted permanently as a matter of constitutional law rather than decided, on a more temporary basis, through the give and take of legislative or administrative or electoral processes.

My fourth and final point is this. An obligation by each of us to the governing process associated with the U.S. Constitution is the price we pay for a constitutional order. It is the price we pay for an open and free and pluralistic society. One alternative, as James Madison cautioned us in Federalist #10, is a political order in which a particular faction, with its specific set of values and beliefs, assumes control of government, disregards the constitutional process, and imposes its will on all of us who are not members of the ruling faction. Another alternative, as the social theorist William Kornhauser pointed out, is a governing process in which those who govern, well-motivated but overreaching in their efforts to respond directly to popular demands, become overwhelmed by such immediate and unmediated demands, by the impossibility of meeting all the needs presented to them by an aggressive and aggressively-mobilized public. In the process, the associations of a pluralistic society and the functions they perform are replaced by mass society, with governing taken over by a single and increasingly authoritarian elite which, out of necessity, steps up and seizes control of government and of the broader society. And yet another possibility, as the philosopher Thomas Hobbes persuasively argued, is that of violent anarchy, which occurs when sovereign authority, of any type, becomes so beleaguered and diminished that governing itself becomes impossible—with the chilling result that life for all becomes solitary, poor, nasty, brutish and short.