With the exception of Emer de Vattel, none of the authors who raised the question of the limits on state power or developed the concept of popular sovereignty derived the necessity of a constitution from these premises.
1 The contract theory mainly served as a test of the legitimacy of a political system. This test was met if the system could be imagined as having been voluntarily agreed upon by rational human beings. The idea of a legal document that established, rather than merely modifying, government and that comprehensively regulated the establishment and exercise of power was not part of this. Nor would this idea have been effective without the revolutionary break with hereditary rule and the resulting power vacuum.
2
But when the constitution, in the modern sense, emerged from the two great revolutions of the late eighteenth century, the American and the French, popular sovereignty played a crucial role. Gordon Wood, one of the greatest experts on the American Revolution, where constitutionalism began, even called sovereignty “the single most important abstraction of politics in the entire Revolutionary period.”
3 This proved to be true both for the revolution itself and for the founding of the United States of America with the adoption of the Constitution in 1787, which brought the revolutionary epoch to an end.
The dispute between the American colonies and the English motherland, that would end in independence was triggered by the special tariffs imposed on the colonists by the English Parliament through the Stamp Act of 1765. The colonists considered these incompatible with the rights of Englishmen, which were owed as much to them as to the inhabitants of the motherland. Without fundamentally questioning the authority of the London Parliament, they insisted on recognition of the principle of “no taxation without representation.” They pointed out that they were only able to elect colonial parliaments, but could not send representatives to Westminster and thus were not represented in the decision-making body.
The colonists were not persuaded by London’s response that they were represented virtually and pointed out the weaknesses of that argument. The English then shifted the discussion to the issue of sovereignty. Every society, they argued, had to have a final, supreme authority limited only by the laws of nature. Such a sovereign power was “the primary and essential condition of all political society” and needed no legitimation through representatives.
4 The compromises proposed by the colonists, with which they hoped to avoid a rift with the motherland, seemed to the English to lead to a division of sovereignty that would contradict the concept itself. The taxation debate thus turned into a question of preserving sovereignty that allowed for no compromise.
The colonists themselves ultimately realized this when William Blackstone, in his
Commentaries on the Laws of England, which quickly gained popularity in America, confirmed the necessity of a “supreme, irresistible, uncontrolled authority, in which the
jura summi imperii, or the sovereign rights reside.”
5 Under these conditions, however, two parliaments could not claim authority over the same territory. Forced to make a choice, the colonists decided in favor of their own parliaments and claimed the right of “a free and exclusive power of legislation in their several provincial legislatures.” When this was denied to them by English law, they constituted themselves—based on the “self-evident truths” of natural law—as “free and independent states.”
6Thus sovereignty was transferred to the parliaments of the former colonies, now states, but without a king or upper house; for an American monarchy was out of the question, and feudal society never took hold in the colonies. If not for the way in which these parliaments then used their newly won sovereignty, there would have been no founding of the United States, ten years after the Declaration of Independence, and no redefinition of sovereignty as it emerged from the constitutional debate in Philadelphia. Sovereignty was once again crucial for this second stage in the revolutionary process.
7The former colonists had already decided during the dispute with the motherland to found a confederation called the United States of America. But this did not include surrendering their newly won sovereignty. The Americans found confirmation in Vattel’s statement that independent states could unite in a permanent confederation without sacrificing their character as states or their sovereignty.
8 Thus the question of the divisibility of sovereignty did not arise. The confederation was viewed as a union under the law of nations; its legal basis, the Articles of Confederation of 1781, was considered an international treaty. It began with the sentence: “Each state retains its sovereignty.”
Yet it was precisely this individual state sovereignty that soon caused concern, due to the American version of parliamentary sovereignty, which lacked the moderating elements of English parliamentarianism. The brief history of postcolonial parliamentarianism was a history of arrogance on the part of the deputies, abuse of power, suppression of political opponents, broken treaties and failure to fulfill obligations, self-enrichment by deputies and betrayal of the common welfare. This explains the demand that the confederation be strengthened, once the individual state parliaments could no longer be trusted to make their own improvements.
9Yet the Federal Convention, charged with revising the Articles of Confederation, had no mandate to change the legal nature of the confederation and its legal basis, the articles. It was not intended as a constituent assembly.
10 Nevertheless, in its discussions the conviction quickly prevailed that the failures of the existing order could only be overcome by strengthening the confederation at the expense of the independence of the individual states. This led to a renewed debate on sovereignty, in which, however, the emphasis on the divisibility of sovereignty, which had taken primacy in the battle for independence, was shifted to a question of who held sovereignty.
11In resolving this question, it was of considerable importance that the parliaments, in their few years of independence, had forfeited their claims to sovereignty. It is true that self-government, about which the colonists had fought the war of independence, could not be imagined without a parliament. But a sovereign parliament did not meet the expectations associated with self-government. Therefore, the parliament’s popular mandate took on a more prominent role. In the Federalist Papers, Alexander Hamilton compared this with the relationship between principal and agent, master and servant.
12 In this way a solution was provided to the question of who held sovereignty that was not available to England: popular sovereignty.
Until then, the people had acted as the entity that elected parliaments, but their decision-making power did not go beyond the vote. Now the question became one of perpetuating the supreme authority of the people and viewing the parliament as an organ of the people. In this way, the people remained present as the principal authority—unlike the people in social contract theory—and could demand accountability regarding the way in which the function was exercised. The constitution existed in order to regulate the details of the relationship between principal and agent. It could thus emanate only from the people and, in order to preserve popular sovereignty, had to be ranked above any organs and acts of the state.
This, however, resolved only one of the two problems—overcoming parliamentary sovereignty. The second involved curbing the autonomy of the individual states for the benefit of the United States. To do so, the latter had to be empowered to make decisions that were binding on the individual states. This could only succeed if the confederation were transformed into a state and its legal basis into a constitution. The obstacle to this was sovereignty. The individual states were unquestionably sovereign and had no interest in surrendering that status. However, the elevation of the confederation meant that it would gain power over the individual states. The question was how to reconcile the two.
James Madison, the leading mind at the convention, at first considered an “aggregate” or “coequal” sovereignty to be conceivable.
13 But the indivisibility doctrine, which had already dominated the revolutionary years, again asserted itself in opposition. On this point, federalists and antifederalists agreed. Once again, no middle way was available. A solution was offered in the form of a transfer of sovereignty from the people of the individual states to the people of the United States. “Madison was inventing a sovereign American people to overcome the sovereign states.”
14 Neither the organs of the states nor those of the United States were sovereign; nor were the individual states or the United States sovereign. The American people alone were sovereign—in the view of the majority.
15The creation of a constitution, which was not part of the convention’s mandate, had to then be legitimized by an act of the American people, which would take place in the existing entities, the individual states. However, in the majority view, the voters would not be called upon to vote as the people of individual states on their respective states’ ratification of an international treaty, but as the American people on the adoption of their constitution.
16 The introductory words of the new Constitution do not reveal their full meaning if the quote ends, as is often the case, after the third word. “We the People of the United States” was revolutionary in a dual sense: “We the People” rather than “We the Government,” and “We the People” rather than “We the States.”
The French Revolution had different opponents and different goals than the American Revolution. While the American Revolution was directed outwardly and waged for self-government vis-à-vis an empire, the French Revolution was directed inwardly and waged primarily for a fundamental change in the domestic social order. Only when this goal proved unattainable within the framework of the existing political system did the efforts broaden to include the overthrow of that system. This overthrow was not at first aimed at the monarchy, but at the legitimating basis of the monarchy’s authority, which supported the traditional social order of the ancien régime: monarchical sovereignty.
The break with monarchical sovereignty did not, however, mark a break with sovereignty in general. In face of the enormous task of transforming the entire order according to the guiding principles of freedom and equality of the individual, sovereignty in France was instead practically a requirement for the success of the revolution—in contrast with America, where there was no need for a fundamental transformation of the legal order. It was thus the revolution that completed sovereignty on the night of August 4, 1789, by eliminating all existing intermediate powers and uniting the remaining prerogatives with the state’s powers in a unified public authority.
As in America, natural law theories guided action at the moment of the revolutionary break with traditional rule and the resulting necessity of a new political order. This meant that sovereignty was transferred from the monarch to the people.
17 As in America, however, it was also clear that the people could not rule themselves. Contrary to Rousseau’s view, public authority had to be entrusted to representatives of the people. Therefore, Title III, article 2 of the Constitution of 1791 provided that “the nation, from which alone all powers emanate, may exercise such powers only by delegation. The French Constitution is representative.”
However, this concept contained a danger for sovereignty that Rousseau had hoped to avoid. It could not be ruled out that these representatives would deviate from the interests of the sovereign and use their power for reasons other than those intended by their masters.
18 This problem—a result of transferring sovereignty to the people when they could not exercise it themselves—would be resolved, as in America, by the constitution. In the constitution, the people, as sovereign, established binding legal conditions under which their representatives could exercise the power entrusted to them. Only on this basis, and within the limits set by it, would people be appointed to exercise power.
Exercise of public authority at the behest of the sovereign, which is not itself able to act, is thus the key to understanding this system. What the fathers of the American Constitution had described more metaphorically as the relationship between principal and agent, master and servant, was conceived of in France by Emmanuel Joseph Sieyes as a fundamental theoretical distinction between
pouvoir constituant and
pouvoir constitué.
19 The constituent power lay entirely with the people. It was not transferrable; popular sovereignty was realized through it. The people were free to choose how to use it. Even self-limitation was deemed incompatible with sovereignty. The restrictions created by the constituent power applied only to the representatives.
But the enactment of the constitution was also the end of the constituent power. It established the rules for political decision making. The decisions themselves were the job of the constituted power, which had, however, to act within the bounds of the powers transferred to it. From the start, its powers were limited. In particular, it could not arbitrarily change the conditions of its operation. As Sieyes clearly discerned, the primacy of the constitution, which flowed from the distinction between
pouvoir constituant and
pouvoir constitué, was an essential aspect of the constitution. Without primacy, it could not fulfill its function of binding the public authority to the prescriptions of the sovereign.
The most important means of limiting the constituted power were, as in America, basic rights and separation of powers. Constitutions that lacked these did not deserve the name. “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution,” as laid out in article 16 of the declaration. Sovereignty was not only “imprescriptible and inalienable,” it was “one and indivisible.” Yet separation of powers did not contradict the indivisibility of sovereignty. Because it only affected the constituted power, which possessed no sovereignty but merely exercised public authority at the behest of the sovereign, it took place below the level of sovereignty and did not affect it.
At the same time, the separation between possessing and exercising power prevented the monarchy from contradicting popular sovereignty. The monarch also had to accept a change in his status. He was no longer the ruler by his own or divine right, but received his position and powers from a constitution prescribed by the people. “The representatives,” read Title III, article 2 of the Constitution of 1791, “are the legislative body and the King.” The king was a representative, appointed by the constitution, of the now sovereign people, as were the deputies of the corps législative; unlike them, however, he was not elected and was thus inferior to them.
The postrevolutionary sovereignty debate was long influenced by the revolution.
20 On the one hand, constitutionalism was one of the achievements that was not to be surrendered. On the other hand, popular sovereignty was now connected with the excesses of the revolution, which were not to be repeated. The return to monarchical sovereignty after the fall of Napoleon was thus only conceivable in the guise of constitutionalism. But it could certainly not be identical to prerevolutionary sovereignty. Constitutional rule is limited rule. The difference was overcome through the formulation that the monarch was the sole holder of sovereignty, but that he subjected himself to the constitution in its exercise.
The restoration did not last long, however. The solution to the problem was thereafter sought in other ways. The early liberals of the nineteenth century did not begin with the question of who held sovereignty, since they did not contest the people’s right to it; instead, they again attempted to introduce substantive limits to sovereignty, as had the constitutional doctrines of the second half of the eighteenth century, though not the doctrine of
pouvoir constituant. Benjamin Constant harked back to the idea of limited sovereignty when he said, “Sovereignty has only a limited and relative existence. At the point where independence and individual existence begin, the jurisdiction of sovereignty ends.”
21However, a very different attempt was crucial to later developments; in this form, it had no equivalent outside France. It goes back to a terminological ambivalence that had already appeared in the first constitution. Although the deputies to the National Assembly had called themselves Representatives of the French People when the declaration was adopted in 1789, in article 3 they declared not the people but the nation to be the bearer of sovereignty. This was also the case in the Constitution of 1791. Title III, article 1 stated in regard to sovereignty, “It appertains to the nation.” In determining what did not comport with this, however, the people once again appeared: “No section of the people nor any individual may assume the exercise thereof.”
The king’s attempt to flee in 1792 brought not only the monarchy but also the Constitution of 1791 to a rapid end. The Republican Constitution of 1793 no longer limited sovereignty to the act of constitution making. Departing from the purely representative principle of the Constitution of 1791, article 2 prescribed that the French people, “for the exercise of their sovereignty,” were to be divided into primary assemblies and cantons, and article 29 granted them legislative powers. Above all, however, in connection with sovereignty, the constitution no longer spoke of the nation, but only of the people. In article 7 they were defined as the “whole mass of French citizens,” a formulation that returned in the less democratic Constitution of the Year III.
The difference between nation and people as bearers of sovereignty would from then on dominate the French debate on sovereignty, long before Raymond Carré de Malberg gave it its classic expression.
22 Souveraineté du people (popular sovereignty) was in this view a concrete sovereignty, referring to the totality of living individuals, while
souveraineté de la nation (national sovereignty) was an abstract sovereignty, referring to a collective subject across time made up of present and past generations. The former was realistic, the latter idealized; the former was individualistic and democratic, the latter organic and representative; the former transferred the sovereignty of the monarch to the people, while the second created an entirely new concept of sovereignty.
The distinction did not remain purely theoretical. Since the
souveraineté du peuple was held responsible for the excesses of the revolution, while
souveraineté nationale was considered protection from those excesses, the distinction led to practical consequences. Bridging the gap was the fact that the intergenerational nation was not capable of forming a common will, but a people composed of individuals was. Thus in France the constitutional debates on plebiscitary or representative democracy, census suffrage or universal suffrage, imperative or free mandate, which also took place in other countries, were treated as abstract debates about the concept of sovereignty in the constitution.
In Carré de Malberg’s theory the sovereignty question ultimately became a question of constitutional amendment.
23 There was no longer a place for sovereignty in his strict legal positivism. If the state is the exclusive source of law, its founding cannot be a legal act. The same is true of the constitution. It creates the right to make law in the first place and cannot therefore regulate its own creation. “From this it follows that the initial formation of the state, as well as its first organization, cannot be considered but as a pure fact that does not lend itself to any legal classification, as this fact is not governed by principles of law.”
24Once the state is founded and the constitution enters into force, the collective can exercise its will and its power only on the basis of specific rules, in specific forms, and through specific bodies, which are established in advance by the constitution. Before the state and the constitution, there is only actual power. In the state there are only legally based and limited powers. This is also true of the constituent power; from a legal perspective, it may only appear as the power that amends the constitution. As such, however, it is created by the constitution and bound by its provisions. Strictly speaking, for Carré de Malberg there was no “constituting body” (
organe constituant). “Within the state, there are only constituted bodies.”
25Carré de Malberg himself asks how this harmonizes with popular sovereignty. Since he regards sovereignty as a legal status, there is no sovereignty prior to the state or after a revolution. “It comes down to a question of fact and ceases to be a question of law.”
26 At that moment, the people have no constituent authority. This authority is in the hands of “the most powerful.”
27 As soon as the constitution has entered into force, no further recourse to the people is necessary. Changing the constitution is the job of the bodies provided for by the constitution. Popular sovereignty can only express itself through these bodies. It consists of “the power which belongs to the nation to express and impose its will through its regular bodies.”
28The body responsible for amending the constitution is determined by the constitution. Carré de Malberg believed, however, that the principle of
souveraineté nationale, in contrast to
souveraineté populaire, “entails, as a necessary consequence, the separation of the
pouvoir constituant.”
29 The normal legislature may not amend the constitution, while the amending authority cannot change the laws. It seems doubtful that this can be reconciled with a purely positivist legal view. However, it is even more doubtful that Carré de Malberg’s assumption that all the French constitutions, with the exception of the Constitution of the Year III, were the result of national sovereignty is justified.
This is doubtful for two reasons. First of all, the constitutions after Year III no longer clearly defined the bearers of sovereignty. Only in the short-lived revolutionary constitution of 1848 did the word again appear. The legal consequences derived from the concept of sovereignty thus no longer had a textual basis. Second, it seems quite doubtful that the claimed distinction was really laid out in the various revolutionary constitutions. The constitutional debates instead conveyed the impression that the expressions
nation and
peuple were used synonymously or were at least unaffected by the meanings later ascribed to them.
30Only in the postwar constitutions of 1946 and 1958 did the contradiction seem to be overcome. Both stated that
national sovereignty lies with the
people. In the constitutional literature, too, the contradiction began to lessen.
31 The consequences connected with it were no longer seen to be the logical result of the choice of words in the constitution. Nor did the Constitutional Council insist on the distinction. It refused to review the constitutionality of laws adopted by
popular referendum, as they were the direct expression of
national sovereignty.
32 Whether the people act here as the
pouvoir constituant or only as the constitutionally bound
pouvoir constitué is a different question.
Compared with America and France, Germany represents a special case that can for this very reason shed a different light on sovereignty.
33 No revolution took place in Germany around the end of the eighteenth and beginning of the nineteenth century to end monarchical sovereignty. Rather, the princes of the German territories gained full sovereignty after the dissolution of the Holy Roman Empire in 1806, though in some cases only under Napoleon’s protectorate. The establishment of the German Confederation after the fall of Napoleon in 1815 did nothing to change this. Quite the contrary, the confederation saw itself as the “international union of sovereign German princes and free cities, to preserve the independence and inviolability of the states joined in the confederation.”
34Even without a revolution, however, numerous princes began to enact constitutions in the early nineteenth century, though less out of constitutional convictions than out of an interest in preserving their own dynasties. In some cases revolts encouraged this willingness. But all the constitutions were voluntarily granted by the monarchs. The way in which they were created was not without repercussions for the issue of sovereignty. None of the monarchs was willing to abandon his sovereignty; yet, in taking the step toward a constitution, each one had to accept constitutional limitations on his powers through basic rights and the right of parliamentary assemblies to participate in lawmaking. The monarchs’ authority was no longer unrestricted.
The tensions thus created between sovereignty and constitutional boundaries could not be resolved in the same way as in America or France. The road to popular sovereignty taken by those countries was not open to Germany. Article 13 of the Confederate Act did promise “constitutions of the estates” (Landständische Verfassungen) in all member states. But they were supposed to be a dam against popular sovereignty. The Final Act of the Congress of Vienna guaranteed monarchical sovereignty in article 57. The German Confederation was not least a defensive union against the threat of democratic constitutions. The use of force was permitted in order to put down attempted revolts in the member states that might threaten monarchical sovereignty.
These tensions would be resolved using the same formula that the restoration in France had already permitted to reconcile restoration of the monarchy with constitutionalism. The monarch was considered the sole bearer of sovereignty. In exercising it, however, he voluntarily bound himself to the provisions of the constitution. Article 57 of the Final Act of the Congress of Vienna gave expression to this formula.
35 Whereas in France the arrangement lasted only a relatively short time during the restoration period, in Germany it would determine the situation over the long term. It formed the basis of German constitutionalism until the fall of the monarchy at the end of World War I and the enactment of the Weimar Constitution in 1919.
It could not be concealed, however, that the German monarchs, measured against Bodin’s concept of sovereignty, were no longer sovereign, especially as they could not revoke or unilaterally amend the constitutions they had voluntarily enacted. But no one else was sovereign either—certainly not the people. Advocates of liberal constitutional doctrine thus found themselves willing to relativize sovereignty. Johann Caspar Bluntschli, like Constant, explained that “absolutism is not a necessary characteristic of sovereignty; rather, only a constitutionally ordered, limited sovereignty reflects the modern idea of the state; the perfection of the state thus leads from absolute to relative sovereignty.”
36With the failed Revolution of 1848, liberal constitutional theory, for which Bluntschli was a spokesperson, lost its influence. As in postrevolutionary France, the memory of the excesses of the revolution had a lasting effect and made sovereignty in the absolute sense once again plausible in Germany. However, the difficulties of locating it continued; for although the revolution had failed to achieve its goal of a united and democratic Germany, constitutionalism had asserted itself almost completely, even in Prussia and, with some delay, in the leading restoration power, Austria. Only the two Mecklenburg states remained without a constitution.
The essential catchword that now came to dominate had been provided in the first half of the century by Eduard Albrecht, in a famous review of a traditionally oriented constitutional law treatise by Romeo Maurenbrecher.
37 Albrecht concluded from the constitutional limitations on the monarch that he no longer possessed sovereignty. But it had not vanished; the bearer of sovereignty was instead the state. The monarch, much like the government he installed and the chambers that were partly elected and partly formed from the privileged estates, was merely an organ of this state, though one with a special status under the constitution.
The significance of Albrecht’s review was not merely the fact that he understood the consequences of Germany’s unique dualist constitutional structure earlier than anyone else.
38 He also indicated a way to defuse one of the period’s greatest sources of conflict: by discerning behind the dualism of prince and popular assembly a point of convergence in the form of the state, designated as a legal person. As Helmut Quaritsch correctly emphasized, if one followed Albrecht, “the opposition of king and parliament was no longer identical with the opposition of monarchical and popular sovereignty, absolutism and democracy. Legally speaking, they were organs of a legal person and would no longer argue about such things as divine right of kings and the people’s right to self-government, but at most about constitutional powers.”
39Albrecht thus went beyond G. W. F. Hegel, who had, sixteen years earlier, ascribed sovereignty to the state. He had done this, however, not in order to suggest a third possibility in the fundamental conflict between two claims of sovereignty, monarchical and popular, but to take sides in that dispute, strengthening monarchical claims while contesting the justification for popular sovereignty, which he called one of the “confused ideas” based on the “wild idea of the people.” Hegel’s concept of state sovereignty did not overcome but rather idealized monarchical sovereignty. The abstract person of the state was, only “real” to him in the form of a natural person, namely the monarch, while the people without a monarch were merely a “formless mass” incapable of forming a state.
40In the last third of the nineteenth century, Albrecht’s widely accepted views joined with the interpretation of the state as a legal person, without which his views could not have been explained.
41 Constitutional theory thus avoided the difficulty of having to divide or relativize sovereignty. Sovereignty had a single subject, and that subject held it without reservation. Constitutional obligation, as a self-limitation on sovereignty, did not affect the state. It limited not the state, but only its organs. The problem was that the state, as a legal person, could only act through its organs, which had no claim to sovereignty themselves, but only powers.
Following the establishment of the Reich in 1871, some constitutional scholars used this fact to give state sovereignty a pro-monarchical twist. To do so, they introduced an as-yet-unused additional distinction: between the subject and the bearer of sovereignty. The subject was the state, the bearer the monarch. The idea was Hegelian: the monarch could be called sovereign because he “manifests the power due to the state as an imagined person.”
42 However, in the constitutional state, he only manifested this power to the extent it was his due and not that of another organ. Jellinek ultimately dispatched this theory by pointing out this contradiction.
43 In the end, the German way of escaping state sovereignty thus had an effect similar to the shift of sovereignty to the people or the nation: within the state, it was absent.
While sovereignty in America and France remained present in the form of the constituent power of the people or nation, this possibility was lacking in Germany. Because the monarch had lost constituent power with the act of imposing the constitution, and this power was not subsequently ascribed to the people, one could only seek it, borrowing from the English “King in Parliament,” in the popular assembly and the monarch jointly. Indeed, it was these two organs of the state, and no longer the monarchs alone, that established the constitutions of the North German Confederation and the German Reich by way of treaties.
Because of the absence of sovereignty in the constitutional state and the legal obligation of its organs, H. Krabbe was the first to think of completely separating sovereignty from the state and ascribing it to the legal order.
44 This idea was later radicalized by Hans Kelsen in his assumption that state and law were identical.
45 The state could only be called sovereign to the extent that the legal order of the state was the supreme order. The state is sovereign “as a legal system.” Here sovereignty clearly reaches its highest degree of abstraction, no longer reflecting any bearer capable of acting that could exercise the decision-making powers always ascribed to it.
In the constitutional state, sovereignty could only remain compatible with separation of powers if it was ascribed to the abstract entity of the state or the fictive entity of the people. In the federal state, things are even more complicated. Here we do not have a single state on one territory, with comprehensive powers that are merely distributed among a number of organs at the level of execution. Instead, several states exist on one and the same territory, each with its own substantively-limited state powers, so that neither the central state nor the component states can claim to possess complete sovereignty. Thus the question of divisibility comes to the fore in the discussion.
There was, however, a credible witness to the possibility of divided sovereignty. Alexis de Tocqueville had emphasized, in his discussion of the United States, that sovereignty there was divided between the central state and the component states. There were “two governments between which sovereignty was going to be apportioned.”
46 When we recall the major role played by the idea of indivisibility of sovereignty in the dispute between the colonies and the motherland, and later in the constitutional debates in Philadelphia, Tocqueville’s findings sound surprising. On the other hand, Hamilton had promoted adoption of the Constitution by pointing out that it left “certain important portions of sovereign power” to the states.
47Still, the sovereignty issue in the United States was hardly resolved with the adoption of the Constitution. The defeated antifederalists insisted on their standpoint that sovereignty remained with the individual states, and therefore interpreted the federal Constitution as a compact among sovereign states, not a decision by the American people.
48 The simmering conflict ignited when the parliament of South Carolina found an 1828 federal law raising import tariffs to be unconstitutional and claimed the right to annul it in South Carolina.
The dispute between “nullifiers” and “unionists” gave rise to two famous debates in the United States Senate on the question of who was empowered to decide the constitutionality of federal laws—the United States (that is, the Supreme Court) or the individual state parliaments. In this debate, Robert Hayne, senator from South Carolina, based his argument on the sovereignty of the individual states. He concluded that, in a conflict regarding the allocation of powers between the states and the United States, the latter did not have the last word, nor did the Supreme Court, because this would equal unlimited rule by the United States in a way that was alien to America. That right to nullify was instead accorded to the individual states.
49In his response, Daniel Webster, senator from Massachusetts, did not deny that the individual states were sovereign, but argued that this was the case only “so far as their sovereignty is not affected by this supreme law” (the American Constitution).
50 Thus while he did not mention the phrase, divided sovereignty became conceivable. Webster said nothing more about this, since for him the primary question was who had the last word in such a conflict. In his view, only the federal constitution could provide the answer, and for that answer, in turn, the constitution’s source was crucial. “Is it the creature of State legislatures, or the creature of the people?” Webster answered, “It is the people’s Constitution.” Whatever form state sovereignty took, it was “not sovereign over the people.”
In the South Carolina state elections of 1832, the nullification debate was the dominant theme. When the Nullifier Party won the election, Hayne became the state governor. John Calhoun, who had been U.S. vice president after 1825, took Hayne’s seat in the U.S. Senate in order to effectively represent South Carolina’s interests. The newly elected South Carolina State House immediately scheduled elections to a Popular Congress, which—in purposeful reflection of the wording of the preamble to the U.S. Constitution—declared, “We, the People of the State of South-Carolina, in Convention assembled, do declare and ordain” that the federal laws “are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof, and are null, void, and no law, nor binding upon this State.”
51President Andrew Jackson answered by threatening to send troops to South Carolina. A draft law, the so-called Force Bill, was debated in Congress. During the debate, Calhoun defended the lawfulness of nullification.
52 In his view, the right arose from the continued sovereignty of the individual states, for which the United States was merely an “agent.” The United States owed its existence not to the American people, but to the individual states. The constitution they had called into being was by its nature a treaty among sovereign states. By signing the treaty, they had neither given up their sovereignty nor shared it with the United States. Shared sovereignty was conceptually impossible. “Sovereignty is an entire thing:—to divide is,—to destroy it.”
53Calhoun emphasized the difference between “sovereignty” and “sovereign powers.” Only the “sovereign powers” were divided between the United States and the individual states, while sovereignty itself remained with the individual states. Only they could decide upon the “reserved powers.” An act of the United States that affected these was unconstitutional and void. In Calhoun’s view, the continued sovereignty of the individual states meant that they had decision-making authority in conflicts over distribution of powers—not the Supreme Court, which was part of the “general government” and thus could only judge “delegated powers,” not “reserved powers.” “The reservation of powers to the States is … as full against the judicial as it is against the executive and the legislative departments of the Government.”
54Webster answered Calhoun without dwelling on the possibility of shared sovereignty.
55 Instead, he denied that the dispute really concerned the problem of sovereignty. “It is not a contest between two sovereigns for the same power.” The dispute played out below the level of sovereignty. While he had spoken in his 1830 speech of divided sovereignty, now he spoke of divided powers. “It is the case of a division of powers between two governments, made by the people.” Neither of these two governments was sovereign. It was a European idea that the government was entitled to sovereignty. “But with us, all power is with the people. They alone are sovereign.”
The crucial issue then became the source and legal nature of the federal constitution: Was it a treaty among sovereign states, “a constitutional compact,” as Calhoun had expressed it, or a constitution enacted by the people? The two possibilities were mutually exclusive, “a constitution of government and a compact between sovereign powers being things essentially unlike in their very natures, and incapable of ever being the same.” The division of powers among the individual states and the United States had been established in the Constitution by the American people. That alone regulated who could resolve conflicts regarding distribution of powers. “The Supreme Court of the United States is the final interpreter.” States that claimed this right for themselves were engaging in a revolution.
In his response, Calhoun insisted that the U.S. Constitution was indeed a treaty.
56 To Webster’s objection that it might have come about as a treaty, but was by its legal nature a constitution, he responded that a treaty was a treaty. Only the individual states could have been parties to the treaty—not the United States, which had emerged only on the basis of the treaty, and not the American people, since it was the people of the individual states who had ratified the treaty. This also distinguished it from the earlier confederation. “The confederation was the act of the State governments, and formed a union of governments. The present constitution is the act of the States themselves, or, which is the same thing, of the people of the several States, and forms a union of them as sovereign communities.”
57The conflict between the United States and South Carolina was settled, in the end, through a change in customs laws. But this did not settle the controversy over who was sovereign in the federal state. That question would ultimately be decided only by the American Civil War. Yet the idea of divisible sovereignty always resonated as a third possibility. Even the Supreme Court proceeded from the notion of divided sovereignty in an early decision on the distribution of powers between the U.S. and the individual states and continues to do so today.
58 Tocqueville’s portrayal thus does not seem completely wrong. It helped the Europeans to resolve their own sovereignty conflicts—first Switzerland, and then, at least for a time, Germany.
In the case of Switzerland, the problem emerged—as it would later in Germany—in connection with the issue of national unity.
59 During the Napoleonic era, Switzerland had briefly been a unified state, under the name Helvetic Republic. It became a confederation again in 1815, after Napoleon’s fall from power. As had happened sixty years earlier in America, however, the weaknesses of the confederation were increasingly felt to be a flaw. After the Sonderbund War between the Protestant and Catholic cantons, a change seemed unavoidable. The Tagsatzung, the cantons’ joint organ at the confederacy level, therefore appointed a commission to draft proposals to reform the articles of confederation.
As in America, however, this commission soon came to the conclusion that a reform of the confederation was not enough. Switzerland had to be transformed into a federal state, and its articles of confederation into a constitution. A majority would be enough to bring the constitution into force. This process could not be derived from the articles of confederation of 1815. Thus the step was no less revolutionary than the proceedings at the Philadelphia Convention. Here, too, the question of sovereignty necessarily took a prominent role. On the one hand, it was clear that no state could be established if the federation were not sovereign. On the other, it was certain that there was no majority for eliminating cantonal sovereignty.
In Switzerland, however, unlike in America, the solution was sought not in popular sovereignty overarching a federation and member states, although it was recognized that the authority of the federation came from the Swiss people. The Swiss—less well informed theoretically, but also less handicapped than the Americans by the prior debates with England—agreed to the formula, which has held to this day, that the cantons were sovereign to the extent their sovereignty was not limited by the federal constitution. This meant nothing less than divided sovereignty. They felt vindicated in their assumption that this was possible by the United States, as Tocqueville had reported the solution there.
In Germany, too, the sovereignty question arose in connection with the formation of the Reich. In the German Confederation it had seemed unproblematic because the Confederation, like the American Confederation of 1787, had been formed as a treaty-based union of states, which possessed no sovereignty of its own and thus did not call into question the sovereignty of the member states. Still, the German Confederation in fact had more powers than the American Confederation, particularly in resisting democratic aspirations among its member states. The decisions of its organ, the Federal Assembly, were binding on the member states, and the Confederation could even use force against reluctant members.
This, too, would have been compatible with sovereignty, as a commitment by the member states themselves, if the Federal Assembly had been required to make decisions unanimously. But unanimity was only required on important matters, whereas on less important ones a majority sufficed. It was thus possible for a member state to be bound by a decision to which it had not agreed. As long as that was possible, it was subject to a higher power. Some constitutional scholars thus saw an irregularity in the confederation that did not fit the dualism of confederation and federated state. Others later argued that the sovereignty of the member states had not first been breached with the formation of the German Reich, but earlier in the German Confederation.
Yet any attempt in Germany to follow the example of the United States or Switzerland had to raise the question of sovereignty. In the Revolution of 1848 it was answered in favor of the Reich. The National Assembly, like the Philadelphia Convention, considered its task from the outset to be not reform of the confederation but adoption of a national constitution. Unlike the American Convention, however, it had a mandate from the people. As in the United States, the basis for the constitution’s legitimacy was supposed to be popular sovereignty. Here the people meant not the sum of the people of the individual states, but the German people in its entirety. In his opening address, the president of the assembly, Heinrich von Gagern, left no doubt of this: “We shall create a constitution for Germany, for the entire Reich. The calling and mandate for this creation lies in the sovereignty of the nation.”
60With the failure of the revolution and the subsequent Prussian plan for a union, the confederation was revived, and with it the recognition of the sovereignty of the individual state princes. Certainly this did not extinguish hopes for a German nation-state. But the failure of the attempt to create national unity from below fostered the belief that its success was only possible in association with the princes, not against them. Those who continued to pursue the idea of national unity thus had to prove the compatibility of a federal state and monarchical sovereignty. Historian Georg Waitz of Göttingen undertook to demonstrate this possibility in a study, published in 1853, on “The Nature of the Federal State.”
61Waitz addressed Joseph Maria Radowitz’s thesis that the Revolution of 1848 was bound to fail because it was impossible to form a federal state out of monarchies. In this view, an essential feature of a kingdom was monarchical sovereignty, which could not be maintained in a federal state that claimed sovereignty for itself.
62 If this were accurate, a nation-state could only emerge in Germany after the individual states were transformed into republics or incorporated into a united state—the one as unlikely as the other and, therefore, for supporters of national unity, an irritating idea.
Waitz, a former deputy of the Frankfurt Assembly and a member of its constitutional committee, now countered “that the nature of the federal state is in itself not at all inconsistent with the concept of the kingdom.” The kingdom, in its full sense, required the monarch to possess an independent right to rule, not merely one transferred to it, “whether from a higher ruler or from the people.” What the concept of the kingdom did not require was “the uniting of all state power and activity in one person.” Waitz did not doubt that, in a federal state, both the central state and the member states possessed the character of states. Because the state was not conceivable without sovereignty, however, the only conclusion possible was that both the central state and the member states were sovereign.
But if the central state could attain sovereignty without the founding states losing theirs, their existence as states was no longer at stake; the only issue was the appropriate division of powers between the central state and the member states. Waitz thus did not hesitate to abandon the idea of the unity of sovereignty. Sovereignty still meant being the supreme power. But it was enough that every state belonging to the federal state was supreme “in its sphere” and could therefore exercise its powers independently of other states. He, too, referred to the United States, as he perceived it through Tocqueville’s lens.
Waitz’s “as well as” now stood alongside the “either … or” of the stark contraposition of nonsovereign confederation and solely sovereign federal state. This appealed to the political hopes of the German bourgeoisie: the nation-state did not come at an unaffordable price. The princes could retain what they most valued, which ensured Waitz’s doctrine broad acceptance His thesis dominated scholarship from the 1850s on; this was confirmed by Heinrich von Treitschke, the leading historian of the epoch, who concurred with Waitz’s views in his 1864 study
Federal State and Unitary State and gave him credit for explaining Hamilton’s groundbreaking ideas about the federal state “systematically and with the great seriousness of German scholarship… “The old struggle among the schools over the concept of confederation and federal state has been concluded with this masterly study by Waitz.”
63The true challenge, however, came with the formation of the North German Confederation and soon after the German Reich in 1871. The negotiations on its founding were already difficult due to the sovereignty issue. Otto von Bismarck therefore preferred to conceal the sovereignty problem. According to his directive on the Reich Constitution, the Reich should be a federal state in essence, but should seem to be a confederation in form. This contradiction was essentially bridged by not mentioning the sovereignty issue in the text of the Reich Constitution. Politically, this ambiguity was a condition for adoption of the Constitution. But scholars could not leave the question open if they were to systematically comprehend the legal nature of the Reich and draw doctrinal conclusions from it.
The question left unanswered politically thus quickly became the central legal issue. No subject in constitutional law or the theory of the state was dealt with as intensively as sovereignty in the federal state. Every renowned public law scholar and numerous other writers took part in the discussion. It was begun spectacularly by a young Bavarian jurist, Max Seydel, in his first book,
The Concept of the Federal State, in 1872. In it he addressed Waitz’s theory of dual sovereignty, calling it theoretically untenable because it contradicted the nature of the state. To prove this, he relied upon arguments by Calhoun, whose views he laid out in detail.
64In contrast to the approach taken until then, Seydel sought to understand the nature of the federal state not through the concept of sovereignty but through the concept of the state. He viewed the state as the supreme form of human community—the “union of the people of a country under one supreme will.” There was no higher “union” than the state, no equal one next to it. “Therefore, a state beside a state on the same territory is impossible, because a dual perfect union is a contradictio in adiecto.” This unity could only be governed by a unified supreme will. “Two supreme wills cancel each other out.” In this argument the will appeared in the form of state power. It was the supreme power and tolerated no other power above or next to itself. Since Bodin, Seydel explained, the expression sovereign had described this characteristic of state power.
Seydel approached the concept of the federal state from this starting point, disputing Waitz’s doctrine of dual sovereignty and taking Calhoun as a basis. Like the latter, he believed divided sovereignty to be logically impossible. Consequently, in a federal state, the central state and the member states could not be sovereign simultaneously. This was not all, however. Because the state was defined by sovereignty, the central state and the member states could not be states simultaneously. If this was so, however, the possibility of a federal state disappeared entirely. And Seydel did indeed draw this conclusion: “All state entities that one identifies with the name federal state must be either simple states or federations of states.” There was no third way between a confederation and a unitary state.
Under these circumstances, Seydel could not then avoid the question of what earned the name state in the new Reich—the central state or the member states. He sought the answer—once again following Calhoun—in the origins of federal states. They came about through treaties among existing unitary states. As a consequence, their character as states depended on whether the states concluding the treaties intended to give up their sovereignty and transfer it to the newly created polity. Because there could be no nonsovereign state, the question was, more precisely, whether they gave up their existence as states upon concluding the treaty. To Seydel, no such intention was discernible at the formation of the Reich. Consequently, the Reich had not attained sovereignty, and, also consequently, it had not become a state. It had remained a federation under a new name.
Seydel’s thesis triggered a very prolific debate on the concept of the federal state.
65 Waitz’s dualist theory, designed to demonstrate the possibility of national unity under postrevolutionary conditions, did not survive the creation of the nation-state. On this point, Seydel won hands down. “Sovereignty is a quality with an absolute character that allows of no increase or reduction…. There is no half, divided, reduced, dependent, relative sovereignty but only sovereignty or non-sovereignty,” argued Paul Laband in his representative treatise.
66 Treitschke, who had so highly praised Waitz in 1864, distanced himself from him ten years later.
67 Only a few authors of the older generation clung to the idea of the divisibility of sovereignty.
In contrast, Seydel failed to prevail with his view that a federal state was logically impossible and that there could only be unitary states or confederations. On this point, he found only a single supporter, Philipp Zorn.
68 But Zorn drew the opposite conclusion from Seydel’s premises: The Reich was a unitary state; its members were not states, but were only called so. The majority of authors, however, did not conclude, from the premise of the indivisibility of sovereignty, that no federal state was possible. They believed it was possible to create an overall union out of individual units in which both had the quality of states.
However, a price had to be paid for this assumption elsewhere. It could only be maintained if the state and sovereignty no longer necessarily went hand in hand, but were divisible. A political unit could have the quality of a state without being sovereign. This was in fact the conclusion drawn by the majority of authors. Laband explained this innovation by pointing out that the sovereignty theory developed through consideration of unitary states; for these, it might seem as though state and sovereignty were conditional upon one another. But the emergence of composite states required a refinement of the theory.
69This refinement was then developed by Georg Jellinek. Jellinek proclaimed it a fundamental error in sovereignty theory that state power had been identified with sovereignty.
70 Sovereignty should, more correctly, be seen not as the essence of state power but merely as one characteristic, the absence of which did not affect the existence of state power. The only essential aspect of the state was state power, not sovereignty. Seydel protested that one could call nonsovereign states “states, only in the same sense that one calls a eunuch a man.”
71 But his objection was in vain; the doctrine of the separability of state and sovereignty prevailed.
Its supporters had, of course, to explain what in these circumstances turned a political community into a state and how it differed from a province, municipality, etc.; and also how state power would have to be constituted to be considered sovereign. The criteria were quite varied. In regard to statehood, most agreed with Laband that specific powers were sufficient; Jellinek’s addendum, however, that these powers could not be monitored by someone else was largely rejected.
72 The possibility of monitoring whether a member state had acted within the scope of its powers did not rob it of its sovereignty.
In regard to sovereignty, there was no change in the starting point that it was the main, supreme, independent state power. As such, it could not be increased or decreased. It was a superlative. If that were the extent of it, however, sovereignty would be a purely negative concept, defined only by the absence of a superior power. However, Jellinek placed particular weight on the idea that supreme power was not to be confused with unlimited power.
73 The sovereign state was unlimited only in regard to external limitations, because otherwise it would have a higher power above it. But internal limitations, as a form of self-limitation, did not contradict sovereignty.
Jellinek saw self-limitation not only as a possibility, but even as a necessity, because a state without law was unimaginable. A lawless state would descend into anarchy. It could not desire its own negation. Where there is a state, there is also law, and the state is therefore bound by law. By virtue of its sovereignty, the state may abolish or change any concrete self-imposed limitations in regard to existing law. But it is not above the law to such an extent that it can completely avoid being bound by law. Thus Jellinek defined sovereignty as the “characteristic of state power, by virtue of which it has the exclusive ability of legal self-determination and self-limitation.”
74For the federal state, this means that the division of powers between the central state and the member states that characterizes it does not affect sovereignty as long as it is a self-limitation. What is crucial for sovereignty in a federal state is not the extent of state power, but only who determines its distribution. One who establishes one’s own powers oneself, and therefore determines the powers of the other side, is sovereign. In other words, what is crucial for sovereignty in a federal state is
Kompetenz-Kompetenz (the power to distribute powers). In
Kompetenz-Kompetenz, sovereignty retreats.
75 This became the general belief, and thus the sovereignty of the Reich was established.
Albert Hänel, one of the few critics of Laband, agreed with this view.
76 However, he also took a position outside the strict dualism of central state and member states that the other authors advocated. Hänel considered this dualism to be a mechanistic dispersal of the state’s task that failed to do justice to the reality of the federal state, which consisted in the “organic affiliation and systematic cooperation of the two.” Neither side alone, nor both with their special positions, constituted the state, in his view. “Not the individual state, nor the central state, are states perse; they are only polities organized and acting as states do. A state per se is only the federal state, as the totality of both.”
Thus one can see Hänel as the precursor of the theory of the “three-branch federal state.” This idea can be attributed to Kelsen, who saw both the central state and the member states as partial systems, distinguished only by their different powers; above them existed the common state, which was the actual federal state and an expression of the unity of the whole.
77 Its only function was to grant the partial systems their powers; in other words, it determined the common constitution, upon which both the constitution of the central state and the constitutions of the member states were based. Thus it had
Kompetenz-Kompetenz and therefore sovereignty in the traditional sense.
However, Kelsen had to deal with the objection,
78 already raised against Hänel by Laband, that this superordinate state was not visible in either a separate constitution or separate organs. Only the central state’s constitution and its organs were above the member states. Nevertheless, Kelsen viewed the common constitution as positive law, not merely a logical legal condition.
79 But because there is no third constitutional text, the common constitution can only be contained within the central state’s constitution. Therefore, the body permitted to amend this constitution acts in different capacities depending on whether the norms being changed can be attributed to the common constitution or the central state’s constitution. The fact that it does not appear this way is simply the result of “a narrowing of perspective.”
80Kelsen’s great opponent, Carl Schmitt, found the coexistence of several independent political units within a common legal framework (in his terminology a
Bund) troubling and a contradiction in terms.
81 Nevertheless, he asserted that there is sovereignty in the federation and that sovereignty is undivided. But the
Bund can persist only if the question of who is sovereign is left open. As soon as the question is posed, the
Bund collapses. Either the several subunits lose their independence or the higher unit disappears. What allows the
Bund to leave the sovereignty question open is the homogeneity of the parts, which Schmitt regards as a precondition of a
Bund. Homogeneity makes it possible for no part to play the sovereign vis-à-vis the others.
Shortly after Schmitt had developed these ideas, Hitler came to power and abolished the federal system in Germany. It was reestablished after World War II by the Allies, but again abolished in East Germany. In West German federalism, the sovereignty question played no role. In its external relations, the Federal Republic was not completely sovereign before unification. Internally, the federal system gave rise to many constitutional questions, but there was no theoretical or political discourse regarding who was sovereign in the Federal Republic. It was taken for granted that sovereignty belonged to the Federal Republic. Neither did the Federal Constitutional Court discuss federalism problems in terms of sovereignty. The question reappeared only in connection with the European Union, when all the arguments from the nineteenth century surfaced once again.
82With the American and French revolutions, the project of modern constitutionalism was definitively established. The modern constitution was not one of those innovations that emerge in rudimentary form and mature only in the course of time. With these prototypes, the
achievement of constitutionalism emerged fully formed and set the standard against which all later constitutions would be measured. In content, constitutions may vary greatly. But if they lack the structural elements that are constitutive for constitutions, while they may still fulfill many of the functions of a constitution and even be called “constitutions,” they are not constitutions in the fullest sense of the achievement that emerged from the revolutions.
83The question is how the emergence of the constitutional state affected sovereignty. On the one hand, the constitutional state did not abandon sovereignty—certainly not external sovereignty, since this is measured by international law and not domestic constitutional law; but also not internal sovereignty. On the other hand, it is one of the characteristics of a constitutional state that it recognizes no supreme power in the state. There are only various state powers that specialize in particular functions granted them by the constitution. Even the legislative power is subject to law in a constitutional state—that is, to higher constitutional law.
The meaning of the modern constitution is, in fact, the comprehensive regulation of public authority. Through the constitution, the establishment and exercise of state authority are subject to thorough regulation, derived from a few basic principles. “Comprehensive” and “thorough,” however, should not be confused with total regulation. The constitution regulates politics, but does not make it unnecessary. Total regulation would mean reducing politics to the implementation of the constitution, thus robbing politics of its political content. The constitutional claim to regulate is comprehensive in the sense that neither extraconstitutional bearers of governmental powers, nor extraconstitutional ways and means of exercising public power, are permitted.
Because the situation was different before constitutionalization, sovereignty could not remain untouched by the transformation of the monarchical state into a constitutional state. The sovereignty of the constitutional state differs from that of previous political entities. Since none of the powers constituted by the constitution can claim to be sovereign, the constitution and sovereignty can only be reconciled by locating sovereignty’s bearers outside the constituted powers. In the constitutions that emerged from the American and French revolutions, no one but the people could take on this function. But even predemocratic constitutionalism, such as Germany’s in the nineteenth century, had to pay tribute to this result of the constitution, substituting the state for the people.
Yet not only historical but also systemic reasons supported a separation of sovereignty from state powers. The regulation of public authority intended by the constitution required that none of the powers be above the law. Since law was no longer found, however, but had to be made, the portion of law that constituted and regulated state power had to be attributed to a different source. Only the people were available, since any other source of legitimacy—be it transcendental or elitist—would have endangered the function of the constitution. Sovereignty in the fully formed constitutional state is popular sovereignty.
This has a range of consequences for the concept of sovereignty. The basic characteristic that has been maintained from the beginning—that sovereignty means supreme power—is unaffected. Only someone who, in regard to his powers, is subject to and legally dependent on no one can be called sovereign. The same is true of the elements that distinguish the modern concept of sovereignty from its medieval counterpart. Supreme power means more than the ability to make irreversible decisions. Whether the indivisibility of sovereignty could be maintained, however, remained unclear once it was acknowledged that, in addition to unitary states, the possibility of states comprised of states existed.
The remaining elements of Bodin’s concept of sovereignty, in contrast, do not comport with the constitutional state. They must be abandoned or adapted. This is especially true of the holder of sovereignty. In the Middle Ages, sovereignty was always connected with a person, and Bodin, too, could only imagine the sovereign as an individual or group of people. The attempt by monarchical constitutionalists to ascribe sovereignty—as in the French Charter of 1814—to a person, the monarch, was unsuccessful because it was not compatible with the characteristic of supreme and independent power. The constitutional monarch clearly could not make decisions alone in every area.
But even if sovereignty were ascribed to the people or the nation, it seems difficult to speak of personal possession of sovereignty. The concept of the nation already suggests a “supra-individual” unity that is more than the sum of the people currently living in a territory. But the people, as the sum of individuals, are also difficult to imagine as a personal holder of sovereignty, at least if one considers the ability to make decisions to be part of sovereignty. If we limit the people to the active citizens, they are not the entire people. If we include all citizens, they lack the ability to act.
The deeper reason for the impossibility of a personal holder of sovereignty in the constitutional state, however, lies in the fact that in such a state the holding and exercising of state power must be separate. It is the very meaning of constitutionalism that those who have public authority over others are not granted sovereignty. They are merely organs of a political entity and may only use the powers granted them and the instruments of power entrusted to them within the limits drawn by the constitution and under the conditions set by it. It follows from this that there is no sovereignty in a constitutional state, but only powers. Sovereignty withdraws into the constituent power and expresses itself only in the act of constitution making. As long as the constitution is in force, it remains latent.
84Confirmation of this can be found in the minor importance of the concept of sovereignty to the interpretation and application of constitutions. It was instead membership in the European Union that raised the question of sovereignty in constitutional jurisprudence. The question was the degree to which states could transfer certain powers to international organizations without losing their sovereignty. The French constitution devotes its first section to sovereignty, though without determining the content of the term. It does not, like the constitution of 1791, name the properties of sovereignty (“one, indivisible, imprescriptible and unalienable,” Title III, article 1). The Constitutional Council at first distinguished between the impermissible “transfer” of sovereignty and its permissible “limitation.” Today it speaks of a “transfer of competences,” while the “essential conditions of the exercise of national sovereignty” must be ensured.
85In Germany, where “sovereignty” does not appear in the Basic Law, the Federal Constitutional Court assumed, in its Maastricht judgment, that the Federal Republic remains sovereign even as a member state of the European Union; however, to the extent that powers have been transferred, it exercises its sovereignty together with other member states.
86 In its Lisbon judgment, the court, like the French Constitutional Council, emphasized the difference between sovereignty, which inheres in the member states, and sovereign or governmental powers, which may be transferred, albeit only to a certain extent. The court also expanded on its conclusion that Germany continued to be sovereign, stating that the Basic Law not only presumes the Federal Republic to be a sovereign state but in fact guarantees it. It is empowered to transfer powers to the European Union only on condition that German sovereignty is preserved. The Basic Law does not allow the German people’s right of self-determination, in the form of sovereignty under international law, to be surrendered.
87For the United States, too, in whose emergence the sovereignty issue was of crucial importance, it was international developments, particularly the tendency toward the creation of institutions that can override national sovereignty, that revived sovereignty as a constitutional problem apart from federalism issues. Sovereignty under international law has been deployed as a defense of the American Constitution, with its grounding in popular sovereignty. Sovereignty functions to protect democracy against an international legal order that has no claim to democratic legitimacy.
88The observation that sovereignty is latent in the constitutional state does not apply only to representative democracy, which grants the people decision-making powers through elections alone. Where the people possess additional decision-making powers, such as referenda, they exercise them as powers created and regulated by the constitution. They act as a constituted power. This is sometimes obscured terminologically, as in article 3 of the French constitution, which states that the people exercise national sovereignty through their representatives and even through referenda. Here, too, sovereignty is not reintroduced into the constitutional state. The people do not express themselves as sovereign in a referendum.
One can even ask whether amending the constitution can be viewed as an act of sovereignty. This is certainly not the case if the constitution grants state bodies the power to amend the text, and even less so if it limits them to amendments that conform to the system, as in article 89 of the French constitution and article 79 (3) of the Basic Law. In this case the difference between
pouvoir constituant and
pouvoir constitué is reflected in the amendment process. The greater significance of the amendment power is expressed in the requirement of a qualified majority. But only the creation of a new constitution is an act in which popular sovereignty is expressed.
89However, we know that, even in the act of creating a new constitution, for example following a revolutionary break with the old order, social groups appear on the scene claiming to act in the name of the people, and, if successful, bring the people into play, either in electing deputies to draft a new constitution or in adopting such a draft. But the validity of a new constitution does not depend on direct popular participation. Even its acceptance and legitimacy do not necessarily depend upon it. In Germany no constitution has enjoyed greater legitimacy than the Basic Law, which was never directly sanctioned by the people, whereas the Weimar Constitution, drafted by a National Assembly elected solely for this purpose, quickly lost its legitimacy.
90This ultimately demonstrates that the constitutional state has made the sovereign invisible. Popular sovereignty is not a reality, but an ascription. The sovereign remains only an abstract subject for the ascription of acts of public authority. This does not mean that recognizing the people as a subject for ascription has no practical significance. Popular sovereignty may be a fiction,
91 but the fact that the people are recognized as the source of public authority, to whom the exercise of power must be accountable, yields real consequences that account for differences between political regimes.
92 This is one reason that the constitution is considered an achievement.
It was Carl Schmitt who formulated the protest against displacing sovereignty with constitutionalism. However, he too was unable to return sovereignty to its prior status without depriving the constitutional state of its meaning. He could, however, weaken the constitutional state. He did this by restricting the applicability of constitutional law to normal circumstances. In his view, sovereignty could only remain latent under such circumstances. In times of emergency, however, constitutional law had to be abandoned, and unlimited state power prevailed. In emergencies, sovereignty was revived. “Sovereign is he who decides on the exception.”
93A state of emergency, in Schmitt’s view, was by definition impervious to legal regulation. He was not speaking of predictable disturbances of limited scope, which were provided for by a constitution’s emergency provisions. But for emergencies that threatened the very existence of the nation, the constitution could at best prescribe who might act. Because the existence of a true state of emergency cannot be defined in advance, and the means of overcoming it cannot be statutorily prescribed, Schmitt refused to treat emergency powers as legal competences. Whoever is empowered to act is sovereign, and his “decisions are free of any normative bonds and are absolute in the actual sense.”
94Schmitt’s idea of sovereignty was thus the flip side of the sovereignty realized through the constitution-making power. It was a constitution-unmaking power.
95 In contrast to the constituent power, however, he did not ascribe this power to the people, who cannot act in times of emergency, but to a ruler who legitimizes himself through his successful actions in time of emergency. Schmitt did not indicate what would follow once the state of emergency was overcome. During the Weimar Constitution’s existential crisis in 1932, however, he did not support the idea that only a desire to rescue the constitution could justify its temporary suspension. Schmitt’s doctrine of sovereignty led away from the constitutional state.
96