Our forefathers had the idea that a hierarchy of authority existed. They believed that the Creator (some believed in the Christian God of the bible and others were deists) had all authority and that He had a set of requirements for living that were recorded in the Bible. The founders usually called this “natural law” which is defined in Black’s Law Dictionary (5th edition) [hereafter called Black’s] as “a system of rules and principles for the guidance of human conduct which, independently of enacted law or of systems peculiar to any one people, might be discovered by the rational intelligence of man --- necessary, obligatory rules of human conduct established by the Author of human nature as essential to divine purposes in the universe, promulgated by God, solely through the human reasoning of man.

The Founders also believed that the Creator made man so that man had authority under Him. They understood that men needed to have laws to resolve conflicts between themselves. They turned to the laws in Bible to resolve many conflicts, but they also saw that the Bible did not contain all of the guidance that was needed to resolve complex issues. So, they recognized the common law which was a body of law that was derived from legal cases (case law) from the British legal system over hundreds of years. This law was largely based upon common sense, and as such it was law that any man could utilize and understand. The next level of authority was government, specifically the State governments and their Constitutions. The States came together and delegated certain authority to the national government in the form of the Constitution for the United States of America. They recognized that the central government would have to have limited authority over state governments in order to resolve conflicts between the states. They also recognized that statutes created by legislative bodies were below the constitution (State or federal) in authority and could not override the constitution.

Inherent in the ideas of the founders was that man was a sovereign under God. Black’s (5th Edition) defines sovereign: “a person, body, or state in which independence and supreme authority is vested.” The Founders recognized that in a state of nature, man was not under any government or any ruler. They believed that man had certain unalienable (or inalienable) rights given by God. Black’s defines unalienable as “not transferable or assignable”. Flowing from these God given rights was the authority to create government which will have limited authority. This is recognized in the Preamble of the Constitution of the United States of America which says “We the People of the United States, in Order to form a more perfect Union”. In other words, the authority to form the United States came from the authority inherent within the people. The people were seen as sovereign (under the Creator). Further evidence of this idea is seen in the 9th Amendment which recognizes that the Constitution does not list all of the right of the people and that just because a right is not listed does not mean that it is not a right which is retained by the people.

The concept of government held by the Fathers was different from any other in history. They believed that the constitution is subject to the will of the people, not the legislature. They believed that a constitution is first created and then a government is created from it. You might say that the Constitution is a contract that the government is founded upon. They also believed that the people retain their rights, which are protected, at least in part, by government. All three of these beliefs were a radical departure from all previous attempts to form governments in the history of the world. These ideas are a major reason that sets America apart from all the other nations in the world.

The Preamble of the Constitution makes it clear that each person was considered sovereign and that based upon that sovereignty, they formed a government. It says:

“We the People of the United States, in Order to form a more perfect Union,
establish Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to ourselves and
our Posterity, do ordain and establish this Constitution for the United States of
America.”

Here we see that it was the power of “We the People” that established the constitution. The Constitution did not grant the people their rights. We also see that it was the States that granted the creation of the Constitution because it was established “for the United States of America” not “by the United States of America”. If it had been “by” then the federal government would have always had preeminence over the States. But what the Founders had in mind was that the federal government had limited powers granted by the States.

The properly relationship between States and the federal government is largely misunderstood today. Thomas Jefferson provides insight into the properly relationship:

“With respect to our state and federal governments, I do not thing their relations correctly understood by foreigners. They generally suppose the former subordinate to the latter. But this is not the case. They are co-ordinate departments of one simple and integral whole. To the state governments are reserved all legislation administration, in affairs which concern their own citizens only; and to the federal government is given whatever concerns foreigners and citizens of other states; these functions alone being made federal. The one is the domestic, the other the foreign branch of the same government - neither having control over the other, but within
its own department.” --- from Thomas Jefferson’s letter to Major John Cartwright, of June 5th, 1824 (vol. 4, p. 396).

There is additional evidence that the sovereignty was a central issue of the Revolutionary Way. There was a treaty signed between each State and Britain after the war. Article I of the treaty states: “His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, Rhode Island, and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign and independent States”.

This separation of powers between the states continues today. It is a well established legal principle that the 50 states are “foreign” with respect to each other (In re Merriam’s Estate, 36 NE 505 (1894)). The status of being foreign is the same as “belonging to” or being “attached to” another state or another jurisdiction. Evidence of this foreign status can be seen in the fact that when a someone is capture in one state but wanted for a crime in another state, the state where the crime was committed initiates extradition proceedings with the state that capture the person charged with the crime.

Today the government acts as if it is sovereign. They tell us how much tax we are going to pay for the privilege of working, how much tax we will pay on our property, how fast we can drive, what we can and cannot do with our land, etc. So how did we get from the people being sovereign to where we are today? In the remainder of this essay, I will attempt to answer this question by reviewing the history of what happened to our sovereignty.