Sovereignty RIP

Sandy Levinson

This is the title of an extraordinary new book published by University of Michigan political theorist (and member of the University of Michigan Law School faculty) Don Herzog.  Tacking an immensely important subject, Herzog writes with a mordant wit that makes its pages fly by.  He has a flair for telling quotations that illustrate exactly what is at stake in debates about the notion of "sovereignty."

His basic thesis, captured in the title, is that sovereignty as a concept has long outlived its usefulness, save as something for historians of political thought to refer to when trying to understand the end of religious wars in the 16th and 17th centuries and the (false) belief that stability, security, and relative calm would be provided by conceptualizing an all-powerful state. Although that state might be conceived, along lines laid out by Romans 13:1, as the creation of the true super-Sovereign God, a view argued vigorously by Charles I, among others, before he went to the scaffold during the English Revolution, Thomas Hobbes realized that the mythic "popular sovereign" could be viewed as authorizing an all-powerful monarch in the belief that that would indeed supply the security that the demos craved.  The point about "sovereignty," after all, is that there are no internal limits to what the supposed sovereign can do, including ceding all governmental power to a king.  (We can put to one side for now whether the then-"sleeping sovereign" can awaken and overthrow the king or any other existing government, as, indeed, was suggested by the secessionists who wrote the Declaration of Independence.)

Herzog demonstrates that "sovereignty" was originally thought to require limitless power, indivisibility, and a concomitant lack of accountability to anyone (save, perhaps God).  He also argues, passionately and eloquently--this is, at bottom, a book generated at least by passionate outrage at the implications of "sovereignty" as by a simple desire to put our intellectual house in order--that no sane person today should be committed to these ideas, even if they might have seemed to make political sense (at least to some) in the seventeenth century.  More to the point, almost no sane person does exhibit a desire to have an unlimited, indivisible, and unaccountable government, even if sane persons can and do argue vigorously about the specific limits, levels of divisibility, and methods of accountability that are desirable.

What this adds up to, Herzog convincingly argues, is that we should simply excise the term "sovereignty" from our vocabulary.  It does not positive good (save to authoritarians who wish to bully people into believing that "sovereignty" does indeed require submitting to their uninhibited power grabs) and sows much confusion.  To argue about the "true meaning" of sovereignty, in the 21st century, he suggests, is a bit like arguing about the interior structure of a unicorn's body or even whether unicorn's horns have certain medicinal (or aphrodisiac) properties.  We get along just fine without conversations about unicorns, even if we need to have the concept of "unicorn" in our heads in order to under certain poems or even one of Charles Addams most searing cartoons showing two unicorns looking plaintively at Noah's Ark in the distance.  So it should be with "sovereignty."

One implication of Herzog's argument, of course, is that the Supreme Court should stop its own use of such terms as "state sovereignty," which serves mainly to confuse generations of law students (and their professors).  Justice Thomas's perhaps best opinion is in the Lara case in which he correctly noted that the Court's treatment of the "sovereignty" of American Indian tribes was basically "schizophrenic."  What we really should be discussing is what degree of power we as polity wish to allocate to Indian tribes or, for that matter, states or the national government.  If one wishes to refer to "popular sovereignty" as the background condition for such authorization, Herzog has no real objection so long as we recognize that nothing actually rides on that designation in terms of the merits of any actual proposal for allocating power (or what he often calls "jurisdiction").

For some readers, Herzog's book will no doubt be treated with the same degree of horror as greeted a famous Time magazine cover in the 1960s about those theologians who were pronouncing "the death of God."  But just as more and more people, to the dismay of some, find it altogether possible to get through the day (and their lives) without using "God" as anything more than a cultural reference, so could we liberate ourselves from the intellectual confusions and at time truly evil practical implications of believing in Sovereignty.

On principle, I open my postings for reader comments.  But I see no particular value to such comments in this case unless posters first read the book (available from the Yale Press).  I suppose the only exception should be if someone really wants to defend the idea that government (and governors) really should be all-powerful and accountable to no one (and that George Washington and his friends should have been hung as the traitors they were for rejecting the sovereignty of His Royal Majesty King George III and the British Parliament).  Otherwise, read the book.
Posted 1:24 PM by Sandy Levinson [link]