Tuesday, October 12, 2010

An Interesting “Eternal Truth”

On Wednesday, October 6, 2010, the BBC’s Gavin Hewitt reported the following with regard to legal authority being given over by Parliament to the EU, and Parliament’s ability as a sovereign body to take it back:

Today the Foreign Secretary, William Hague, promised them that the sovereignty of the British Parliament would be placed on the statute book for the first time. He told the Conservative Party conference that the clause on EU Law would underline "this eternal truth: what a sovereign parliament can do, a sovereign parliament can also undo".

The German Constitutional Court has also reached essentially the same conclusion. Given the fact that our American legal system is based on and descended from English common law, Mr. Hague’s comments are particularly interesting and raise the question: “How do Mr. Hague’s comments relate to American constitutional law?”

Perhaps the best way to answer that question is with another one: “In 1861, would Mr. Hague have supported secession or not?” Well, an “eternal truth” would be just as true in 1861 as it is today. Furthermore, the various “sovereign” state legislatures ratified the U.S. Constitution, so under Mr. Hague’s analysis, those same states could also undo what they had done, and secede.

Obviously, Mr. Hague’s comments are not going to settle the debate among constitutional lawyers on the right to secede from the Union; that debate was settled rather effectively by what Southerners sometimes used to refer to as “The Late Unpleasantness.” As a legal point, however, it is telling that both the common law British and the civil law Germans have reached the conclusion that sovereignty requires—presumes--the power of the sovereign body to undo what the sovereign body has previously done.

Furthermore, from a civilizational perspective, Mr. Hague’s comments and the German Constitutional Court’s decision serve as reminders that the Western nation-state is not dead: not quite yet.

W. Reed Smith

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