Moreover, in today’s Democratic Party, gun confiscation is becoming more and more central to their platform. Some candidates, like Beto O’Rourke and sometimes Joe Biden, openly talk about it. Others, like former Supreme Court justice John Paul Stevens, openly advocate for repealing the Second Amendment altogether. Indeed, in 2018, then-retired justice Stevens wrote a widely read op-ed in the New York Times expressly entitled, “Repeal the Second Amendment.”
But of course, there were already four votes on the Supreme Court (including his own) to repeal the Second Amendment by judicial fiat—to eliminate the right to keep and bear arms from the Bill of Rights altogether. Four votes to remove any constitutional protection of our right to keep and bear arms and to empower government to confiscate every firearm in America, to make it illegal for you to defend your home or your family, and to make it a felony for law-abiding citizens to own guns. With the Second Amendment, as with so many other vital issues, we’re just one vote away.
CHAPTER 4
SOVEREIGNTY AND MEDELLÍN V. TEXAS
Who governs America? Who has authority over our laws and our criminal justice system? Is America its own nation, or are we subject to the rule of the United Nations and the World Court? And can the president of the United States give away U.S. sovereignty? Those were the questions at the heart of the most important case I argued at the Supreme Court.
The term “sovereignty” refers to the ability of a self-governing people to exercise the ultimate authority that comes with ruling itself. Sovereignty is a hallmark of every free nation-state, especially in the modern “Westphalian” nation-state system that followed the conclusion of the Thirty Years’ War in 1648. It means being able to define who you are, dictating your own rules and norms, and controlling your own destiny.
A nation is sovereign if it is able to define and control the people that constitute it, is able to make all the relevant decisions that come with day-to-day governance, and is able to hold accountable its own elected and appointed rulers. A nation is not sovereign if it lacks any of these features—especially if the nation cannot control its own borders, cannot define who constitutes its own people, or is unable to make its own governing decisions due to interference or control from either another country or a transnational institution.
America’s Founding Fathers had no intention of making this country anything other than a fully sovereign Republic. As Thomas Jefferson made clear in the Declaration of Independence, sometimes “it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”
That is not the battle cry of a people who sought to retain formal or legal ties to the British Crown. To the contrary: attaining full sovereignty was the singular goal of the American Revolution.
So America was always intended to be fully sovereign. Indeed, the language of our Constitution’s Preamble clarifies this. That Preamble establishes that they who “do ordain and establish this Constitution” are “We the People of the United States.”
Dr. John Eastman, a respected constitutional law scholar and my friend and former co-clerk, is fond of noting that the Preamble does not refer to “We the People of the World” but to “We the People of the United States.” That is a monumental distinction. It is a distinction that makes all the difference in the world. It is a distinction that distinguishes between national sovereignty and transnational encroachment upon sovereignty.
America’s constitutional order is defined by two hallmark structural features: the separation of powers and federalism. Our tripartite separation of powers at the federal level divides power between the legislative, executive, and judicial governmental departments, a division that has direct antecedents in both the centuries-old English constitutional system and the Enlightenment-era theorizing of the Frenchman Baron de Montesquieu.
But federalism was a more uniquely American political innovation. In our federalist system, both the national government and the state governments are sovereign over their own spheres of influence and authority. Most of the day-to-day governance was meant to unfold at the state or local levels. As James Madison explained in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
In America, therefore, both the federal and state governments are themselves partially sovereign. And it is We the People who are the true, ultimate sovereigns over all levels and institutions of our government. In America, government is supposed to work for the people—not the other way around.
But over the past century, America’s sovereignty has too often been chipped away by the rise of transnational institutions that run roughshod over our own internal decision-making. From the United Nations to the International Criminal Court to the World Trade Organization, there has been a dangerous growth of institutions that make purportedly binding decisions over otherwise-sovereign nation-states. To be sure, some of these institutions are better than others. Some of them, perhaps, are more justifiable than others. But, by design, all of these transnational institutions are not democratically accountable—and certainly not to the American electorate—thus undermining our most basic conceptions of sovereignty in the Westphalian nation-state system.
This is hardly a problem that uniquely afflicts the United States. On the contrary, perhaps the single most iconic sovereignty-undermining transnational institution operating in the world today is the European Union. The once mighty and distinct peoples of Europe—with rich and varied languages, culture, history, currency, and governance—all subjugated their unique diversity and the democratic authority of their citizens to a supra-national, bureaucratic central authority. And with their thunderous “Brexit” vote of 2016 and delayed successful independence earlier this year, the United Kingdom restored its own sovereignty from the European Union’s bureaucrats and mandarins.
