In 1761, lawyer James Otis delivered a five-hour speech in a packed Boston courthouse in which he dismantled Parliament’s claim that general search warrants known as writs-of-assistance were constitutionally valid. Though Otis lost the case, his scholarly and fiery rhetoric won the support of onlookers such as 25-year-old John Adams, who near the end of his life, wrote about his experience:
Every Man of an immense crowded Audience appeared to me to go away, as I did, ready to take Arms against Writs of Assistants. Then and there was the first scene of the first Act of opposition to the Arbitrary claims of Great Britain. Then and there the Child Independence was born.
What did Otis say that revolutionized so many people? Author-researcher A.J. Langguth tells us the King’s advocate, Jeremiah Gridley, delivered a death blow to Otis’s case by claiming “the British constitution was now only and whatever Parliament said it was.” Therefore, case closed.
But not for Otis. He fought back, taking Enlightenment philosophy to its logical conclusion. As you read Otis’s words consider how utterly foreign they sound in today’s world, while at the same sparking exhilaration to know men once spoke like this:
Every man was his own sovereign . . . No other creature on earth could legitimately challenge a man’s right to his life, his liberty and his property. That principle, that unalterable law, took precedence—here Otis was answering Gridley directly—even over the survival of the state. (emphasis added)
Given that today states are sovereign entities wherever they exist, and by virtue of that status can legally overpower any domestic challenger, to assert that each individual is sovereign would seem at best wishful thinking. Individuals can act like they’re sovereign but the state will carry them off somewhere, if necessary. If “state” is defined in Rothbardian terms as a criminal gang writ large, then the adage “might is right” permeates state behavior. Stripped of its august facade, that’s what state sovereignty means. Otis was saying we don’t need states.
In his inflammatory 1776 pamphlet Common Sense, Thomas Paine wrote that,
Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. . . . Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one. . .
Though he made a critical distinction between government and governed, Paine unfortunately went on to equate a lack of government with “miseries.”
In his autobiography, Thomas Jefferson wrote that,
…the question was not whether, by a Declaration of Independence, we should make ourselves what we are not; but whether we should declare a fact which already exists. That, as to the people or parliament of England, we had always been independent of them, their restraints on our trade deriving efficacy from our acquiescence only, and not from any rights they possessed of imposing them.
Acquiescence has marked mankind’s long history. Most people have preferred to surrender their sovereignty than assert it. Today, in spite of Otis, Paine, and Jefferson, they don’t even realize they were born with it.
Following the Revolutionary War, Paine went to England to build an iron bridge and became friends with MP Edmund Burke. As the revolution in France was transpiring they soon disagreed—strongly—as to its merit, with Paine praising it and Burke feeling threatened by it. When Burke made his views public Paine wrote Rights of Man as a rejoinder to Burke’s position.
Paine invoked the “state of nature,” an Enlightenment phrase, to attack Burke’s defense of the corrupt English government:
It has been thought a considerable advance towards establishing the principles of Freedom to say that Government is a compact between those who govern and those who are governed; but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist. . .
The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist. (emphasis added)
The government so formed would be the creation of people who were delegated to form a government. But in doing so, the delegates—intentionally or not—transfer sovereignty from the individuals to the government, and the result is the chaos and corruption that follows. By contrast, on the free market under laissez-faire, which means without coercive interference, individuals conduct their economic lives without surrendering their sovereignty.
It’s not as if governments don’t realize the economic value of freedom. The ones in charge seem to have heard about Aesop and his tale of the goose. Paine spent the first 37 years of his life in England and had experienced this first-hand:
The portion of liberty enjoyed in England is just enough to enslave a country more productively than by despotism, and that as the real object of all despotism is revenue, a government so formed obtains more than it could do either by direct despotism, or in a full state of freedom, and is, therefore on the ground of interest, opposed to both.
Paine, however brilliant at times, is no stranger to inconsistent writing. At the conclusion of the American Revolution he wrote the final installment of his American Crisis essays. Elated by the American victory, he seemingly transferred sovereignty from its source to the collective:
Sovereignty must have power to protect all the parts that compose and constitute it: and as UNITED STATES we are equal to the importance of the title, but otherwise we are not. . . .
It is with confederated states as with individuals in society; something must be yielded up to make the whole secure. In this view of things we gain by what we give, and draw an annual interest greater than the capital.
No one would question that “something” must be yielded to gain a definite result. But surrendering sovereignty should never be on the table.
