Friday, 6 June 2008

The Sovereignty of the Scottish People

'If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

- 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

Between the Treaty of Union in 1707 and the establishment of the devolved Scottish Parliament in 1999 constitutional law in Scotland developed into its present form where 'the sovereignty of the Scottish people' now rests with the total registered electorate. During this intervening period sovereignty lay with the United Kingdom Parliament at Westminster, and to a certain extent it still does - but not for long. The Treaty of Union did NOT abolish Scots Law as Article XIX makes clear. This temporary loss of sovereignty has to be seen against the background of where the Parliament of Great Britain is located. The siting of that Parliament at Westminster, the location of the Parliament of England, meant that it was within the jurisdiction of English Law and beyond the reach of Scots Law. In his book Gordon Donaldson writes -

'But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute. From time to time attempts have been made to appeal to the terms of union, but always without success. The list of violations of the treaty is already a long one and always growing longer.'

- 'Scotland: The Shaping of a Nation', by Gordon Donaldson, pp 58-59, ISBN 0 7153 6904 0.

In an important 1954 legal finding in the Scottish Court of Session Lord Cooper wrote -

'The unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.'

- McCormick v Lord Advocate 1954 (1953 SC 396).

Against this background the view that 'the sovereignty of the Scottish people' has 'merely been unavailable' is the only possible explanation. British Unionists who still insist that Scottish independence is a matter of 'NEVER' or 'IF' are in denial - Scotland WILL regain its independence and international sovereignty. Only through independence will 'the sovereignty of the Scottish people' become fully available.

Only one country has ever created a form of government based on popular sovereignty (sovereignty of the people) - the United States. The opening words to the Constitution of the United States, 'WE THE PEOPLE', clearly imply popular sovereignty, which was most likely the intention of James Wilson when he penned the phrase.

'Jefferson, concerned that the state legislatures were assuming executive and judicial power, as well as legislative, was prompted to observe..."An elective despotism was not the government we fought for."'

- 'The Federalist Papers', Penguin Classics Edition edited by Isaac Kramnick, p. 25, ISBN 0-14-044495-5.

'...the ultimate authority, wherever the derivative may be found, resides in the people alone...'

- James Madison, Federalist 46

The following quotations were all found at this URL: -

"[The people] are in truth the only legitimate proprietors of the soil and government."

- Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1813. ME 19:197.

"[It is] the people, to whom all authority belongs."

- Thomas Jefferson to Spencer Roane, 1821. ME 15:328

"The ultimate arbiter is the people of the Union."

- Thomas Jefferson to William Johnson, 1853. ME 15:451.

Unfortunately, in the United States, the concept of popular sovereignty has become corrupted and defiled by elitism and political self-interest by both major political parties. In his book John T. Noonan, Jr. writes -

'Nowhere in the entire document are the states identified as sovereigns. The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty...But not one of the fifty states, nor the United States itself, is such a sovereign...It is not directly or indirectly ascribed to the states by the constitution of the United States.'

- 'NARROWING THE NATION'S POWER' , by John T. Noonan, Jr., pp 151-152, ISBN 0-520-23574-6.

In 1787 popular sovereignty was an idea that was ahead of its time but now, in the 21st century, it is an idea whose time has come. Popular sovereignty belongs to all people and not just a select few.

'It's coming yet for a' that
That Man to Man, the world o'er
Shall brithers be for a' that.'

- 'For A' That and A' That' by Robert Burns (1759 - 1796)