Sovereignty of the People: Chisholm, Yick Wo, Perry and the Supremacy of the Constitution

Sovereignty of the people in Supreme Court decisions

This page is for education, information and intellectual discussion. It explains what each authority says and what each court decided. It does not tell anyone to use these arguments, and it is not legal advice.

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)

What the case was about: San Francisco required permits to run laundries in wooden buildings and denied them to nearly every Chinese applicant while granting them to almost everyone else. The Court held that this unequal enforcement violated the Equal Protection Clause and ordered the petitioners released.

How it applies: Many affidavits use this sentence without naming the case. It is a description of where sovereignty rests and why officials must follow the law. The decision struck down discriminatory enforcement, not the permit requirement itself.

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)

… at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects … the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.

Chisholm v. Georgia, 2 U.S. 419, 471–472 (1793) (Jay, C.J.)

What the case was about: A South Carolina citizen sued the State of Georgia in the Supreme Court. By 4 to 1, the Court held that Georgia could be sued. The Eleventh Amendment, ratified in 1795, reversed that result by barring federal suits against a state by citizens of another state.

How it applies: The often-quoted phrase “the people, not the States, are sovereign” does not appear in the opinions. Chief Justice Jay and Justice Wilson did say that sovereignty resides in the people, in the words above.

Perry v. United States, 294 U.S. 330 (1935)

In the United States, sovereignty resides in the people, who act through the organs established by the Constitution. … The Congress cannot invoke the sovereign power of the people to override their will as thus declared.

Perry v. United States, 294 U.S. 330, 353 (1935)

What the case was about: This was one of the Gold Clause Cases. The Court held that Congress could not cancel the gold clause in the government’s own bonds, but the bondholder recovered nothing because he showed no actual loss.

How it applies: Affidavits quote this as “Congress cannot revoke the Sovereign power of the people.” The opinion says “invoke.” The Court meant that Congress may not use the people’s sovereignty as an excuse to override the limits the people wrote into the Constitution.

Barnes v. District of Columbia, 91 U.S. 540 (1875) and U.S. Term Limits v. Thornton, 514 U.S. 779 (1995)

The people are the recognized source of all authority, state and municipal; and to this authority it must come at last, whether immediately or by a circuitous process.

Barnes v. District of Columbia, 91 U.S. 540, 546 (1875)

What the case was about: Barnes held the District of Columbia liable for injuries from a defective street, whether its officers were elected or appointed. Term Limits held that states may not add term limits for members of Congress, citing “the critical postulate that sovereignty is vested in the people.”

State court decisions on sovereignty of the people

• Lansing v. Smith, 4 Wend. 9 (N.Y. 1829) — “The people of this state, as the successors of its former sovereign, are entitled to all the rights which formerly belonged to the king by his prerogative.” The court used this to uphold the state’s power to build a pier that cut off a private wharf from the river.
• State ex rel. University of Minnesota v. Chase, 175 Minn. 259 (1928) — “the government itself is but an agency of the state, distinguished as it must be in accurate thought from its scheme and machinery of government.” The court held the University’s Board of Regents is independent of other executive control.
• Billings v. Hall, 7 Cal. 1 (1857) — the two sentences quoted in affidavits (“Right of protecting property … ” and “Constitution of this state declares, among inalienable rights … “) are the reporter’s headnotes. The court struck down a law forcing landowners who won ejectment suits to pay occupants for improvements.
• “Cook v. Iverson, 122 N.M. 251” — no case by that name exists at that citation. The volume and page fall inside State v. Rotherham.
• California Government Code § 54950 (the Ralph M. Brown Act) — “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” This is the purpose clause of California’s open-meetings law.

Unconstitutional laws

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

… the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

Marbury v. Madison, 5 U.S. 137, 177 (1803)

What the case was about: Marbury held that a part of the Judiciary Act conflicted with Article III and was void. It established judicial review.

How it applies: Courts, not individuals, decide whether a law is unconstitutional, and that decision then binds the parties.

Norton v. Shelby County, 118 U.S. 425 (1886) and Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940)

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.

Norton v. Shelby County, 118 U.S. 425, 442 (1886)

What the case was about: Norton held that bonds issued by a county board created under an unconstitutional act were void.

How it applies: In Chicot County, the Court said “such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications,” because a statute is an operative fact until a court rules on it.

Miranda v. Arizona, 384 U.S. 436 (1966)

Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.

Miranda v. Arizona, 384 U.S. 436, 491 (1966)

What the case was about: Miranda requires police to warn suspects in custody of the right to remain silent and the right to counsel.

How it applies: The Court made this statement while answering arguments that it should leave interrogation rules to legislatures.

Other sovereignty authorities in right to travel affidavits

• Meyer v. Nebraska, 262 U.S. 390, 399 (1923) — liberty “denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children …” The words “to locomote” and the opening sentence about the common law, which appear in affidavits, are not in the opinion.
• Bell v. Hood, 71 F. Supp. 813, 816 (S.D. Cal. 1947) — “History is clear that the first ten Amendments to the Constitution were adopted to secure certain common-law rights of the people against invasion by the Federal Government.” The court dismissed the suit. Bivens v. Six Unknown Named Agents (1971) later recognized a federal damages remedy for some Fourth Amendment violations.
• Hurtado v. California, 110 U.S. 516 (1884) — upheld a murder prosecution started by information rather than grand jury indictment. The words “The state cannot diminish rights of the people” do not appear in it.
• State ex rel. Childs v. Sutton, 63 Minn. 147 (1895) — held that a legislator could not take a state office during his term. The statement that “a fraud is perpetrated and no one is bound to obey” a court does not appear in it.
• 16 Am. Jur. 2d Constitutional Law § 177 — the encyclopedia line “No one is bound to obey an unconstitutional law” is widely quoted. We could not access the current edition to check it.

How to check the sovereignty of the people claim yourself

If someone offers you a strategy built on sovereignty of the people, ask for the court decisions that accepted it. In the decisions cited on this page, courts did not accept it. Instead, read the real statute or rule the claim cites, and then read how courts have applied it. Also, look at the cases listed above. They show what happens when people raise the argument in court. For a real dispute, talk to a licensed attorney in your state. You can start with our directory.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• static.case.law
• static.case.law
• static.case.law
• california.public.law

Related reading on Lawtopolis:

• Delegation of Authority: From the People to Government, and the Nondelegation Doctrine
• Separation of Powers: Legislative, Executive and Judicial Branches
• State Citizen vs. U.S. Citizen: Fourteenth Amendment Citizenship and "Non-Citizen Nationals"
• The "Right to Travel" Affidavit: Every Authority Reviewed