Conservation of Sovereignty


Nick Land wants us to get to the
bottom of the Moldbuggian precept, “Sovereignty is conserved”.
The response has been a lot of wrangling about definitions. But it
doesn’t look like being resolved, so I’d rather bypass it and get to
specifics.
There are two things that Moldbug might mean. The first is that
someone is always supreme: that if you attempt to limit the
sovereignty of the nominal sovereign, someone else becomes sovereign
in his place. (The second is that sovereignty can be divided but still
“add up” — I will not address that here).
When he talks of the “Council of Nine”, the first meaning is what he
appears to intend. The president is not sovereign: he is subject to
law. Who decides what the law is? — The Supreme Court. Do they have
untrammelled sovereignty? — in theory not, since they also are subject
to law. But they decide what the limitations are on their own power,
not only on the President’s. Therefore, in reality, they are
sovereign.
Does this sovereignty mean they are all-powerful? Clearly not. Their
power can only be exercised through the bureaucracy, the police, the
army, and there are instructions they could issue that would not be
obeyed.
Then again, that is true of every sovereign, up to the most absolute
of monarchs.
Nevertheless there is a difference, in that an instruction of the
Supreme Court might be defied because its subjects believe it has
exceeded its legal role
. A truly absolute monarch might be defied for
other reasons, but not for that reason.
It is not clear to what extent historical monarchs were considered
truly absolute in that sense. The question of whether a monarch was in
theory subject to some law, though there was no formal body that could
impose it on him, seems to have been an open one through British
history, with arguments made on both sides. My impression is that the
less absolute view generally had the upper hand, at least from Magna
Carta on.
Note this is the position in favour of “sovereignty is conserved” —
the conclusion is that the sovereignty that the US Supreme Court has
is the same as the sovereignty that Henry VIII had. Not perfect or
complete, but supreme over any formal rival.
At the same time, it makes the conservation of sovereignty less
interesting. It means that a ruler still has practical limitations on
his power, in spite of his sovereignty. The nature and scope of those
limitations are matters of great interest, but are excluded from the
question of sovereignty.
The question that follows is: what is the effect of denying legal
sovereignty to the role of “leader”. On one hand, it might be nothing:
whoever has the legal sovereign is the leader, and a purported leader
without sovereignty is an empty figurehead. On the other hand, it
might be significant — the practical limitations on a sovereign who is
supposed to be a judge rather than a leader are different from the
case where the sovereign and the leader are the same person.