Outpost of Freedom blog

de facto, de jure and Sovereign

Gary Hunt
April 1, 2010

A question arose, the other day, as to what is the difference between de facto and de jure.  Both are legal term, though seldom used in normal circles.  However, by their very definition, we can understand that there is a need to understand what they meant.  After all, they have made it into our lexicon because the practices that needed defining existed, and, perhaps, have not yet left us.  So, let’s begin with some definitions:

From Webster’s 1828 Dictionary:

de jure  [no definition, see de facto]

de facto.  Actually; in fact; existing; as a king de facto, distinguished from a king de jure, or by right.

Black’s Law Dictionary, 5th Edition

de jure.  Descriptive of a condition in which there has been total compliance with all requirements of law.  Of right; legitimate; lawful; by right and just title.

de facto.  In fact, in deed, actually.  This phrase is used to characterize an officer.  A government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate.

As you can see, de facto is what you see, though there may be underlying difficulties with the legitimacy of what you see.  Though we are not speaking of kings, we can apply the definition to the US government.  It is de facto because it is there, it is in place, and, it claims its legitimacy.

The question as to whether it is de jure is as easily determined.  Is it in obedience to the Constitution, which created it?  If so, it would be de jure.  If not, it would be de facto.

Now, in any situation where there is a question of whether it is de jure or de facto, we must consider who can make the determination as to which answer is correct.

It must be supposed that any king, ruler, or, government in power would presume that it was de jure, whether it knew it was de jure, or, in fact, de facto.  This pretty much precludes the existing from the determination.  To serve itself, it must publically recognize and claim that it is de jure.  Obviously not the right means of determination of which it is.

So, in this country, where the government was created by the people, it must be that source of authority that makes the determination to create such a nation.  That was the case 230 years ago when some of the colonists decided that, since the Parliament had not abided by the British Constitution, it had moved from a de jure government into a de facto government.  At first, to a small few, it was de facto.  As time went on, more and more people realized that the nature of that government was de facto until the breaking point of the recognition of its authority was removed by proclamation (the Declaration of Independence).

Likewise, today, there are many who recognize that the US government, by virtue of its abandonment of the Constitution, is de facto rather than de jure.

Is there any wonder that the government discourages common usage of the terms?  Surely, they would not appreciate our delving into whether a government that has the appearance of legitimacy to be thought of otherwise.

Having enhanced our understanding of de facto and de jure, let’s see what role these words might play in our relationship to government.  we will begin with a visit the definitions of sovereign and sovereignty

From Webster’s 1828 Dictionary:

Sovereign, a. 

1.  Supreme in power; possessing supreme dominion

2.  Supreme; superior to all others; chief.

4.  Supreme; pertaining to the first magistrate of a nation.

Sovereign, n 

1.  A supreme lord or ruler; one who possesses the highest authority without control.

2.  A supreme magistrate; a king

Sovereignty, n.  Supreme power; supremacy; the possession of the highest power, or of uncontrollable power

From Black’s Law Dictionary, 5th Edition:

Sovereign.  A person, body, or state in which independent and supreme authority is vested

Sovereignty.  The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived.

Now, this can be perplexing because of what we believe to be and what, by definition, can, or cannot, be.

First is the assumption that “We the People” must be sovereign if we possessed, at the time of the Constitution, the authority to create a government that would take its place in the world of nations, and be recognized as such as any monarchy or other form of government (see “Let’s talk about the Constitution“).  Less than sovereign, we could not have taken so bold a step, nor would we even have the authority, to be recognized as such by the rest of the world, including England.

There can be little question, then, that at the time of the Constitution, we were the Supreme Authority, we were the collective supreme ruler or lord.  Moreover, in the act of creating the Constitution, we subordinated only a portion of that supremacy — only as much as was necessary to conduct the duties of government — to that government that we had created.  The remainder of the supremacy remained with us by virtue of the fact that it was not granted to the federal government, specifically (and therefore cannot be assumed) in the Constitution, and, in clarification, was specifically reserved in both the 9th and 10th Amendments to the Constitution.

However, something happened along the way that wrested from us an authority that was not intended.  It occurred at the end of the most devastating war that we have ever been involved in, and those divisive ‘representatives’ of the people, some elected and some appointed, foisted an Amendment to the Constitution, under one pretext, to serve another purpose, which has had a far more profound effect, and was intended by the government, but otherwise unknown by the people.  That Amendment is now known as the 14th Amendment, and it created a class of citizen hitherto unknown and unrecognized in this country.  That a new class of citizen was referred to then, and henceforth, as a US citizen (a citizen whose allegiance was to the country, not the republican state that they had previously been allied with).  Prior to that time, any citizen was a citizen of the state of his birth, or of his allegiance, should he remove from that state of origin.

Now, these first citizens (we shall refer to them as State Citizens) were of that class known as “We the People”, while this second class (US citizens) were now subjects of the federal government (see “Two Classes of Citizen“).

So, what happened to the Sovereign nature of those who have accepted the condition of being US citizens?  Well, quite simply, how can one be the master of his own master?  If you have subordinated yourself to the federal government, by the distinguished title of “US citizen”, it is not possible that you can retain the title of Supreme over that government to which you have become subordinate.

On the other hand, if you have retained, or returned to the status of a State Citizen, you have retained, also, that Supremacy, absent only that which was relinquished with the formation of the government by the Constitution, just as those who elected to create such government in 1789.  In this case, you are still the master over the government.

Conclusion

Now, if we put the two elements together (de jure/de facto and Sovereignty), we can develop some rather obvious conclusions.  When we look at the relationship between the government, and ourselves we can determine that if we accept the government as master, then we must also accept the government’s determination of its nature, de jure (legitimate)

On the other hand, if we are sovereign, and have not submitted to that subjugation, and have retained, or returned to, that status as a State Citizen, we can clearly see that the government, by its disobedience to the Constitution that created it, has moved itself into the status of de facto (illegitimate).