Holmes on State Sovereignty

January 26, 2006

The scope of state sovereignty is a question of fact. It asserts itself as omnipotent in the sense that it asserts that what it sees fit to order it will make you obey. You may very well argue that it ought not to order certain things, and I agree. But if the government of England or any other first class European power, or, under a changed Constitution, the Congress of the U.S., does see fit to order them, I conceive that order is as much law as any other–not merely from the point of view of the Court, which of course will obey it–but from any other rational point of view–if as would be the case, the government had the physical power to enforce its command. Law also as well as sovereignty is a fact. If in fact Catholics or atheists are proscribed and the screws put on, it seems to me idle to say that it is not law because by a theory that you and I happen to hold (though I think it very disputable) it ought not to be…All my life I have sneered at the natural rights of man…

– Oliver Wendell Holmes, Letter to Harold Laski, 9/15/1916


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