POPULAR SOVEREIGNTY IN DEMOCRATIC POLITICAL THEORY

The Constitution's first words bespeak its derivation from popular authority: "We the people of the United States … do ordain and establish this Constitution." The declaration of independence expresses the principle of this act: "to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The specific doctrine of popular sovereignty behind these familiar phrases still needs to be clarified and distinguished from related but distinct doctrines.

This doctrine of popular sovereignty relates primarily not to the Constitution's operation but to its source of authority and supremacy, ratification, amendment, and possible abolition. When james madison wrote in the federalist #49 that "the people are the only legitimate fountain of power," he referred to what he had called in The Federalist #40 (paraphrasing the Declaration) "the transcendent and precious right of the people to "abolish or alter their governments." Legitimate power derives primarily from the people's original consent to their form of government, not from their continuing role in it. Because popular consent is the "pure, original fountain of all legitimate authority," alexander hamilton, in The Federalist #22, presents the ratification of the constitution by conventions specially elected by the people, a mode recently pioneered by the states, as crucial to its legitimacy. The Federalist both opens and closes remarking that for a whole people so to choose their constitution by voluntary consent, far from being typical, is an unprecedented prodigy.

This American mode of popular consent to the institution of government formalized the notion in john locke'sSecond Treatise of "the Constitution of the Legislative being the original and supreme act of the Society, antecedent to all positive Laws in it, and depending wholly on the People." It provides a peaceful, certain, and solemn alternative to violent and irregular acts but remains ultimately an expression of the right to revolution; Madison almost admits in The Federalist #40 that adoption of the Constitution was authorized not under the articles of confederation but only by popular consent as an exercise of revolutionary right. Such popular sovereignty could always be exercised again not only by regular amendment but by revolution.

For the Founders, legitimate government not only had to derive its powers originally from the consent of the people but also had to gain the consent of their regularly elected representatives to legislate for them and tax them. The revolutionary controversy was fundamentally waged, first, over the American invocation of Locke's position that government "must not raise Taxes on the Property of the People, without the Consent of the People, given by themselves, or their Deputies," and then over its extension to no legislation without representation.

Such popular sovereignty still is not identical with popular government. The Founders generally regarded the British constitution, for example, with its hereditary king and lords, as a legitimate and even free government because the British (unlike the American) people were represented (albeit imperfectly) in the House of Commons. Republican government, although the form of government best exhibiting the capacity of mankind for self-government, was not the only form compatible with popular consent as the basis of legitimate power. Because Madison correctly believed that the character of the American people makes them unlikely to exercise their sovereign right to replace their republican government with one of another form, this point is relevant less to our domestic than to our foreign policy, which in principle should recognize the right of other sovereign peoples to consent to other forms of government.

Republican government itself differs for the Founders from the populism some later doctrines equate with popular sovereignty. The Federalist treats republican government as a species of popular government in that it is administered by officials appointed directly or indirectly by the people and holding office for limited periods or during good behavior. It differs from the other species, which they called "democracy" and by which they meant direct democracy, by its reliance on representation. The Federalist regards this difference not as an evil necessitated by size (as some Anti-Federalists did) but as a superiority making possible both size, with all its advantages, and government by "men who possess most wisdom to discern, and most virtue to pursue, the common good of the society." (thomas jefferson in a letter to john adams called such republican officials "the natural aristocracy.") Republican representatives should refine and enlarge the public views because the reason, not the passion, the cool and deliberate sense, not the temporary errors and delusions, of the public should prevail. The Founders regarded the American republic as embodying the sovereignty of the public reason because it was so constructed as to encourage representatives, especially the Senate, President, and courts, to withstand popular error and passion until popular good sense could respond to argument and events. Their opinion that such an outcome would generally emerge in the few years allowed by the Constitution reveals confidence in both representatives and constituents as well as distrust.

The supremacy of the Constitution and judicial review, distinctive features of American constitutionalism, are paradoxical results of this doctrine of popular sovereignty. Hamilton in The Federalist #78, like john marshall in marbury v. madison (1803), based them on the Constitution's being the special act of the sovereign people: "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." The equation of popular sovereignty with the supremacy of the Constitution, let alone with judicial review, may become problematic once the people who ordained and established the Constitution are long dead. Jefferson suggested in a letter to an unpersuaded Madison that all constitutions naturally expire every generation. Madison in reply adduced the danger of faction and the need of even the most rational government for the prejudice that results from stability, but Jefferson continued to believe in the right of each generation to choose its own form of government. The jural argument for constitutional supremacy was stated by Hamilton in Phocion #2 (and echoed in The Federalist #78): "The constitution is the compact made between the society at large and each individual. The society therefore, cannot without breach of faith and injustice, refuse to any individual, a single advantage which he derives under that compact … until the compact is dissolved with the same solemnity and certainty with which it was made." Ultimately the identity of popular sovereignty with constitutional supremacy depends on an enlightened public opinion animated by the spirit of the Constitution.

That the Founders tended not to call the doctrine expounded here "popular sovereignty" reflects their being republicans and constitutionalists rather than populists. Not the people simply but their reason especially as solemnly embodied in their Constitution is sovereign. More fundamentally, since governments are instituted by consent "to secure these rights," their legitimacy depends not only on consent but on the security of individual rights. Debates such as that over "popular sovereignty" between abraham lincoln and stephen douglas reveal the potential tension between popular consent and equal rights.

Nathan Tarcov
(1986)

Bibliography

Epstein, David F. 1984 The Political Theory of the Federalist. Chicago: University of Chicago Press.

Jaffa, Harry V. (1959) 1982 Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates. Chicago: University of Chicago Press.

Tarcov, Nathan 1985 American Constitutionalism and Individual Rights. Pages 101–125 in Robert Goldwin and William Schambra, eds., How Does the Constitution Secure Rights? Washington, D.C.: American Enterprise Institute.