We the People: Vol. I, Foundations
Vox populi vox dei: the voice of the people is the voice of God. The slogan was useful for those who first attempted to substitute the people for God as the source of political authority. Their attempt was ultimately so successful that God no longer seems to be needed in government, except perhaps in invocations designed to bolster morale during particularly dubious activities. Most of the time the people alone can give government all the authority it needs. But the substitution has left those who govern with a continuing problem of authentication.
When the voice of God authorized government, at least in the Western world after Christ, it was generally through a blanket approval set down in the New Testament: “Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God” (Romans: XIII,1). It was not necessary and might even have been disadvantageous for a government to claim a direct personal commission and communion of the kind God had given some rulers in the Old Testament. A working government might need the support of the Church but not of God Himself in a voice from on high. He no longer spoke that way, at least not to Protestants.
When the people replaced God, the problem became a little different, for the people had not recorded their voice in any testament. How then to authenticate a claim to their approval? How persuade the people to be governed that they themselves had authorized the government? At first sight the problem appeared to be no problem. The Long Parliament of England that replaced the God-given government of Charles I simply declared itself to be the people. But the claim was palpably false if the people included the rest of the country. The Long Parliament had only a tenuous connection with a tiny fraction of England’s population, and its claim did not stick.
The people, it turned out, were almost as hard to approach as God. Individual people or groups of people assembled together could be seen, heard, touched, smelled, and could act, do things, and cause a lot of trouble, but the people, in the sense of all those who were to be governed and who could authorize government, could not. And yet the people have always seemed to be a good deal more tangible than God; and a government that claimed to act in their name had to present a plausible claim to their approval, a claim plausible enough to persuade actual people to submit.
The men who claimed to be “We the People” at Philadelphia in 1787 were able to make their claim stick, so successfully that we still submit to the government they started, which is arguably the oldest one of a major power resting (as virtually all governments now purport to do) on the sovereignty of the people. How they did it and whether we ought still to accept what they did has been a matter of dispute ever since. In this century two books have given direction to the dispute. Charles Beard in 1913 offered An Economic Interpretation of the Constitution, which cast serious doubts on the authenticity of the founding fathers’ claim to speak for the people. They spoke, he showed, for the economic interests of a small class of men who had invested heavily in securities and who stood to profit both personally and as a class by what they did. Forrest McDonald in 1958 reexamined the evidence for Beard’s findings in We the People: The Economic Origins of the Constitution and found it to be wholly without foundation. But McDonald did not rule out the possibility of a broader economic interpretation of the motives of the founders and thus left the authenticity of their claim to speak for the people in dispute.
Now Bruce Ackerman has examined that claim in a book that deserves to stand with Beard’s and McDonald’s as a landmark in the ongoing controversy, a book that takes the claim seriously and offers a new way of looking at subsequent appeals to the people in American history. This, the first of three proposed volumes, concentrates on the original founding of the Constitution, but also projects the thesis of all three in assessing subsequent exercises of popular sovereignty.
Ackerman begins his argument by classifying the current disputants into two opposing groups, designated as “monists” and “foundationalists.” Monists are those who insist that the voice of the people is to be found in the legislative majority produced by the most recent elections. Why, they ask, should a constitution produced by a handful of the elite two hundred years ago be allowed to control and possibly thward the wishes of today’s millions expressed through their elected representatives? Much better the British system, where the popular will can be immediately carried out by a legislative majority, unhampered by constitutional prohibitions or by executive veto or judicial review. Foundationalists, on the other hand, maintain that certain rights which happen to be guaranteed by the existing Constitution are rights because they are right and ought to be exempt from any infringement, alteration, subtraction, or addition, whether by a legislature or by constitutional amendment.
For neither group is the operation of the government founded at Philadelphia quite satisfactory. One group wants it easier to change; the other wants parts of it at least to be impervious to change. These are polar opposites, more useful as ideal types than as actual descriptions, useful for defining another category that Ackerman sees as expressing the way in which the government has actually worked. He designates it as “dualist” or sometimes as “Neo-Federalist.”
The dualist divides political activity under the American national government into two kinds: normal politics and constitutional politics. Constitutional politics is what occurred from 1787 to 1789, when “the People themselves” acted to establish fundamental law in a constitution superior in authority to anything done thereafter by their representatives. In normal politics under this constitution representatives of the people pass and administer laws to deal with current problems. They must not meddle with rights of the kind that foundationalists revere, provided those rights have been protected in the constitution by the people themselves. But they can do everything else that the monists would want.
There is nothing very novel in this analysis. The idea of fundamental law or higher law or fundamental constitutions is an ancient one; and the idea of resting such superior law on the people themselves is at least as old as the sixteenth century. The problem has always been to differentiate “the people themselves” from their mere representatives. John Lilburne and the Levellers recognized the problem in the 1640s when they proposed an “Agreement of the People” to be signed by every person in voting to give to a representative the powers defined in it. Others proposed a special convention, distinct from Parliament, to set down “fundamental constitutions” that would thereafter be superior to Parliamentary legislation. And in 1688 such a convention in effect deposed James II and issued a Declaration of Rights to limit his successors, but then turned itself into a regular legal Parliament (it had been elected in the same manner as a Parliament) and transformed the Declaration into a statute. As such the Declaration was not superior to any other statute and could be subsequently repealed or altered like any other piece of legislation. Thus England’s last and perhaps only constitutional convention failed to establish a constitution.
When the Americans deposed George III, they too acted through conventions. In each state a convention, elected in much the same way as the old legislative assembly, took control of government and drafted a constitution, often with a bill of rights modeled on the English one of 1688, forbidding the government to do various bad things. But the same conventions continued to serve as legislatures under the constitutions they created, thereby reducing them, like the English Declaration, to the level of other legislation. Massachusetts in 1780 was the first state to recognize that a constitution, in order to be superior to ordinary legislation, must rest more directly on the people than the government it created. In Massachusetts a special, popularly elected convention, with no powers of government, drafted a constitution, submitted it to town meetings for ratification, and then dissolved itself. The same procedure, with some modifications, produced the United States Constitution of 1787. Although the members of the convention that drafted it were appointed by the state governments, they submitted their result for ratification to popularly elected state conventions, distinct from the state legislatures.
Because the ratifying process did not involve the approval of the regular governments of the several states or of the existing Continental Congress (except in calling the state conventions), it was possible to argue, as James Madison did in The Federalist Papers, that the new government rested on “the People themselves,” and to imply that neither the government it created nor the several state governments enjoyed that distinction. It may be difficult to see, as Ackerman’s monists might contend, why the popularly elected representatives of the ratifying conventions were “the People themselves” while the popularly elected representatives in the new Congress or in the state legislatures were not. In reality the people themselves, if such an entity can be said to exist at all, can act only through representatives, and one set of representatives can be superior to another only by our willingness to accept them as such. In The Federalist Papers Madison explained why we should be willing; and Ackerman in a brilliant explication de texte elaborates the explanation into a persuasive justification of the “dualist” democracy that has prevailed under the Constitution for two centuries.
As Ackerman reads the Federalist, the case for constitutional politics, for “the People themselves” (he capitalizes “People” throughout the book) making higher law, does not rest solely on the use of extra-legal conventions. Constitution making comes into play on “great and extraordinary occasions” (Madison’s words) when a common danger has united large masses of men and women to deal with it by altering the government. The American Revolution and the first years of independence had been such a great and extraordinary occasion, and the end result was the Constitution. With its adoption the people themselves would subside into their private affairs and leave the lesser problems of day-to-day government to their representatives. The distinctive quality of normal politics in America, as opposed to the town-meeting style of Athenian democracy, would be “the total exclusion of the people in their collective capacity” (Madison’s words), because the people in normal times had better things to do than to continually assemble themselves. The distinctive quality of constitutional politics would be the mobilization of the people themselves outside the normal channels of government in order to deal with an extraordinary crisis that demanded fundamental change, change that the people’s mere representatives were incompetent to effect.