The current fashion in American historical research is to discover things about the past that the people who lived in it are not likely to have known about themselves, things like the mean or median age at which they married, how much longer they could expect to live at any given age, how their wealth was distributed, in what ethnic or geographic or economic patterns they cast their votes, and so on. In the midst of all this counting and computing a number of historians and archivists have been quietly carrying forward a work that contributes very little to it but that tells us more completely and more reliably than ever before what some people in the past did know, and what they thought, about themselves and the world they lived in.
The first great enterprises of this kind in our time were the new editions of the papers of the founding fathers, Jefferson, Adams, Franklin, Hamilton, Madison, and most recently Washington, editions that include the letters a man received as well as those he wrote, so that the reader can follow the course of his thinking and his exchange of thoughts with his contemporaries. These editions, some of them now moving past the twentieth volume, have already made it possible to get inside the mind of eighteenth-century America in a way that was never before available to any but the most assiduous student.
Now we begin to get the first fruits of another kind of editorial enterprise that offers extraordinary excitement to anyone who still cares what people in the past thought about themselves and in particular what they thought about the way they were governed. These are editions, not of the papers of a particular man, but of the surviving documents that concern crucial political episodes or developments, editions that offer the reader virtually all the surviving evidence of what was said and done. Here are four of the first examples, and a splendid achievement they are.
The first of them may seem out of place in this review. Why consider debates in the English House of Commons in 1628 along with documents on American developments in the late eighteenth century? The juxtaposition is not capricious, because the Commons during this period generated many of the ideas that were later embodied in the government of the United States. This is not the place to pursue that lengthy line of descent. Instead, merely to suggest the richness of these collections, it may be enough to draw from them a few of the fictions by which Englishmen and Americans have governed themselves from the seventeenth century to the present.
All government, of course, rests on fictions, whether we call them that or self-evident truths; and political fictions, like other fictions, require a willing suspension of disbelief on the part of those who live under them. The suspension is seldom total, and when it is the results are disastrous. For the individual, total suspension of disbelief in any fiction spells insanity, an inability to distinguish the real world from make-believe; and in politics total suspension of disbelief can lead to 1984, with autocratic governments ruling over autistic subjects. A fiction should not be mistaken for a fact, and the mistake is sometimes easy to make, since ideally the one should be seen to approach the other. For a political fiction to be acceptable to sane men and women it must, while remaining a fiction, bear some resemblance to fact. There has to be at least a kernel of truth in it, which government must nourish by trying to make facts resemble it; and both governors and governed must join in a benign conspiracy to suspend disbelief without mistaking fiction for fact.
Englishmen and Americans have generally managed to sustain such a conspiracy, but occasionally either governors or governed have taken a fiction too literally, have taken it for fact, and in so doing have destroyed it—and sometimes destroyed themselves. Our own favorite fiction, the sovereignty of the people, the fiction that the people are masters of their governors, has lasted now for three centuries and gives no signs of giving up the ghost. But in 1628 it had not yet made its appearance in the Anglo-American world. The Commons Debates of that year can give us some perspective on it and on ourselves, because the Commons would have found it a laughable concept (though most of them would cry themselves into it by 1642). The favorite fiction of 1628 was, at least seemingly, quite different: it was the divine right of kings.
On the face of it this seems today so absurd a fiction that we find it difficult to believe anyone in his right mind could have suspended disbelief in it. It was particularly absurd in the persons of its principal English exponents, James I, who reigned from 1603 to 1625, and Charles I, who reigned from 1625 to 1649 (when the Commons terminated the fiction by chopping off his divine head). James, who expounded the divine right of kings at greatest length, assuring his people that he was the maker of all laws and the giver of all good things, was a slob and a bit of a crook. He drank almost to the point of alcoholism and was frequently befuddled. He stank, because he did not like to bathe. In an age of Puritanism (and the Commons was loaded with Puritans) he shocked everyone by kissing and fondling his young men in public. He lectured the members of the House, many of whom were his intellectual superiors, as though they were schoolboys, and occasionally he lied to them. His son Charles was more attractive in his person but more of a crook. He was always demanding that Parliament rely on his royal word and he lied and lied and lied. How anyone could speak of either of these two louts as God’s lieutenant and keep a straight face is hard to see. The Commons Debates of 1628 show how it was done.
The edition (of which we have the first installment in three volumes) includes all the surviving records, many of which have remained in manuscript until now: private diaries kept by members, notes, transcripts, and other miscellaneous documents, besides the official journal kept by the clerk. The editors have arranged them day by day, to put before the reader, in one place, all the evidence of what was said and done on a particular day. For important speeches there are usually notes taken by several different listeners and sometimes the speaker’s own notes, so that the reader can put together as complete a version of the speech as is now possible. This was the session of Parliament that produced the Petition of Right (the grandfather, along with Magna Carta, of all modern bills of rights). The speeches of the men who drafted and adopted that document are worth listening to.
They all seem to have believed in the divine right of kings, but not in quite the same way that James and Charles did. The Commons did not say, “The king is God’s lieutenant, therefore we must do what he wants.” Instead, they said, “The king is God’s lieutenant, therefore he must want what we want, because we want only what is right.” The king, being all wise, all good, the acme of perfection, could do no wrong—that was part of the fiction. Therefore if his government did something wrong, it must be without his authorization. It was the business of the Commons to bring these wrongs to the king’s attention and to bring the offenders to punishment by the courts or by the House of Lords or by the king himself.
Charles did not make it easy for them. If they went after one of his underlings or favorites for what they took to be a violation of the rights of subjects, Charles would declare the man to be acting on his orders. It was thus necessary for the Commons to be hard of hearing. They could not have heard the king say quite what he seemed to have said, or if he did say it, cunning counselors must have fed him false information. He certainly could not have meant to authorize anything wrong. The Commons knew what he must really want better than he knew himself, confused as he may momentarily have been by the satanic lies of those who always stood ready to confound the best of kings. The Commons would rescue him, and in 1628 he clearly needed rescuing.
He needed rescuing because the previous year he had seemingly authorized a forced loan, requiring subjects to lend him the money that the Commons had been unwilling to give him. Those who would not lend, including several leaders of the Commons, had been imprisoned; and the king’s courts had refused to release them, even though the king and his ministers had declined to name charges against them after a writ of habeas corpus was served on the jailers. The Commons, acting on their heady assumption of royal rightness, apprised the king of how gravely he disapproved of these wrongs committed by his unworthy servants, and they drafted a definition of the rights of subjects to security of property and liberty of person (the Petition of Right) so that the courts could never again ignore the king’s true wishes.
Sir John Eliot, fresh from imprisonment for refusing the forced loan, which he was much too astute to think was not the king’s own doing, insisted that the king could have known nothing about it: “The goodness of the King,” he cried, “is like the glory of the sun, not capable in itself of any obscurity or eclipse, but only by intervenient and dark clouds it may seem to be eclipsed and diminished to us. So by interposition of officers the goodness of the King may be darkened to us.” And Sir Edward Coke, the greatest jurist of his day, grew rapturous: “In him is all the confidence we have under God. He is God’s lieutenant. Trust him we must.” But this was prelude to an argument not to trust the royal word but to insist on the king’s formal approval of a written statement of rights.
It looks a little ridiculous, the Commons posing as champions of the king’s honor against the king himself. But it worked, at least temporarily. Give a king a good name and then make him live up to it. Because the king badly needed the money that only the Commons could get for him (the forced loan had not been enough), they were able to make him accept the words of the Petition of Right as what he wanted; and the words went on the statute book where the courts would have to accept them too.
The Commons throughout maintained the posture of subjects. They were, they insisted, the king’s subjects par excellence, the representatives, and the only representatives, of all his other subjects, sent to keep him informed of their needs and rights. This, of course, was another fiction. We know that the Commons were not, by our standards, representative, nor were they mere subjects. They were gentlemen of fortune who had elbowed their way into the House, mostly from boroughs with a small voting population. Many of the famous “rotten boroughs” (constituencies with no voters or only a handful) were rotten at the time of their creation. Even in the larger constituencies the voters were seldom offered a choice of candidates, and most elections consisted of a mere ritual shout by those who were standing about the hustings.
But the fiction was not quite so distant from reality as has usually been supposed. Recent scholarship has shown that the qualifications for voting (though not the actual voters in any given election) in English counties and boroughs in the early seventeenth century embraced from a quarter to a third of the adult male population, a larger proportion than those enfranchised by the famous Reform Act of 1832.* What is more significant, the Commons took the fiction of representation (and all representation is fictitious) seriously enough to try to bring the facts closer to it. The number of genuine elections, where there was a choice between candidates, increased markedly during the 1620s.
The defeated candidates in these contests usually cried foul and appealed to the Commons to upset the election. In judging the disputes the Commons favored the widest possible interpretation of the voting requirements, which differed from borough to borough according to local custom. In 1628, in the volumes before us, they went on record for a principle which could have led to universal suffrage, namely “that the election of burgesses [i.e., members of Parliament] in all boroughs did of common right belong to the commoners [i.e., the free inhabitants] and that nothing could take it from them but a prescription and a constant usage beyond all memory.” A constant usage would be very difficult to demonstrate. The purpose of this generosity may have been to favor candidates who would side with the majority of the Commons against the king’s wicked ministers, but the result was nevertheless to make the Commons more truly representative.
The fictions of 1628, however absurd they may seem today, were not beyond belief in seventeenth-century England. Yet they were not in danger of being mistaken for fact. They were workable fictions. No one, except perhaps Charles I, could really suppose that Charles I could do no wrong. And no one could really suppose that the gentlemen who assembled in St. Stephen’s Chapel at Westminster had really been authorized by everyone else in the realm to act for them. By accepting the fiction as fiction and working with it, the House of Commons was able to shape reality, to make the facts resemble the fiction.
It could be argued that they did not succeed. In the next year, 1629, when they tried again to make the king do the right that God’s lieutenant must always do, he dismissed them and ruled for a decade without having to be told his own mind by a crowd of country gentlemen. But he did not get away with it. By the time he called them back in 1640 (again because he needed their money) he had made the fiction of divine right unworkable by treating it as fact. Political fictions treated as fact invite disbelief by the sane and can be sustained only by incessant propaganda and vast power. Charles I did not have that kind of power, and his propaganda machine was no match for that of the gentlemen who opposed him.
A century and a half later, when the Continental Congress met at Philadelphia to protest against what the House of Commons was then doing to Americans, the divine right of kings had been replaced in England as in America by our modern fiction, which was much more nebulous and in many ways less credible than divine right. The sovereignty of the people presupposed a “state of nature,” in which men, hither to living in unaccountable isolation, formed a “social compact” with one another and then proceeded to create a government. The government they had supposedly created in England still had a hereditary king and House of Lords and an elected House of Commons, but none of these had access to divinity. All three derived their authority from the people; and in place of the fiction that the king could do no wrong there had developed the fiction that the people, rightly informed, would do no wrong, a fiction especially dear to those (including the American colonists) who cherished the revolutionary legacy of the seventeenth century.
The new fiction worked somewhat like the old one. The will of the people was no easier to ascertain than the will of God; and each of the different branches of government claimed to know what the people wanted (they would only want what was right), just as the Commons had formerly known what the king wanted better than the kind did. But in this new epistemology the claim of the Commons, allegedly elected by the people, was more plausible than that of the hereditary king or the hereditary House of Lords. The Commons, no longer considering themselves mere subjects, had become the dominant element in the government, and neither of the other branches was in as good a position to withstand them as the Commons had been to withstand the king in 1628. Only the people themselves, at a general election, could effectively correct the House of Commons when it erred.
The people were now supposed to be the masters of government, not its subjects, the fiction that still guides us. Since it has lasted so long, it is evidently an easy fiction to accept, even when its divergence from fact grows wide. But the divergence may be more evident when viewed from a distance than it is to those nearby, and the government of eighteenth-century England as viewed from the American colonies increasingly exhibited traits that put severe strains on the fictions that had sustained English authority over the colonists for so long.
As the power of the Commons had grown in the eighteenth century, power derived from its supposed representative character, the fiction of that representation had become more and more tenuous. No one (at least no one in government) was trying to make the facts resemble the fiction. Burgeoning new towns and cities went unrepresented. The electorate encompassed a smaller proportion of the people in 1774 than in 1628, and the House had become even more of a gentleman’s club, with no interest in opening the doors wider. In 1774 the idea of a “common right” to vote would have been laughed to scorn at Westminster. In its place the members were becoming attached to a more refined fiction, that of virtual representation. Each member, it was argued, instead of representing the people who elected him, stood for the whole country and was therefore not responsible to his immediate constituents. On this basis Parliament translated the sovereignty of the people into an authority to legislate not merely for Englishmen in England but for Englishmen everywhere, including the American colonies. Although the colonists had had no hand in choosing members of Parliament, the House of Commons nevertheless claimed to represent them and therefore to legislate for them.
Even before the fiction of virtual representation became common, Parliament had occasionally legislated for the colonies; and despite uneasiness about some of the legislation the colonists had not made strenuous objections. They thought of themselves as Englishmen, as part of the English people, and they were content to let the government by Englishmen “at home” make a few laws for them. But they had not forgotten the Petition of Right of 1628 or the other occasions on which Englishmen had made their government accept its subjects’ definition of right. By 1774, as they saw it, the House of Commons had violated right in taxing them without consent, in curtailing trial by jury, in placing a standing army among them, and in reducing the popular element in one of their provincial governments. Neither the king nor the House of Lords had tried to stop the Commons (nor could have), and what was worse, neither had the English people. When the First Continental Congress assembled at Philadelphia in 1774, they faced the problem of making the government of a sovereign people do right. And that problem in turn required them to ask whether they were a part of that people—that distant people, 3,000 miles across the ocean.
The journals of the Continental Congress have long been available in print, but like the journals of most assemblies they tell us little about what the members said or how they thought about the measures they adopted. Early in this century Edmund C. Burnett conceived the idea of attempting to reconstruct the proceedings and debates by publishing the surviving letters and diaries of the members, arranged day by day, from the first meeting in 1774 until the Congress dissolved in 1789 to make way for the present United States Congress. Burnett published the results of his work in eight volumes, which ever since have guided historians in trying to understand the American Revolution.
By the time he reached the last volume Burnett had already discovered many new papers from the earlier years, and since then a great many more have turned up. As part of its contribution to the Bicentennial the Library of Congress undertook a new edition, of which the first two volumes have now appeared. Some idea of the extent of new material may be gained from the fact that the two volumes cover in 1,254 pages the period (August 1774-December 1775) which in Burnett’s edition required only 291 pages. Part of the increase is the result of printing in full letters from which Burnett extracted excerpts, but much of the material is wholly new, including the texts of some important speeches.
The most exciting reading in these new volumes, at least for one interested in political fictions, comes in the opening session, from August through October 1774. At this point the members did not yet have a war to run and could afford to spend time contemplating the large question of who they were and what they were up to. In doing so, they had to reassess some of the fictions that had grown up around popular sovereignty since 1628. Because they had already rejected Parliament’s claim to represent them “virtually,” they were particularly sensitive about stretching the concept of representation in any way. They did not, in fact, consider themselves as a representative assembly, because none of them had been elected by popular vote. And they rejected a plan of conciliation with England that would have given legislative authority to an intercolonial assembly chosen by the various colonial representative assemblies. Such an assembly would have been composed, they said, of “representatives of representatives,” and they did not think the fiction of representation would bear that great an extension (neither, for that matter, did John Locke, who denied that a representative could delegate the powers entrusted to him).
But many of them were eager to promote a new fiction that went by the name of America. Although they displayed strong regional loyalties, they had come together in a common cause, and they began talking at once about “American liberty,” “the rights of America,” the “common good of America,” and even “an American bill of rights.” Patrick Henry in a burst of enthusiasm exclaimed, “I am not a Virginian, but an American.” There was a good deal of talk about being thrown back to a state of nature, with government dissolved and the opportunity to create a new people as well as a new government. In these pages we can watch an American people in the process of creation before our eyes; we see national identity developing in the usual negative manner of dissociation from others, in this case the English.
Americans had been proud of being part of the English people, and they moved only reluctantly to repudiate the designation. Even after the fighting began, John Adams noted the “strange Oscillation between Love and Hatred” for the mother country. But with increasing frequency after Lexington and Concord we find the members of the Continental Congress denouncing the wickedness and corruption not merely of the English government but of the English people, who had failed to stop their representatives from invading American rights. Thus Samuel Ward, after tracing the origin of the English people and the English Parliament out of a state of nature, went on to demonstrate that the American colonists, when they emigrated, had separated themselves both from Parliament’s authority and from their English brethren. And fortunately so, for, he said, “The People of England, formerly a sober frugal industrious and brave people, are now immersed in Luxury Riot and Dissipation.” There was an element of selfrighteousness in American nationality from the beginning.
Perhaps there had to be. Until they had convinced themselves that they were not Englishmen, resistance to England’s government would seem to challenge the fiction on which they thought all rightful government now rested. The sovereignty of the people had often been justified on the grounds that the people, rightly informed, would do no wrong. For centuries Parliament had been the accepted voice of the people. Now it had done wrong, and it was becoming ever more clear that the people of England were not going to correct it. To be sure, Parliament had been led astray by a corrupt ministry (as the ever-right king had been in 1628), but it began to appear that the corruption had sunk into the English people themselves. And if a people could do wrong, who was left to correct them?
Only, it seemed, another, better people. The only way to save the rights that Parliament had enshrined in 1628 was for Americans to cut loose both from Parliament and from the people who chose it. Continued association with England might infect the Americans with the same vices as the English, and the rights so hardly won in the seventeenth century would expire on both sides of the Atlantic. It was thus essential for Americans to persuade themselves that they were indeed another people, and continual denunciations of the dissolute English were the most effective form of persuasion.
The long delay at Philadelphia before Congress could take the final step of independence came partly from a reluctance to admit that the English had truly become so corrupt and partly from a fear that Americans would not accept so novel a fiction as that of their own nationality. John Dickinson, who led the opposition to independence, feared that there could be no American people, that independence would result in civil war, that only the strong hand of England kept the colonists from flying at each other’s throats. Even among those eager to take the risk, there was fear for the fragility of American virtue and of the union it supported, so that the members had continually to reassure themselves of their countrymen’s separate righteousness. Thus, ironically, in the moment of independence the revolutionaries harbored doubts about the fiction of popular sovereignty: even if Americans could be persuaded that they were indeed a people, would they be able to assert their mastery over government any more successfully than the English had? Was their virtue any safer from ultimate corruption? What was to prevent an American government from escaping popular control as the English government had?
Beneath these questions, never quite surfacing, lay an uneasiness about popular sovereignty itself, an uneasiness about the fiction that a people, bound together in a social compact, can act apart from their elected government, that the people as masters of their governors can direct and control them. The swift tide of events after April 19, 1775, kept the doubts from rising and nourished the fiction by demonstrations of popular control over government. As the Revolution progressed, every state saw popular conventions gather to replace the colonial governments with new ones that reaffirmed and exhibited the origin of all government in the people. At the same time doubts and uneasiness about the fiction were drowned in the emerging mystical sense of identity that we call nationalism.
The war for independence proved a hothouse for the growth of national feeling, especially among those who directed it. But when the war ended, national feeling momentarily subsided, and the idea of popular sovereignty on a national scale began to appear more and more implausible. The only central government was still based on the Continental Congress, which was still composed of the representatives of representatives. It was at the local, state level that popular control of government seemed most easy to believe. And perhaps even the states were too large. A small people, it seemed to many, had a better chance of controlling their government than a large one, a view supported by Montesquieu, the most fashionable political philosopher of the time. And indeed the idea of a people created by social compact, able to act independently of government, able to create a government or restrain it or correct it, was on the face of it far more plausible when applied to a small group, say a town or neighborhood, than when applied to a continent. In a group small enough to meet together in one place, the facts could be made to approach closely to the fiction. It was much more difficult to pretend that the people of a continent could give directions to a continental government.
Popular sovereignty thus seemed to be at odds with government on a national scale, and Americans let their Continental Congress slump into impotence. During most of the 1780s they were torn between their wish, on the one hand, to make popular sovereignty plausible, to make the facts of their political life resemble the fiction (which seemed possible only at the local, state level), and, on the other hand, their wish to retain the sense of national identity which had grown with their rejection of Englishness, and which was threatened by the decline of the national government. It was the task of the Constitutional Convention of 1787 to reconcile the two, to create a government that could embody national pride and yet sustain the fiction of popular sovereignty, a national government over which people could believe that they had control.
Since we still live with the result, its terms are familiar, and for the most part we still find it possible to suspend disbelief in the notion that “we the people of the United States” control our governors. It may be, however, that our nationalism has submerged our doubts more deeply than we recognize. It is instructive to turn to three new volumes of documents covering the years from 1787 to 1789 and discover the pangs that accompanied the rituals whereby our forebears persuaded themselves to suspend their disbelief.
The Constitutional Convention had been called by the members of the Continental Congress, and the members of the Convention, chosen by the state legislatures, were similarly representatives of representatives. If a constitution framed by representatives of representatives were presented to Americans by a Congress of representatives of representatives, hostility and conflict were predictable. To sustain the fiction of popular sovereignty, the Constitution would have to be seen as an act of the people, independent of government. Hence the Convention provided for ratification of the Constitution by special, popularly elected state conventions. The proceedings and debates of these conventions, so far as they could then be collected, were published in 1861. Now we have the first two volumes of a much more ambitious collection of documents relating to ratification, including not only the debates in the conventions, but private letters and newspaper articles. Accompanying these we have the first volume of similar documents, never before assembled, relating to the first election of representatives, senators, and the presidential electoral college. The two series go together, for the debates over ratification of the Constitution were continued in the first election contests.
Although these volumes are only the first installment in each series, they contain the full documentation for Pennsylvania, the second state to ratify and the first to hold federal elections. As it happens, Pennsylvania also had a state constitution that exceeded any other in provisions designed to give the people continuing control of their state government. As a result, the debates and discussions in Pennsylvania, both public and private, brought out most of the issues that the federal Constitution presented to Americans in its attempt to reconcile national government with popular sovereignty.
Those who thought the Convention had succeeded included those who set the highest value on a strong national government, but they seized the name of “Federalists” (suggesting decentralizing) and fastened the negative epithet “Antifederalist” on those who thought that the new national government would escape cape popular control. Strong supporters of the Pennsylvania state constitution were Antifederalists from the start, partly because the Federalists included the principal leaders of a Pennsylvania party that regarded the Pennsylvania state constitution as ineffective. Both in the debates over ratification and in the first election campaigns we witness some of the paradoxical positions that the fiction of popular sovereignty has imposed on American politics ever since. We see the most ardent former advocates of popular sovereignty in Pennsylvania arguing for the sacred powers of the state government, while their opponents, whom they accuse of “aristocratic principles, aspiring ambition, and contempt of the common people,” argue against state power and in favor of the supreme power of the people: “How comes it,” demand the Federalists, “that these state governments dictate to their superiors, to the majesty of the people?”
The Antifederalists were forced by such queries to argue that Pennsylvanians had left the state of nature and having delegated their powers to the state government and the Continental Congress could not simply retrieve them at will. The Federalists, though they included men who could argue privately that popular government was “both foolish and feeble,” were able to stand forth as champions of a popular sovereignty that remained in the people regardless of whatever powers they might for the moment entrust to their governments. The power of the people, they said, was “paramount to every constitution, inalienable in its nature, and indefinite in its extent.” The people could return to a state of nature and act apart from their government whenever they felt like it. If they found errors in their government, they had “the right not only to correct and amend them, but likewise totally to change and reject its form.”
Confronted with this radical populism coming from men whom they identified as “the well-born or their servile minions,” the Antifederalists argued frenetically that the new government, even if adopted by the people, would fall into the hands of “a lordly and profligate few” and that the people would be unable to do anything about it. The scale was too large for the people to act apart from their government and bring it to heel. What the Antifederalists were saying, in effect, was that they could not suspend disbelief in popular sovereignty when it was applied on a continental scale. But they could scarcely admit to doubts about popular authority as such. Instead, they turned their efforts toward reaffirming the rights (with a number of additions) that the House of Commons had extracted from God’s lieutenant in 1628. They demanded a bill of rights.
Since the Antifederalists could not admit that government had any powers other than what the people gave it, the Federalists could demolish the Antifederalist arguments for a bill of rights with apostrophes to the sovereign people. Yes, said James Wilson, a true Philadelphia lawyer, a bill of rights was necessary to protect subjects against a monarch who held his throne by divine right, and so the Petition of Right had been a step toward popular liberty. But the Petition of Right was something that the king granted to his subjects. The case was quite otherwise when the people created their own government. Why, it was asked, “should the people by a bill of rights convey to themselves what was their own inherent and natural right?” Benjamin Rush, the learned Philadelphia physician, was beside himself at the very thought: “Would it not be absurd to frame a formal declaration that our natural rights are acquired from ourselves, and would it not be a solecism to say that they are the gift of those rulers whom we have created, and who are invested by us with every power they possess? Sir, I consider it as an honor to the late Convention that this system has not been disgraced with a bill of rights….”
The Federalists could argue that the new Constitution was itself “nothing more than a bill of rights—a declaration of the people in what manner they choose to be governed.” And James Wilson belabored the Antifederalists with the fact that the Pennsylvania constitution which they loved so dearly had never been submitted to popular ratification, and that the Continental Congress, for which the Antifederalists expressed a continuing allegiance, was not elected by the people, while the new national House of Representatives would be.
For anyone who accepted the fiction of popular sovereignty these were compelling arguments, and they served to get the Constitution adopted without amendment. But the Antifederalists had a point, and they knew it. The point was that popular government must in the end be a fiction, and to take the fiction literally is dangerous. Although the new government was to be ostensibly the creature of the people, it would be safest for the people to provide their creature with a muzzle in the form of a bill of rights. Because of continuing pressure from Antifederalists the first Congress under the Constitution took the necessary steps to add a bill of rights in the first ten amendments. James Madison, who drafted them, initially considered them to be inconsistent with popular sovereignty. And so, in a sense, they were and are. Indeed they have generally operated at the insistence of that branch of government whose members are appointed for life.
But consistency in the application of fictions can lead to political schizophrenia. The sovereignty of the people, taken literally, can generate a more autocratic government than the divine right of kings did. The power of a James I or Charles I never approached that of modern despots who rule in the name of the people. Our own government purports to be of the people, by the people, and for the people, but all governments are of the people, all governments purport to be for the people, and no government is in fact by the people. In early Massachusetts the Reverend John Cotton, fresh from the England of Charles I, rejected democracy as a poor excuse for government, for, he asked, “if the people be governors, who shall be governed?” Today we dismiss the question as sophistry, coming from a man who had never witnessed the benefits of popular sovereignty. But even as we strive to bring the fiction of government by the people closer to reality, even as we strive to shape fact by fiction, we should perhaps admit with John Cotton, in some private recess of the mind, that governors and governed can never be the same. It is safe to suspend our disbelief up to a point, but when we suspend it altogether we are ripe for tyranny. The Antifederalists did have a point. The sovereignty of the people is a fiction.
March 9, 1978