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.
Madison wrote in order to persuade Americans to accept the Constitution as just such a work of the people themselves. Ackerman writes to persuade us that Madison has given us the basis for understanding the rest of American political history. It is Ackerman’s original and arresting thesis that Americans have at least twice since 1789 interrupted normal politics to engage in constitutional politics: in adopting the Thirteenth, Fourteenth, and Fifteenth amendments after the Civil War, and in the New Deal of Franklin Roosevelt, Although the Constitution itself provided for amendment, and although it has occasionally been amended, these two large-scale ventures in constitutional politics did not follow the prescribed route. Nominally the first one did, but only the victory of the North in the Civil War generated the popular demand that could railroad through the amendments with only a specious regard for the prescribed process. In the case of the New Deal the same kind of popular demand, generated by the Great Depression, produced a large-scale alteration in the Constitution without a single amendment.
In brief, as Ackerman sees it, the Civil War amendments totally altered the relationship between the state and national governments, by giving the national government a superiority not envisaged in the original Constitution That superiority derived not only from the substance of the amendments, defining the rights of citizens in every state, but also from the way the national government under the control of the triumphant North achieved ratification, by the forced reorganization of state governments in the South under military rule. The Constitution that came into existence after the adoption of these amendments was, in effect, a new constitution, providing for a new national government that could reach deeply into matters that had formerly been left entirely to the several states. Similarly the New Deal arrogated to the national government a power, previously considered unconstitutional, to direct economic activity and redistribute wealth. The Supreme Court, following the older constitution, denied that power until popular pressure, expressed in the landslide election of 1936, persuaded the Court to change its mind and in so doing to change the Constitution. In its sudden acceptance of the New Deal legislation in 1937, the Court, in effect, created yet another constitution by interpreting the old one according to popular demand. Both the Civil War amendments and the New Deal occurred on great and extraordinary occasions like the times of the founding itself. But in place of the extralegal conventions that first adopted the Constitution, the people expressed themselves through elections that could be considered as mandates for changes already proposed, debated, and discussed at length. The elections of 1866 and 1936 Ackerman sees as “decisive events in constitutional history,” which persuaded the opposition to concede that the people themselves had spoken.
That these two elections can be singled out above all others as expressions of constitutional politics may be arguable. It could also be argued that the people who spoke in the election of 1866 were only the people of the North and that their persuasion of the opposition was effected more through military force than through the deliberative process Ackerman associates with constitutional politics. But he has reserved a full discussion of those questions for his next volume. He allows that there have been other, lesser exercises in constitutional politics, successful, as in the case of the Civil Rights movement of the Sixties and Seventies, unsuccessful as in the case of Joseph McCarthy’s attack on the Bill of Rights (Ackerman includes the first ten amendments as part of the original constitutional politics of the founding), or as in the Reagan (and the Bush) administration’s attempt to undo the New Deal. But he sees the two major exercises of the 1860s and 1930s as key to understanding the constitutional history of the United States.
Ackerman is a lawyer, and he is particularly concerned to explicate the role of the Supreme Court in interpreting during normal politics the constitutional mandates given it in the periods of constitutional politics. Here he offers a new way of looking at the Court’s execution of its task, for by positing three major exercises of constitutional politics (in the 1780s, 1860s, and 1930s) he presents the Court with three successive constitutions to interpret: that of the founders, that to which the Civil War amendments had been added, and that which the New Deal, with the Court’s belated acceptance, had transformed by a new reading of old provisions.
The currently prevailing view of most lawyers about the Court’s operation over time is dominated by what Ackerman calls the bicentennial myth: the first Court, led by John Marshall, established the national government’s superiority over the states in judicial review; the post–Civil War Court failed to do its job in mistakenly applying the Civil War amendments, the Fourteenth, Fifteenth, and Sixteenth, not to protect citizens deprived of rights but to protect big business against government interference; and the post–New Deal Court recovered the Marshall Court’s inheritance and simply undid its previous mistakes.
Ackerman finds the bicentennial myth wrong at every point. The Marshall Court and its antebellum successors became less and less nationalistic with time, he argues, and in fact overturned only two state actions in the entire period before the Civil War. The Court of the “middle republic” (between the Civil War and 1937) did its best, albeit none too well, to synthesize the principles of the new amendments with the precepts and precedents established under the first Constitution. In the era of laissez-faire before the Civil War, Ackerman argues, the courts had interpreted the Constitution to protect the rights of property and the obligation of contracts. In reading the Civil War amendments, the Court sought at first to restrict their application to the former slaves whose freedom and political rights they established. But gradually as the Court contracted the original application of the amendments in relation to blacks, it interpreted them as general principles to be synthesized with those of the original Constitution. The Court thus came to see the Fourteenth Amendment as protecting freedom of contract against state or national interference. If the Court’s decision in Lochner v. New York (1905), which struck down laws limiting hours of work as contrary to the Fourteenth Amendment, now seems untenable, if not unthinkable, it is only because of the subsequent alteration of the Constitution in 1937.
By the same token, the Court since 1937 has been engaged, not in undoing mistakes, but in the more difficult task of reconciling the newly awarded powers of government with the precepts and precedents of both the preceding constitutional periods. The result of Ackerman’s analysis is a new way of looking at crucial cases like Dred Scott and Lochner v. New York. When seen in the context of their respective constitutional periods, the decisions in these cases appear less wrongheaded and more as efforts to carry out constitutional mandates. Before the Civil War amendments the right of a state to deny citizenship on the grounds of race may have been morally indefensible, but legally and constitutionally valid. Before the New Deal the right of government to regulate working hours may have been desirable but legally and constitutionally deniable. Ackerman has no brief for the Court’s infallibility, but if we accept his view of constitutional politics and of the major occasions of its exercise, his way of looking at the Court and its functions will give new direction to constitutional history and constitutional law.
The question, then, is whether he is right, whether it is possible not only to distinguish constitutional from normal politics but also to recognize the difference when we see it, whether in the past or the present. It is easy enough to reduce to absurdity the very idea of the people themselves acting in constitutional politics. The social contract has always been a logical construct, something presumed to have happened in an imagined past but never visibly occurring, except on so small a scale as to be irrelevant to the creation of society or government in any extended territory. The people are the brooding omnipresence of modern government, but their existence and their actions, like God’s, must be taken on faith, unless we mean by the people something very much less than the population subject to their supposed government. Or if the people can be said to act by choosing others to act for them in representative assemblies, whether the assemblies be called conventions or legislatures, then only a small proportion of the population has ever been the people. Before 1920 in the United States it was never much more than 20 percent. But Ackerman himself will not allow the choice of representatives to be an act of the people themselves except on the occasions when they have engaged in constitutional politics. “During normal politics,” he says, “the People simply do not exist.” Indeed, only a small percentage of them bother to vote even when qualified to do so.
How, then, do they spring into existence in constitutional politics? Ackerman, I think, accepts a little too readily Madison’s contention that the people themselves acted in creating the Constitution. The calling of the Constitutional Convention came about without any visible popular demand, its members were not popularly elected, and ratification was achieved in several state conventions by dubious means, including the conversion of delegates pledged to vote against it. Ackerman’s reading of the elections of 1866 and 1936 as popular mandates for the constitutional changes that followed them will also require more demonstration than the present volume offers. And when he proposes a test for successful constitutional politics in our own time, he devises a formula that even political scientists will have difficulty applying. In order to enact a higher law, altering the Constitution, he says, 20 percent of the citizenry must give the measure “deep support” (defined as having thought about it as much as one would think about an important decision in private life, such as buying a house) and be assisted by another 31 percent of “private citizens,” by which he means people who give politics only the cursory attention demanded of the citizenry in normal politics. It is not clear how either of these figures is to be measured or why, if they could be, we should accept 51 percent of the “citizenry” as “the People themselves.”
Ackerman is much more persuasive in his intuitive recognition of the phenomenon in the past. If in actual fact the people themselves have never acted and cannot act, it is nevertheless a necessity of popular sovereignty and of our whole process of government to suppose that they have. And there are times—those great and extraordinary occasions—when the supposition is much more plausible than at other times. Recognition of those occasions is a matter not only of faith but of judgment, and there is always danger of demagoguery and delusion. The government of the United States is not the only one that claims to have been created by the people, and it is now the stock in trade of every politician here and elsewhere to claim to speak for the people.
What Ackerman really wants is an exercise of judgment, a recognition of the rightful superiority of those higher laws that have a more plausible claim than others to be the acts of the people themselves, even though the claim can be no more than plausible. He has exercised his own judgment in discerning the occasions when we should suspend our disbelief, give our faith, and say that the people have acted, when it is useful and indeed necessary to suppose that they have acted. In doing so he has given us a fresh and convincing view not only of our constitutional history but of our will to believe.
The people do exist in our willingness to believe in them and to give force to the acts we attribute to them. Ackerman has provided us with a guide to the attributions. We may disagree with the particulars of his argument, but his distinction between normal and constitutional politics fits the way in which American government has operated over two centuries. It cuts through the futile and absurd search for the “original intent of the founders” as the way to discover the will of the people. It recognizes that the great and extraordinary occasions required for action by the people have not been confined to a single instance in the eighteenth century. It deflates the pretensions of politicians in normal politics but magnifies the importance of political leadership in mobilizing popular support for constitutional politics when constitutional politics is needed. It gives pragmatic meaning to government of, by, and for the elusive, invisible, inaudible, but sovereign people.
April 23, 1992