The challenge of defining "the people," political theorist Jason Frank writes, "haunts all theories of democracy and continually vivifies democratic practice." The phrase "the people" haunts because, like a specter, it claims to speak for something that never was and is always in formation. Yet it "vivifies" democratic theory because the American political tradition's legitimacy derives from popular sovereignty, and thus outsider groups can use the idea of the people to claim a role for themselves within our democracy.
But who are the people? For some constitutional scholars, including political scientists and theorists, the people are the constituent sovereign who, in conventions, design their government. From this perspective, the most important outcome of the American Revolution was the convention as a mechanism to enact the social contract. But many have challenged this conclusion. As Progressive historians and their heirs remind us, the Constitution was itself contested, did not fully embody popular will, and was an elite backlash against more popular democracy. These two perspectives created a theoretical and practical problem that played out in the postrevolutionary decades. If the state authorized by "the people" cannot speak for the people, how can elected leaders represent the public will? Alternatively, if others in civil society have a stronger claim to represent the people, how can representative government be legitimate?
Given this conundrum, it is no wonder that Daniel Rodgers in Contested Truths (1987) considers "the people" one of America's "contested truths," a phrase that can be used by those in power and by outsider groups—as in populist uprisings—who claim to represent better the people than elected leaders do. It is into these confusing waters that Frank wades. He hopes to contribute to democratic theory by exploring how postrevolutionary Americans struggled with this fundamental problem, which is, ultimately, one of the relationship between representative government and civil society. Frank's answer draws [End Page 267] on Jacques Derrida's famous essay on the Declaration of Independence. To Derrida, the Declaration simultaneously created "the people" and spoke in the name of a preexisting people.1 The Declaration thus enacted what it claimed already was. Frank believes the same "paradox" is true of all representative government (p. 31). All claims made on behalf of the people invoke the very thing that they, in their claims, create.
Central to Frank's thesis is his idea of a democratic "constitutive surplus" (p. 3). The "surplus" derives from the fact that all claims to represent the people are partial, leaving space for others to generate claims for inclusion. These claims happen in "constituent moments" when outsiders assert a right to speak for a people that they are simultaneously invoking and creating anew each time. Frank moves beyond Bruce Ackerman's argument in We the People (1991) that certain pivotal elections are like constitutional conventions in which voters accept new ground rules to include the populist expressions of grassroots activity in civil society, namely postrevolutionary crowds and the emergence of democratic societies in the 1790s.
Given that all claims made for the people are assertions, some historians have been convinced that republican government is not that different from other forms of government. To Edmund Morgan in Inventing the People (1989), popular sovereignty is a "fiction" that historically has enabled not the many to challenge the few but, instead, the few to govern the many. "Government requires make-believe," Morgan argues. Once we believed that the King was divine; now we "make believe that the people have a voice or make believe that the representatives of the people are the people." Anticipating Frank, Morgan concludes that the fiction remains useful and potentially redemptive if the people use it to demand a better alignment between the realities of their rule and popular sovereignty's aspirations.2
Many scholars agree with Morgan that postrevolutionary representative governments were really bodies of elite rule. Such scholars take as more authentic the proclamations made by ordinary...