Rulers and Ruled: Popular Sovereignty and American Constitutionalism

In 1789, Thomas Jefferson and James Madison exchanged views on the newly adopted Constitution and especially on the need for its immediate amendment to include a bill of rights. The discussion also touched on the meaning of popular sovereignty and the role of a constitution in expressing fundamental law. Voicing an opinion that he would repeat often, although not always consistently, Jefferson admonished his friend that "the earth belongs to the living. . . . No society can make a perpetual constitution or perpetual law." With the contentious debates of the Philadelphia convention fresh in his memory, Madison replied that the idea was fine as theory but not in practice: "A Government so often revised would become too unstable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to rational Government in the most enlightened ages."

As a society we have embraced Madison's view, our veneration of Jefferson notwithstanding. We celebrate the framers' foresight in balancing change and stability through the elaborate process required to amend the Constitution; we view it as a counterweight to the whims of public opinion by requiring a supermajority of ratifying states to change fundamental law. Since the flurry of amendments adopted soon after ratification (the Bill of Rights in 1791, the Eleventh Amendment in 1798, and the Twelfth in 1804), we have modified the Constitution formally only fifteen times in 220 years, with three amendments coming immediately after the Civil War and two others in the experiment with national prohibition. This scanty record should not suggest that the amending impulse is moribund, however. In his prize-winning Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (1998), David Kyvig locates the amendment process at the heart of American constitutionalism, and he points to more than 10,000 attempts to change the Constitution as evidence of its vitality. He also argues that amendments are necessary to secure long-lasting constitutional change. Still, many textbook histories continue to portray a different narrative: judicial review, not amendments or Jefferson's view of continual revision, has been the primary mechanism for aligning the Constitution with the changing needs of a developing nation. The switch in time that saved nine was not simply a popular quip in the 1930s; its essence is the mantra commentators traditionally have used to explain how fundamental law crafted in the 1780s continues to serve the nation's needs in the twenty-first century.

But until the Civil War and even beyond, Christian Fritz argues in his provocative study of American constitutional thought, Jefferson's vision captured the imagination of many Americans who took the notion of popular sovereignty as a good deal more than slogan or shibboleth. After the Constitutional Convention, Americans debated vigorously whether they, acting collectively as sovereigns, could change their constitutional charters at will rather than follow the process of amendment and ratifications. By this logic, a majority of the people could not be bound even by a fundamental law of their own making. Both the procedural view and the democratic view shared the general consensus that the people were sovereign. They differed over how much power remained with the people and how much power the people had surrendered to government. It was a difference that mattered because of the questions it raised: how could the people be both ruler and ruled? Who were the people?

Revolutionary rhetoric emphasized the people's sovereignty. No longer was government something that happened to people, it was what the people created. Subjects were citizens; the ruled were rulers. But even though "we, the people" became familiar rhetoric to Americans, Fritz argues that sharp divisions remained about its meaning. The Revolutionary generation faced a novel set of questions: how could a collectivity rule as sovereign over a territory larger and more diverse than Europe? How could this sovereign speak as one voice in state as well as national matters...