The Retreat of Popular Sovereignty

On September 15, 1787, as the Constitutional Convention drew to a close, James Madison noted that George Mason, a fellow delegate from Virginia and the principal author of the Virginia Declaration of Rights, had a specific objection to the intended manner in which the Constitution would be amended. Specifically, Madison observed Mason:

Thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.[1]

Mason, in fact, had astutely recognized that under the proposed Constitution, not only were the people almost entirely dispossessed of their invaluable right to alter or abolish their systems of government, but, in a larger sense, he had also revealed a conspicuous structural antagonism and manifest contradiction between the Constitution’s ratifying authority and its amending power.

Curiously, the Framers, despite their urgent and repeated pleas on behalf of popular sovereignty and popular ratification, created a paradoxical constitutional system whereby the declaimed inferior authority of the legislature would definitively supersede the boasted supreme authority of the people. More specifically, with the two enumerated exceptions of Article V, every article, section, and paragraph of the Constitution, which had originally required the approval and ratification of the superior authority of the people, could thereafter be nullified, rescinded, replaced, and reversed by the lesser authority of the legislatures.

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 The Ratifying Power: We The People

As of March 1781, the legislatures of the thirteen united American states, not the people thereof, had ratified the Articles of Confederation. The methodical ratification process took nearly five years to complete, from the original drafting of the Articles by the Continental Congress in 1776 until Maryland’s final ratification in March 1781. And during this entire time, it was rarely suggested that the state legislatures lacked the authority to ratify the Articles on behalf of the people of their respective states.

At the Federal Convention of 1787, the mode in which the Articles of Confederation had been ratified wasn’t lost on Connecticut delegate Oliver Ellsworth, and on July 23, he moved that the ratification of the Constitution “be referred to the Legislatures of the States.”[2] William Patterson of New Jersey then seconded the motion.[3] Ellsworth’s motion was intended to counter and rebuff what had become the nineteenth resolution of the convention, which proposed referring “the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it.”[4]

In the ensuing debate over the manner and mode of ratification, Mason immediately and emphatically declared his support for the resolution and offered a commentary in which he carefully explained that he “considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions.” And he elaborated; “The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators.”[5] Mason, therefore, explicitly asserted that the legislative authority was a subordinate power and that sovereignty rested with the people. Accordingly, it was the people, not the legislatures, who ultimately possessed the power of ratification.

Madison, in turn, reinforced Mason by essentially repeating Mason’s argument and adding that he too “thought it clear that the Legislatures were incompetent to the proposed changes.”[6] Confounded by their arguments, Ellsworth replied:

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a new set of ideas seemed to have crept in since the Articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Congs. applied on subsequent occasions for further powers? To the Legislatures; not to the people.[7]

Ellsworth was factually correct, of course, but when the polemics concluded and the votes were recorded, his motion was soundly defeated, and the resolution submitting the plan of government to the consideration of the people, and not the legislatures, was agreed upon. Ultimately, the Committee on Style adjusted and refined the language, and the disputed resolution assumed its final form as Article VII of the Constitution.[8] Coupled with the introductory phraseology of “We the People” from the preamble, the Constitution genuinely seemed to establish a union based upon popular sovereignty.

While Mason and Madison, among other delegates, ostensibly supported the sovereign authority of the people, in truth, the Framers resorted to the theory of popular sovereignty less as a function of ideological purity and more as a matter of pragmatic necessity. In fact, at the convention, the Framers found themselves hopelessly restricted by Article XIII of the Articles of Confederation, as its text explicitly declared that no amendments could be effected without the unanimous approval of the state legislatures.[9] And inasmuch as Rhode Island had refused to so much as even send deputies to Philadelphia, its recalcitrance presented the threat of disunion, domestic turmoil, or, at a minimum, a continued oppressive national malaise under the Articles of Confederation.

Unable to comply with the unanimity requirements of Article XIII and unwilling to be constrained by them, the convention discarded the idea of legislative ratification. Madison, expounding upon the arguments he made at the convention, offered the following commentary on the issue in Federalist 43:

It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties.[10]

Madison’s pellucid description of the subordinate and inferior authority of the legislature measured against the high sovereign right of the people provided a plausible theoretical escape from the rigorous unanimity demands of Article XIII. There is, however, a discernible inconsistency with the Madisonian approach. Indeed, as soon as Madison asserted the supreme right of the people to alter and abolish their system of government, he and the Convention, for all practical purposes, promptly revoked it, thereby reducing the preamble to a dead letter.

The Amending Power: We The Legislatures

Contrary to the ratifying power of Article VII, the amending power of Article V was, and is, almost exclusively legislative.[11] Accordingly, a mere three months after the Constitution had been adopted and gone into effect, Congressman James Madison introduced a series of proposals that, after approval by the House and Senate, would become the first ten amendments to the Constitution; they were sent to the state legislatures for consideration and ratification.

The initial absence of a Bill of Rights rendered the Constitution especially vulnerable to criticisms from the anti-federalists, although the federalists initially resisted the censures. Alexander Hamilton, for example, insisted that the entire Constitution was, functionally, a bill of rights, and he addressed the matter directly in Federalist 84:

Bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?[12]

Hamilton’s argument, however, was entirely unpersuasive. The architectural integrity of the Constitution was inherently compromised under this line of reasoning anyway, because the Constitution already included an enumeration of prohibitions for which no power had been granted to Congress (e.g., Article I, section 9, and the prohibition against granting titles of nobility). Additionally, the anti-federalists persuasively argued against the idea of leaving critical civic rights to the ambiguity and uncertainty of structural interpretation. Ultimately, therefore, the federalists relented, and the Constitution was amended by legislative authority to include a specified Bill of Rights.

In 1793, the Supreme Court decided the case of Chisolm v Georgia. In its decision, Chief Justice John Jay announced that a state could not assert sovereign immunity to prevent a citizen of another state from bringing litigation against it. The decision provoked and angered many of the states, and by 1795 the Eleventh Amendment had been adopted, effectively nullifying the court’s decision in Chisolm. The Eleventh Amendment, like the Bill of Rights, was obtained through legislative authority and reversed the original meaning of Article III, section 2, as ratified by the people and interpreted by the Supreme Court.

One year after the adoption of the Eleventh Amendment, the presidential election of 1796 produced a truly ridiculous political spectacle. The leader of the political opposition, Thomas Jefferson, a Republican, was elected vice president to serve under the duly elected president, John Adams, a Federalist. Four years later, in the presidential election of 1800, and after an electoral college deadlock, it took the House of Representatives no fewer than thirty-six ballots to elect Thomas Jefferson over Aaron Burr as president.[13] Quite obviously, the federal convention had proposed, and the people had ratified, a very imperfect election scheme.

The constitutional remedy was the Twelfth Amendment.[14] It was ratified by the state legislatures in 1804, and it mandated that in presidential elections the president and vice president receive votes separately and distinctly. The amendment completely overhauled and restructured the presidential election process pursuant to Article II, section 1, paragraph 3, which had been approved and ratified by the people only sixteen years before and survived only four election cycles.

In each case, under Article V, Congress had the constitutional right to direct that the amendments be ratified by the authority of state conventions, but they declined to do so, despite the fact that it would have been consistent with the assertion repeatedly made at the federal convention that only the people could establish the nation’s fundamental law. The next constitutional amendment, the thirteenth, occurred sixty years later, in 1865, and it too was ratified by the states, not the people.[15] Additionally, the power of the people to alter and amend the Constitution through the Article V national convention clause was never used during the Founding era and remains, to this day, unused, dormant, and obfuscated by a cloud of constitutional confusion.

Conclusion

On June 4, 1788, Patrick Henry, a Virginia lawyer, member of the House of Burgesses, delegate to the Continental Congress, and a delegate to the Virginia ratifying convention, rose to speak in opposition to the Constitution. Although he had many criticisms of the new plan of government, on this occasion he was specifically concerned with the language of the preamble. Henry, referring to the delegates of the federal constitutional convention, rhetorically asked, “Who authorized them to speak the language of, We, the people, instead of, We, the states?”[16] Although Henry’s immediate concerns were the potential centralizing and consolidating effects of the preamble, his objection also illuminated the practical distinction between the people and the state legislatures as political authorities.

To that end, the familiar and inspirational expression of the preamble, “We the People,” was not intended to be merely an announcement of quotidian republicanism. Instead, and as the federal convention insisted, it was to be understood as a proclamation of popular sovereignty (much to Patrick Henry’s dismay). It is inexplicable, therefore, that the framers, having established the people as the supreme constitutional authority in one instance, would then precipitously negate the same authority in the other.

In 1776, shortly after the Declaration of Independence was issued, a forty-eight-page pamphlet entitled The Genuine Principles of the Ancient Saxon, or English Constitution was published in Philadelphia under the pseudonym Demophilus. It is generally thought that its author was George Bryan, a businessman and Whig politician who would later serve as both lieutenant governor and governor of Pennsylvania. As a Whig and American revolutionary, Bryan recognized the potential abuses inherent in the exercise of legislative sovereignty and, of course, was adamantly opposed to it. He explicitly addressed the point in his paper:

To prevent this, let every article of the constitution or set of fundamental rules by which even the supreme power of the state shall be governed, be formed by a convention of the delegates of the people, appointed for that express purpose: which constitution shall neither be added to, diminished from, nor altered in any respect by any power besides the power which first framed it.[17]

Despite the sage advice from Demophilus, the Framers ultimately reduced popular sovereignty to a constitutional nullity so that the once grandiose expression “We the People” no longer has a practical application.

[1] James Madison, Notes of the Debates in the Federal Convention, (1787), Adrienne Koch ed. (New York, NY: W.W. Norton & Company, 1965), 649 (emphasis added).

[2] Ibid., 348.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid., 352.

[7] Ibid., 350-351.

[8] U.S. Constitution, art. VII. Under its terms the people of each state, in convention, ratified for itself, and no state was bound by the Constitution until it ratified.

[9] Articles of Confederation, art. XIII. In addition to a strict rule of unanimity, Art. XIII included an equally strict law of perpetuity.

[10] Clinton Rossiter, ed., The Federalist Papers (New York, NY: Penguin Group, 2003), 276.

[11] U.S. Constitution, art. V. Of the twenty-seven amendments to the Constitution, only one, amendment XXI, was ratified by state conventions.

[12] Rossiter, ed., The Federalist Papers, 513.

[13] Both Jefferson and Burr, of course, had already defeated incumbent John Adams.

[14] U.S. Constitution, amend XII. Prior to the adoption of the twelfth amendment, electoral votes were given for president without reference to a vice president.

[15] U.S. Constitution, amend XIII. On December 6, 1865, Georgia became the 27^th state to ratify.

[16] The History of the Virginia Federal Convention of 1788, Vol. I (Richmond, VA: Virginia Historical Society), 81

[17] Demophilus, The Genuine Principles of the Ancient Saxon, or English Constitution (Philadelphia, 1776), 4 (emphasis added).