In the Gettysburg Address, President Lincoln declared ours a "government of the people, by the people, [and] for the people." (1) Is the Gettysburg Address an appropriate template for the American Constitution? Are national referenda and initiatives an appropriate template for the American Constitution? This Essay will argue that they are not.
In fact, after considering Professor William Eskridge's remarks at the 2010 Federalist Society National Lawyers Convention, (2) my opposition to the use of either referenda or of initiatives has, if anything, hardened. Let me ground this intuition in political and constitutional theory. There is one question that is absolutely essential to this discussion: Just how unrestrained ought our legislative authority be in a constitutional democracy that seeks to protect vested individual rights?
In a constitutional democracy, we are far from thinking that the sole object of government is to satisfy the preferences of the median voter. We have, at least in the original design of the Constitution, a system that has no directional pull at all. Each distinct institution of government, from the President, to the Senate, to the House, is subject to different rules, all of which, in combination, are designed to create multiple obstacles to the enactment of laws. (3) Why does American government take this presumptively obstructionist stance? It does so because it harbors a deep ambiguity about what it means for anyone to evoke the multi-faceted image of "the people" in analyzing American constitutional law or indeed any other system of governance.
What do I mean by this simple and uneasy proposition? The nub of the argument is that when we start thinking about "the people," we do so in two very different ways. Sometimes we treat any reference to the people as reason for celebration. The American people have spoken and decided that X, not Y or Z, ought to be President of the United States. Yet the reality is that 54 percent voted for candidate X, while the other 46 percent of voters split their votes among Y and Z. In cases where the passing of legal authority is at stake, we consciously create an illusion of collective unanimity by using the term "people" to turn a fragile majority into a 100 percent rout. As long as everyone may participate in the election, this usage is, at least for the moment, a useful affirmation of democratic participation.
But using this illusion to secure political legitimacy also has a dark side, for all too often this phrase can be misleading and dangerous. In one sense, the most dangerous words in the U.S. Constitution are the most celebrated. I refer here to the words "We the people," which begin the Constitution's Preamble. (4) I take such a negative view of one of the cornerstones of our Constitution because of how the original draft of this particular provision read. The words were: "We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, SouthCarolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity." (5) Today's familiar Preamble contains no such suggestion that the Constitution was designed to bind the people of each individual state. (6) It is indeed evident that the use of that longer phrase set a different tone for the rest of the Constitution. It showed that the Framers had to tread carefully because they were acting as delegates for individuals in their own states, some of whom might disagree with them. The more elaborate language invites a mood of caution. In contrast, the phrase "We the People" used in the final drafty creates an image of coercive unanimity.
Consider the reaction that we all have when we speak about the People's Republic of China or the People's Republic of East Germany or, …