Constantly Approximating Popular Sovereignty: Seven Fundamental Principles of Constitutional Law

Article excerpt

constantly looked to,

constantly labored for,

and even though never perfectly attained,

constantly approximated . . . .1

In 1988, renowned historian Edmund S. Morgan published Inventing the People: The Rise of Popular Sovereignty in England and America? In that brilliant and wide-ranging book Morgan traces how, between the time of the English Civil War in the mid-seventeenth century and the adoption of the American Constitution in 1787, the idea of "popular sovereignly" - the right of the people to govern themselves - replaced the notion of "the divine right of kings" as the acknowledged source of political power.3 The central theme of Morgan's work is that while popular sovereignty is a "fiction" in the sense that the people of a nation cannot actually rule themselves without creating a government,4 over the centuries our ancestors constantly labored to create a society and a government which gradually came closer to the realization of that principle - a closer approximation of the ideal of popular sovereignty.5 At the end of Inventing the People, Morgan concludes:

From its inception in the England of the 1640s the sovereignty of the people had been filled with surprises for those who invoked it. It was a more dynamic fiction than the one it replaced, more capable of serving as a goal to be sought, never attainable, always receding, but approachable and worth approaching. It has continually challenged the governing few to reform the facts of political and social existence to fit the aspirations it fosters. The presumption that social rank should convey a title to political authority was only the first casualty in its reformations, and we have not yet seen the last The fiction endures. The challenge persists.6

The principle of popular sovereignty is what distinguished the new American republic from every other nation which preceded it in human history. ; Popular sovereignty remains the single most important animating principle of American constitutional law. But the concept of popular sovereignty is not a simple, unitary idea; instead, it comprises a number of interrelated and mutually reinforcing elements. In particular, the American conception of popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law. The Constitution is ordained and established as law - the supreme law of the land.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government is bound to respect.

4. Equal Political Rights. Each person is a sovereign political actor; therefore each person has an equal right to participate in government. Accordingly, the Constitution protects freedom of political expression, freedom of political association, the equal right to vote, and the principle of majority rule.

5. Separation of Church and State. The people are sovereign, not God. Laws reflect the will of the people, not the presumed will of God. Religious authority is not a legitimate basis to support the enactment or interpretation of any law or the adoption of any official practice.

6. The Power of the National Government Over the States. The American people are sovereign, not the states. No state has the power to secede from the union or to nullify any federal law. The states retain only those powers not granted to the federal government or reserved to the people.

7. National Independence and the Limited Authority of International Law . The American people as a whole are sovereign and independent and are not subject to any foreign law or power. The political representatives of the American people have the power to abrogate treaties or other forms of international law. …