Popular sovereignty in the United States

For a general perspective on this subject, see popular sovereignty.

Popular sovereignty is a doctrine rooted in the belief that every citizen is sovereign, and rather than a monarch or single individual, that they could unite and each delegate a portion of their sovereign powers and duties to those who wished to temporarily serve as officers of a state, who would serve according to the will of the people. In the United States, the term has been used to express this concept in constitutional law. It was also used during the 19th century to refer to a potential resolution to the debate over the expansion of slavery into the territories, which argued that the inhabitants of a territory, rather than Congress, seeking statehood should decide whether or not slavery would be permitted.

Conceptual history

The idea that the people were sovereign (often linked with the concept of the consent of the governed) was not developed by the Americans. Rather, the consent of the governed and the idea of the people as a sovereign had clear 17th and 18th century intellectual roots in European history.[1] The American contribution lay in how they put these ideas into practice. Before the American Revolution, few examples existed of a people deliberately creating their own governments. Most people in the world experienced governments as an inheritance—whether monarchies or expressions of raw power.[2]

Revolutionary Americans created an independent government that was explicitly premised on popular sovereignty. The American Revolution marked the establishment of the concept of popular sovereignty in large-scale practice as it had been discussed and experimented with in the European historical contexts. With their Revolution, Americans substituted the sovereignty of a monarch with a collective sovereign composed of the people. Henceforth, early Americans supported the principle that governments were legitimate only if they rested on popular sovereignty – that is, the sovereignty of the people.[3]

After the Revolution, the idea of the people as the sovereign both unified and divided Americans in thinking about government and the basis of the Union;[4] with questions being raised over what the precise meaning, permissible actions and will of a collective sovereign was. In 18th-century European political thought, "the people" excluded most of the population, such as women, slaves, indentured servants, those lacking sufficient property, indigenous people, and children.[5] This conception was reflected in the early American republic by the disenfranchisement of women and those lacking sufficient property and the exclusion from citizenship and naturalization of slaves and other non-whites. Historian Ronald Formisano notes that "assertions of the peoples' sovereignty over time contained an unintended dynamic of raising popular expectations for a greater degree of popular participation and that the peoples' will be satisfied."[6]

"Popular sovereignty" in the dispute over slavery

In 1846, as the dispute over slavery in the United States developed in the wake of the Mexican-American War, the use of the term "popular sovereignty" began to gain currency as a method to resolve the status of slavery in the country. The war ended with the United States acquisition of lands once held by Mexico.[7] The effort to incorporate these lands into the United States uncovered long-simmering disputes about the extension of slavery – whether slavery would be permitted, protected, abolished, or perpetuated in these newly acquired areas.[8] Congressional attempts to resolve this issue led to gridlock. Several congressional leaders, in an effort to resolve the "deadlock" over slavery as a term or condition for admission or administration of the territories, searched for a "middle ground".[9]

Some moderates asserted that slavery in the territories was not a matter for Congress to resolve. Rather, they argued, the people in each territory, like the people in each American state, were the sovereigns thereof, and as that sovereign they could determine the status of slavery for themselves.[10] In this way, the term "popular sovereignty" became part of the rhetoric for leaving it up to residents of the American territories (and not Congress) to decide whether or not to accept or reject slavery. In essence, this also left it up to the people of the territories to resolve the controversy over expansion of slavery in the United States. This formed a "middle ground" between proponents of an outright limitation on slavery's spread to the territories and those opposing limitation. The idea tied into the widespread assumption of Americans that the people were the sovereign.[11]

As explained by historian Michael Morrison, the "idea of local self-determination, or, as it would become known, popular sovereignty" began to occupy the attention of members of Congress in 1846 and 1847.[12] In modern historiography, Illinois U.S. Senator Stephen A. Douglas is most closely associated with the idea of popular sovereignty as a solution to the issue of the extension of slavery in the territories.[13] Douglas's biographer, the historian Robert W. Johannsen, observed that Douglas was:

chairman of the Committee on Territories in both the House and Senate, and he discharged the responsibilities of his position with single-minded devotion…. During the debates over the organization of the Mexican Cession, Douglas evolved his doctrine of popular sovereignty, and from that time on it was irrevocably linked to his interest in the territories and in the West. His commitment to popular sovereignty was the deeper because he recognized in it a formula that would (he hoped) bridge the differences between the North and South on the slavery question, thus preserving the Union.[14]

The term "popular sovereignty" was not coined by Senator Douglas. Rather, in connection with slavery in the territories, the term was first used by presidential candidate and Michigan U.S. Senator Lewis Cass in his "Nicholson Letter" of 1847.[15] But the term "popular sovereignty" is now closely tied to Douglas's legacy. Ultimately, the connection of the doctrine of popular sovereignty with the failed attempt to accommodate slavery gives rise to its pejorative connotation today. Douglas "ultimately became the victim of the very politics he sought to remove from territorial policy" by advancing the idea of popular sovereignty. "His efforts were not judged in terms of their impact on the needs and desires of the territories … rather they were appraised in terms of their relation to the power struggle between North and South and to the issue of slavery. Despite Douglas's intentions, the territories continued to be but pawns in a larger political controversy."[16]

"Popular sovereignty" in constitutional law

That the people fought for equality with the King of Britain was enshrined in the American Declaration of Independence and was a matter of common knowledge in America after the American Revolution. The first Chief Justice, John Jay, published this in his opinion in Chisholm v. Georgia (1793) in order to briefly illustrate what would eventually come to be known by the American usage of the term "popular sovereignty":

It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere... No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects, and have none to govern but themselves[.]
From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns.[17]

Further, while it is true that the people are each sovereigns, it is imperative to grasp that the individual people's sovereignty is dual-fold. That is to say, over their bodies, lives, private holdings and the like, they are akin to the Monarchs of Europe (with few exceptions, like the doctrine of eminent domain), but over the several states and the Union (the public property, interests, etc.), they are only co-sovereign and the public is governed via elected representatives of the people.[18] This important concept of matters and things that are public and those that are private can be a source of some confusion for those unfamiliar with the principles. The public and private are mutually exclusive, or in other words, that which is public is not private, and that which is private is not public.[19] Further, that which is public is of interest to all the people jointly, not just to one in particular, but in no way was it ever intended to express or imply that the private sector was to be subject to the state public servants. In fact, even over the public sector, it is the people as a whole who remain the sovereign of the several states and the United States of America. In 1886, 93 years after the Supreme Court's holding in Chisholm v. Georgia, Justice Thomas Stanley Matthews expressed this in his opinion in Yick Wo v. Hopkins:

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.[20]

As noted by legal historian Christian G. Fritz in American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, both before and after the Revolution, Americans believed "that the people in a republic, like a king in a monarchy, exercised plenary authority as the sovereign. This interpretation persisted from the revolutionary period up to the Civil War." [21] However, as widespread as this belief in the power of the people was, the early Americans infrequently used the term "popular sovereignty" to describe the idea.[22] Rather, in expressing this founding concept of rule by the people, they would described the ideal of how "the people" would exercise sovereignty in America and that the state officers and employees function as "public servants." The actual use of the term, "popular sovereignty," didn't begin to gain popularity until around the 1840s.

Notes

  1. ↑ On the English origins of the sovereignty of the people and consent as the basis of government, see John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986-1993), Vol. III:97-101, 107-10 ISBN 0-299-13070-3; Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (W.W. Norton and Company, 1988) ISBN 0-393-30623-2
  2. ↑ Gordon S. Wood, The Radicalism of the American Revolution (Alfred A. Knopf, 1991), at p. 243 ISBN 978-0-679-73688-2 (noting that during their Revolution, Americans "became the first society in the modern world to bring ordinary people into the affairs of government—not just as voters but as actual rulers"); Pauline Maier, American Scripture: Making the Declaration of Independence (Alfred A. Knopf, 1997), at pp. 34-35 ISBN 978-0-679-77908-7 (observing that in 1776 no governments existed "in which all authority rested on popular choice").
  3. ↑ Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government—Popular Sovereignty, Natural Rights, and Balance & Separation of Powers, (Indiana Univ. Press, 1974), at p. 52 ISBN 978-0-253-20198-0 (describing "the almost unanimous acceptance of popular sovereignty at the level of abstract principle"); Edmund S. Morgan, "The Problem of Popular Sovereignty," in Aspects of American Liberty: Philosophical, Historical and Political, (The American Philosophical Society, 1977), at p. 101 (concluding the American Revolution "confirmed and completed the subordination of government to the will of the people"); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press, 1980), at p. 137 ISBN 978-0-7425-2069-1 (asserting that statements of the "principle" of the people's sovereignty "expressed the very heart of the consensus among the victors of 1776").
  4. ↑ This is the conclusion reached in Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) [ISBN 978-0-521-88188-3] (In the prologue to this study, Fritz notes "In framing America's first constitutions, patriots celebrated the people's sovereignty. These ideas smoldered even after the Revolution ended and this heated revolutionary rhetoric soon permeated all regions and ranks of society. Government was no longer something that happened to people. In America it now became something the people – by their consent and volition – brought into being. The people gave their consent through their conduct and their active participation reinforced the message that the people were America's new sovereign." However, "Americans argued fiercely about the nature and the extent of their power as part of the collective sovereign, and seven decades later [after independence] they were no closer to agreement over what the people's sovereignty meant than they were during the Revolution.") Prologue, American Sovereigns, at p.l
  5. ↑ Gary B. Nash, Gary B., Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (Viking, 2005) ISBN 978-0-14-303720-0 (describing how the Revolution laid the groundwork for an expanding definition of who were deemed part of "the people.")
  6. ↑ Ronald P. Formisano, For the People: American Populist Movements from the Revolution to the 1850s (Univ. of North Carolina Press, 2008), at p. 43. [ISBN 978-0-8078-3172-4]
  7. ↑ Mexican-American War#Impact of the War in the United States
  8. ↑ Wilmot Proviso
  9. ↑ Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, (University of North Carolina Press: 1997) at p. 78 (noting that congressional sexting over slavery in the territory acquired from Mexico had reached a "deadlock" and that Whig party was "unwilling to meet the problem head-on.") & at p. 84 (noting that in the face of "extreme solutions" to the slavery question in the territories, "moderates in both parties began to search for middle ground.")
  10. ↑ Compromise of 1850#Henry Clay and Douglas draft compromise
  11. ↑ Stephen A. Douglas And The American Union (Website: University of Chicago Library) (May 14, 2008) ("Popular sovereignty had the potential for great public appeal because it was closely tied to the ideal of majority rule and the principles of American constitutionalism. For [Senator Stephen A.] Douglas, it had even more important political implications. By removing slavery from congressional debate and transferring it to geographically remote territorial legislatures, Douglas hoped to insulate the federal Union from further sectional conflict.")
  12. ↑ Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, at p. 84 (University of North Carolina Press: 1997) (noting that as a proposal for solving the question of slavery in the territories, "popular sovereignty endorsed the fundamental principle of self-government, [so that] its appeal was powerful. Of more immediate importance, Cass's [popular sovereignty] doctrine also held out the twin and seemingly paradoxical advantages of resolving the territorial issue and postponing its denouement. For although popular sovereignty proposed to remove this vexing question from Congress, Cass was as silent as the dumbest oracle on the precise stage of territorial development at which inhabitants were to regulate slavery.")
  13. ↑ Stephen A. Douglas (noting that "Douglas was well-known as a resourceful party leader, and an adroit, ready, skillful tactician in debate and passage of legislation. As chairman of the Committee on Territories, Douglas dominated the Senate in the 1850s. He was largely responsible for the Compromise of 1850 that apparently settled slavery issues. However, in 1854 he reopened the slavery question by the highly controversial Kansas-Nebraska Act that allowed the people of the new territories to decide for themselves whether or not to have slavery (which had been prohibited by earlier compromises). The protest movement against this became the Republican Party.")
  14. ↑ Robert W. Johannsen, The Frontier, the Union and Stephen A. Douglas (Univ. of Illinois Press: 1989) at p. 95-96 ISBN 0-252-01577-0
  15. ↑ Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, at p. 84 (University of North Carolina Press: 1997) (noting that "not until the presidential hopeful Lewis Cass made it his hobby was popular sovereignty put clearly before the people. As he delineated the doctrine in his 'Nicholson letter' of December 1847 [to Tennessee political supporter, A. O. P. Nicholson], Cass refused to take an explicit stand on Congress's power to regulate slavery in the territories. Rather, he contended that even if such power existed, it ought not be exercised. Congressional leadership, he argued, 'should be limited to the creation of popular governments and the necessary provision for their eventual admission into the Union; leaving in the meantime to the people inhabiting them to regulate their own internal concerns in their own way.'"); see also Willard Carl Klunder, Lewis Cass and the Politics of Moderation (Kent State University Press, 1996), at p. 168-70, 177-80, 241-43. ISBN 978-0-87338-536-7
  16. ↑ Robert W. Johannsen, The Frontier, the Union and Stephen A. Douglas (Univ. of Illinois Press: 1989) at p. 116-17 ISBN 0-252-01577-0
  17. ↑ 2 U.S. 419 Chisholm v. Georgia, JAY Opinion - in part
  18. ↑ Constitution of the United States:

    Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
  19. ↑ Bouvier's Law Dictionary, 1856: PRIVATE. Not general, as a private act of the legislature; not in office; as, a private person, as well as an officer, may arrest a felon; individual, as your private interest; not public, as a private way, a private nuisance.
  20. ↑ Yick Wo v. Hopkins, 118 U.S. 356 (1886) - in part
  21. ↑ Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p.7 ISBN 978-0-521-88188-3
  22. ↑ See, e.g., Leonard Levy, ed., Encyclopedia of the American Constitution (Nathan Tarcov, "Popular Sovereignty (in Democratic Political Theory), vol 3, p. 1426, 1428 (1986) (Noting of the doctrine of popular sovereignty before the Civil War that "the Founders tended not to call the doctrine expounded here as 'popular sovereignty.'")

Further reading

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