That, for Jefferson, was what the colonial rebels had been fighting for during eight long years from and ; and it was what the recently ratified federal Constitution had been designed to secure. The stakes of that experiment were colossal. It encompassed the fate of freedom, not only in America but around the globe.
Jefferson and Lincoln believed with many others that the United States had mounted the stage of human history — and that the entire world was watching. But what did these high-sounding phrases mean? What is self-government or popular sovereignty? And how can they govern themselves? The notion of popular rule has ancient roots. It was a central — and hotly contested — concept ancient Greek philosophers and politicians alike. Among the Greeks, rule by the people the demos , from which we get our modern term democracy meant two fundamental things.
It meant that the people could both choose their own rulers and hold those rulers to account. The demos, that is, was a tyrant. Tyrant, for these writers, was a neutral term. But it had, then as now, a darker side. It was the people of Athens, after all, who condemned and executed Socrates. For centuries after the golden age of Greece, thinkers and statesmen warned of the risks of popular rule. It wishes the death of Socrates, bewails it the next day, and a few days later dresses altars for him.
Not necessarily. The key was to distinguish between popular sovereignty and day-to-day governance. The people could govern themselves by delegating lawmaking powers to their chosen representatives. It proceeded via representation. This was the conundrum, above all others, that perplexed the framers of the U.
Following the Declaration of Independence in , each American state adopted a constitution of its own. Responding to the basic tenets of popular sovereignty, groups and organizations in both the North and the South encouraged and aided families and individuals to migrate to Kansas and sway the final vote.
The border between Kansas and Missouri became a hotbed of violence and intimidation, resulting in voter fraud and several antithetical constitutions proposed in Kansas. In the aftermath, and within the context of growing sectionalism and conflicts over slavery, popular sovereignty was a victim of extremist politics that erased hopes for peace. Rather than preserving the Union, the provisions instead led to further discord and violence that pushed the nation toward civil war.
Johannsen, Robert Walter. Stephen A. New York: Oxford University Press, Morgan, Edmund S. New York: W. Norton and Company, How could a legitimate government exist in conflict with the interests of states if no collective people with a separate identity were represented by it?
We are a people, diverse but united by our government if nothing else. See Dred Scott v. Sanford, 60 U. City of Balt. This national collective was born out of the Constitution just as the federal government was. McAffee, supra note 60, at Otherwise the Constitution would seem more like a treaty of independent and severable bodies than like the formation of a new unified Republic supported by the people of the entire nation as a sovereign body.
Below the general government that they have given themselves, one then encounters only individual forces or collective powers, each of which represents a very minimal fraction of the sovereign. However, this presumes dissolution of states in favor of a national collective; when surely they can and do co-exist.
See De Tocqueville, supra note 2, at While the powers of the states can be derivative and potentially closer to the powers of the people, they are nonetheless distinct from them. See , e. Firestone, U. Texas, U. Life Ins. Johnson, U. Paulding, 39 U. This reading is further inconsistent with the nature of both state and federal governments as republics derived from the people. B discussing Chisolm , 2 U. An argument that state governments represent the unique interests of the people and are representative of the people forgets that the federal government is dependent upon and representative of the people on similar terms, if not a similar scale.
This is visually illustrated by Figure 3, which compares the reading of the Tenth Amendment that forgets the power of the people on the left with the one that remembers the direct role the people have in their federal government on the right. The argument that the people are not a constitutionally mediated voice through state governments is additionally supported by a few important historical developments.
That collective, whether of state citizens or national body, holds powers separate from their governments or the sum of the individual rights of its members. It considered slaves three-fifths of a person and prohibited slaves, women, and American Indians from voting. It is possible that the move from popular sovereignty as a powerful part of the Tenth Amendment to something inconceivable by the Court tracks the expansion and diversification of the electorate.
Perez v. While state governments are granted the general broad powers of governance—colloquially known as police powers—the federal government is one of limited powers. Certainly, the Constitution does not create general federal police powers. While the limits of federal powers are widely acknowledged and the logic is intuitive, the states must also be governments of limited powers in order to prevent tyranny and oppression.
Additionally, with the creation of the Constitution, and the federal government, there are certain powers related to the federal government that are not delegated to it and cannot belong to the states. States cannot have powers that spring from the national government—including powers to oversee that government. Justice Story argued in his academic writing and the Court later affirmed, U.
No state can say, that it has reserved, what it never possessed. Cooley eds. Therefore, there is a set of powers relating to the federal government, but not delegated to it, that states cannot have reserved because they lack prior ownership.
Those powers must belong to the people. There are certain federal powers, all from Article I, Section 10, that are powers of government that once belonged to the states but are now constitutionally prohibited to them.
These are powers that states once had but gave up for a federal system. The making of money, treaties, etc. But what would happen if the federal government could no longer exercise those powers?
For example, what if there were ever an Executive and a Congress held hostage by foreign interests that halted basic government functions and treaty-making to resolve the conflict? State governments are constitutionally prohibited from stepping up, and in the complete breakdown of these federal responsibilities, governance must be able to fall upon some collective body to step up where the federal government had failed. While many have observed that the U. Constitution contains no explicit provision for relaxing, reorganizing, or suspending either powers or personal rights during wartime, many have suggested that it implicitly does or ought to.
However, the question remains whether the Constitution would even be legitimate in the extreme cases where the governmental bodies it charges with certain powers were incapable of exercising them.
The constitution contemplates such a crisis and ensures that one of its sovereigns is always capable of reassuming delegated powers in times of crisis. These are the kinds of federal government powers that came up in Thornton : to set term limits or specify other limits or modifications on federal government structures and functions that could not have existed prior to the Constitution.
These powers did not come from the ether but belonged to the people in the moment before delegation. For a collective national government to be created, the people must have held some powers to create it, structure it, and police it. The question now is if the people retain them. There is an argument that they must, since the states cannot police these federal powers, and it is difficult to imagine that the federal government always holds these self-structuring powers without oversight.
However, that suggests that cases like Thornton , and Arizona —which similarly involved the people trying to wield an election power that the Elections Clause delegates to their state legislature Ariz. Un-delegate it, if you will. However, less controversial and more certain is that in a similar emergency situation as outlined above, the people and not the states are the sovereign body that would need to step in and make decisions about these post-constitutional federal issues.
This suggests that these powers are at least in their sovereign realm, although mostly preempted by the exercise of federal power. There is of course, one obvious power that the people of the United States have that their government cannot. Constitution—and that the continued consent of the people is an unalienable collective right integral to our republican government.
Madison, 5 U. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The right to create and to abolish is the ultimate right and the ultimate reserved power of the original sovereign.
Additionally, the Fourteenth, Fifteenth, and Nineteenth Amendments contain the most explicit limitation on state powers, and via incorporation, the federal powers as well. They are the explicit orders of what both states and the federal government cannot do with their sovereign powers: Tracking his individual rights reading of the Tenth Amendment discussed above, Randy Barnett argues that the Tenth Amendment along with the rest of the Constitutional protections against state action define a kind of individual popular sovereignty which make it unconstitutional for people to sacrifice individual autonomy choices.
Barnett, supra note 76, at — But see Baker, supra note , at No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. XIX emphasis added ; id. These most explicit limits on state powers are all about ensuring the equal participation of Americans people in American citizenship Through broad terms, the Constitution vaguely places the power to discriminate against, or to interfere with, the rights of certain classes of people beyond the sovereign powers of either the state or federal government.
In addition to the protections afforded explicitly in the Constitution, it should be tied up in our sovereign powers as a collective to define how our society may or may not operate and who is equal among us. The evolution and recognition of equal rights for women and homosexuals—outside of constitutional amendment and over the objections of certain state government—are examples of this.
Though this case is admittedly much more complex, and lies beyond the core thrust of this Article, there is an argument that a popular sovereignty Tenth Amendment would provide a constitutional home to some degree of popular constitutionalism. And if anything is at the very heart of popular sovereignty—the power of the people—it is the power of the people to choose government representatives and therefore to vote, unobstructed, by other sovereigns.
Voting is the power that cannot ever belong to a government in a democratic republic. However, the mediation of how a power is expressed is not the usurpation or legal wielding of it.
While states may be able to set the ways in which an election is run, they cannot interfere with the fundamental power of the people to decide that election.
In order for the authority described in the Elections Clause to be consistent with the prevention of tyranny and the general right of the people to ensure that through democratic elections their government represents them, there it must be a limit to the power that state legislatures have. State legislatures could not—for example—hold elections in the restricted access areas of their offices.
Though it is an absurd hypothetical, it is difficult—without the Tenth Amendment—to think of why it is unconstitutional, or how it could be struck down other than through various voting rights statutes.
But somehow, we still believe it ought to be prohibited by some other portion of the Constitution. Otherwise, as the anti-federalists feared, we might have a tyrannical government insufficiently answerable to the people.
That is because the most natural—and necessary—reading of the Elections Clause is not a grant of power or sovereignty—or the go-ahead to interfere with the sovereignty of the people—but a grant of procedural authority. Someone has to organize elections, but that does not mean they control them.
The Framers split the atom of sovereignty. However, as I will show in this Part, the principles of divided and dependent sovereignties were acknowledged in western political philosophy long before the American Constitution.
More specifically, the Tenth Amendment endows the people with the right to choose and define their local government. The meaning of sovereignty has changed and been debated throughout the history of political thought, but in its most basic form it means absolute or supreme authority within a territory.
Yet the absoluteness or supremacy of governmental authority has long—and rightfully—been dismissed as a dangerous fiction. The main currents in Western political philosophy that flowed into our Constitution recognized bifurcated sovereignty long ago and, even longer ago, acknowledged that these government powers must be limited or subject to oversight by divine or popular powers. Western political philosophy struggled for a long time with the normative questions of governmental power and authority.
Niccolo Machiavelli is one of the only thinkers who believed in truly absolute sovereignty. He sharply criticized sovereigns for even being concerned with morality, asserting that legitimacy flows from the power to take it and keep it. Indeed Machiavelli discouraged a sovereignty that was achieved through the consent and power of others because he thought it put the sovereign in a weaker position of dependence—limited sovereignty.
Machiavellian sovereignty and power are coextensive and absolute, and as such, a rare example of truly absolute and whole sovereignty. Other political philosophies put the sovereign necessarily subordinate to God, the laws of nature, or the will of the people see Table 1. French lawyer and philosopher, Jean Bodin —96 is often credited as the first political philosopher to articulate a unique concept of sovereignty.
In a time when religious and political powers were starting to compete—or at least needed to reconcile their co-existence. Bodin also suggests that sovereignty is an abstract notion; that a sovereign exists separate from the government, such that not all governments are true sovereigns if they lack legitimacy or power.
Although Bodin calls the sovereign absolute, they are far from it, and their power exists apart from their personal identities and so can be taken away. Sovereignty is tied up in their legitimacy and authority in concert with the recognition of a higher power, and dependent on it for oversight—to keep the sovereign in check from becoming a tyrant.
Thomas Hobbes argued that sovereignty was formed through a contract in which the people gave up their power to the sovereign—the famous leviathan—in exchange for security from the harsh world. The leviathan becomes the sovereign power with legitimate authority from the initial contract. Once constituted, the will of the sovereign reigned supreme, except for similar limitations as prescribed by nature and God.
Grotius argued the right of governing could be given to the government by the people without retaining rights for themselves. Sovereignty was a permanent conveyance:. At this point first of all the opinion of those must be rejected who hold that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make a bad use of their power.
We refute it by means of the following arguments. To every man it is permitted to enslave himself to any one he pleases for private ownership, as is evident both from the Hebraic and from the Roman Law.
Why, then, would it there not be as lawful for a People who are at their own disposal to deliver up themselves to some one person, or to several persons, and transfer the right of governing them upon him or them, retaining no vestige of that right for themselves? Grotius, like Machiavelli, lets his sovereign have an absolute power that is concerning for anyone skeptical of authoritarianism.
Thankfully, these strict or rigid notions of relinquished sovereignty are not the stream of thought that influenced the drafting of our Constitution and the subsequent development of our nation. John Locke—arguably the most influential thinker for our founding fathers—wanted to build a system that prevented tyranny, and so argued that the people may need government to protect their property and liberty, but that government must always answer to them, and through representative government the people would be protected from the potential dangers of government.
Dent ed. Rousseau put forward a social contract theory that meant the people retained sovereignty although they formed a government.
To preserve these powers and the authenticity—and non-corruption—of the general will, the people must be involved in and close to their government. These political philosophers were influential on the founders, with their careful distrust of a powerful government unanswerable to the people. The field of political theory has long acknowledged that government must be kept in check by a higher power. We the people, and not God or natural law, Cf. Swift v. Tyson, 41 U. Sovereignty, as it made its way into American government, is a matter of authority—of power and legitimacy—negotiated by supremacy.
It is not absolute power but supreme power, and supremacy is not incompatible with several spheres of sovereignty, rather it is necessary to make sense of them. Authority must be legitimate or else it would be mere coercion. Checked by God or the people, almost all other Western political theorists who developed the traditional idea of sovereignty recognize the limited and limitable aspects of sovereignty as opposed to other authorities—other sovereign powers.
Supremacy can extend to separate but parallel realms. The U. Constitution itself explicitly recognizes this in the Supremacy Clause, U. VI, cl. It is up to the courts to negotiate their conflicts and ensure that a supreme authority is preserved in its various constitutionally proscribed and circumscribed realms.
It is much easier to write about and understand a system of rigid non-overlapping powers. However, the Court has already recognized and written hundreds of opinions that take on the question of mediated, complex, overlapping sovereignty.
While the domestic dependent sovereignty of Indian tribes is not a perfect model for the tripartite sovereignty outlined by the Tenth Amendment, it proves that our judiciary is capable of working with unwieldy and complex notions of sovereignty. Indian tribes were once entirely independent nations with singular authority over their territories.
After the arrival of various European nations, American Indian tribes made treaties with the various European nations in a government-to-government relationship.
However, the power of the European colonies and the ideology of Manifest Destiny were quickly at odds with the sovereignty of Indian tribes. America needed land, and needed to de-legitimize Indian land claims, so it was unclear what would happen to Indian self-rule. Eventually, the Supreme Court recognized that although it seemed contrary to natural law, the rights of the Indian tribes to their lands was a right that the courts of the conquerors could not recognize.
Chief Justice John Marshall then addressed the direct question of tribal sovereignty in a series of cases dealing with the Cherokee tribe of Georgia. Georgia, 30 U. Since then, a body of federal common law and constitutional law has developed to determine what tribal sovereignty means within the Constitution and the in context of federalism generally.
Tribes are independent of state governments and state laws, Worcester v. Georgia, 31 U. Suquamish Indian Tribe, U. However, they are limited and dependent sovereigns, and to give coherence to that complicated idea, the Court first recognizes that 1 tribal sovereignty is always subject to the plenary power of Congress Lone Wolf v. Hitchcock, U. Lara, U. Shirley, U.
A-1 Contractors, U. Jicarilla Apache Tribe, U. Wheeler, U. If the Court has figured out a way to define Indian tribal sovereignty such that it does not contradict the Constitution, surely recognizing and developing doctrine to protect the many competing interests implicated in sovereign powers of the collective people of the United States is not beyond them. It is reasonable to imagine that the Court could discuss the complicated aspects of popular sovereignty in similar terms of implicit powers that it uses to determine the appropriate scope of Indian sovereignty.
Indian sovereignty has even more questionable contradictions than a recognized popular sovereignty doctrine would. First, Congress rather than some other part of the Federal Government can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity. Second, the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.
We may uncover a similar seemingly irreconcilable tension between the robust view of popular sovereignty advocated by this piece and judicial review. It would seem constitutionalism necessarily places limits on democracy, just as Congress necessarily limits Indian tribal sovereignty. However, unlike the Indian tribes, the people of the United States continue to wield powers over the various constitutional lawmakers and interpreters: the power to abolish the Constitution or the entire government.
While Congress may be able to dissolve the sovereignty Indian tribes without their consent, it is difficult to imagine any of our governments explicitly dissolving the sovereignty of the people without an uprising. Ackerman can easily be compared to Publius not only in his ambivalence about the duty always to remain faithful to established forms, but also because his entire life as a political theorist, law professor, and commentator on public affairs has been devoted to pursuit of the public good.
He fully instantiates the spirit of what remain my two favorite paragraphs in The Federalist. The first is quite literally from the first paragraph of the first of the 85 essays published under the name Publius, though this one was in fact written by Alexander Hamilton.
The point is not that one must necessarily agree with Ackerman in each and every one of his suggestions for improvement, let alone the entirety of his remarkable schema of American constitutional development. Rather, it is that one must recognize in Ackerman the instantiation of the Publian patriot, consumed by a relentless devotion to achieving the public good.
In this he differs radically from Publius himself, given the fact that Hamilton and Madison were crafting their arguments to win over wavering skeptics about the new constitutional project and, almost certainly, said many things they did not believe. See, e. Press Constitution as the collective project of the American people and not a simple reflection of natural law or international human rights ; see also Sanford Levinson, Looking Abroad When Interpreting the U.
Constitution: Some Reflections , 39 Tex. Ackerman , Foundations , supra note 8 , at See Sanford Levinson, Constitutional Faith 2d ed. Some people might have argued this was true of South Africa during the apartheid era or of the antebellum United States and the necessity to recognize the rights of slaveholders.
Or, it might be argued, honorable people could sit on such courts and, by rejecting wooden forms of positivism, ameliorate some of the worst aspects of the regimes.
It is not clear, for example, to what extent he would agree with the jurisprudential approach set out by his late colleague in Cover , supra note It is telling that another prominent legal process philosopher, Ronald Dworkin, also systematically evaded examining the extent to which even the most Herculean American judge could avoid collaboration with slavery prior to the transformative events of R ing W.
Lardner, Jr. RY: ry and Practice of Constitutional Amendment r consideration. The Federalist No. For further discussion, see infra Part III. Schmitt, Constitutional Theory, supra note 21 , at See The Federalist No. Kalyvas , supra note 21 , at See David M. See W. Gallie, Essentially Contested Concepts , 56 Proc.
My favorite example of this point is Douglas Rae et al. Seattle School District No. For there is no power but of God: the powers that be are ordained of God. Nelson, supra note 4. Wright Mills, eds. The Declaration of Independence para. See Articles of Confederation of , art. Landemore , supra note 25 , at 1 footnote omitted. See William E. Brophy eds. United States, U.
See Eric A. Fortunately, none of these children lost their lives, though that could not necessarily have been predicted in advance. But it was their willingness quite literally to put their lives on the line that led to John F. See Ackerman, Civil Rights , supra note 43 , at 56, n. Nelson , supra note 4 quoting Pa. See supra note
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