Do the People Rule?

Presidents as diverse as William McKinley, Gerald Ford, and Jimmy Carter have spoken the simple words: "Here the people rule." But the meaning of the words is by no means as straightforward as it may seem. Who exactly are the people? The inhabitants of 50 different states, or the inhabitants of a single nation? One people, or 50 peoples joined by compact? The questions are as old as the nation, and perhaps best answered today by recognizing validity in each position.

If American government were a cake, what kind of cake would it be? Political science and law examinations at American universities frequently ask some version of that question. Is the best metaphor for the relationship between the federal and state governments in the U.S. Constitution a layer cake, in which each level retains its own identity? Or does the United States have a "marble cake federalism," in which, according to the political scientist Morton Grodzin, "ingredients of different colors are combined in an inseparable mixture, whose colors intermingle in vertical and horizontal veins and random swirls"? Layer cakes and marble cakes do not exhaust the metaphorical possibilities. The political scientists Aaron Wildavsky and David Walker have suggested, respectively, that a birthday cake and a fruitcake can symbolize American federalism. All the culinary constitutionalism seems appropriate for a nation that some claim was once a melting pot but is now a salad bowl.

This battle of metaphors reflects a deep and enduring disagreement among Americans about the nature of popular sovereignty in the United States. Is the United States a creation of the individual states -- or are the states a creation of the Union? Is there a single American people -- or are there as many "peoples" as there are states?

The debate began when the ink was hardly dry on the new federal constitution drafted in Philadelphia in the summer of 1787. That fall, delegates from across Pennsylvania convened in Philadelphia to ratify or reject the document. On October 6, 1787, the delegates heard from James Wilson, as Scots-born lawyer who had been one of the leading thinkers at the past summer's constitutional convention (President George Washington would appoint him to the Supreme Court in 1789). "There necessarily exists in every government," Wilson told the delegates, "a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute and uncontrollable. Where does this power reside?"

Wilson rejected the British idea that the government -- in the case of Britain, the crown-in-parliament -- was sovereign: "The idea of a constitution limiting and superintending the operations of legislative authority seems not to have been accurately understood in Britain. To control the power and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American states." However, Wilson continued, it would be a mistake to assume that the constitution is sovereign: "This opinion approaches a step nearer to the truth, but does not reach it. The truth is that, in our governments, the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions."

Although the idea of popular sovereignty reached its fullest development in the United States during the War of Independence and the early years of the American republic, it was an ancient concept. The Roman republic and, at least in theory, the subsequent Roman Empire were based on the imperium populi, the delegated sovereignty of the people. The idea of popular sovereignty was revived in the late Middle Ages and the Renaissance by Christian and humanist opponents of the divine right of kings.

In 17th-century England, during decades of civil war and other political turmoil, English thinkers worked out the basics of the modern doctrine of popular sovereignty. Drawing on earlier writers, philosopher John Locke argued that every people has a right to change its government whenever the government becomes tyrannical. Although the theory of popular sovereignty remains controversial in Great Britain, all mainstream American constitutional thinkers have accepted the Lockean premise that, in the words of the Declaration of Independence, "to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government."

The paramount debate in American history has not been about the ultimate sovereignty of the people, but rather about the identity of the people (meaning a single entity, in the sense of populus). Is there a single American people? Or is the United States a federation of as many peoples as there are states?

The two rival interpretations of popular sovereignty in America have been the nationalist theory and the compact theory.The nationalist theory holds that from the beginning there has been a single American people, which has existed in the form of successive "unions." Lincoln summarized this view in his first inaugural address: "[W]e find the proposition that, in legal contemplation, the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And, finally, in 1787 one of the declared objects for ordaining and establishing the Constitution was