What Does “The People” Mean?

“We the people” is a powerful phrase in the United States. It conjures images of democracy, freedom, revolution, and the power to push back against illiberal governments and disinterested elites. The phrase has been a rallying cry in movies for civic motivation, has been a symbol in politics for grassroots movements, and occupies and idyllic vision of governance to many Americans.

 

The challenge, however, is that “the people” is not a very clear idea or concept. It is ambiguous, without real direction, and is not always used in all encompassing ways. The idea of a government governed by “We the people” is great in theory, but at the end of the day decisions need to be made and a final direction must be chosen. “We the people” is not actually a great approach to decision making when you get to the end of the line. Building a government based on “We the people” may seem natural to us today, but looking deeper reveals the challenges of setting up a government based on the public will that our founding fathers encountered after the revolutionary war. Joseph Ellis captures these challenges in his book The Quartet when he wrote about James Madison’s perceptions of the new direction he wanted the nation to go:

 

“Experience during and after the war had demonstrated beyond any doubt that romantic descriptions of “the people” were delusional fabrications, just as far-fetched as the divine right of kings.”

 

Ellis also quotes Jefferson and his doubts about the feasibility of a government built on popular will and fully democratic values, “a choice by the people themselves is not generally distinguished for its wisdom, that the first secretion from them is usually crude and heterogeneous.”

 

“We the people” is absolutely the spirit of government that we should embrace in the United States, but I think it is important to also be nuanced in how we think about the actual decisions that government must make. Popular will can be hard to gauge and impossible to decipher. When popular will does align, we must also be fearful of a tyrannical majority. Ultimately, “We the people” must translate into active participation in government that works to better understand, connect, and unify the American people. If “We the people” does not live up to this standard, it risks devolution into demagoguery and minority out-casting.

Jefferson on the Constitution

Joseph Ellis, in his book The Quartet argues that many of our founding fathers who actively participated in bringing us our constitution were not focused on creating an ever binding document that would hold in place the nation’s laws forever. They sought, Ellis argues, to build a constitution that would serve as a guiding document for the political thought and ideals of the time. They understood that the Constitution would have to change, and while thy hoped that it would be endearing enough to be well respected and to not be scrapped within ten years, they did not believe the Constitution to be beyond the scope of political discussion and change.

 

This sentiment is capture by Thomas Jefferson, who was not active in the process of writing the constitution and developing its ideas since he was in France during the Constitutional Convention of 1787:

 

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country…. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered…institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him as a boy as civilized society to remain ever under the regime of their barbarous ancestors.”

 

In my mind, the most clear modern example of what Jefferson described in the quote above is the debate in our country over the Second Amendment. In 1787 our founding fathers found it important enough for the nation to be able to be build a militia when needed and for citizens to be able to bear arms to for their protection from tyrannical governments both internal and external to the United States. But the firearms of the Revolution were unlike the weapons of today’s world. The original intent doctrine suggests that we should not limit people’s ability to own and use firearms. This seems very clear with the inclusion of the the Second Amendment, but it also feels to me, that we are forcing the nation to wear its boyhood jacket when we force the modern problems with guns into the framework of the Second Amendment. It is clear that the founding fathers did not write the Second Amendment with handguns in mind. The guns of the time were bulky, slow to reload, and inaccurate. A modern handgun is easily concealable, can be fired rapidly, and is deadly accurate.

 

Jefferson, it appears based on this quote from the end of his life, would argue that the Second Amendment needed to change, that there was not a superhuman view of firearms and democratic preservation written into the Constitution to which we should affix ourselves today. The technology of the world has advanced in unpredictable ways since 1787, and Jefferson would argue that our institutions for governing the nation should change as well.

The Bill of Rights, Factions, and the Power of the Government

One of the debates that took place before the 1788 ratification of our Constitution was whether or not the constitution should include a Bill of Rights, guarantees of freedoms that limit the power of government over the states and citizens. As written, Madison thought the Constitution was complete, and did not see the need for a Bill of Rights. The majority of delegates to the Constitution Convention, however, approved of amendments to the Constitution, and in the end, our founders added 10 amendments to create the Bill of Rights we know today.

In his book The Quartet, Joseph Ellis describes Madison’s thoughts regarding the Bill of Rights, an area where Madison and his political mentor, Thomas Jefferson differed in their opinions. Madison believed that a Bill of Rights would not be effective in stopping government from overstepping its authority, and he felt the amendments to be irrelevant. Ellis wrote the following about Madison:

“Jefferson’s problem, as Madison saw it, was that he believed that the primary threat to personal rights came from government. That might be true in Europe, “but in our Governments the real power lies in the majority of the community.” So the real threat came “from acts in which the Government is the mere instrument of the major number of the constituents.”

This is consistent with Madison’s thoughts as written in the Federalist Papers #10 and #51, in which Madison wrote about the dangers of factions and majoritarian groups of citizens. Madison did not see power as flowing from the government and did not see our political rights and stemming from government. He was developing a constitution and a framework of governance where “the people,” as ambiguous as the term is, held authority and power and a written bill of rights, he argued, was not sufficient to dissuade a majority of citizens from violating the rights of others. His suggestion was not to tie the hands of government with a bill of rights, but instead to ensure that power was divided among many factions so that a tyrannical few could not dominate the interests of the many.

What I find interesting here is that Madison is in effect arguing for what we today would call identity politics. The most basic definition of politics is “who gets what and when?” We will always lack the resources to make sure that everyone’s self interest and desires are entirely fulfilled, and some resources, such as status and prestige, cannot be evenly separated among men, women, and differing groups. Politics is about how we decide to distribute what we have, and it is inherently unequal and identity based. The term identity politics now refers to the distribution of resources based entirely on individual characteristics of certain groups rather than on the good of the majority, but as Madison may argue, operating on the basis of the good of the whole is impractical because you cannot give the whole the same opinion, and what you instead have is a tyrannical majority dominating the few. A bill of rights, paper barriers to liberty, are easily ignored when a powerful majority can silence the voice of a minority. Giving minorities more power and influence is a Madisonian idea that was formed in the founding documents of the nation, well before our current tussle of identity politics.

The Non-Transparent Constitutional Convention

In his book, Political Realism, Jonathan Rauch argues that some of the changes we have made to the political system of the Untied States in the last several years have been self-defeating in regards to the functioning, efficiency, and effectiveness of our government. In particular, our ever expanding pursuit of transparency and the degree to which everything is recorded and open has made real debate with tough decisions more challenging. It is hard to have a debate with compromises where unpopular policies are discussed and worked through and more successful and effective legislation is created.

 

I was reminded of this idea from Rauch while reading Joseph Ellis’ book The Quartet. Our nation was originally founded under the Articles of Confederation, which did not pull our states together in a meaningful way to unify and promote our national interests. Replacing the Articles, however, was not a simple task and drafting a new Constitution was challenging. In many ways, the success of the new Constitution required our founding fathers to cut against many of the values they hoped the Constitution would establish for all citizens. Ellis describes it this way, “Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.”

 

Efforts to refine government and open up governance all start from a positive point of view, the belief that sunshine will act as a disinfectant, ridding politics of corruption and illegitimate deal making. The reality however, is that transparency and other reforms to make politics more open and clear can act as sand in the gears of our political machinery. Some debates require closed doors and safe spaces for compromises to be worked out. Getting legislators to organize together requires massive efforts of coordination and often requires conversations that take place outside of the spotlight as legislators and the people they represent have conflicting views and interests. It is worth reflecting on our ever growing pursuit of open democracy and remembering that our nation required what appeared to be non-democratic and non-transparent rules to get its start in the first place.

A Shift in Sovereignty

In my last post I wrote about the complexities of sovereignty, of who has the supreme power and authority in a given polity and where that authority comes from. The Revolutionary War in the United States ushered in a new government with independent states, each sovereign within their own territory, held together by a loosely constructed national government. Power and authority held within the state was derived from the citizens of the state who had come together to forge new lives in America.

 

This arrangement, however, was not politically stable and did not hold the states together in a way that protected the interests of each state and of each citizen within each state. A new government was needed to cement the bonds between the states, and the new government required a re-imagining of sovereignty. Today it is obvious that the Federal Government is sovereign over the state governments. It is clear to us that our elected officials represent us and receive their power with the consent of our votes, but at the time of the American Revolution and at the time of the writing of our Constitution, this was not obvious. Joseph Ellis describes the shift in sovereignty in his book The Quartet by writing:

 

“Sovereignty had shifted from a monarchy claiming to derive its authority from God to a legislature claiming to derive its authority from ‘the people.’ Political power flowed not downward from the heavens but upward from the citizenry. Indeed, this was the fundamental change that had made the war for independence a revolution.”

 

This view of power and authority was radically different from a view of a monarch ordained by God to lead a people. There were many questions that were addressed in the constitution to answer questions about how power and authority would be transmitted through the people to the governing authorities of the nation, and at the time these were new ideas that required a shift in thinking about both power and governance. Sovereignty now had a new basis for legitimacy, and it was bottom up, growing from the public and not top down from a ruler.

Sovereignty

Sovereignty is a difficult concept, even though it seems pretty easy and strait-forward. A quick Google definition of sovereignty is “supreme power or authority,” but what this means in the real world is more muddy than what the Google definition suggests. From the quick definition one might think of the Supreme Court and suggest that the court is the supreme power and authority in the United States, but with our separation of powers, the Supreme Court’s authority is somewhat limited and is not all encompassing. The Supreme Court is a good example of the complexity of sovereignty and the challenges of truly understanding how power and authority interact within a society and government.

 

The most challenging question about sovereignty and authority is the question of where authority comes from. The American Revolution was fueled by the idea that sovereignty rested within the individual states, whose constitutions governed the relationship between their populations and their ruling authorities. Today, sovereignty rests far more with the federal government rather than with the states. At the time of the writing of our constitution, a fundamental shift in sovereignty was taking place between the federal government and the states. Joseph Ellis captures this conflict in his book The Quartet describing the way that Washington, Madison, Hamilton, and John Jay bent the idea of sovereignty to give rise to the sovereign federal government that we eventually came to understand today.

 

“The knotty question of sovereignty – did it reside in the states or in the federal government?-was the central issue requiring a clear resolution. If the federal veto proved impossible, an alternative argument, an artful finesse, might be that sovereignty was located in “the people,” a somewhat ambiguous formulation that bent the shape of the new constitution in a national direction.”

 

Ellis explains the way that our national focus on the individual, the liberties of the individual, and the notions of sovereignty came together to create a new idea of how governments and individuals should relate to each other. Sovereignty was believed to rest with the people, and people had natural human rights and authority which they could then divest in the government. This is not an obvious thought and idea, and even today, we have retreated from this view. We often now see the Federal Government as the ultimate authority of the land, not the people. Our rights and freedoms flow from the Federal Government which decides what we can and cannot do and which guarantees us certain rights in writing. Power and authority seem like they are strait-forward concepts, but Ellis’s writing on sovereignty at the nation’s founding and our complex shifting views of sovereignty demonstrate that it is more complex than it first appears.

Conflicting Views of the Continental Army

The American Founding Fathers and the citizens of the American Colonies had a lot of conflicting views about government and governance at the time of the American Revolution. Post war, the states existed as effectively autonomous sovereign nations tied together by shared yet distinct histories. During the war, the citizens needed an army capable of defeating the British, but also feared the power that a strong standing army would hold. Throughout the revolution and post-war period, the states understood that they would need to pay the army and pay for the support they received, but no one wanted to have a central authority collect monies to pay the soldiers and mercenaries who fought against the British. Joseph Ellis captures the conflict in his book The Quartet and writes,

 

“The unspoken and unattractive truth was that the marginal status of the Continental Army was reassuring for the vast majority of Americans, since a robust and professional army on the British model contradict the very values it was supposedly fighting for. It had to be just strong enough to win the war, or perhaps more accurately not lose it, but not so strong as to threaten the republican goals the war was ultimately about.”

 

The Continental Army at points was barely holding together with minimal supplies and food. Robert Morris, a private citizen, stepped in and paid the soldiers and army himself, from his own private funds, and was viewed as a war profiteer. The Colonies sought independence, but fears of a strong standing army and a history of abuses by a central authority created fear among the colonies that hampered their efforts to build a robust force to bring them the independence they desired.

 

The conflict within the mindset of the colonies is a phenomenon we still see happening within American politics today. Foreign policy and healthcare are two arenas where similar conflicts still emerge and are quite visible. We want stability, positive outcomes, and assurances that we will not be bothered with inconveniences, but we are barely willing to pay for it. We expect our government to be farsighted and to operate perfectly, but we refuse to fund it fully and look for any abuse of power and any misuse of money as an example of why we cannot trust and cannot fully fund our government. Healthcare eats an enormous amount of total spending (governmental, private, and individual) in our country, but we don’t seem to actually work toward the things that make us healthier. The government spends less that 1% of total budget on foreign affairs, but people assume we spend much more. In both of these areas, spending more directly to assist health and foreign aid would reduce the problems that arise later on and become our excuses and examples of why we cannot trust government. From our founding through today it seems that our distrust of government has been less in line with reality, and more in line with our fears and the stories we tell ourselves about what we need and what values we should try to live up to as a nation.

Slavery in the Constitution

The United States Constitution directly addresses slavery by apportioning slaves as counting as three fifths of a person for census counting purposes. The clauses containing slavery are some of the most disappointing aspects of our democracy, and are often viewed as a black eye on an otherwise shining document. People often say that slavery was misunderstood at the time of our nation’s founding and often try to justify slavery’s inclusion in the constitution by saying that it was commonplace at the time and not something we should judge our founding fathers against.

 

The reality is much more complicated. Many people, including many of our founding fathers understood that slavery was abhorrent and against the principles upon which the nation was founded. For example the Wikipedia page for Gouverneur Morris, the man who actually penned the constitution includes this quote from 1787, “Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? … The admission of slaves into the Representation when fairly explained comes to this: that the inhabitant of Georgia and S. C. who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.”

 

At the time of the American Revolution, the economy of the Southern Colonies was dependent on slavery, and throughout history we have seen mankind fail to live up to ideals and moral principles in the face of economic threat. I believe it is fair to argue that ending slavery would have taken a king or absolute ruler given the economic incentives of the South. Joseph Ellis addresses this in his book The Quartet by writing about the decisions made around slavery during our nation’s founding. The following quote from Ellis describes a failed draft of a constitution drafted after the revolutionary war, before the adoption of the Articles of Confederation:

 

“Slavery was too volatile a subject to be addressed directly;  indeed, there was an unspoken policy of silence surrounding the topic based on the broadly shared sense that it, more than any other issue, possessed the potential to destroy the political consensus that had formed around independence.”

 

To tie the nation together and lay the ground for a United States that could grow and govern itself through democratic means, the founding fathers could not abolish slavery. A professor of mine once described slavery as a scaffolding built around the principles of the Constitution for construction purposes. After completion, slavery could be removed without damaging the foundation and simultaneously enhancing the beauty of the finished project. I think it is important to accept that slavery was understood to be evil and that South allowed economic interests to trump human morality. I think it is ok to address our founding fathers and be critical of the inclusion of slavery in the Constitution while at the same time understanding that it was in many ways necessary for building the nation we live in today. This is a tough thing to look at directly, but the lesson we can learn is that we are often held short of our moral best by economic and personal self-interest, and we should be honest with ourselves about the times we act in our self-interest and not in the interest of the group so that we can avoid the perils that the South made at the time of our founding.

Two Revolutions

Joseph Ellis’ book, The Quartet has an interesting subtitle: Orchestrating the Second American Revolution, 1783-1789. The small details of the history of our nation’s founding are easily forgotten, but after the American revolution, the colonies existed as mostly independent entities bound by the Articles of Confederation. The Constitution, which still governs our land, was not adopted at the time of the Revolutionary War, and Ellis calls its adoption The Second American Revolution.

 

Ellis describes the two revolutions at the start of our Nation’s independent history this way, “The first American Revolution Achieved Independence. … The Second American Revolution modified the republican framework existent in the states in order to create a nation sized republic.” The story of the adoption of our constitution is a story of viewing political power and American nationhood in a new light. It required shifting people’s views of the possible and convincing the citizens of each state that they would be better off with a stronger national government to support the independent state governments. At a time when everyone thought of politics as local politics, barely extending beyond the state capital, the Second Revolution was an attempt to convince all of the former British Colonies that they should consider what took place in other colonies as relevant to their own political lives and allow a national government to have sovereignty over their local governments.

 

Ellis continues, “The first phase of the American Revolution was about the rejection of political power; the second phase was about controlling it.” Bringing about the second revolution was not an easy task. American’s had just revolted against a strong central government led by a powerful leader. Convincing the citizens of Maine or Georgia that a political power located far away should have influence and say over the direction of the state was reminiscent of the type of power and government they had recently rejected. The thinking involved in bringing the American Constitution into being was truly revolutionary, and required skillful politics, careful persuasion, and dynamic leadership from a handful of America’s most beloved founding fathers to change the minds and opinions of a diverse group of citizens across the new nation.

American Nationhood Had a Top-Down Start

The human mind seems to be very comfortable with dichotomies, and we are very good at telling ourselves stories to make dichotomies work. We really prefer ‘either-or’ situations and ‘this-or-that’ decisions over settings that are more ambiguous and require decisions between multiple options and interpretations. The way we understand and view history, and how our history has shaped our present moment, is one area where our dichotomous though preferences can arise.

 

In his book, The Quartet, Joseph Ellis looks at the founding of the nation and offers some insight regarding the creation of the Constitution which runs against the vision of our founding that we as a democracy like to believe.  In our country, we like to believe that American democracy was inevitable, a clear preference advocated by our citizenry, and pushed for by all. We look back at the revolutionary war and our founding and picture masses of people choosing freedom and making the right choices to lead our country to prosperity.

 

The reality however, is that our nation was much more fractious at its founding than the stories we live with, and our history is as full of top down decisions as much as it is full of bottom up preferences. From the very beginning, with the idea of a national government, our actual history has run against what we like to believe as a democracy has been the defining principle of America. Ellis writes, “There was no popular insurgency for a national government because such a thing was not popular.” And he explains that our national government was built because, “a small group of prominent leaders, in disregard of popular opinion, carried the American story in a new direction.” It is interesting to look back at our nation and see the role that popular support played relative to the decisions of an elite. When we think about what our nation stands for and how our government should operate and direct our path, we should remember that in the past we have made more decisions based on more options than the often dichotomous choices we try to chose from today.

 

Continuing on the focus of top down versus bottom up support for a national government, Ellis writes, “The obvious alternative explanation is top-down. All democratic cultures find such explanations offensive because they violate the hallowed conviction that, at least in the long run, popular majorities can best decide the direction that history should take.”

 

To me this is a reminder that if I am not personally involved in studying an issue, and only understand it ephemerally from news and short stories, I probably should not consider my ideas or the popular ideas of citizens to be more valid than the views of experts. It is likely that we are not considering the full range of possibilities, and it is possible that what is popular and desired is not truly the best course of action. I don’t think this means I should remove myself from debate, but that I should spend more energy thinking deeply about the perspectives of competing interests. I may never fully understand the choice in the end, but I should not decide, based on popular opinion, that a decision was either right or wrong.