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The Very Idea of Popular Sovereignty: “We the People” Reconsidered*

Published online by Cambridge University Press:  13 January 2009

Christopher W. Morris
Christopher W. Morris
Affiliation:
Philosophy, Bowling Green State University
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Extract

The sovereignty of the people, it is widely said, is the foundation of modern democracy. The truth of this claim depends on the plausibility of attributing sovereignty to “the people” in the first place, and I shall express skepticism about this possibility. I shall suggest as well that the notion of popular sovereignty is complex, and that appeals to the notion may be best understood as expressing several different ideas and ideals. This essay distinguishes many of these and suggests that greater clarity at least would be obtained by focusing directly on these notions and ideals and eschewing that of sovereignty. My claim, however, will not merely be that the notion is multifaceted and complex. I shall argue as well that the doctrine that the people are, or ought to be, sovereign is misleading in potentially dangerous ways, and is conducive to a misunderstanding of the nature of politics, governance, and social order. It would be well to do without the doctrine, but it may be equally important to understand its errors. Our understandings and justifications of democracy, certainly, should dispense with popular sovereignty.

Type
Research Article
Information
Social Philosophy and Policy , Volume 17 , Issue 1 , Winter 2000 , pp. 1 - 26
Copyright
Copyright © Social Philosophy and Policy Foundation 2000

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References

1 See my book An Essay on the Modern State (Cambridge: Cambridge University Press, 1998), ch. 7.Google Scholar

2 Hinsley, F. H., Sovereignty, 2d ed. (Cambridge: Cambridge University Press, 1986), 25–26.Google Scholar

3 See Bodin, Jean, Les Six livres de la republique [1576], translated as The Six Bookes of a Commonweale, trans. Knolles, R., ed. McRae, K. D. (Cambridge, MA: Harvard University Press, 1962)CrossRefGoogle Scholar; Hobbes, Thomas, Leviathan [1651], ed. Tuck, R. (Cambridge: Cambridge Uni versity Press, 1991)Google Scholar; and Rousseau, Jean-Jacques, Du Central social (On the Social Contract) [1762], in Oeuvres complètes, vol. 3, ed. Gagnebin, B. and Raymond, M. (Paris: Editions Gallimard, 1964).Google Scholar See my Essay on the Modern State, ch. 7, for an analysis of sovereignty and additional references.

4 While Christendom, with its ambiguous and indeterminate boundaries, could be a suitable realm for a “sovereign” (i.e., an emperor or a monarch), in modern times the notion of sovereignty is typically connected to territories with well-defined borders. The modern notion does, of course, borrow from Roman law, but the boundaries of the Roman Empire were ambiguous. See my Essay on the Modern State, chs. 2, 7, and esp. 8.Google Scholar

5 Hobbes, , Leviathan, ch. 26, 183, and ch. 25, 176.Google Scholar It is, of course, controversial whether Hobbes had the theoretical resources to defend this account of the normativity of law. Influenced by Joseph Raz's account of exclusionary reasons, H. L. A. Hart interprets Hobbes's account of a command to mean that

the commander characteristically intends his hearer to take the commander's will instead of his own as a guide to action and so to take it in place of any deliberation or reasoning of his own: the expression of a commander's will that an act be done is intended to preclude or cut off any independent deliberation by the hearer of the merits pro and con of doing the act.

See Hart, H. L. A., “Commands and Authoritative Legal Reasons,” in Essays on Bentham (Oxford: Clarendon Press, 1982), 253.Google Scholar

6 My analysis follows Joseph Raz; see Raz, , The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), chs. 1–2CrossRefGoogle Scholar; and Raz, , The Morality of Freedom (Oxford: Clar endon Press, 1986), chs. 2–3.Google Scholar See also Raz, , Practical Reason and Norms [1975], 2d ed. (Princeton: Princeton University Press, 1990)Google Scholar; and Green, Leslie, The Authority of the State (Oxford: Clarendon Press, 1988).Google Scholar

7 This thesis is substantive, for it depends on the reasons for which political authorities are desirable (e.g., resolving assurance problems, providing collective goods, securing justice, redistributing wealth). See my Essay on the Modern State, ch. 7. Raz holds that effectiveness is a condition of something's being a legitimate political authority; see Raz, , The Authority of Law, 8–9Google Scholar; and The Morality of Freedom, 75–76.Google Scholar

Note that when I speak here and elsewhere of justified authority or power, I do not mean “regarded as or thought to be justified.” It is possible that some theorists believe that a power is justified if it is widely believed to be so (but this sort of view always raises the question of what it means to believe that something is justified). Rather, I speak of justification simpliciter, without distinguishing between moral, rational, and other kinds. A lengthier discussion can be found in my Essay on the Modern State, chs. 4–6.

8 But see David Gauthier's recent work on “public reason”: for instance, “Public Reason,” Social Philosophy and Policy 12, no. 1 (Winter 1995): 19–42.Google Scholar

9 There is another sense in which we might speak of the political here as including the moral. It may be that political (and legal) authority override or preempt morality. I discuss this below when I explain the meaning of ‘ultimate’.

10 See Tilly, Charles, Coercion, Capital, and European States (Oxford: Basil Blackwell, 1990), 24–25, 103–6, 144–46Google Scholar; and my Essay on the Modern State, ch. 2. See also Skinner, Quentin, “The State,” in Political Innovation and Conceptual Change, ed. Ball, T., Farr, J., and Hanson, R. L. (Cambridge: Cambridge University Press, 1989), 90–131.Google Scholar

11 Consider the U.S. constitutional system, which incorporates moral rights into the law through the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”). See my “Droits originaires et Etats limités: Quelques leçons de la république américaine,” Science(s) politique(s) 4 (12 1993), 105–15.Google Scholar

12 This is Raz's account of supremacy in these contexts (Practical Reason and Norms, 150–52Google Scholar). Certainly, this is what Hobbes and many modern theorists also claim for the state's authority.

13 “For Power Unlimited, is absolute Sovereignty” (Hobbes, , Leviathan, ch. 22, 155Google Scholar). Rous seau appears to agree; see his Social Contract, Book IV, ch. 4, 374–75, and ch. 5, 376.Google Scholar See also Derathe, Robert, Jean-Jacques Rousseau et la science politique de son temps [1950], 2d ed. (Paris: Vrin, 1988), ch. 5, esp. 332ff.Google Scholar

14 Even though Bodin's account antedates it. For Rousseau, sovereignty is also indivisible and inalienable (Social Contract, Book II, ch. 2, 369–70; Book II, ch. 1, 368). Additionally, the sovereign cannot bind itself to itself or to others (Book I, ch. 7, 362–63).

15 Blackstone, William, The Sovereignty of the Law, Selections from Blackstone's Commentaries on the Laws of England, ed. Jones, Gareth (Toronto: University of Toronto Press, 1973), 36, 71.Google Scholar

On the influence of Blackstone's views, Gordon Wood writes:

By the early 1770's, particularly with the introduction of Blackstone's Commentaries into the colonies, the doctrine that there must be in every form of government “a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperil, or rights of sovereignty, reside” had gained such overwhelming currency that its “truth,” many Americans were compelled to admit, could no longer “be contested.”

Wood, Gordon, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), 350Google Scholar; see also 345, 362, 382–83.

16 While theorists of what I have called the classical view of sovereignty tend to be indifferent or hostile to division of power, and checks and balances, these institutional devices may serve to limit sovereignty. Hence, partisans of limited sovereignty may also support divided powers. While the issues are more complex than I have implied, it should be kept in mind that sovereignty pertains first of all to the nature of political authority, and that questions about division oif powers concern the design of institutions.

17 Hinsley claims that “[s]overeignty has been the ‘constitutional’ justification of absolute political power. Historically, it has been formulated only when the locus of supreme power was in dispute.… It is the justification of absolute authority that can arise and exist only when a final power is considered necessary in a body politic…” (Sovereignty, 277).Google Scholar

18 Unless we understand the Deity's authority and power as a type of sovereignty.

19 Even in its extensive sense, ‘the People’ is ambiguous with regard to the inclusion of many subjects who are not full members—e.g., foreign legal residents, tourists, immigrants, and, in Western Europe, citizens of other countries of the European Union. I shall return later to this point.

20 The opening paragraph of Jefferson's Declaration of Independence attributes certain entitlements to peoples, in this sense. (Proto-nationalist ideas are present, but not usually noticed, throughout Jefferson's document: “a distant people,” “our British brethren,” “the voice of justice and consanguinity,” “to send over not only souldiers of our common blood, but Scotch & foreign mercenaries … these unfeeling brethren.”) I quote from the version of the Declaration of Independence printed in The Portable Thomas Jefferson, ed. Peterson, M. (Harmondsworth, Middlesex: Penguin, 1975), 236–41.Google Scholar

21 The attribution of sovereignty to the “nation” in the French Déclaration of 1789 is probably best understood as designating the People as the source of political authority.

22 For instance, were the province of Québec to secede from Canada, all current residents of Quebec, not merely French nationals, would presumably share sovereignty (of some sort).

23 See my Essay on the Modern State, ch. 7.

24 This claim about the “sources” of law should be taken loosely, since I do not want to rule out theories, for instance, that understand the law to be the best interpretation of the practices of a country or legal culture.

25 That is, we should acknowledge the possibility of preference cycles or empty choice sets. I make allusion in passing to social choice theory. These sorts of problems seem to me devastating for most doctrines of popular sovereignty, though I shall not belabor the point. See, for instance, Hardin, Russell, “Public Choice versus Democracy” [1990], in The Idea of Democracy, ed. Copp, David, Hampton, Jean, and Roemer, John (Cambridge: Cambridge University Press, 1993), 157–72.Google Scholar

26 The exceptions are those forms of political organization—for instance, Rome—that explicitly identified the People. But ancient Peoples never included the total population of a realm.

27 For instance, the rights of illegal immigrants (and of their children), and the rights of noncitizen (legal) residents to vote in local elections.

28 In a number of places, Akhil Amar says things that imply that the American People are or were constituted by the state or the Constitution. See Amar, , “Of Sovereignty and Fed eralism,” Yale Law Journal 96, no. 7 (06 1987): 1463 n. 163CrossRefGoogle Scholar, where Amar writes that “the most important thing that the Constitution constitutes is neither the national government, nor even the supreme law, but one sovereign national People, who may alter their govern ment or supreme law at will”; and Amar, , “The Consent of the Governed: Constitutional Amendment Outside Article V,” Columbia Law Review 94 (03 1994): 489CrossRefGoogle Scholar, where Amar writes that “the Constitution formed previously separate state peoples into one continental people—American!—by substituting a true (and self-described) Constitution for a true (and self-described) league.…”

29 Many of the arguments about the People's “retention” of various powers require their existence prior to and independently of the state. Some make use of classical claims about inalienability, which would be unintelligible without this priority and independence.

30 See Margalit, Avishai and Raz, Joseph, “National Self-Determination,” Journal of Philosophy 87, no. 9 (09 1990): 439–61.CrossRefGoogle Scholar

31 Recall Jefferson's cry against “these unfeeling brethren,” deaf to “the voice of justice and consanguinity,” who sent over “not only souldiers of our common blood, but Scotch & foreign mercenaries.” Scotch and German, presumably, were alien and could not easily join the “one people” Jefferson is thinking of.

32 Recently Rawls has characterized the basic structure of a society as “a society's main political, social, and economic institutions, and how they fit together into one unified system of social cooperation from one generation to the next.” Rawls, , Political Liberalism (New York: Columbia University Press, 1993), 11.Google Scholar In A Theory of Justice, Rawls restricts his attentions to a society “conceived for the time being as a closed system isolated from other societies,” and he assumes that “the boundaries of these schemes are given by the notion of a self-contained national community.” See Rawls, , A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 8, 457.Google Scholar

33 Even with islands, attributing unity may not be warranted (e.g., Ireland or England).

34 Michael Mann's comparative and historical sociology is based on the assumption that societies are not unitary. He urges us to think of them instead “as confederal, overlapping, intersecting networks”; they are “constituted of multiple overlapping and intersecting sociospatial networks of power.” Mann, , The Sources of Social Power, vol. 1 (Cambridge: Cambridge University Press, 1986), 16, 1CrossRefGoogle Scholar (italics omitted). David Copp offers an account of society which allows societies to overlap considerably and to be nested within one another; see his Morality, Normativity, and Society (New York: Oxford University Press, 1995), ch. 7.Google Scholar While his account makes societies less unitary than most, it still seems to apply most problematically to medieval Europe.

35 I shall not, for the most part, distinguish between ‘interests’, ‘desires’, ‘preferences’, and their cognates. But I should warn that a more complete treatment of these issues requires such distinctions.

36 “L'État c'est à moi” (“The state is mine”), as Louis XIV might have said. See Rowen, Herbert H., “‘L'Eacute;tat c'est à Moi’: Louis XIV and the State,” French Historical Studies 2, no. 1 (Spring 1961): 83–98.CrossRefGoogle Scholar

37 Locke is especially clear that this is his point. See his Second Treatise of Government [1690], in his Two Treatises of Government, ed. Laslett, Peter (Cambridge: Cambridge Univer sity Press, 1988), sections 4, 54.Google Scholar

38 It was the limits of the sovereign's power, apparently inherent, as required by this bottom-up model of authorization, which led Bishop Bramhall to understand Leviathan as “a Rebell's Catechism.” See Hampton's, Jean interesting discussion in Hobbes and the Social Contract Tradition (Cambridge: Cambridge University Press, 1986), 197–207.Google Scholar

39 See Hampton, , Hobbes and the Social Contract Tradition, chs. 8–9Google Scholar; and Hampton, , Political Philosophy (Boulder, CO: Westview Press, 1996), chs. 2–3.Google Scholar “The service conception” of political authorities is what Raz calls the view that “their role and primary normal function is to serve the governed”; see Raz, , The Morality of Freedom, 55–67.Google Scholar

40 Locke, , Second Treatise of Government, sections 149, 156, 221, 240.Google Scholar A trust sets an end to be pursued, e.g., the preservation of members (their life, liberty, and property) (section 171), establishes a responsibility of the trustee, giving the latter certain discretion (sections 159–68). Unlike a contract, however, the trustee need not benefit, the trust is revokable without injury to the trustee, and the settlor (the creator of the trust) may be the sole judge (section 240). See Simmons, A. John, On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton: Princeton University Press, 1993), 68–72.Google Scholar

41 My formulation is a paraphrase of Simmons's characterization; see his On the Edge of Anarchy, 69–70.Google Scholar See also Raz, , The Morality of Freedom, 80–94.Google Scholar These distinctions are not clear in Hobbes's work, since his account of the will is eliminativist, reducing intention to the desires that immediately precede action (see Leviathan, ch. 6).

42 Hypothetical consent is not, however, a type of consent. This point must be stressed, as it is not always recognized. See Raz, , Morality of Freedom, 81n.Google Scholar (“Theories of hypothetical consent discuss not consent but cognitive agreement”); Morris, Christopher, “The Relation of Self-interest and Justice in Contractarian Ethics,” Social Philosophy and Policy 5, no. 2 (Spring 1988): 121–22CrossRefGoogle Scholar; Morris, , “A Contractarian Account of Moral Justification,” in Moral Knowledge? New Readings in Moral Epistemology, ed. Sinnott-Armstrong, W. and Timmons, M. (New York: Oxford University Press, 1996), 219–20Google Scholar; Gaus, Gerald F., Value and Justification (New York: Cambridge University Press, 1990), 19, 328CrossRefGoogle Scholar; and Simmons, , On the Edge of An archy, 78–79Google Scholar, where Simmons writes that hypothetical contract theory bases “our duties or obligations not on anyone's actual choices, but on whether our governments (states, laws) are sufficiently just, good, useful, or responsive to secure the hypothetical support of ideal choosers.… [T]he ‘contract’ in hypothetical contractarianism is simply a device that per mits us to analyze in a certain way quality of government.…”

43 The works cited by Leslie Green (in note 6) and John Simmons (in notes 40 and 45) are representative of contemporary consensualism; see also Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).Google Scholar Utilitarian or more generally consequentialist posi tions are commonplace. The best examples of mutual-advantage contractarian and conven tionalist accounts, respectively, are probably the classical theories of Hobbes and Hume. Some very useful distinctions are drawn by Schmidtz, David in his essay “Justifying the State,” Ethics 101, no. 1 (10 1990): 89–102.CrossRefGoogle Scholar

44 For instance, do our basic or fundamental (moral) rights protect choices or interests?

45 Philosophical anarchism, it should be noted, seems to be the dominant position in the contemporary literature. For those not familiar with recent discussions, I might note that the position is compatible with the view that most people, most of the time, have reason to obey just laws (but not necessarily the sorts of reasons the law claims). See, for instance, Simmons, A. John, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), ch. 8Google Scholar; and Green, , The Authority of the State, chs. 8–9.Google Scholar I think as well that some states can be legitimate even if their claimed authority is not justified and their subjects' obliga tions are considerably less extensive than they assert (see my Essay on the Modern State, chs. 7 and 10).

46 If sovereignty is inalienable, then popular sovereignty may require, as Rousseau argued, participation in governance.

47 This is a complicated, and possibly controversial, matter. See my Essay on the Modem State, ch. 7.

48 See Skinner, Quentin, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978).Google Scholar

49 I formulate the thesis in terms of an obligation not to rebel, rather than a right to rebel, for several reasons. First, the right to rebel cannot, without great difficulty, be a legal right. (What is rebellion? If it is the overthrow of the constitutional order, that order cannot authorize it. Cf. Kant's problems with a right to revolution in “On the Common Saying: ‘This May Be True in Theory, but It Does Not Apply in Practice’” [1793], and in The Meta physical Elements of the Theory of Right [1797], both in Kant, Immanuel, Political Writings, 2d ed., ed. Reiss, H. [Cambridge: Cambridge University Press, 1991], esp. 81–83, 143–47.Google Scholar) Secondly, someone like Hobbes could not make sense of a claim-right to rebel, though he could make room for the dissolution of the obligation not to rebel.

50 See Beitz, Charles, “Sovereignty and Morality in International Affairs,” in Political Theory Today, ed. Held, David (Stanford: Stanford University Press, 1991), 236n.Google Scholar

51 As Jefferson famously asserted in the Declaration: “[W]henever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it.…” See also Locke, , Second Treatise of Government, sections 149, 212–16, 220, 221, and 240.Google Scholar

52 Amar, , “The Consent of the Governed,” 459.Google Scholar See also Amar, , “Of Sovereignty and Federalism.”Google Scholar

53 I rely on Wood's account here:

Confrontation with the Blackstonian concept of legal sovereignty had forced American theorists to relocate it in the people-at-large, a transference that was comprehensible only because of the peculiar experience of American politics.… Only a proper understanding of this vital principle of the sovereignty of the people could make federalism intelligible.…

See Wood, , The Creation of the American Republic, 599–600Google Scholar (see also 545–47, and earlier references). A more thorough treatment of these questions would have to address Bruce Ackerman's account of the American tradition; see his We the People: Foundations (Cambridge, MA: Harvard University Press, 1991)Google Scholar, and his We the People: Transformations (Cambridge, MA: Harvard University Press, 1998).Google Scholar

54 Consider James Wilson's argument at the Pennsylvania ratifying convention:

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be termed supreme, absolute, and uncontrollable.… 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.…

Quoted by Amar, , “The Consent of the Governed,” 474.Google Scholar Garry Wills claims that Wilson was strongly influenced by Rousseau's Social Contract; see Wills, , “James Wilson's New Meaning for Sovereignty,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J. G. A. (Lawrence: University of Kansas Press, 1988), 100.Google Scholar

55 Or so I argue elsewhere; see my Essay on the Modern State, ch. 7.

56 An (or the) “ultimate” power may also mean something like “determining in special circumstances.” For instance, Carl Schmitt famously attributes sovereignty to whomever decides in exceptional circumstances (“Souverän ist, wer über den Ausnahmezustand entschneidet”); see Schmitt, , Theologie politique [1922], trans. Schlegel, Jean-Louis (Paris: Gallimard, 1988), 15.Google Scholar This is, to borrow Karl Löwith's term, a species of “occasional decisionism”; see ch. 2 of his Martin Heidegger and European Nihilism [1984], ed. Richard Wolin (New York: Columbia University Press, 1995).Google Scholar

It is not obvious that the body that has the greatest say in special circumstances has sovereignty. For it need not be that the body that determines what happens, for instance, when social order breaks down is the same one that decides matters in other circumstances. It is as if ‘ultimate’ here means something like “when all else fails,” and this is thought to secure some reduction (“it all comes down to …”).

57 As I said earlier, Hobbes's view of the will reduces it to desire. Rousseau's general will may be best interpreted as both moral and political; morality consequently, at least in the Social Contract, is will-based. For the German idealist tradition, see Hegel, G. W. F., Elements of the Philosophy of Right [1820], ed. Wood, Allen W., trans. Nisbet, H. B. (Cambridge: Cambridge University Press, 1991)Google Scholar; and Bosanquet, Bernard, The Philosophical Theory of the State [1923], 4th ed. (London: Macmillan, 1965).Google Scholar

58 See Adams, Robert Merrihew, “A Modified Divine Command Theory of Ethical Wrongness” [1973], in Divine Commands and Morality, ed. Helm, Paul (New York: Oxford University Press, 1981), 83–108.Google Scholar

59 Rousseau, , Social Contract, Book II, ch. 3, 371Google Scholar (“la volonté générale est toujours droite et tend toujours à l'utilité publique”).

60 “The right of Nature, whereby God reigneth over men, and punisheth those that break his Lawes, is to be derived, not from his Creating them as if he required obedience, as of Gratitude for his benefits; but from his Irresistible Power.” Hobbes, , Leviathan, ch. 31, 246.Google Scholar

61 Leibniz, G. W., Caesarinus Fürstenerius (De Suprematu Principum Germaniae) [1677], in The Political Writings of Leibniz, 2d ed., ed. Riley, Patrick (Cambridge: Cambridge University Press, 1988), 120.CrossRefGoogle Scholar

62 James Wilson and others may well have wanted to apply Rousseau's account of popular sovereignty to the American federal state, but this is likely to be a doomed undertaking. The conditions for the existence of a general will are very unlikely to obtain in large or pluralistic polities. The choice set for large contemporary states is likely, on this interpre tation, to be empty.

63 Gareth Jones, the editor of the edition of Blackstone's Commentaries I have cited (in note 15), notes that it is “impossible to reconcile Blackstone's ideas about natural (absolute) rights which no human law could contradict, with his conception of a sovereign” (xxxviii).

64 Przeworski, Adam and Wallerstein, Michael, “Popular Sovereignty, State Autonomy, and Private Property,” Archives européennes de sociologie 27 (1986): 215.CrossRefGoogle Scholar

65 Raz, , Practical Reason and Norms, 150–51Google Scholar; Green, , The Authority of the State, 83–84.Google Scholar If sovereignty is unlimited, then it is unconstrained legally (and morally?). This will entail that it is comprehensive in Raz's sense: it claims authority to regulate any type of behavior (in addition to the above, see Raz, , The Morality of Freedom, 76–77Google Scholar, where most states are said to claim unlimited authority). Note that a state may be limited (or non-absolute) and yet retain the claim to comprehensive authority.

66 Raz claims that this feature of legal systems is entailed by their comprehensive natures; see his Practical Reason and Norms, 151–52.Google Scholar

67 Moral reasons are supposed to be preemptive but not, presumably, content-independent.

68 Although Hobbes sometimes suggests that the monarch's authority is absolute in this sense, even he is probably not best interpreted as endorsing this consequence. For reason may sometimes advise against obeying a sovereign—for example, when the latter is threat ening one's life. While Hobbes may deny us natural claim-rights, he does think we retain an inalienable (Hohfeldian) liberty.

69 The mere fact of being a system may impose limits on the law. See, for instance, Raz, , The Authority of Law, 111–15.Google Scholar

70 Ibid., 30–31; Raz, , The Morality of Freedom, 77Google Scholar; Green, , The Authority of the State, 83.Google Scholar

71 Amar would recognize that only majorities can commit the People to a constitutional change or a change of leadership, but perhaps this constraint is not specifically a legal one.

72 Even contractarians and moral conventionalists who deny the universality of justice may find these claims made on behalf of Peoples implausible.

73 Perhaps appeals to popular sovereignty are intended to express merely that the state is, in some sense, ours. A more thorough treatment of the topic would consider an interesting thesis put forward by Jean Hampton: “What is distinctive about modern democracies is that their structure explicitly recognizes that political power and authority are the people's creation.” See Hampton, , Political Philosophy (Boulder, CO: Westview Press, 1997), 105.Google Scholar

74 See my Essay on the Modem State, ch. 7.

75 A central theme of my Essay on the Modern State.

76 Amar, , “The Consent of the Governed,” 460Google Scholar and elsewhere. One does not know what to make of these eighteenth-century views, however self-evident they may have appeared to their proponents. (In fact, ‘self-evidence’ is somewhat of a special term in these contexts. I employ it in a less technical sense.) On these views, what was meant by a ‘simple majority’ was usually a plurality, and none of the standard considerations in favor of the former justified the latter. Were defenders of majoritarianism just confused?

77 It is somewhat misleading to suppose that certain theorems from social choice theory show that simple majority “is the only workable voting rule that treats all voters and all policies equally” (Amar, , “The Consent of the Governed,” 503).Google Scholar

78 Amar does, in fact, say that “[i]n the end, individual rights in our system are, and should be, the products of ultimately majoritarian processes” (“The Consent of the Governed,” 503Google Scholar). The factual claim is, I think, unlikely to survive careful unpacking of the terms ‘in the end’ and ‘ultimately’. More importantly, the normative claim ought to be challenged.

79 Even if majoritarianism fails, we might still have good reason, most of the time, to accord special status to collective decisions endorsed by majorities or even pluralities. It is just that the reasons are not the sort claimed by partisans of the People. The issues about majoritarianism, however, are more complex than my brief remarks may suggest. There may be situations where it is preferable, for instance, to have majorities of citizens interpret fundamental law than to have courts or officials do so.

80 For Locke, constituting a “Body Politick” requires the assent of all who are to be full members; they are bound by simple majority rule only after they join (Second Treatise of Government, ch. 8, section 95). The interpretation of Rousseau's controversial introduction of majority voting is more complicated; on one reading, it is introduced only in an epistemic context. The unanimity rule occupies a privileged position in Buchanan, James and Tullock, Gordon, The Calculus of Consent (Ann Arbor: University of Michigan Press, 1962).CrossRefGoogle Scholar