Sovereignty and the Constitution

Jefferson: The Great Satan of American history?

Jefferson: The Great Satan of American history?

Tocqueville may not have been very likable, but his theory about the Puritans planting the seeds of democracy was not incorrect.  One could take issue with certain details.  Despite his theory about democracy gently unfolding in the New World, the Revolutionary War turns out to have been a good deal more violent, more intolerant, more French in a sense, than he realized.  An entire political party, the Tories, was banned and, as the historian R.R. Palmer  pointed out in his magisterial  study, The Age of the Democratic Revolution, five times as many people were sent into exile as in France relative to the population while at least as much émigré property  was confiscated.  Moreover, if Tocqueville hadn’t died of tuberculosis in 1859, he would have realized that 1776 was actually a warm-up, comparable to the moderate, Girondin phase of the French Revolution, while the Civil War marked the start of a second and more extreme stage comparable to the Jacobin takeover in June 1793.  True, no guillotines appeared on Capitol Hill in 1861-65.  But the war would claim the life of one American in forty and would lead to the wholesale expropriation of the Southern plantocracy.  It would see a forced march toward political and economic centralization, industrialism, nationalism, and mass education (Congress established the land-grant college system in 1862), all causes as dear to the Jacobin heart as they now were to the radical Republicans  The war would even see something of a Jacobin-style political dictatorship.  Habeas corpus was suspended as a rump Congress from which Southern Democrats had been expelled prosecuted the war in an increasingly radical manner.  American development was more revolutionary and less exceptional than Tocqueville or his modern admirers understood.

So Tocqueville clearly got a good deal wrong.  But he got one thing right concerning the nostalgic quality of American politics.  Because the American colonies had been self-governing, most classically in Puritan New England, overthrowing the ancien régime was the last thing the revolutionaries of 1775-76 wanted to do.  To the contrary, it was the British who wanted to overthrow it, while the so-called revolutionaries wanted nothing more than to put it back on the throne.  Once Jefferson had ladled out a dollop of fashionable rationalist rhetoric about life, liberty, and the pursuit of happiness in the Declaration of Independence, he  devoted the bulk of the document to all the terrible new things the British had done – interfering with traditional colonial legislatures, usurping ancient liberties, and “taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.”  Britain stood for change while the patriots stood for the status quo.  A 91-year-old veteran of the Battle of Concord summed things up in a remarkable interview he gave in 1842.  “Did you take up arms against intolerable oppressions?” Captain Preston was asked.

     “Oppressions?  I didn’t feel them.”

     “What, were not oppressed by the Stamp Act?”

     “I never saw one of those stamps.  I certainly never paid a penny for one of them.”

     “Well, what then about the tea tax?”

     “I never drank a drop of the stuff; the boys threw it all overboard.”

      “Then I suppose you had been reading Harrington or Sidney and Locke about the eternal principles of liberty?”

     “Never heard of ’em.  We read only the Bible, the Catechism, Watts’ Psalms and Hymns, and the Almanac.”

     “Well, then, what was the matter?  And what did you mean in going to the fight?”

     “Young man, what we meant in going for those redcoats was this: we always had governed ourselves, and we always meant to.  They didn’t mean we should.”

One can almost hear Tocqueville chortling in his grave.  As Palmer pointed out, revolutionary conservatism of this sort was not unique in the late eighteenth century.  In the years leading up to 1789, liberal aristocrats in France demanded a return to the balanced constitution of yesteryear when regional parlements controlled by the nobility served as a check on royal authority.   In Switzerland, alpine traditionalists demanded a return to cantonal gatherings in which freemen would signal assent by pounding the floor with their spears and halberds.  Such elements would soon be overwhelmed by urban radicals calling for specifically new forms of government, but for a variety of reasons the local gentry in America would remain in the ascendant for decades after.  Even though the Virginia planters had disgraced themselves during the War of Independence — they had been too worried by slave uprisings to offer resistance to the British — they were still dominant when the “framers” gathered in Philadelphia n 1787 to draft a new constitution.  Hence, the aristocratic ideal of constitutional balance proved dominant.  Virginians like James Madison wanted a strong central government to keep the states from flying off into the arms of Britain, France, and even Spain.  But they did not want one that was so strong that it would threaten local prerogatives.  They wanted a government that was centralist but not too centralist, vigorous but not excessively so, forward-looking but at the same time protective of ancient liberties, first and foremost of which was the liberty to own slaves.

Years of war and turmoil had upset the old equilibrium, but now the Virginians were determined to put it back.  Since it was impossible to simply turn back the clock, the government would have to be new.  But it would be a new government dedicated to the restoration of ancient values going back to Plymouth Rock and Tudor England.  Instead of straightforwardly embracing progress, the planters, lawyers, and merchants who gathered in Philadelphia would execute a complicated maneuver in which they stepped boldly into the future in order to retreat into the past.

Structurally, the document that emerged from the convention adhered to the pattern set by the Declaration of Independence: lofty rationalist rhetoric followed by more down-to-earth sentiments.  Where the declaration began with the view “that whenever any form of government becomes destructive … it is the right of the people to alter or to abolish it,” the Constitution opened with a similar blast announcing that “we the people” were organizing a new government in order to enhance what the declaration identified as “safety and happiness” — which is what phrases like “form a more perfect union, establish justice,” etc., essentially meant.  Just as the first document failed to address the issue of the lawfulness of American independence, the Constitution skirted the issue as well by failing to acknowledge that Article VII, which declared that the new plan of government would become law when approved by just nine states, was in direct violation of the Articles of Confederation, still the law of the land, which required that any constitutional alteration be approved by all thirteen.

Then the new constitution got down to the nitty-gritty by setting forth the powers of Congress, the president, the courts, and so forth.  The new government would have the power to coin money, establish weights and measures, and punish counterfeiters, but not to interfere with the slave trade for at least twenty years.  Once that was out of the way, the document turned to the question of how it was to be amended.  Moments after establishing the people as the omnipotent makers and breakers of constitutions, it announced that they would henceforth be subject to the severest of constraints.  Changing so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states.  At the time, Article V meant that just four of the 13 states representing as little as 9.7 percent of the total population would be able to veto any change sought by remainder.  Today, it means that thirteen out of the 50 states can do the same even though their share of the population stands at as little as 4.2 percent.  (In a couple of decades, it will be down to just 3.9 percent.)  Over the course of a few thousand words, the people had gone from being all-powerful to virtually powerless.

A gaping contradiction of this sort should have been a weakness, but, paradoxically, turned into a strength.  Since the new constitution was the only thing holding the country together, everyone pitched in to impose sense on the senseless.  The brightest minds in the land joined in the effort.  Furious debates erupted over whether the federal government’s powers were limited, as the list of delineated powers in Article I seemed to suggest, or unlimited as the necessary-and-proper clause (“The Congress shall have power … to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government”) clearly implied.  They argued over whether the Second Amendment permits gun control, over the proper boundary between state and federal powers, and over the question of whether the document was to serve as a “living Constitution” i.e. one subject to continuous re-interpretation, or whether the “original intent” of the founders would be determinative.

Since the Constitution had given rise to the greatest nation that had ever existed, it simply had to make sense, which meant that such questions had to have a definite answer pro or con.  But it ain’t necessarily so.  A constitution that describes the people as simultaneously sovereign and non-sovereign is incoherent, which means that meaning is not necessarily to be found.  The document thus condemned Americans to argue endlessly over issues that were essentialy unresolvable.  Indeterminacy became an instrument of control.

Constitutional incoherence condemned politics to incoherence as well.  By the nineteenth century, Americans  had a great deal to argue about — slavery, urbanization, centralism versus local control, and so on.  But instead of debating such matters, they argued mainly about themselves — whether they had the authority to do what they wanted to do, whether they dared exercise their powers in full, etc.  It is important to keep in mind that the people did not assert their sovereignty in Philadelphia in 1787.  Rather, the founders invoked it.  Once they uttering the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government.  Popular sovereignty thus became a one-off affair, a spirit that briefly hovered over the new nation and then went away.

The upshot was a form of self-nullification.  The instant the people  turned on their power, they hastened to switch it off, condemning themselves to a permanent state of schizophrenia in the process.  Americans wanted a government that would cater to their needs but feared that it would threaten liberty if it did.  They wanted strong communities but not the political mechanisms needed to make them so.  They wanted vigorous democracy but were deeply ambivalent as to what democracy might actually mean.  They want progress but also a return to traditional values.  They thus demonstrate their own powerlessness and incoherence at every turn.  They wanted sovereignty except that they didn’t.

Democratic politics are crippled as a consequence.  The American political system is arguably the worst in the advanced industrial world, i.e. the most corrupt, the most unresponsive, the most punitive and authoritarian.  Income polarization is accelerating, the super-rich are increasingly bold in pursuing their own interests, while. economically, millions of working people continue to deteriorate.  Yet they are seemingly condemned to stand idly by as their society plunges downhill.  The theoreticians tell us that the one thing a sovereign cannot do is put an end to his own sovereignty, but putting an end to the people’s sovereignty is just what the Constitution has succeeded in doing for more than two centuries.  This is logically impossible, yet it is a fait accompli.  The question is how much longer this absurd state of affairs can continue.


Alexis de Tocqueville by Théodore Chassériau

Alexis de Tocqueville by Théodore Chassériau

Liberals are like the man who kills his parents and then pleads for mercy on the grounds that he’s an orphan.  The ideology arose out of the fierce struggles against the ancien régime in the 17th and 18th century.  Yet once it reached maturity in the mid-nineteenth century, it dedicated itself to forgetting  that had ever been the case.  In England, the Victorians tried to cover up a century of political turbulence that began with the outbreak of civil war between Parliament and the crown in 1642 and did not end until 1745 when “Bonnie Prince Charlie,” leader of an army dedicated to restoring the old Stuart dynasty, advanced to within 200 miles of London before being defeated in the Battle of Culloden.  A hundred years later, the Victorians had decided that civil war was inimical to the British character and that radicalism was for other people, most notably the ever-excitable French.  Across the channel, collective amnesia was not so easily gained since memories of La Terreur were still so fresh.  Liberals agonized, consequently, over how to achieve stability with royalists and republicans still going at one another in the streets.  How could France detach itself from its revolutionary past when the old battles were continually erupting anew?

The ultimate self-made orphan was Alexis de Tocqueville, whose Democracy in America, published in 1835-40, is still the book that American exceptionalists most love to quote.  As the noble particle suggests, Tocqueville was born into an aristocratic Norman family going back to the days of William the Conqueror.  His father narrowly escaped the guillotine in 1794, his hair supposedly turning snow white from the ordeal, but other relatives were not so lucky.  The experience could have turned Tocqueville into a royalist, but instead he made  peace with the new regime, swearing allegiance to the liberal “bourgeois king” Louis-Philippe after he took the throne in 1830.  Democracy, he believed, was unavoidable in the new age.  But he wanted democracy shorn of the revolutionary sturm und drang that had ushered it in.  Hence his fascination with the United States, a new republic that had seemingly entered into the new age effortlessly and painlessly.

“The circumstances that accompanied their birth,” he said of the modern nation-state, “…affected the whole term of their being.”  Tocqueville was especially taken with the New England Puritans as the people who planted the seeds of democracy in the New World.  Unlike the paupers and adventurers who flocked to Virginia, they were members of the educated middle class.  Immediately upon landing at Plymouth Rock, the Pilgrims (actually a branch of the larger Puritan family) promised to “combine ourselves together into a civil body politick, for our better ordering and preservation, and … enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the Colony: unto which we promise all due submission and obedience.”  This was popular sovereignty avant la lettre, and yet it all just fell into place without the assistance of the guillotine.  By 1650, the Puritans were instituting compulsory education and fining parents who failed to comply, levying taxes, appointing clerks to record births, marriages, and deaths, surveying property, and supporting the poor, all at a time when royal absolutism in Europe was crushing local liberties underfoot.

American democracy was born rather than made, which is why Tocqueville found it so fascinating.  Instead of revolting against the past, Americans continually sought to return to that halcyon period in the 17th and 18th century when popular self-government was at its purest.  Tocqueville longed for something similar in France, yet revolution and democracy at home were two sides of the same coin.  During the Revolution of 1848, he argued for an American-style constitution with a bicameral legislature and an elected presidency, but got nowhere.  Then, as the revolution heated up, he supported General Cavaignac’s crackdown on the Parisian workers, backed restrictions on civil liberties, and in June 1849 pleaded with the interior minister, Jules Dufaure, to impose a state of siege and prohibit demonstrations.  After calling for a Bourbon restoration against Louis Napoleon’s in 1851, he was forced into retirement.

Tocqueville thus turned against the revolution that had made democracy in the first place and then pleaded for sympathy against Napoleon III’s coup d’état.  Not much to be proud of here.  Post-1945, however, the United States has imposed a generally Tocquevillian agenda, not only in France but throughout the world, based on a concept of conservative democracy in which popular sovereignty is all but eliminated via entrenched constitutional guarantees, international agreements, and so forth.  The aim was to rule out revolution as unnecessary and even un-democratic unless directed against the tottering post-Stalinist regimes of Eastern Europe, in which case it became de rigueur.  Personally, I’ve always thought that Democracy in America was overrated and that Frances Trollope’s Domestic Manners of the Americans was not only better written and more informative, but much more fun.  But Trollope doesn’t fit the American political agenda the way Tocqueville does and so remains less well known.

On sovereignty

imagesContrary to popular opinion, sovereignty does not mean power but absolute power – “supreme, irresistible, absolute, uncontrollable authority,” as the eighteenth-century legal scholar William Blackstone put it.  Since Bodin and Hobbes, a certain school of political theorists have argued that truces or agreements were insufficient to keep civil war from erupting within society and that what was needed was a power over society sufficient overwhelming to constrain any and all elements within.  Whether the sovereign was the king, the aristocracy, or the general population was secondary; the only thing that mattered was that he be in a position to brook no argument.  Since his authority was “irresistible,” his word would be law and no rebel or faction would even think of challenging it.

But Blackstone’s definition raises as many issues as it resolves.  The most obvious is that of liberty.  “Uncontrollable” means that it is the sovereign’s function to control others rather than being controlled in return.  But how is uncontrollable power even remotely compatible with freedom?  Doesn’t liberty mean limits on governmental authority, i.e. a point where state power leaves off and individual autonomy begins?  Regardless of whose hands it is in, how can total power be anything other than crushing?

Another issue concerns that of extent.  Supreme, irresistible, and absolute, yes – but over what?  Rather than a society of feudal orders, sovereignty presupposes a territorial state in which the supreme diktat is uniformly applied.  But a system of territorial states means that a French sovereign’s territory will abut that of a German or Swiss sovereign, and since each regards his power as irresistible, neither will be in a position to defer to the other.  Indeed, the theory of sovereignty requires that they not defer since doing so would mean admitting that one’s own power is less than absolute.  If sovereignty eliminates the problem of civil strife within society, it does so at the cost of stepped-up warfare between and among the territorial states.  It kicks the problem upstairs, which arguably leads to something even worse.

Finally, there is the issue of supremacy.  Blackstone conceived of the problem in legal terms.  The sovereign was the supreme legislator, executive, and judge.  His will trumped whatever laws a lesser body, such as a municipal council or a provincial parliament, might approve.  But why just the law?  If the sovereign is truly supreme over society, shouldn’t he be supreme with regard to the social and economic spheres as well?  How about nature – shouldn’t he be supreme over that?  Does the process have an end-point or what?

The answer is that it does not and should not have an end-point and that all progress depends on it continuing indefinitely.  The more complete the monopoly, the better society will be.

If this sounds strange or nonsensical, it is important to keep in mind that the transition from royal to popular sovereignty did not involve just a transition from one locus to another, but a transform that, in a sense, turned the phenomenon inside out.  A king claiming absolute authority necessarily deprives his subjects of power.  But a people claiming absolute power do not.  To the contrary, they mobilize their resources collectively and hence individually as well.  They become the sole legislator, executive, and judge, not over others but over themselves.

The Preamble to the U.S. Constitution captures the self-reflexive nature of the process quite nicely:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.

The key words are the first seven and final twelve: “We the people of the United States … do ordain and establish this constitution for the United States of America.”  The people act on themselves, taking their own society in hand and restructuring it for their own benefit.  While the verbiage in between may seem rather vague and open-ended, phrases like “promote the general welfare” simply establish the goal of making society better, which is to say more peaceful, orderly, productive, secure, and just.  Put together, the whole thing adds up to a vow on the part of the people to use their “supreme, irresistible, absolute, uncontrollable authority” to remake society in their own image.  Sovereignty is thus self-serving.  It’s sole raison d’être is to strengthen its own.  But since this means strengthening democratic society, it is a case of the people using their own power to benefit themselves.

But what about liberty?  Requiring the people to promote the general welfare means requiring them to do what the Preamble wants them to do, not what they might wish to do instead.  True enough.  But since the people are the authors of the preamble, requiring them to abide by the Preamble means committing themselves to a goal that they themselves have set.  Someone who goes in a diet is not less free by virtue of having to bypass the refrigerator.  To the contrary, he is more free because, by asserting unlimited power over himself, he is taking full control of his own activities.  While royal sovereignty might require everyone else to march in lockstep, popular sovereignty requires something quite different.  Since the people have resolved to secure the blessings of liberty for themselves and their posterity, it requires them to collectively determine what those blessings are and how to attain them.  In a sense, this means marching in lockstep toward democracy.  But since democracy rests on collective mentation, it also requires as much of the population as possible engaging in full-throated debate.

The people command themselves to be democratic.  But since the one thing a sovereign cannot do is terminate his own sovereignty, a sovereign people has no need to open the door to racism, fascism, or other anti-democratic points of view.  Rather than free speech, popular sovereignty means democratic speech, which is to say speech structured in such a way as to strengthen democracy.  Where to draw the line between democratic and anti-democratic speech is up to the people themselves.  Where they might draw the sharpest possible distinction in an emergency, under normal circumstances they might decide to relax and loosen up.  But in keeping with the principle of self-reflexivity, their sole concern either way is to advance their own interests and thus reinforce their own rule.

As for the issue of extent, popular sovereignty does not eliminate the problem of the sovereign territorial state, but, to the contrary, raises the issue to a whole new level.  Territoriality has led not only the growth of international war but of international law as well.  But international law is a paradox.   Not only does it do nothing to rein in international conflict, but, by regulating it, it arguably serves to legalize it and thus validate and encourage it.  By erecting a welter of treaties and international agreements, moreover, it serves to bottle up popular sovereignty within each state.  The process has reached a reductio ad absurdum with the European Union, a super-state ostensibly based on neo-medieval theories of “subsidiarity” in which sovereignty gives way to a whole gradation of lesser and greater authorities, everything from national governments in places like Paris and Rome to the notorious bureaucrats of Brussels, the European Central Bank in Frankfurt, the European Parliament in Strasbourg, and so on.  It is as if Bodin and Hobbes had never existed.  Although the ostensible goal is to promote freedom and prevent war, the result has been to fragment and break up democracy and so clear the way for an untrammeled “liberal” (in the classic 19th-century sense) economic order.  While limiting the illimitable has led to political stability for a time, the consequence is now likely to be the opposite as Europeans struggle to cope with a deepening economic collapse.

The solution, therefore, is not more agreements between sovereign states (which henceforth cease to be sovereign), but the internationalization of popular sovereignty and hence its fulfillment.  If the creation of a democratic authority that is unconstrained by international boundaries or international law has been the dream of revolutionaries from Anarcharsis Cloots to Karl Marx and beyond, it is not because intellectuals are always letting their imagination get the better of them, but because it remains the only conceivable solution to the problem of international conflict.

This is radical stuff, which is why everything about the EU is designed to prevent it.  Meanwhile, it is with the supremacy issue that popular sovereignty is most transformative.  Self-reflexivity, the principle that sovereignty exists solely to augment its own power, means that it is programmed for permanent growth and self-development.  The early theorists had little idea of what this would mean.  Bodin, who wrote his Six Books of the Commonwealth in 1576, assumed that private property was sacrosanct and that the sovereign should nurture religious piety for the sake of morality and the common good.  Seventy-odd years later, Hobbes understood that there could be no absolute right to private property, but still held to a rather blinkered of the sovereign state as existing merely “to preserve the people in peace at home and defend them against foreign invasion” (chapter 25).  The Jacobins were far more radical: in the name of popular sovereignty, they imposed rationing, set wages and prices, punished profiteers, confiscated émigré property, and abolished feudal tithes and fees.  But it was not until the industrial revelation that people really got a glimpse of the forces society was capable of unleashing.  In what must have been shock to the German émigrés who commissioned it, the Communist Manifesto thus opened with a paean to the virtues of capitalist creativity, which “has accomplished wonders far surpassing Egyptian pyramids, Roman aqueducts, and Gothic cathedrals; it has conducted expeditions that put in the shade all former exoduses of nations and crusades.”  The purpose of socialism was not to put the industrial genie back in the bottle, but to give it more scope.

The upshot was popular sovereignty raised to the nth degree and, interestingly enough, self-reflexivity raised to the nth degree as well.  In his famous blast against religion as the opium of the people, the young Marx also observed: “The criticism of religion disillusions man to make him think and act and shape his reality like a man who has been disillusioned and has come to reason, so that he will revolve around himself and therefore around his true sun.  Religion is only the illusory sun which revolves round man as long as he does not revolve round himself.”  Rather than subordinating man to nature, Engels wrote in 1876 that the goal was to dominate nature so completely so that the distinction between man and nature would be all but eliminated.  The more science advances, he wrote, “the more will men once more not only feel, but also know, themselves to be one with nature.”  Man, in a sense, would become the Spinozan deity who has so thoroughly mastered nature’s laws that he virtually runs it the same way an engineer runs a locomotive.

To translate this into the language of sovereignty, it means that human sovereignty will have become so total that the distinction between subject and object will have been lost.  Man will act on himself so completely and continuously that he will no longer be conscious even of the process.  This is widely dismissed as utopian when in fact it is the alternative belief that humankind will remain paralyzed in the face of a growing list of problems, everything from the economic crisis to global warming, that is utopian.