Inventing the People: The Rise of Popular Sovereignty in England and America

by Edmund S. Morgan

(Norton, 318 pp., $18.95)

"Size was the key," writes Edmund Morgan. The puzzle was how to frame a system of government that would be at once national in its vision and popular in its foundation. On the one hand, as Morgan observes, the country was already so far united that its government had to be conducted "in terms of a whole continent." On the other hand, because of the weakness of the federal authority under the Articles of Confederation, the forces of localism dominated at the center as well as the periphery. How to overcome localism, he says, was "the central problem" confronting the aspiration for self-government. The problem has continued into our own day. But the new parochialism of the Reaganites will find no support in the thought of the Madisonian nationalists who took the lead in framing and ratifying the Constitution.

In the 1780s the imbalance of power in favor of the states was nourished by the widely received opinion that government by the people could prosper only in a small polity. In this view, as Montesquieu put it, a big republic would be "distracted by a thousand private views," leading first to anarchy and then to tyranny. The small republic, however, would presumably have the homogeneity necessary for internal self-government and could provide for its external needs, such as defense, by a compact with other similar states. In this model of the "confederate republic," a contemporary could find a rationale for the Articles of Confederation and, accordingly, expect that regime to combine the advantages of both the small and the large republic without incurring their respective disadvantages.

The record of the Confederation in its later years fatally disappointed these expectations. According to James Madison, its "vices" were twofold: conflict among the states and oppression within them. The latter abuse in particular exemplified the "republican disease" of majority tyranny. Since no polity could ever be perfectly homogeneous, argued Madison, smallness of scale simply set the stage for a single-interest majority to oppress the minority, as in the case of debtors against creditors, or one dominant religious sect against the others. It followed that the way to avoid oppression by such factious majorities was to "extend the sphere" of government so as to "take in a greater variety of parties and interests" and thereby make it less probable that "a majority of the whole" would have the motive or the opportunity to "invade the rights of other citizens."

Setting forth this celebrated theory of the "extended republic" in the Tenth Federalist paper and other writings, Madison concluded that "the larger the society . . . the more duly capable it will be of self-government." America, therefore, could not govern itself successfully as 13 separate peoples, but only as the "one people," who in Jefferson's language had declared its independence in 1776. This audacious idea of "an American people," according to Morgan, was the "invention" by which Madison hoped to triumph over "the spirit of locality" that had brought the Confederation to the verge of dissolution. So great indeed was Madison's fear of the unchecked localism of the states and his faith in the superior wisdom of national deliberation that throughout the Philadelphia convention, and for some time after, he insisted--in vain--that Congress must have a veto over the harmful action states might take not only against other states, but also against themselves because of the "republican disease."

The clash between the small and the big republic theories centered on the role of diversity in popular government. Both sides agreed that greater scale is accompanied by greater differentiation. But the states rightists wanted, so far as possible, to isolate the resulting diversities under separate and autonomous governments in order to reduce conflict within these jurisdictions. The nationalists, while fully recognizing the value of "the diversities in the faculties of men," which, according to Madison, produced

the pluralism of the extended republic, aimed to bring the resulting array of interests and ideas into a central forum of government. There, thanks to the larger constituency, the narrowness of local views would be offset and the decisions of government brought closer to the impersonal demands of justice. Integration not segregation was the solution.

In bringing about these happy outcomes, the "American people" would do two things. As the constituting authority, they would "ordain" the Constitution, converting those 7,000 or so words proposed by the Philadelphia convention into a fundamental law that bound both general and state governments; thus a federal system would be created that was authorized not by a compact among the states, but, as the preamble says, by the will of "We, the People of the United States." Madison was less consistent on this point than other nationalists, such as James Wilson. Yet their assertion of "an uncontrolled constituent power in the people," as Morgan puts it, served the eminently Madisonian purpose of undercutting any claim by the states to ultimate authority and became a main argument against nullification, interposition, and secession throughout our history.

As the governing authority, the American people also manned the machine they had set up for their governance. Its design, however, was no mere rendition of what Madison called "the republican principle" of majority rule. The Framers would agree that if you think of the people as abstracted from an institutional structure, the belief in popular government is indeed, as Morgan says, a "fiction." In order to turn that fiction into reality, the new system was therefore composed of elaborate mechanisms to counter the self-destructive tendencies of government by the people and to elicit its superior wisdom. The fundamental law laid down certain restraints upon government, restraints first mainly on the states and then on Congress in the Bill of Rights. Its nationalist champions, however, thought of it in a positive sense, terming it, in Wilson's words, "a declaration of the people in what manner they choose to be governed." Constitutionalism is sometimes conceived as hostile to democracy. In our beginnings it appeared not in opposition to popular government, but as an indispensable instrument of it.

We admire the deeds of the Framers. No one had ever done anything quite like this before. But what about their ideas? How innovative was Madison's "invention"?

Some scholars think that the case for the small republic and against the big republic goes back to classical thought. Plato and Aristotle did take up the question of scale, and both came down on the side of smallness. They applied this constraint, however, not only to government by the many, but to any decent regime--of the one, the few, the many, or a mix. The first clear statement I can find that scale uniquely constrains republics comes in Machiavelli's Discourses of 1513. Comparing the fate of popular government in the small republics of Sparta and Venice with its fate in the great Roman republic, Machiavelli concluded, for much the same reasons later advanced by Montesquieu, that if a republic were big enough for defense, it would succumb to internal "confusion" and ultimately to Caesarism; at the same time, he granted that if it were small enough for self-government, it would be weak against external foes. Seeing no escape from this dilemma of scale, Machiavelli reluctantly gave up the republican cause and declared his preference for the "greatness" of imperial Rome.

If we want to get at the precedents for American ideas, however, we must look, as Morgan does, at what was done and said during the struggle against the Stuarts in 17th-century England. The attempt to establish popular in place of royal government was a tragic failure. Some have thought it a farce. "A very droll spectacle it was," commented the aristocratic Montesquieu some 100 years later, "to behold the impotent efforts of the English towards the establishment of democracy." Vindicating Machiavelli's political science, a cacophony of dissent and sedition forced the collapse of the Commonwealth into the arms of Cromwell and prepared the way for a retreat to monarchy. In spite of this failure, however, the idea of the big republic was given an enormous impetus in the realm of political thought. Decentralization and even a kind of federalism were sometimes advocated, but the polity in question embraced a population not of thousands, as in a Greek city-state, but of millions, as in a modern nation-state.

As Morgan shows. Commonwealth thought anticipated the essentials of the American constitutional republic of 1787: the people in their two roles--as ordainers of the Constitution and as governors--joined by a written fundamental law. This is surely a formula for popular government. But to call it "popular sovereignty," as Morgan does, can distract our attention from a crucial parting of the ways in political thought. The crux was the meaning of the term "sovereignty" and the location of that power in the state. One path led toward the British orthodoxy at the time of the American Revolution. This had been given its classic formulation by Blackstone in his Commentaries of 1760, where he defined sovereignty as "that absolute, despotic power which must in all governments reside somewhere" and which in the British constitution was entrusted to Parliament, giving it "sovereign and uncontrollable authority" to make and unmake all man-made laws, including those deemed "fundamental."

The other path led toward the view reached by the American colonists. Repudiating the doctrine of parliamentary sovereignty, they finally concluded that the ultimate lawmaking power rested not in any agency of government, but in the people, who authorize the frame of government and can intervene ad lib to alter it. When we add the further element of the people as the governing as well as the constituting authority, we clearly have a conception that can be called "popular sovereignty."

This conception of the role of the people came from Britain. But contrary to what Morgan seems to believe, it has never been generally accepted there. In the 18th century it was conventionally held that the Glorious Revolution of 1688 had terminated the long struggle with the Stuarts by vindicating not the sovereignty of the people, but the sovereignty of the Crown in Parliament. The Bill of Rights of 1689 and the other formal instruments by which the English sought to legitimate the change avoided any suggestion of an uprising by "the people" and emphasized instead the role of existing institutions, above all the two houses of Parliament. In later years, Edmund Burke, for instance, drove home this distinction in his fierce attack on certain democratic reformers who claimed that in 1688 the English people acquired the right to choose their governors and their frame of government. "On the contrary," he declared, "they regenerated the deficient part of the old constitution through the parts that were not impaired... They acted by the ancient organized states [estates] in the shape of their old organization, not by the organic moleculae of a disbanded people."

The distinction is important because it lights up a major issue of the American Revolution: popular versus parliamentary sovereignty. Moreover, today, as Colin Turpin, a British legal scholar, has recently observed, the "official or dominant theory of the British constitution" still locates sovereignty not in "the people," but in "the Crown in Parliament." We will not understand the great concentration of power in the British system of government as compared with the American unless we take into account this profound difference not only in legal theory, but also in political culture. While avoiding this British extreme, "the continentally minded men" of 1787 nevertheless gave us a constitutional theory capable of coping with "the spirit of locality" that plagues democratic politics, as Madison feared and Morgan richly illustrates.

Samuel H. Beer is Eaton Professor of the Science of Government Emeritus at Harvard University.

By Samuel H. Beer