American Sovereigns: The People and America's Constitutional Tradition Before the Civil War.

• Author: Pettys, Todd E.
• Position: Book review

AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA'S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR. By Christian G. Fritz. Cambridge and New York: Cambridge University Press. 2008. Pp. xi, 413. Hardcover, $80; paper, $29.99.

The proposition that "the people" are the preeminent sovereign in the United States has long been a tenet of American public life. The authors of the Declaration of Independence characterized the American people's sovereignty as a "self-evident" truth when announcing the colonies' decision to sever their ties with Great Britain, (1) the delegates to the Philadelphia Convention in 1787 invoked the people's sovereignty when framing the nation's Constitution, (2) and Americans today exercise their sovereignty each time they cast their ballots on Election Day. Yet what prerogatives, precisely, does the people's sovereignty entail? In modern America, where neither a bloody revolution nor an entirely new constitution is in the offing, can the people's sovereignty manifest itself in ways other than through participation in the nation's elections?

In American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, Christian Fritz (3) aims to recover for his readers a conception of the people's sovereignty that is far broader than the conception he believes prevails today. Focusing on the period between the Revolutionary and Civil Wars, Fritz argues that numerous events--events that historians often mistakenly regard as unrelated--can be fully appreciated only if one sees them as battles in the larger war between two competing understandings of the people's sovereignty. The narrow understanding, which Fritz believes ultimately triumphed, holds that the people may influence day-to-day governmental affairs only through elections and other limited mechanisms that elected officials might authorize, and that Article V of the Constitution describes the exclusive methods by which the Constitution may be changed. The broad understanding permits the sovereign people to intervene directly in day-to-day governmental affairs with or without elected officials' consent, and to alter their constitutional arrangements by any means they deem appropriate. With few exceptions, (4) Fritz argues, the broad understanding of the people's sovereignty has been "lost ... as a viable principle" (p. 280) and, for all practical purposes, sovereignty today rests in the hands of government officials (p. 298). This, Fritz argues, is regrettable. "The belief in a powerful and direct role for the people as the sovereign is part of America's historical experience with written constitutions," he writes, "and should not be ignored" (p. 283).

In Part I, I recount Fritz's central arguments, elaborating on the two sovereignty models that Fritz identifies and the ways in which he finds those models manifested in historical events. In Part II, I dispute Fritz's claim that Americans today have essentially ceded their sovereign prerogatives to government officials. Contrary to Fritz's suggestion, ordinary Americans do still sometimes intervene directly in day-to-day governmental affairs in ways that are unauthorized by their elected leaders, and they do alter their constitutional landscape by means other than those formally authorized by Article V. Even more fundamentally, the American people today reject the more extreme strains of the two models that Fritz describes. Rather, Americans have determined that their long-term interests are often best served by manifesting their sovereign desires through extended interactions with government officials and institutions--interactions that permit the sovereign people to retain ultimate control over their government and their Constitution, but that permit government institutions to retain the credibility and power they need in order to do the people's work.

1. THE BOOK'S ACCOUNT OF THE SOVEREIGNTY DEBATE

   1. Two Competing Models

      Fritz contends that two fundamentally different conceptions of the people's sovereignty competed for Americans' attachment prior to the Civil War. The first was the narrow view that many Founding-era Federalists favored. This view holds that, having legitimized the Constitution with their consent, the American people now can express their sovereign wishes only through elections and other "government-sanctioned procedures" (p. 3). After voting on Election Day, citizens must limit their involvement in government to activities that can be performed from the sidelines--such as lobbying elected officials and praising or criticizing their conduct--unless the people's elected leaders invite the people onto the playing field for some brief and limited purpose.

      Under this narrow understanding of the people's sovereignty, moreover, the Constitution remains unchanged until the country alters its constitutional bearings using the amendment mechanisms specified in Article V of the Constitution itself (pp. 4, 135-38, 146-47). The people cannot legitimately amend their fundamental law by any other means. Even here, the country's elected leaders play the leading role, because it is only those leaders--either in Congress or in state legislatures--who have the power under Article V to initiate the amendment process. (5) Apart from the task of periodically choosing the people's representatives, therefore, sovereignty functionally rests entirely in the hands of government officials, and the citizenry at large "has no practical role to play in the operation of government" (p. 298).

      Based on his analysis of numerous historical events (ranging, as I describe below, from the battle over debt relief in Massachusetts in the 1780s to the debate over the People's Constitution in Rhode Island in the 1840s), Fritz contends that many early Americans had a much broader understanding of the people's sovereign powers. Seen from the vantage point of this second model, the sovereign people are entitled to direct the country's day-to-day governmental affairs, as well as to alter or abolish--by any means they find appropriate--the constitutional arrangements under which those affairs are conducted (pp. 3-4). "Drafting constitutions during the Revolution ... led many to expect that as the sovereign they would have an ongoing right and obligation to act," Fritz writes (p. 22). "Creating written constitutions expressed but did not exhaust the people's role as the sovereign" (p. 22). On this view, "voting during periodic elections expressed the people's will in an initial way that did not foreclose other, more direct expressions of the people's sovereignty" (p. 98). Moreover, although Article V describes ways in which elected leaders may initiate constitutional change, the sovereign citizenry cannot be limited to those formally articulated alternatives (pp. 3-4, 30-31).

      Those holding this expansive view in the nation's first half century found vindication in the manner in which the Constitution itself had been adopted. Although the Articles of Confederation required the unanimous consent of all thirteen state legislatures to approve any change in the Articles' provisions, (6) the Framers concluded that they were not bound by that procedural requirement (pp. 31, 138-40). Instead, they determined that ratification by nine states' conventions would be sufficient to install a new constitutional regime. (7) For many, that experience demonstrated that constitutional legitimacy does not invariably require compliance with the lawmaking procedures laid down by one's predecessors (pp. 146-47). All that the country needs to know is that, by one means or another, the sovereign people have spoken.

      Early Americans holding this broad view of the people's sovereignty faced difficult questions. If the formal ratification of constitutional texts and the choice of elected leaders are not the sole manifestations of the sovereign people's will, by what other means can the people's will be expressed? How does the country know when the people have spoken in their sovereign capacity, and how can the content of those sovereign expressions be discerned? Fritz finds that many early Americans did not believe it was necessary to answer those questions with absolute clarity. "During their Revolution and for a half-century thereafter," Fritz writes, "Americans were more open to the idea than we are today that a collective sovereign could rule without insisting on institutions or procedures to verify and discern the sovereign's will" (p. 277).

      Although he does not develop the argument, Fritz suggests that it was not until the aftermath of the Civil War--when the nation coalesced around the conviction that the Union was beyond the people's power to dissolve--that many Americans finally loosened their attachment to the belief that the sovereign people are always free to determine their own governmental arrangements (pp. 233-34). While even the book's title signals Fritz's belief that the Civil War was indeed the crucial turning point, there is reason to believe he entertained doubts as he brought the manuscript to completion. In the book's closing pages, Fritz drops a footnote suggesting that the broad conception of the people's sovereignty persisted for another half century. (8) Timing questions aside, however, Fritz contends that the narrow view of the people's sovereignty did indeed ultimately triumph and that the broad understanding has long ceased to play a meaningful role in American politics and constitutional scholarship.

   2. The Models at Work

      In numerous historical events, Fritz finds Americans embracing the broad view of the people's sovereignty by doing far more than merely exercising their power as "the ruled" to express their views about government through petitions, protests, editorials, and the like (p. 7). He sees them invoking powers that he believes modern Americans would find quite foreign: either the power of "the ruler" to intervene in day-to-day governmental affairs when elected officials...