The Constituent Power as a Remedy for the Administrative State.

• Author: Watkins, Williams J., Jr.

The United States is built upon the idea of popular sovereignty. The people, rather than any one person or an artificial body, wields ultimate power. Only the people can form, alter, or abolish constitutions through the constituent power. Of course, government officials exercise power as the people's agents. This delegated power is often called "governmental" or "legislative sovereignty" and is inferior to the people's ultimate sovereignty.

Although an appreciation for popular sovereignty is indispensable to understanding American constitutionalism, one must also value the franchise as a limitation on the people's agents who exercise governmental sovereignty. Elections and voting to check the rulers seem too basic to require further exposition, but very few have recognized that a shift in governmental sovereignty has occurred with the rise of the administrative state. The myriad rules and regulations that shape our lives are created not so much by elected officials in Congress but by "experts" in various federal agencies. This new sovereign and its technocratic leadership have given rise to recent populist outbursts.

Despite the people's exalted place in American political theory, the word populism, with its claim to give a voice to the common citizen, has a negative connotation. Populism is typically characterized as a threat to minority rights, sound government, and legitimate political opposition. In reality, it is a natural reaction to the technocratic devaluation of the franchise and the ascendency of a new class with interests counter to those of average Americans.

In this paper, I examine the implications of popular sovereignty, the federal system, and populism on the governmental system in the United States. I endeavor to show that although the U.S. Constitution has built-in restrictions that limit the power of majorities, the rise of the administrative state has compromised the potency of elections. As a consequence, the ultimate protection is not the veto power of the people wielded during normal elections but the constituent power possessed by the people acting in their several communities. This constituent power adopted the Constitution, has amended it, and may be used to challenge the rule of the technocrats. In this manner, the constituent power is constitutional populism and provides a real security to political communities that cannot be achieved by the conventional franchise in this era when the managers are ascendant.

Populism Defined

The definitions of populism are myriad. Some are simple. For example, Mark Tushnet of Harvard Law School defines populism as "the enactment into public policy of the people's views, whatever they happen to be" (2000, 553). David Fontana of George Washington University Law School goes further: "Populism generally refers to arguments pitting a large number of average people unjustly disempowered relative to and against some power elite" (2018,1486). The Dutch political scientist Cas Mudde, like Fontana, sees populism as dividing society into "two homogenous and antagonistic groups" consisting of "the pure people and the corrupt elite" (2015).

In his classic work Liberalism against Populism (1982), William H. Riker describes populism as having two propositions: "(1) What the people, as a corporate entity, want ought to be social policy," and "(2) The people are free when their wishes are law" (238). Populism, for Riker, is the scion of Jean-Jacques Rousseau and his "general will." Rousseau, of course, believed that men should rule themselves in "one legislative corps" inasmuch as civil society forms an artificial person with a general will (Cranston 1986, 83). The general will, according to Rousseau, writing in the mid-eighteenth century, "considers only the common interest" and is always "good" (Rousseau 2020, 22). Hence, a citizen who finds a law to be distasteful and oppressive has no real argument against the measure because he has been a part of the process in which the wisdom of the general will was discovered.

Riker focuses on the importance of the franchise and distinguishes populism from liberalism (in the classical or continental sense) by averring that in the former "the opinions of the majority must be right and must be respected because the will of the people is the liberty of the people," whereas in the latter "there is no such magical identification. The outcome of voting is just a decision and has no special moral character" (1982, 14). But voting is fundamental in a liberal democracy, according to Riker, because it acts as a veto by which governmental tyranny can be restrained. This check on tyranny, Riker asserts, is the chief end of elections.

Riker advocates a limited purpose for elections because different systems of voting can bring divergent outcomes from the same profile of an individual voter's stated preference. Seldom, if ever, is there truly a binary alternative where the choices are only A or B. Further, he argues that the outcome of an election is easily manipulated (e.g., vote trading or proclaiming false values). Hence, democracy is a poor vehicle, in Riker's thought, for determining the people's policy preferences because it is inaccurate and transitory.

Popular Sovereignty and American Constitutionalism

But do Riker's observations hold when dealing with a governmental system in which the people occupy a special place as the creator of constitutions? Is voting during normally scheduled elections the end of the people's power? And how has the so-called managerial revolution altered Riker's assumptions?

It is helpful to remember that the American Revolution was a rebellion against the idea of the sovereignty of Parliament. Under British constitutional theory, Parliament exercised an unlimited and uncontrollable authority. The American colonists...