The people of the several American states chose representatives to ratifying conventions who freely decided to approve the Constitution in the name of those who elected them. Popular sovereignty was also included in Article V of the Constitution, which provides the means to amend the Constitution through the elected representatives of the people. Finally, popular sovereignty is reflected in two different parts of the Constitution that require members of Congress to be elected directly by the people: Article I pertaining to the House of Representatives and the 17th Amendment concerning election of senators.
The founding of the United States and the framing of its Constitution heralded the idea of popular sovereignty as the standard by which popular government should be established and sustained. The American example, exceptional in the late 18th century, has become a world-class standard of legitimacy for governments in the 21st century.
All rights appertaining to freedom are therefore equal to every man and woman. No people, no nation had ever spoken as this before: We are free; thus, we are sovereign. This fundamental principle of self-government is the lodestar of all constitutional jurisprudence. It was just as true in as it is today and will be tomorrow. For America, government is charted by limited, enumerated powers to be exercised only as authorized by the people according to their written law, which is the U. Indeed, the very purpose of the U.
To this end, the American people resolved to form a new constitutional government, unlike any other, to advance the cause of freedom and protect individual, unalienable rights. They created a democratic republic—one established by the consent of the governed, and fixed in writing to guarantee liberty for future generations.
This new written constitutionalism, properly understood and practiced, would become the greatest political creation in the history of the world for the cause of freedom. It is with this elevated understanding of why people institute government that we also begin to see how the principle of popular sovereignty provides the proper metes and bounds of good government.
And to answer that question, we need look no further than the Preamble of the U. Constitution and the six reasons We the People instituted and empowered our government in the first place. Similarly, if we as citizens, civic leaders, politicians, or corporate institutions are engaging in action that compromises these fundamental six purposes, then we, too, are acting contrary to our ultimate best interest, and, in the end, endanger the very political system that sustains us.
Constitution, in a remarkably clear and guiding way, do precisely this. Quite simply, the Preamble of the U. It expounds upon the nature, extent, and basis for which people empower government at all. It also clarifies the limit of authority that must restrain those entrusted to serve within government. By properly understanding the first foundational constitutional principle of popular sovereignty, we can better implement and interpret the Constitution itself.
We can better understand how to administer our government and govern ourselves. The text of the Tenth Amendment recognizes and protects popular sovereignty as one means of preventing government tyranny.
And it is even more unfathomable that in the name of state sovereignty, the Supreme Court strike down portions of the Voting Rights Act which preemptively ensured that state governments could not systematically exclude part of their electorate. Holder, S. The majority opinion quoted the entire text of the Tenth Amendment, but left popular sovereignty out of its analysis. Ashcroft, U. Pending now before the Court is a case concerning partisan gerrymandering, which is at its heart about the ability of the people to properly be heard.
Without recognizing the structural role of the people, the Court will likely focus on the judicial utility of formulas rather than the adequate and appropriate function of powers as they would if this were a federalism case. Gill, F. The final words of the Tenth Amendment are a structural protection for the democratic part of our democracy. Through judicial review, the courts should rely on the Tenth Amendment to robustly protect the power of the people to independently exercise our fundamental sovereign power to choose our government.
Courts could look directly at questions of voter access and prevent the states and the federal government from eroding voter access when it suits them.
The Tenth Amendment guards the exclusive right of the collective American population to choose their government unencumbered. The Constitution protects the independent and free exercise of democracy.
Rather than fight a legal battle over the burdens on individual rights, courts would police the boundary surrounding the free exercise of voting powers from interference by states or the federal government.
Instead of going to court over specific prohibitions on certain voting laws, litigants could challenge whether any voting laws appropriately accommodate and preserve popular sovereignty—that is, whether they actually work to protect voters and increase voter access. It is not merely the rights of individuals, but the sovereignty of the people that is denied by discriminatory voting laws, and it is through the constitutional protection of that sovereignty that courts should be required to strike those laws down.
Though ensuring that such actors maximize voter participation would be hard to ensure, it is likely that gross negligence would land the government action at issue in court, and thus be policed by the same mechanism discussed in more detail throughout. No government should set the rules by which it retains power. Voting should be accessible to the people 35 See, e. Post Mar. Times Oct. Post Nov. Turnout is low at least in part because Americans have accepted this reality: that our government can make voting hard—or at least prohibitively inconvenient—for the people, and that the people will, en masse, not participate.
While the Constitution explicitly forbids denying the right to vote for specific reasons, 40 U. State Bd. The Tenth Amendment could provide the basis for a more robust protection of voting rights as exercise of sovereign power that demands aggressive judicial defense. This Article proceeds in four parts. Part I begins with a history of sovereignty and federalism in American law, specifically the cases involving the Tenth Amendment. In light of this disagreement, I emphasize the need for a textualist reading that reflects the words of the Tenth Amendment as enacted.
Before the s, popular sovereignty was at least sporadically mentioned along with state and federal sovereignty. Comstock, U. Next, I describe how the text of the Tenth Amendment and the rest of the Constitution clearly define and protect a distinct sphere of powers forbidden to the states and federal government—powers that necessarily remain with the people.
I then return to the text of the Constitution—specifically the explicit limits on federal and state powers—to highlight a few of the powers the Constitution implies the people share with their government or retain exclusively.
In Part III, I show how overlapping and dependent sovereignty should not be as innovative or challenging to implement as one might otherwise presume, since it has long been recognized in western political philosophy and in even other parts of American law, specifically, in federal Indian law. The acknowledgement of overlapping sovereignty and development of accommodation doctrine in Comstock represents a long overdue evolution in the understanding of sovereignty in American constitutional law.
In America, popular sovereignty is central to the narrative we tell about our founding. American popular sovereignty has.
Sometimes the people in a body makes the laws as at Athens; sometimes deputies whom universal suffrage has created represent it and act in its name under its almost immediate surveillance. Yet, there are those who doubt whether or not—behind all of this outward celebration and rhetoric—the American people really do have power over our government and if the framers ever understood the Constitution as preserving us power at all. This Part traces the history of these debates about the power of the people, and the distribution of powers between the federal government, the states, and the people.
Vile, Truism, Tautology or Vital Principle? Darby, 27 Cumb. This historical overview proceeds in four sections. The second Section evaluates early case law, showing that the Court not only considered, but highly regarded, popular sovereignty along with federal and state sovereignty. The final Section covers the period of time when the Court considered the Tenth Amendment a mere truism until it was reinvigorated as a state sovereignty protection.
I argue that the powers of the people were left out of this reinvigoration for more contextual than substantive reasons, and so there is no definitive barrier to their inclusion now. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority. We, the people, were the source of law for the Constitution. Our consent was necessary to found our Republic and is continually necessary to keep it afloat.
See Lash, supra note 4, at Therefore, the starting point for our discussion of popular sovereignty must not be whether or not popular sovereignty is possible, but why it has become a concept so foreign and challenging to constitutional law practitioners. It should not be farfetched to imagine that the people who had overthrown the tyranny of power concentrated in too few hands would leave enough power for themselves to make sure their government continued to serve and protect their interests.
They perceive that among most peoples of the world, the exercise of the rights of sovereignty tends to be concentrated in a few hands and they are frightened at the idea that in the end it will be so with them. Popular sovereignty and the rights of the people were undoubtedly a concern, 52 Christian G. Leading up to the adoption of what became the Ninth and Tenth Amendments was a robust debate about the rights and powers of the people, states, and federal government.
This addition would not have come up unless enough people felt it necessary to add language that confirmed that there must be some powers reserved to the people that belong neither to the federal nor to the state governments. It is unlikely that a specific addition such as this served no purpose. Some have even argued that the addition of these four words to the Tenth Amendment was a unique departure of the American Constitution—an unfathomable and brave answer to the problem of pluralism and the limits of governmental sovereignty.
As the constituent authority in the state, the people laid down the fundamental law of the constitution and could intervene to maintain the constitutional order. Here was the underlying issue between the Americans and the British which emerged in the course of the long controversy leading to independence.
Their great and unbridgeable disagreement was over the location of this ultimate authority. To appeal to this superior authority against transgressions of the fundamental law did not disrupt the social order or send society back into the state of nature but rather called into action the sovereign law-making power, the people. The existence of such a continuing constituent sovereignty made natural federalism possible. Regardless of whether or not the Tenth Amendment was an innovative recognition of popular sovereignty, it is generally an amendment intended to stand guard against the encroachment of federal powers.
One of the first arguments about the meaning of text of the Tenth Amendment is, of course, the discussion of the existence of unenumerated powers in the seminal case McCulloch v. Maryland, 17 U. However, even in this famous and foundational debate about the best originalist meaning of the Tenth Amendment, there is no consensus. One addition made it in but the other did not, and all within the context of disagreement at the founding.
So, what are we to do with this window into history? Is there a clear and binding original understanding we can look to for guidance when interpreting the Tenth Amendment? It would seem not. Although American culture has in many ways canonized our founding fathers and deified our founding principles, our origin story included fierce debates between men with competing agendas and ideologies.
The writing and ratification of our Constitution was neither easy nor inevitable. Some scholars describe ratification as a subversive accomplishment by our federalist founders, who had veiled anti-populist agendas.
Schambra eds. Many agree that the antifederalist charge that the new Constitution established a federal government insulated from the people and under the direct influence of a new aristocracy was not far off base. The federalists did not trust that the people were competent to decide their own destinies. In the moment of its conception, a diverse group of brilliant legal thinkers were unable to interpret these words as having a common understanding.
Our founding is inescapably a story about the consent of the governed. Even if some of the federalist framers hoped that the structure of their government would circumvent the will of the people, they would undoubtedly be disappointed. The people were either convinced to ratify—or at least did not again rebel to overthrow—the Constitution because of a grand and effective piece of rhetoric employed by the federalists: popular sovereignty. Even if the founders were anti-populist and anti-democratic, as some scholars suggest, 69 See, e.
However, the meaning of this popular ratification process was to create the constitutional value that the citizens of United States of America—now a larger body—were given the power to create or reject, and to always continually oversee their government.
As such this necessary support is not the votes needed for ratification, but the acquiescence necessary to prevent another revolution. And in that lie—if it was indeed a lie—they put weight in the consent of the governed and enshrined popular sovereignty and democracy as the value that has won the day in our contemporary understanding of our founding. Popular sovereignty is now a constitutional value that colors the entire founding document, as it should.
In this way we are haunted and always kept in check by their grand and effective rhetoric. It is only proper that we accept our Constitution as a document protecting popular sovereignty, the belief of countless Americans who played no role in the ratifying debates but read the Constitution in its plain text as a document focused on them.
It is that interpretation, and only that interpretation, that passes muster. As many textualists have argued in the context of statutory interpretation, the document whose letter becomes the law is often a messy reflection of compromise more than it is a representation of a singular discernable will of a collective congress.
Manning, What Divides Textualists from Purposivists? Even if we do not read into the Constitution the populist ideology that accomplished its ratification, we must not read it out in favor of an anti-populist interpretation that would belie the process. At best, the text of our Constitution has multiple readings to reflect the compromises between conflicting readings, intentions, and understandings.
Given the lack of consensus in scholarship about the original understanding of the Tenth Amendment, a textual reading of the Tenth Amendment is needed, and more than adequate to reinvigorate popular sovereignty. Butler, U. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. We should take insights from contract law and statutory interpretation to discover a constitutional textualism that embodies this perfect, delicate, and necessary compromise between the federalists, the anti-federalists, and the people.
We have a founding document that can be construed in different ways because it needed to be—and was—even as it was written. For the first one hundred and fifty years of the Republic, the Supreme Court debated the meaning of the reserved powers in the Tenth Amendment, all the while acknowledging popular sovereignty.
In what is widely viewed as the first significant Supreme Court case on the delineation of sovereignty, Chisholm v. Georgia , 75 2 U. The opinions of Chief Justice John Jay—one of the original authors of the federalist papers—and Justice James Wilson—a member of the committee of detail which selected the words of the Constitution at the Philadelphia Convention—both expounded on popular sovereignty.
In both of their discussions, there is an indication that the people as a collective were still powerful actors in the Constitution, and that they held powers that were separate from the states. This meant that the people, when ratifying the Constitution, not only guarded the power they gave to the federal government and retained over it, but the power they gave and retained over states as well.
Since both governments were republican and so both have a relationship of subservience to the power of the people, the states did not, nor could not, subsume all the powers of the people. Nearly fifty years later, in Martin v. The first Supreme Court Justice to explicitly acknowledge the popular sovereignty enshrined within the Tenth Amendment was Justice Taney, who did so in his final opinion before his death.
In Gordon v. United States , 85 U. Justice Taney declared that the Tenth Amendment was a strict limit upon the federal government that prevented it from encroaching on the pre-constitutional sovereign powers of the states or the people. He further suggested that if the federal government did so encroach, it is the responsibility of the Court to strike down such laws.
Concurring in United States ex rel. Turner v. Williams , 88 U. He suggested that, either contrary or in addition to the existing ratification procedures in Article V, the people as a collective—and not merely their representative governments—must act directly in order to grant any more powers to their expanding governments. However, this idea of direct action by the people to redefine the limits of their delegated sovereignty—via constitutional amendment at least—did not live long.
Sprague 91 U. Rather, that power had been previously delegated to Congress and their state conventions through the process set up Article V. A general principle that Sprague suggests is that once delegated, the powers of the people may not be taken back, other than through the process of amending the document that delegated that power.
As a specific rule it also suggests that the power to amend the Constitution is just such a delegated power. That means that the sovereignty of the people remains as the original source of authority and continued government legitimacy, but that the people cannot be a supreme sovereign authority in a true sense because they have been limited by their own delegation.
Unless of course, they decided to destroy and remake the entire government, in which case such authority must be beyond reproach. In Missouri v. Holland , 93 U. Justice Holmes suggested that in competing state and governmental powers, there was a substantive difference in these realms of power that ought to define their proper separation. He argued that in the realm of traditional state power, the Tenth Amendment might be a limit on federal power.
However, even in this realm of traditional state power, there was a balancing test that involved weighing the competing interests. He went on to decide the case based on the height of federal interest compared to the transitory nature of the state interest. In the case United States v. Butler , 95 U. Finally, rather than a normative question about constitutional meaning, the Tenth Amendment made the delineation of sovereign powers a question of constitutional textual interpretation. In summary, for the first few hundred years, the Court continually affirmed the existence of popular sovereignty within the Constitution, only debating its extent when compared to the other sovereign powers held by the federal and state governments.
However, the people dropped out of the equation, as the next Section will discuss, as the Court began considering the Tenth Amendment as a battleground for debating the lines between state and federal power. Following United States v. Butler , the size of the federal government drastically changed in the early twentieth century.
Until the s, no one assumed that the Tenth Amendment could be an enforceable limit on national power. This is in large part because of the case United States v. Darby , U. Darby Lumber claimed that this regulation infringed on state sovereignty in violation of the Tenth Amendment. In response to this Tenth Amendment claim, the Court stated with decisive language that:.
The [Tenth] amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.
Called empty by the Court, Darby for a time eliminated the potential power of the Tenth Amendment as a basis for declaring federal or state laws unconstitutional. It was over thirty years before the Court would reconsider this reading of the Tenth Amendment. Although the Court did not find that the federal wage and salary controls at issue in Fry v.
United States U. The next year, in National League of Cities v. Usery , U. United States Id. In a scathing dissent, Justice Brennan criticized the Court for both its departure from precedent, Id.
San Antonio Metropolitan Transit Authority. San Antonio Metro. Transit Auth. In Garcia , the Court took a weak reading of the Tenth Amendment, arguing instead that the structural balance of powers protections built into the rest of the Constitution sufficiently delineated state and federal powers—and protected their interests from encroachment—without the Tenth Amendment. Specifically, political safeguards built into the representative structure of the Constitution would protect federalism concerns.
Baker, U. The will of the people would emerge through state lawmaking and be protected by their federal representatives who would protect the interests of their states as much as the federal government as a whole.
Miami L. Once again—as Justice Powell noted in his dissent—the Tenth Amendment had no power. The Tenth Amendment served the purpose of making sure that in addition to the limits in the rest of the Constitution, the federal government did not touch what always belonged to the states. This particularly edited version—omitting the portion of the Tenth Amendment which discusses the powers prohibited to the states, and the powers reserved to the people—is the one that subsequently gained momentum.
This selective reading, in effect, recasts the Tenth Amendment as exclusively a protection of retained state sovereignty. The idea that kings could be held accountable for abusing the rights of people had firmly taken root.
The competing belief—that rulers could run a country because they had been born to a family of kings, or because the head of a church approved them—was fading. Philosophers had begun to ask what makes a government good and just. They wrote that governments come into being because people are willing to give up some of their natural freedom in exchange for the protection that comes from being citizens of a nation powerful enough to defend their rights.
These were revolutionary ideas. They meant that the job of a just ruler was to protect the inalienable rights of citizens. The American Founders believed there was an unwritten contract between rulers and the people. If a ruler violates this contract by taking more freedom from people than is necessary to protect their rights, then the citizens are justified in seeking to overthrow such a ruler.
At the same time, these thinkers did not believe that putting everything to a vote of the masses would make for a good government. In Federalist No.
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