The American Revolution marked a departure in the concept of popular sovereignty as it had been discussed and employed in the European historical context. With their Revolution, Americans substituted the sovereignty in the person of the English king, George III, with a collective sovereign—composed of the people. Henceforth, American revolutionaries by and large agreed and were committed to the principle that governments were legitimate only if they rested on popular sovereignty – that is, the sovereignty of the people.^[1] In 18th century American political thought, “the people” excluded most of the population, such as women, African Americans, those lacking sufficient property, Native Americans, and children.^[2]

This idea that the people were the sovereign—often linked with the notion of the consent of the governed—was not invented by the American revolutionaries. Rather, the consent of the governed and the idea of the people as a sovereign had clear 17th and 18th century intellectual roots in English history.^[3] The American contribution lay in what Americans did with the idea that the people were the sovereign—how they struggled with and put that idea into practice. Before the American Revolution, few examples existed of a people deliberately creating their own governments. Most people in the world experienced governments as an inheritance—whether monarchies or expressions of raw power.^[4] What underscored the excitement surrounding the creation of constitutions establishing governments in America after Independence was the fact that Americans deliberately and self-consciously created governments at one single moment explicitly relying on the authority of the sovereignty of the people (or “popular sovereignty”). Having relied upon the people as the collective sovereign to establish their first state constitutions (and later the Federal constitution), numerous questions remained for Americans to answer. What did a collective sovereign mean? How did one recognize the voice or expression of that collective sovereign and in what ways could that collective sovereign act? Americans struggled and contested over the answers to these questions from the time they declared Independence to the eve of the Civil War. During this period the idea of the people as the sovereign both unified and divided Americans in thinking about government and the basis of the Union.^[5] Historian Ronald Formisano notes that "assertions of the peoples' sovereignty over time contained an unintended dynamic of raising popular expectations for a greater degree of popular participation and that the peoples' will be satisfied." ^[6]

[edit] American usage of the term “popular sovereignty”

The doctrine known today as “popular sovereignty” was rooted in the American Revolutionary belief that a whole people, rather than a monarch or single individual, could serve as the sovereign of the nation. This was a matter of common agreement in America after the Revolution. As noted by legal historian Christian G. Fritz in American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, both before and after the Revolution, Americans believed “that the people in a republic, like a king in a monarchy, exercised plenary authority as the sovereign. This interpretation persisted from the revolutionary period up to the Civil War.” ^[7] However as wide spread as this belief in the power of the people was, Americans infrequently used the term “popular sovereignty" to describe the idea.^[8] Rather, in expressing this founding concept of rule by the people, they described how “the people” would exercise sovereignty in America and that American government would reflect the “sovereignty of the people.” Use of the actual term “popular sovereignty” was infrequent before the 1840s.

[edit] Emergence of the term “popular sovereignty” and its pejorative connotation

In 1846, as the dispute over slavery in the United States developed in the wake of the Mexican-American War, the use of the term “popular sovereignty” began to gain currency as a method to resolve the status of slavery in the country. The war ended with the United States acquisition of lands once held by Mexico.^[9] The effort to incorporate these lands into the United States uncovered long-simmering disputes about the extension of slavery – whether slavery would be permitted, protected, abolished, or perpetuated in these newly acquired areas.^[10] (However, it should be noted that the majority of Northern states did so in order to obtain a Congressional majority, while actual abolitionists were a distinct minority). Congressional attempts to resolve this issue led to gridlock. Several congressional leaders, in an effort to resolve the “deadlock” over slavery as a term or condition for admission or administration of the territories, searched for a “middle ground.” ^[11]

Some moderates asserted that slavery in the territories was not a matter for Congress to resolve. Rather, they argued, the people in each territory, like the people in each American state, were the sovereigns thereof, and as that sovereign they could determine the status of slavery for themselves.^[12] In this way, the term “popular sovereignty” became part of the rhetoric for leaving it up to residents of the American territories (and not Congress) to decide whether or not to accept or reject slavery. In essence, this also left it up to the people of the territories to resolve the controversy over expansion of slavery in the United States. This formed a “middle ground” between proponents of an outright limitation on slavery’s spread to the territories and those opposing limitation. The idea tied into the widespread assumption of Americans that the people were the sovereign.^[13]

As explained by historian Michael Morrison, the “idea of local self-determination, or, as it would become known, popular sovereignty” began to occupy the attention of members of Congress in 1846 and 1847.^[14] In modern historiography, Illinois U.S. Senator Stephen A. Douglas is most closely associated with the idea of popular sovereignty as a solution to the issue of the extension of slavery in the territories.^[15] Douglas’s biographer, the historian Robert W. Johannsen, observed that Douglas was “chairman of the Committee on Territories in both the House and Senate, and he discharged the responsibilities of his position with single-minded devotion…. During the debates over the organization of the Mexican Cession, Douglas evolved his doctrine of popular sovereignty, and from that time on it was irrevocably linked to his interest in the territories and in the West. His commitment to popular sovereignty was the deeper because he recognized in it a formula that would (he hoped) bridge the differences between the North and South on the slavery question, thus preserving the Union.…”^[16]

The term “popular sovereignty” was not coined by Senator Douglas. Rather, in connection with slavery in the territories, the term was first used by presidential candidate and Michigan U.S. Senator Lewis Cass in his "Nicholson Letter" of 1847.^[17] But the term “popular sovereignty” is now closely tied to Douglas’s legacy. Ultimately, the connection of the doctrine of popular sovereignty with the failed attempt to accommodate slavery gives rise to its pejorative connotation today. Douglas “ultimately became the victim of the very politics he sought to remove from territorial policy” by advancing the idea of popular sovereignty. “His efforts were not judged in terms of their impact on the needs and desires of the territories … rather they were appraised in terms of their relation to the power struggle between North and South and to the issue of slavery. Despite Douglas’s intentions, the territories continued to be but pawns in a larger political controversy.”^[18]

[edit] Failure and survival of the idea that the people were the American sovereign

The failure of popular sovereignty to avert the Civil War lent the term its now-pejorative connotation. But it is clear that the essence of the idea—that in America the people are the sovereign whose written constitution grants and guides the legitimate exercise of government authority—continued to have appeal and continued to play a role in the development of American constitutional history, theory and jurisprudence. As noted in legal historian Christian G. Fritz’s recent study of how the idea of the people as the sovereign both unified and divided Americans in thinking about government and the basis of the Union:

[T]he constitutional melt-down of the Civil War, while significantly altering the terms of constitutional debate, did not banish the idea that the people were the sovereign. After the war just as before it, the argument that the national government now exercised the sovereignty the people once held was challenged as inconsistent with the constitutional legacy of the Revolution. Today, we may well have lost a sense of how a collective sovereign could rule. For many Americans before the Civil War, however, it seemed a very real possibility.

—^[19]

Hence, current policy holds government as the sovereign, despite that the written law holds it to be the people of the individual states.

[edit] Notes