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32 thoughts on “What were they thinking? pg 8

  1. Librarian said:

    So the people are king.

    • Not quite.

      A king is a ruler, the boss of his subjects. He rules his subjects. “We the people” are neither rulers nor subjects, but citizens.

      Sovereignty is about the authority that a government has to govern. Back then, if you were a king or an emperor or a warlord, that authority came from the fact that you were the guy wearing the crown and wielding the army. Your legitimacy may have come from military victory, or tradition, or religion; but you were sovereign because of the fact that you had the power.

      England had modernized the idea to say it wasn’t the person who had the authority, but rather the institution. Fundamentally, though, it was still the same tautology: parliament was sovereign because it was in charge.

      The big change in the Constitution was the idea that the government’s authority didn’t come from the fact that it was governing, but rather that it was delegated from the citizens being governed. The ultimate authority came from the population. Not from individuals, mind you, but from the collective whole.

      It was more than just “government by the consent of the governed.” That saying’s about legitimacy, not sovereignty. This was much more. It was truly government “of the people, by the people, and for the people,” as Lincoln phrased it in his Gettysburg address. Even the other democracies of history had still been imposed by a lawgiver. This wasn’t imposed by anyone, but framed by representatives of the people, submitted to popular consideration and debate, and it would stand or fall by the people’s vote. The magnitude and importance of this was well understood by everyone involved, and was still a powerful idea to Lincoln’s audience three quarters of a century later.

      In the most important respects, you might say that the people were now the opposite of a king. In fact, I think if you’d suggested to any citizen at the time that the people were “king,” you’d have gotten a bloody nose.

  2. Mike Cody said:

    The people as rulers of the people, what novel concept. Shame it did not last, however.

      • amaROenuZ said:

        That’s…that’s pretty retro Nathan. Doge’s been out of the limelight for years.

        • Jeff B said:

          Can verify:

          “On June 9th, 2014, the official Republican National Committee Twitter feed posted a Doge image macro mocking Bill and Hillary Clinton. The same day, the official Democratic Party Twitter feed replied to the tweet mocking the use of Doge as being “as dated as your policies” (shown below).”


          (That said, it’s always been a favorite of mine, so I’ll allow it.)

      • Jeff B said:

        I’m not sure if increased meme dankness (dankosity?) would improve or worsen the quality of most legal discussions. But I’m eager to see the controlled experiment.

        • Depends on the issue. The dancing baby and the bukket walrus probably don’t have equivalent applications.

          • Jeff B said:

            Well, now I HAVE to do this.

  3. David Argall said:

    “We, the people,…” makes for nice propaganda, but no, it was not the people, or even the white males, who established the country. That was the decisions of the individual states. [The point that the Constitution was ratified by conventions rather than by legislatures is also only a propaganda point. The legislatures had to call the conventions, thus giving their approval, and the reason for conventions was tactical, avoiding many opponents and other difficulties that way, rather than based on any principle that set people over legislature.]

    • Librarian said:

      “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish, and declare, That these United Colonies are, and of Right, ought to be Free, and Independent States.”

      Sounds to me like it was under the “Authority of the good people of these Colonies” that independence arose, without disparaging the Legislatures of the several Colonies. Propaganda or not, the legal effect should be the same for the words used, IMO; that The People were set over the Legislatures forever.

      • Gregory T Bogosian said:

        But what does the people being set over the legislatures mean in practice? It doesn’t mean the right to elect our leaders, we already had that through the several states, at least the land owners did. It doesn’t mean the right to propose and ratify initiatives or any other form of direct democracy. The U.S. constitution has no passages allowing direct democracy. It doesn’t mean the right to overthrow the government and start over with a new constitution. The civil war is a very clear precedent showing that there is no right to cessation or insurrection.

        • Librarian said:

          Conquerors get to make the rules. Civil war didn’t work because, unlike the Revolution, the seceding side lost. The Principles in the Declaration of independence however, should still rule, if you take the threat of overwhelming force out of the opposing side. Minus a tyranny, the right is unnecessary, and with a tyranny, the right is an imperative duty for all men, regardless of the ultimate outcome. “The only thing necessary for the triumph of evil, is that good men to do nothing.”

          • Gregory T Bogosian said:

            Doesn’t that imply that whoever has overwhelming force is the de facto leader of the realm? So the people being set over the legislature is meaningless because the side that wins the war still makes the rules so might still makes right.

            • Librarian said:

              Obviously. De facto is de facto. And might will always make “right” as long as it can terrify a people into submission.

              Hence why the Constitution never permitted for a standing army. Hence why the people were meant to be the militia. Hence why were are in the straights we are today. Hence why people need to stop fearing and do what is actually right instead of what is de facto right. Regardless of the consequences.

              “Let justice be done, though the heavens fall.”
              (My favorite legal maxim)

      • ASDF said:

        How did they claim to represent the people? It’s not like they were elected, and a majority did not support independence at the time.

  4. Raen said:

    Ah, the birth of a Brexit.

    • Gregory T Bogosian said:

      Just the opposite of Brexit. Brexit was the inhabitants of a sovereign nation declaring the wish to leave an alliance. This was an alliance of sovereign nations uniting to form a new nation. The EU equivalent would be if all the member states surrendered sovereignty to the European Parliament.

  5. James Weaver said:

    The People of the Roman Republic were considered co-sovereign with the Senate. Of course in the Roman Republic the People were actually the legislature, and the Senate was a purely advisory body, so it doesn’t really resemble a modern society at all.

  6. The British Parliament agrees that sovereignty begins with the people en mass, they just asserted that they _represented_ the people. From their point of view representing a six week old baby (who can’t vote to this day), or an American colonist (who was not permitted to vote) was no trickier a feat of mental gymnastics than representing a poor Englishman (who also couldn’t vote back then).

    The same trick is done by Congress, most American citizens don’t vote (many can’t, some just don’t bother), but Congress considers that it represents all of them anyway. This is of course particularly evident if you live in the District itself…

    • That’s not sovereignty, but representation. Parliament’s sovereignty is not conferred, but rather inherent in Parliament. It represents the people, but its authority to do so is its own, legitimized first by its wresting power from the monarch, and legitimized now by its continued exercise of sovereignty unchallenged ever since.

      • Furslid said:

        The problem with that distinction is that the people in an abstract whole can’t speak. Because of this the people can’t exercise sovereignty. Only some individual or group claiming to represent the people can exercise sovereignty. It seems to me that whatever group exercises sovereignty is sovereign, be it the king, parliament, congress, or whatever.

        What differences would I observe between worlds where the US people are sovereign and the US government is sovereign.

        • UsaSatsui said:

          If you don’t think “the people” can speak, you haven’t been paying attention.

          It’s more a philosophical idea than a legal one – instead of claiming the right to rule from divine providence or simply as rulers, we claim it is granted from the citizens. In practice, if we claimed some other source of sovereignty, I’m sure we’d come up with pretty much the same government. But the idea of “We the People” is important, because it’s a huge defining aspect of American culture.

          • Furslid said:

            I’ve seen lots of persons speaking. That’s different than “the people” speaking.

            • UsaSatsui said:

              Haven’t heard them talk about the 99%, the Tea Party, Black Lives Matter? That’s just 3 in recent memory off the top of my head.

  7. Michael Smith said:

    Um… while this is a lovely patriotic sentiment, Nathan, I fear that your historical knowledge isn’t quite as broad as your legal knowledge. Athenian democracy, as established some 2000 odd years prior to America, was explicitly by and from the people just as much as American democracy was at the time of the Constitution – possibly more so, in as much as a much larger percentage of the public was directly involved in the government. It wasn’t by any means as democratic as America *today* – voting was property owning men only – but that was the case for America at the time too. And the power of the Athenian government at the time was, very definitely, from the people.

    It seems disappointingly common for American schools to teach that America is the founder and inventor of democracy, and to either dismiss or just quietly leave out the several millenia of progress on which your country was built in favour of a myth of American exceptionalism, that the Founding Fathers were such unique paragons of righteousness that they forged democracy out of thin air.

    But it’s not true. ‘Never before in history had that ever been the case’ ignores… well, not just the Athenians, and the Magna Carta, but the Althing of Iceland, the explicit instructions in the Quran that Muslims should make major decisions by democratic vote, the Polish and Russian veche, and plenty more decision making processes that all derived their authorities directly from the populace, not from any king or warlord, or from the institution (many of the things I’ve cited above could in no way be considered a separate institution in which power could be vested, even as far as the English Parliament is, and I do feel the distinction you’re drawing there is very much splitting hairs in the first place). “The ultimate authority came from the population. Not from individuals, mind you, but from the collective whole.” is a statement that could apply to any of them just as easily as to that first Congress, and the idea that they were all “imposed” from above by a king, warlord or however you mean the word “lawgiver”… well, it’s just not true in the slightest.

    I’m sorry to interrupt your otherwise extremely nice comic with a long historian’s rant, but this is a depressingly common attitude among Americans and I don’t like to see something that I’ve found extremely interesting and informative otherwise peddling ahistorical ‘American exceptionalism’.

    • Athenian democracy . . . was explicitly by and from the people just as much as American democracy was…

      Not true. Athenian democracy was imposed from above, whereas the American Constitution stood or fell by popular vote of those who would live under it. The people of Athens and the other historical democracies didn’t come together and decide to have a democracy. The boss aristocrat told them this was the way it was gonna be.

      Nor is anyone saying that America is the founder and inventor of democracy. The founders themselves, as well as their opponents, were well versed in the democracy of Athens and the republic of Rome (as well as the important difference between a democracy and a representative republic), and in fact their views on the classical tradition underlay much of their debate. They had fought for independence precisely to secure to themselves the rights of Englishmen that had evolved since Magna Carta (see my earlier historical section on the development of the right against self-incrimination). Beyond the classical and English representational governments, there were also the democratic cantons of Switzerland and other institutions requiring popular say.

      One thing that was novel was the fact that this republic would span so many different populations. The only democracies that had ever worked worked precisely because they were small populations with common mores and beliefs. Even the Roman Republic was quite homogeneous. But the republic proposed for America would incorporate dramatically different populations from each of the various former colonies, whose mores and beliefs and goals were not only different but even at odds with each other.

      You’ve missed my point. The idea is not that America invented democracy, but that that the form of government itself would be decided by the people. That truly had never happened before. Every other democracy had been imposed by lawgivers, rather than adopted by popular vote.

      You’ve also missed the point on sovereignty. Having a vote isn’t sovereignty. And the idea that sovereignty would now actually lie in the people rather than the ruler or institutions was also completely new.

      But as someone who regularly interrupts his own comic with long historian’s rants, I welcome them from others. No need to apologize.

    • “Winners write history…”

      And the distinction Nathan clearly makes (I thought) is that “the people” made the decision to be a representative democracy, and not a ruler, as was the case in Athens. If you want to split hairs, the better argument is if the USA is a democracy or a republic and what that means. We’ve been trying to figure it our for over 200 years and still haven’t done so…

      Or, is a democracy even practical now that nation states have grown so large? If we want to look at a “true” democracy, we only need look at California and its multiple Propositions. Do we really want that type of governance as a model? Do we want mob rule?

    • Kereth Midknight said:

      I’ll agree that this at least skirts a lot of claims that could be problematic, from “American invented -real- democracy” (hardly) to “popular sovereignty as a political theory was invented at this meeting” (couple centuries too late), but it also skirts some fairly accurate ones.

      As I understand it, we’re talking about the political theory of popular sovereignty and a government formally paying lip-service thereto (whether it truly happened, or indeed ever has or will truly happen, is open for debate). Undoubtedly, Greek and early Rome had a form of popular sovereignty, but the theory wasn’t codified until at least the 17th century or so and was tied up pretty hard in notions of modernity, being based on conceptions of the state that differed markedly from the Greek notion of the polis. Athenian thinkers weren’t promoting their government as a form of empowerment of the masses (and many actually thought it was bunk and a way for the poor to take advantage of the rich).

      Yes, the American constitution was really just a small step on existing historic precedent, but the step as described above (formally acknowledging popular sovereignty) is a pretty significant part of that step. They didn’t invent the concept, but they made more of an effort to use it than was precedented.

  8. UsaSatsui said:

    I think people are missing the point. The new idea isn’t that the government serves the interests of the people, or represents the people as chosen by voters, or even that the government functions with the consent of the people. The idea is that the legitimacy of the government, their “right to govern”, was derived form the citizens. Not from the military, not from lineage, not from God, not from simply having been in charge. We the People give the government the right to govern.

    It’s more of a philosophical shift than anything that has any legal meaning. If the preamble declared “We the Congress” or “We the United States”, we’d probably have the same government. But simply the idea that the people are in charge of the government, and not the other way around, was a unique idea at the time, and remains a uniquely American ideal (even if we don’t put it into practice nearly as often as we should…)

    • UsaSatsui said:

      (and if I’m off base, Nathan, please correct me)

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