A seat on the Supreme Court is vacant. This means a season of idolatrous praise for the Constitution. We can expect the expression of a demanded fealty to our founding document. We may not ever say that the Constitution has the status of Holy Writ, but we know that it comes darn close. And just as we often hear the Bible’s initial words recited, we can expect to repeatedly hear the Constitution’s beginning passage: “We, the People of the United States, . . . do ordain and establish the Constitution of the United States of America.” Even though we hear these words, we don’t often consider who the People are in “We, the People of the United States.”
We, the People of the United States do ordain” announced a radical concept. The “People” were creating a government. Elsewhere sovereignty resided in God-ordained rulers. In a momentous change, the Constitution rejected that. The People in adopting the Constitution were now the sovereigns, and the Constitution came to be seen as (nearly) God-ordained. The constitutional scholar Edward S. Corwin noted in The “Higher Law” Background of American Constitutional Law: “The Reformation superseded an infallible Pope with an infallible Bible; the American Revolution replaced the sway of a king with that of a document.” Under the Constitution, power would not run from the top down, but from the People up. The government did not have inherent powers or ones given by a god; instead, the government would only have the powers granted by the People.
The radicalism behind “We, the People” had already been announced in the Declaration of Independence: “We hold these Truths to be self-evident, that all Men are created equal with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness—That to secure these Rights, Governments are instituted among Men, deriving their Just Powers from the Consent of the Governed. . . .” Rights were not granted to the people by the government; instead, rights were embedded in the individuals forming a society. The People do not exist to serve a sovereign monarch or government; instead, the government exists to serve the People.
This was radical stuff. Today we may point out the voting restrictions that existed in eighteenth century America to denigrate its limited notion of the People, but still “We, the People of the United States” was announcing a new concept in sovereignty, one that we feel still exists. Now women can vote and hold office; African-Americans can vote and hold office; people without real property can vote and hold office. We believe that our government now even more fulfills the promise of “We, the People of the United States” than it did in 1787. But our self-congratulatory pronouncements seldom truly examine whether “We, the People of the United States” of the twenty-first century have sovereignty. In important ways, the sovereign over our present country are not the People of today but the People of 1787.
The people of 1787 chose the government as defined in the Constitution. In 1787, the majority of the delegates to the state conventions controlled whether a state assented to the proposed Constitution. Since all the states adopted the Constitution, we can say that the People of the United States–as represented by a majority of the voters–formed the country.
But have the present People of the United States truly chosen this form of government? What have you done to select it? If you are like me, the answer is “nothing.” I was born into it. I suppose I could reject the government by becoming a citizen of another country, but I have taken no action to choose it. In some sense, only naturalized citizens have affirmatively chosen our government, and perhaps that is why they should be seen as more American than the rest of us. I live under a Constitution that the People of the eighteenth century and naturalized citizens have opted for, but not one chosen by the majority of Americans of today.
Perhaps we can say that present Americans choose the Constitution by not changing it. If we aren’t satisfied with it, we can amend it as Americans have done twenty-seven times. But can the People really modify the Constitution? It cannot be changed by a majority or even by a straightforward supermajority today. A tiny fraction of our citizens can prevent any amendment. That is because the People of 1787 chose a restrictive amendment process that prevents the People of the United States of future generations from truly governing themselves.
A constitutional amendment is proposed only if two-thirds of each House of Congress votes for it (or if it comes from a convention called for by two-thirds of the states for the purpose of proposing amendments, which has never happened.) The proposal becomes part of the Constitution only if it is approved by three-quarters of the states, with each state having one vote. Wyoming has one vote as does California, even though California’s population is sixty times greater than Wyoming’s. The nine largest states have a majority of this country’s citizens, but these people cannot control this amendment process. The sixteen largest states contain about two-thirds of the population, and the twenty-two most populated have about three-fourths of all Americans, but those twenty-two don’t even comprise a majority of the states, much less the three-quarters that are needed for an amendment.
When it comes to amending the Constitution, a Wyoming voter in effect counts as much as sixty California voters. Is that government by the People of the United States? Can we really say that the People of today control the process when a tiny fraction of the populace can prevent an amendment? Can we really say that the People have consented to the Constitution by not changing it? Isn’t it more accurate to say that the People of 1787 have forced an amendment process on us that prevents the People of today from being truly sovereign? And thus, at least in this instance, “We the People of the United States” means the People of 1787 are our sovereigns.
(Continued on July 18)