Sunday, January 05, 2014


Mark Graber

Over the break, I had the privilege of rereading, Christian G. Fritz, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR (Cambridge, 2008). Fritz’s book is a must read for anyone interested in American constitutional history, development, politics and law (i.e., political scientists, historians and law professors, as well as their students).  The work focuses on the contested meaning of “popular sovereignty” during the first 80 years of the American constitutional experience.  Most discussions of popular sovereignty focus on Federalists, who while agreeing that legitimate government was rooted in the consent of the people, made best efforts to prevent an unmediated popular will from having any influence on actual governance.  The heroes of AMERICAN SOVEREIGNS, by comparison, are a collection of largely forgotten Americans, who sought to place the commitment to popular sovereignty at the heart of the American constitutional experience.

AMERICAN SOVEREIGNS is particularly valuable for rediscovering vital conflicts in American constitutional history and revising our understanding of others.  A few scholars are aware of the successful struggles Vermont and Kentucky waged for statehood.  Hardly anyone remembers the way the leaders of proposed states of Franklin and Transylvania insisted that the principles of the Declaration of Independence justified granting their separate status to their regions.   Turns out more than one people in American history has issued a declaration of independence.   Fritz tells the stories of Shay’s Rebellion, the Whiskey Rebellion, and the Dorr Rebellion, but with far more attention to the populist principles that animated the rebels than is included in histories written by the Federalist victors.  By doing so, he brings back both politics and coercion to the study of the establishment of constitutional norms.  His work pays careful attention to disputes over the right to instruct representatives and the meaning of “alter or abolish” clauses in state constitutions that are presently forgotten, in large part because the Federalist winners of constitutional struggles wanted those disputes forgotten.  I think the book might have included Rhode Island’s failed effort not to join the union, as another forgotten exercise of popular sovereignty, but no one who reads this book will ever treat the Constitution of the United States as the necessary outcome of the Declaration of Independence, even if they share my more elitist Federalist sentiments.
By reminding us of the contested history of popular sovereignty, Fritz casts new light on the famous Madisonian distinction between a republic and a democracy.  Madison, as is well known, claimed that a democracy was a polity in which the people ruled directly, whereas in a republic the people ruled through their representatives.  Most commentators treat these passages in the Federalist Papers as articulating the contemporary wisdom of the time.  Robert Dahl and others insist that what Madison called a republic is actually a representative democracy, that Madison was not an enemy of majority rule.  Nevertheless, he and others agree that a republic or representative democracy is superior to what Madison called a democracy.  AMERCAN SOVEREIGNS is the story of those Americans who disagreed, who saw representation as a necessary evil rather than as a means for blunting the force of majority rule.  Madison, from this perspective, was not so much making an argument as trying to place many of his follow citizens outside the American constitutional experience.  More populist Americans, Fritz demonstrates, have an ancestry far more rooted in American constitutionalism, particularly American state constitutionalism, than either the Federalist Papers or Federalist histories acknowledge.


How does the Tea Party compare to the closing sentence of this post?

The Tea Party were not populist; they were a fringe element that became powerful through funding by cynics in the Republican party. Popular movements have conflicting elements, but the Tea Party was defined by contradiction, so less political than anti-political: expansionist and isolationist, "close the borders" and "invade their countries, kill their leaders and convert them to Christianity", "lower taxes" and "support the troops", "the heartland" and "the entrepreneurial spirit". It was less a segment of society that would support a fascist government than something fascist in itself: middle American nihilism, spoiled and lazy. "I'm going to take my Social Security checks and Go Galt"

And pace Mark Graber and Occupy Wall St, it's a not a question of elitism or not, but of what defines the elite. Yale prof, "Tiger Mom" has a new book out, co-written with her Yale Law professor husband.

"The Triple Package —co-authored by her husband, Jed Rubenfeld — which says that there are eight groups of people superior to all others: Chinese, Cuban exiles, Indians, Iranians, Jews, Lebanese-Americans, Mormons, and Nigerians."

It's not a good time to be defending the moral authority of the high Church. It's not anti-intellectual to admit that Leiter's academicism is a form of decadence.
The Fritz book on the other hand sounds good

nice description and superb blog.

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"lower taxes" and "support the troops", "the heartland" and "the entrepreneurial spirit". It was less a segment of society that would support a fascist government than something fascist in itself: middle American nihilism, spoiled and lazy. "I'm going to take my Social Security checks and Go Galt"FUT 14 Coins
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