Balkinization: The Problem of "Popular" "Sovereignty"

The Problem of "Popular" "Sovereignty"

Sandy Levinson and I have uploaded a draft of our latest essay, The Problem of "Popular" "Sovereignty," to SSRN. Here is the abstract:

“Popular sovereignty” is central to liberal democracy, but the concept of sovereignty—the right to rule and make the rules—has many difficulties and ambiguities that have existed from monarchical assertions of authority to present-day claims of democratic legitimacy.

Sovereignty has theological origins: kings claimed a divine right to rule. The idea of sovereignty eventually becomes secularized, and monarchical sovereignty gives way to a new concept—popular sovereignty. Thinkers such as Hobbes and Locke tried to rationalize government authority by grounding it in the consent of a unified people. This merely replaced one fiction with another, because it assumed that “the people” exist as a coherent, self-aware entity that is capable of bestowing legitimate authority on a government.

A crucial distinction between sovereignty and government underpins all theories of popular sovereignty. The people are sovereign, but they delegate governance to representative institutions that purportedly act on their behalf. The popular sovereign is therefore perpetually a sleeping sovereign. The distinction between sovereignty and government creates persistent problems: (1) How can a sleeping sovereign awaken to revise or replace a government that resists reform? (2) Who gets to define “the people,” and how are claims of peoplehood operationalized? (3) How does one prevent populism from exploiting the sovereignty/government divide to justify exclusionary or authoritarian practices? (4) What structures can ensure that those who govern do so as faithful agents of the people?

These problems are not aberrations of popular sovereignty but structural features of the concept. Popular sovereignty—like the divine right of kings before it—functions ideologically to mask the exercise of power by elites. In diverse, complex, and populous modern states like the United States, the limitations of the idea that the people rule become ever more obvious and acute. The decline in representative fidelity, rising political polarization, and growing distrust in institutions all stem in part from the widening gap between the ideals of popular rule and the lived reality of democratic governance.

It is possible that the twentieth-century model of popular sovereignty may be reaching its theoretical limits. Just as monarchic sovereignty gave way to popular sovereignty, new pressures—from the complexity of modern governance to digital technology—may eventually yield a post-popular-sovereignty model of politics. As anomalies mount—dysfunctional representation, democratic backsliding, elite capture—a new paradigm may be necessary. Technocracy is one possible successor, but it lacks legitimacy and public trust.

Although sovereignty has always been rested on a fiction, it remains central to how people legitimate political authority. Rather than discard it, defenders of democracy must reimagine it for a changing society. They must engage in continual reinvention of constitutional structures and democratic practices. The American experiment in governance must once again embrace bold constitutional reform. Constitutional creativity will be essential to revitalizing the legitimacy of democratic governance in the 21st century.

Posted 11:00 AM by JB [link]