The main difference between the republics of the past and the U.S. Federal government, according to James Madison, writing as Publius in Federalist LXIII was "the total exclusion of the people in their collective capacity from any share the latter".
Madison's idea, shared with Federalists and Antifederalists alike, and embodied in the Constitution of the U.S. was to create representative institutions that would consult the interests of the people and serve the common good of the people better than "turbulent" democratic plebiscites had in the ancient republics. The people aren't "base", just ill-informed. They are, however, good judges of character and of their own interests. The Constitutional scheme was that the people should elect representatives, who would then debate on their behalf. This is how the ratifying conventions were chosen, and how the U.S. Congress and president are still chosen, by election (indirect election through representatives, in the case of the President). Tim Sellers >===== Original Message From Discussion list for con law professors <[EMAIL PROTECTED]> ===== >Is this thread still alive? I've come a bit late to the discussion, but hopefully there is still some interest. I have a couple of substantive points, the first being a response to the last posted question and the second which raises a hard to answer question related to popular >sovereignty: >FIRST, in the last post Robert Justin Lipkin left us with the following foundational questions: > >..Are we still in such fear of the masses that we would insist that although the people are the normative source of government, in general they're incapable of governing themselves? I find this idea close to oxymoronic. That the people can be the normative authority of >government, but they are not themselves capable or eligible for governing prompts the question: If ordinary people are so base, so untrustworthy, so ignorant, so untutored in the rarefied skills of self-government, then how can we consider them the normative source of >that very government?... > >One possible response: Yes, The People are base, untrustworthy, uniformed, etc. most of the time. As such, (as Marci Hamilton points out in her contributions to this thread on the founding generation's understanding of popular sovereignty) The People ought not dominate >actual day-to-day governance, but should delegate governing authority to an agent government. Sometimes, however, The People rise above base self-interest, ignorance, etc. In these rare instances The People may engage in meaningful and fruitful acts of self-governance. I wish I >cold take credit for this response, but I can't. Its Bruce Ackerman's response (at least as I read Ackerman's theory). Most seem to find Ackerman's theory of constitutional moments problematic for one reason or another. However, the basic insight behind the theory -- that The >People might be incapable of self-government most of the time but at other times quite capable of self government -- seems to me basically correct. Why would we think that The People (or a people) are always and forever one or the other? It seems to me completely plausible that a >people might be both incapable and capable of acts of self-government at different times, under different circumstances, etc. If (like most individuals -- think Ulysses and the sirens) a people have both good and bad moments, the research agenda questions (but not their answers) are >quite straightforward: > >1. Under what circumstances will a people exhibit a base self-interest and ignorance incompatible with a high degree of popular involvement in governance? > >2. Under what circumstances will a people rise above base self-interest and ignorance and thus become capable of meaningful and useful acts of self government? > >3. Given that a people will sometimes be incapable and at other times quite capable of acts of self-governance, how should the institutions of day-today governance be structured? > >4. Given that a people will sometimes be incapable and at other times quite capable of acts of self-governance, how should the institutions regulating popular acts of self-governance be structured? > > >I have no answer to these imponderables. The founding generation, however, had a clear answer to at least the fourth question. Their answer leads me to my SECOND point, which is really more of a question. > >My understanding is that both federalists and anti-federalists basically believed that The People would/could engage in acts of self-governance (ratification of constitutional norms) through extraordinary conventions, but NOT through ordinary legislative bodies. The basic >understanding was that extraordinary conventions (but not ordinary legislatures) would embody We the People. The approval of the Constitution by nine of the 13 extraordinary conventions would be tantamount to approval by We the People. Both federalists and >anti-federalists agreed on the notion that only extraordinary conventions, but not ordinary legislatures, were the institutions through which The People could act to ratify constitutional norms. This understanding produced Article VII. > >Why, then, did the founding generation choose to allow Article V ratification of constitutional amendments by ordinary legislatures? If the founders had such an aversion to ordinary legislatures as the institutions through which the People could engage in the self-governing >act of constitution ratification, and if they pointedly insisted on conventions as the only acceptable method for popular ratification of the Constitution's main body, why would they draft Article V, which allows for ratification of constitutional amendments by ordinary >legislatures? > >To my mind this represents a major puzzle. Article V's amendment ratification by legislatures seems to be in direct contradiction with the insistence on conventions and pointed rejection of legislative ratification behind Article VII. I would be fascinated to hear (both on >or off list) any thoughts others might have on this dilemma. > >Carlos E. Gonz�lez > >Associate Professor of Law > >Rutgers School of Law > > > >[EMAIL PROTECTED] >[EMAIL PROTECTED] > > ----- Original Message ----- > From: Robert Justin Lipkin > To: [EMAIL PROTECTED] > Sent: Thursday, May 22, 2003 6:19 PM > Subject: Democracy Now > > > I have found the thread on sovereignty very helpful. Unfortunately, however, I do not think we've addressed a set of central questions. Let me work toward those questions by stating the following: (1) It's controversial at best whether the Founding was democratically >inspired, or motivated by the idea of popular sovereignty, or by some form of republicanism. Keep in mind, what was true of the politicians of the time was not necessarily true of the more modest folk who fought in the Revolutionary War and ratified the Constitution. Our focus on a >small group of men, no matter how remarkable they may have been, already distorts understanding the quest for independence and a new constitutional beginning. (2) And, of course, those who believe that republicanism is clearly the foundation of American constitutionalism >will nonetheless insist that (1) is at best controversial, if not just plainly false; so controversy abounds over this issue. (3) Even if you insist that (1) is clearly false, subsequent events, most notably the Civil War Amendments, the vivification of First Amendment jurisprudence, >the privacy and civil rights revolutions, the development of Fourth Amendment doctrine, and so forth, certainly are important features of constitutional change since the Founding, and (4) Republicanism does not presently have the same hold on the popular imagination as does >democracy; indeed, I suspect that (some of) the Framers' republicanism makes little sense in the present culture. Hence, we can probably say that constitutional development since the Founding arguably entails that (some form of) democracy now has no serious competitor as the political >theory that best explains the actual processes of American government and society (with, of course, notable exceptions) and the normative ideals for future refinement. > > With these facts (assumptions?) in mind let me ask these questions: (a) If some conception of democracy is (or should be) the present theory of American government and society, which conception of democracy is it? Which form of self-rule best explains and justifies (in >democratic terms) this society's operations? Moreover, which conception provides a standard for reforming and perfecting contemporary institutions so that they may more faithfully reflect the best conception of democracy? (b) If one denies (a), is there a conception >of republicanism, a hybrid conception of democracy and republicanism, or a totally novel theory of self-rule that provides the best explanation and justification of American constitutional society, one which includes a projection of how that novel theory of self-rule should direct us in >the future? > > The reason for these questions involves a pragmatist commitment, though perhaps hyperbolically stated, that the future is the measure of all things. That future should, in my view, be dedicated to an articulation and instantiation of the best democratic theory. >Theoretically and practically we should move towards democracy now. But even if that's wrong, the future should be dedicated to some coherent notion of American self-rule, so that American constitutionalism and politics can get off the ad hoc track they're presently running on and >construct some vision of the future, if not the Founders' vision, then at least our own. > > My own view is that most strong forms of republicanism--those exhibiting canonical dead-ends disallowing the electorate from having an effective final say in government decisionmaking--conceal a pathological aversion to genuine self-rule. Any genuine self-rule, in my view, must >include within the relevant political community people, and, of course, any group of people will include those who strike fear, loathing, distrust, and so forth in others. Still, we must keep in mind, on the one hand, that self-rule doesn't entail mobocracy. We can build into >the constraints of democratic government obstacles designed to encourage deliberation with the further aim of producing the reflective convictions of the community's conception of the common good. (Far from distinguishing republicanism from democracy, these added features >arguably are required to explain the necessary (but not sufficient) role majority rule plays in any attractive theory of democracy.) But if that system of self-rule does not require that every set of obstacles ultimately concludes with ordinary (and extraordinary) people having an >effective final say, then I can't see how it's a system of self-rule at all. We can, instead, bring back a benevolent King with a knack for listening before he rules. > > I'll close with this final question. Are we still in such fear of the masses that we would insist that although the people are the normative source of government, in general they're incapable of governing themselves? I find this idea close to oxymoronic. That the >people can be the normative authority of government, but they are not themselves capable or eligible for governing prompts the question: If ordinary people are so base, so untrustworthy, so ignorant, so untutored in the rarefied skills of self-government, then how can we consider them >the normative source of that very government. In my view, the two--the normative source of government and self-government by people--go together, though not necessarily without timeouts. > > Bobby Lipkin > Widener University School of Law > Delaware
