Popular sovereignty in the United States

Popular sovereignty is a doctrine rooted in the belief that each citizen has sovereignty over themselves. Citizens may unite and offer to delegate a portion of their sovereign powers and duties to those who wish to serve as officers of the state, contingent on the officers agreeing to serve according to the will of the people. In the United States, the term has been used to express this concept in constitutional law. It was also used during the 19th century in reference to a proposed solution to the debate over the expansion of slavery. The proposal would have given the power to determine the legality of slavery to the inhabitants of the territory seeking statehood, rather than to Congress.

History

The concept of popular sovereignty (from which the consent of the governed derives its importance) did not originate in North America; its intellectual roots can be traced back to 17th- and 18th-century European political philosophy.[1] The American contribution was the translation of these ideas into a formal structure of government. Before the American Revolution, there were few examples of a people creating their own government. Most had experienced government as an inheritance—as monarchies or other expressions of power.[2]

The American Revolution resulted in a government based on popular sovereignty, the first large-scale establishment of this concept (although it had been discussed and experimented in European contexts). The early Americans supported the contention that governments were legitimate only if they were based on popular sovereignty.[3]

The concept unified and divided post-Revolutionary American thinking about government and the basis of the Union.[4] Questions were raised over its precise meaning, permissible actions and the will of a collective sovereign. In 18th-century European political thought, "the people" excluded most of the population; suffrage was denied to women, slaves, indentured servants, those lacking sufficient property, indigenous people and the young.[5] The early American republic similarly disenfranchised women and those lacking sufficient property, also denying citizenship to slaves and other non-whites. According to historian Ronald Formisano, "Assertions of the peoples' sovereignty over time contained an unintended dynamic of raising popular expectations for a greater degree of popular participation and that the peoples' will be satisfied."[6]

Regarding slavery

In 1846, as the dispute over slavery in the United States developed in the wake of the Mexican–American War, popular sovereignty became the foundation of a proposed resolution to slavery in the country. At the war's end, the United States acquired lands formerly held by Mexico. The effort to incorporate these lands into the United States uncovered long-simmering disputes about the extension of slavery – whether it would be permitted, protected, abolished or perpetuated in the newly-acquired areas. Attempts to resolve the issue in Congress led to gridlock. Several Congressional leaders, in an effort to resolve the deadlock over slavery as a condition for admission or administration of the territories, searched for a middle ground.[7]

To some moderates, slavery in the territories was not a matter for Congress to resolve; they argued that the people in each territory, like those in each American state, were the sovereigns thereof and should determine the status of slavery.[8] Popular sovereignty became part of the rhetoric for leaving to residents of the new American territories the decision to accept or reject slavery; this would resolve the expansion of slavery in the United States. This formed a middle ground between proponents of a limitation on slavery's spread to the territories and those opposing limitations, tying into the widespread American assumption that the people were sovereign.[9]

According to historian Michael Morrison, the "idea of local self-determination, or, as it would become known, popular sovereignty" first began to occupy the attention of Congress in 1846 and 1847.[10] In modern historiography, Illinois senator Stephen A. Douglas is most closely associated with popular sovereignty as a solution to the extension of slavery in the territories. Douglas's biographer, historian Robert W. Johannsen, wrote that Douglas was

chairman of the Committee on Territories in both the House and Senate, and he discharged the responsibilities of his position with single-minded devotion. ... During the debates over the organization of the Mexican Cession, Douglas evolved his doctrine of popular sovereignty, and from that time on it was irrevocably linked to his interest in the territories and in the West. His commitment to popular sovereignty was the deeper because he recognized in it a formula that would (he hoped) bridge the differences between the North and South on the slavery question, thus preserving the Union.[11]

The term "popular sovereignty" was not coined by Douglas; in connection with slavery in the territories, it was first used by presidential candidate and Michigan senator Lewis Cass in his 1847 Nicholson Letter.[12] Today it is more closely associated with Douglas, and its connection to the failed attempt to accommodate slavery gave the term its present pejorative connotation. Douglas "ultimately became the victim of the very politics he sought to remove from territorial policy" by advancing the idea of popular sovereignty: "His efforts were not judged in terms of their impact on the needs and desires of the territories. ... Rather, they were appraised in terms of their relation to the power struggle between North and South and to the issue of slavery. Despite Douglas's intentions, the territories continued to be but pawns in a larger political controversy."[13]

The Kansas-Nebraska Act

Popular sovereignty was put to the test in by the Kansas-Nebraska Act of 1854. The residents of each territory were to determine the status of enslavement in their territory. In Nebraska there was little problem; Nebraska would be a free state. In the case of Kansas, which Southerners in Congress assumed would balance Nebraska as a new slave state, the result was "pure chaos".[14]

No one had determined how eligible voters would be identified. Did they have to own property in Kansas? Did they have to have been residents of Kansas for some period of time? Pro-slavery settlers from the slave states of Missouri and Arkansas poured in, some intending to stay and others to leave as soon as they had voted. The New England Emigrant Aid Company helped a smaller number of anti-slavery settlers move to Kansas from the northeast. Widespread fraudulent voting, as reported by Congressional investigators, produced a pro-slavery Constitution, the Lecompton Constitution. Free-staters produced the Topeka Constitution. Neither went into effect. They were followed by the Leavenworth Constitution and the Wyandotte Constitution. Kansas had four constitutions during the territorial period, along with two different governments in two different cities, the pro-slavery government in Lecompton, which the free-staters called "bogus" because it had not been chosen through honest elections, and a free-state government, first in Topeka and then in Lawrance. The desire to ban enslavement in Kansas was not just motivated by altruism; residents feared that slave owners would, as they did elsewhere, exercise disproportionate power.

The conflict soon turned violent; over 50 people were killed; Lawrence was sacked. John Brown and most of his sons moved to Kansas, and since he saw violence as both necessary and justifiable in fighting slavery, he pushed free-staters to resist the pro-slavery violence with some of their own. His party pulled five prominent pro-slavery men from their homes in the middle of the night, and killed them in the Pottawatomie Massacre.

In short, the concept of "popular sovereignty", which Lincoln called "a living, creeping lie",[15] proved no solution to the slavery question in Kansas or anywhere else. The genuine residents of Kansas showed, when honest elections were held, that they overwhelmingly wanted it to be a free state. This was not the result the pro-slavery forces expected or wanted, and they had the votes to block Kansas's admission to the Union as a free state, so nothing was done. The issue was only resolved when Southern legislators either withdrew or were expelled from Congress early in 1861, when seven Southern states announced their secession. This broke the impasse in Congress, and Kansas was immediately admitted as a free state,

In constitutional law

The colonists' struggle for equality with the King of Great Britain was enshrined in the American Declaration of Independence and was common knowledge in the United States after the American Revolution. Inaugural Chief Justice John Jay, in Chisholm v. Georgia (1793), illustrate what would come to be known as popular sovereignty:

It will be sufficient to observe briefly that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the Prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere ... No such ideas obtain here; at the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects, and have none to govern but themselves[.]

From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here, it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our Governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns.[16]

Although each person is sovereign, that sovereignty is twofold. In private matters, such as one's body, life and holdings, they are akin to the monarchs of Europe; one exception is eminent domain. They are co-sovereign with the states and the Union in public property and interests, and are governed by elected representatives.[17] This concept of public and private may be confusing to those unfamiliar with the principles. Public and private are mutually exclusive; that which is public is not private and vice versa.[18] That which is public is of interest to all the people, but this was never intended to express (or imply) that the private sector was subject to the state. Even in the public sector, the people as a whole remain sovereign. In 1886, 93 years after the Supreme Court's ruling in Chisholm v. Georgia, Justice Stanley Matthews expressed this in Yick Wo v. Hopkins:

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.[19]

Legal historian Christian G. Fritz wrote in American Sovereigns: The People and America's Constitutional Tradition Before the Civil War that before and after the revolution, Americans believed "that the people in a republic, like a king in a monarchy, exercised plenary authority as the sovereign. This interpretation persisted from the revolutionary period up to the Civil War."[20] Despite this widespread belief, the term "popular sovereignty" was infrequently used by the early Americans.[21] In expressing the fundamental concept of rule by the people, they described an ideal of how the people would exercise sovereignty in the US and state officers and employees would be public servants. The phrase "popular sovereignty" did not become popular until the 1840s.

Notes

On the English origins of the sovereignty of the people and consent as the basis of government, see John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986–1993), Vol. III: 97–101, 107–10 ISBN 0-299-13070-3; Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (W.W. Norton and Company, 1988) ISBN 0-393-30623-2
Gordon S. Wood, The Radicalism of the American Revolution (Alfred A. Knopf, 1991), at p. 243 ISBN 978-0-679-73688-2 (noting that during their Revolution, Americans "became the first society in the modern world to bring ordinary people into the affairs of government—not just as voters but as actual rulers"); Pauline Maier, American Scripture: Making the Declaration of Independence (Alfred A. Knopf, 1997), at pp. 34–35 ISBN 978-0-679-77908-7 (observing that in 1776 no governments existed "in which all authority rested on popular choice").
Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government—Popular Sovereignty, Natural Rights, and Balance & Separation of Powers, (Indiana Univ. Press, 1974), at p. 52 ISBN 978-0-253-20198-0 (describing "the almost unanimous acceptance of popular sovereignty at the level of abstract principle"); Edmund S. Morgan, "The Problem of Popular Sovereignty," in Aspects of American Liberty: Philosophical, Historical and Political, (The American Philosophical Society, 1977), at p. 101 (concluding the American Revolution "confirmed and completed the subordination of government to the will of the people"); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press, 1980), at p. 137 ISBN 978-0-7425-2069-1 (asserting that statements of the "principle" of the people's sovereignty "expressed the very heart of the consensus among the victors of 1776").
This is the conclusion reached in Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) ISBN 978-0-521-88188-3 (In the prologue to this study, Fritz notes "In framing America's first constitutions, patriots celebrated the people's sovereignty. These ideas smoldered even after the Revolution ended and this heated revolutionary rhetoric soon permeated all regions and ranks of society. Government was no longer something that happened to people. In America it now became something the people—by their consent and volition—brought into being. The people gave their consent through their conduct and their active participation reinforced the message that the people were America's new sovereign." However, "Americans argued fiercely about the nature and the extent of their power as part of the collective sovereign, and seven decades later [after independence] they were no closer to agreement over what the people's sovereignty meant than they were during the Revolution.") Prologue, American Sovereigns, at p.l
Gary B. Nash, Gary B., Unknown American Revolution: The Unruly Birth of Democracy and the Struggle to Create America (Viking, 2005) ISBN 978-0-14-303720-0 (describing how the Revolution laid the groundwork for an expanding definition of who were deemed part of "the people.")
Ronald P. Formisano, For the People: American Populist Movements from the Revolution to the 1850s (Univ. of North Carolina Press, 2008), at p. 43. ISBN 978-0-8078-3172-4
Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, (University of North Carolina Press: 1997) at p. 78 (noting that congressional sexting over slavery in the territory acquired from Mexico had reached a "deadlock" and that Whig party was "unwilling to meet the problem head-on.") & at p. 84 (noting that in the face of "extreme solutions" to the slavery question in the territories, "moderates in both parties began to search for middle ground.")
Compromise of 1850#Henry Clay and Douglas draft compromise
Stephen A. Douglas And The American Union (Website: University of Chicago Library) (May 14, 2008) ("Popular sovereignty had the potential for great public appeal because it was closely tied to the ideal of majority rule and the principles of American constitutionalism. For [Senator Stephen A.] Douglas, it had even more important political implications. By removing slavery from congressional debate and transferring it to geographically remote territorial legislatures, Douglas hoped to insulate the federal Union from further sectional conflict.")
Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, at p. 84 (University of North Carolina Press: 1997) (noting that as a proposal for solving the question of slavery in the territories, "popular sovereignty endorsed the fundamental principle of self-government, [so that] its appeal was powerful. Of more immediate importance, Cass's [popular sovereignty] doctrine also held out the twin and seemingly paradoxical advantages of resolving the territorial issue and postponing its denouement. For although popular sovereignty proposed to remove this vexing question from Congress, Cass was as silent as the dumbest oracle on the precise stage of territorial development at which inhabitants were to regulate slavery.")
Robert W. Johannsen, The Frontier, the Union and Stephen A. Douglas (Univ. of Illinois Press: 1989) at pp. 95–96 ISBN 0-252-01577-0
Michael A. Morrison, Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War, at p. 84 (University of North Carolina Press: 1997) (noting that "not until the presidential hopeful Lewis Cass made it his hobby was popular sovereignty put clearly before the people. As he delineated the doctrine in his 'Nicholson letter' of December 1847 [to Tennessee political supporter, A. O. P. Nicholson], Cass refused to take an explicit stand on Congress's power to regulate slavery in the territories. Rather, he contended that even if such power existed, it ought not be exercised. Congressional leadership, he argued, 'should be limited to the creation of popular governments and the necessary provision for their eventual admission into the Union; leaving in the meantime to the people inhabiting them to regulate their own internal concerns in their own way.'"); see also Willard Carl Klunder, Lewis Cass and the Politics of Moderation (Kent State University Press, 1996), at pp. 168–70, 177–80, 241–43. ISBN 978-0-87338-536-7
Robert W. Johannsen, The Frontier, the Union and Stephen A. Douglas (Univ. of Illinois Press: 1989) at pp. 116–17 ISBN 0-252-01577-0
Gawalt, Gerard W (2015). Clashing dynasties : Charles Francis Adams and James Murray Mason in the fiery cauldron of civil war. North Charleston, South Carolina: CreateSpace Independent Publishing Platform. p. 66. ISBN 151934791X.
Etcheson, Nicole (Summer 2008). "'A Living, Creeping Lie': Abraham Lincoln on Popular Sovereignty". Journal of the Abraham Lincoln Association. 29 (2): 1–25. JSTOR 20149131.
2 U.S. 419 Chisholm v. Georgia, JAY Opinion – in part
Constitution of the United States:

Amendment IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Bouvier's Law Dictionary, 1856: PRIVATE. Not general, as a private act of the legislature; not in office; as, a private person, as well as an officer, may arrest a felon; individual, as your private interest; not public, as a private way, a private nuisance.
Yick Wo v. Hopkins, 118 U.S. 356 (1886) – in part
Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 7 ISBN 978-0-521-88188-3
See, e.g., Leonard Levy, ed., Encyclopedia of the American Constitution (Nathan Tarcov, "Popular Sovereignty (in Democratic Political Theory), vol 3, pp. 1426, 1428 (1986) (Noting of the doctrine of popular sovereignty before the Civil War that "the Founders tended not to call the doctrine expounded here as 'popular sovereignty.'")