In reality, the Communist Party of China has appropriated power for itself, which it exercises dictatorially to suppress any organized opposition to its authority. Although economic freedom has increased dramatically in China in recent years, the party still tightly controls political life. Home Popular Sovereignty. There are four ways that popular sovereignty is expressed in a democracy.
First, the people are involved either directly or through their representatives in the making of a constitution. New York: W. Norton and Company, Garrison, Zach. The Kansas City Public Library. Skip to main content. The missouri-kansas conflict You are here Encyclopedia.
By Zach Garrison , University of Cincinnati. Encyclopedia Entry Kansas-Nebraska Act. Reeder, Andrew Horatio.
Pennsylvania was governed almost entirely by a single-house legislature. Most state legislators served for very short terms. Voters thus had frequent occasion to punish legislators who displeased them, and they made the most of that opportunity. Constantly fearing for their jobs, legislators responded swiftly to shifts in the popular mood. This led them to adopt various measures that were politically popular but fiscally reckless. States lavishly printed paper currency, commanded creditors to accept the worthless cash, imposed punitive trade policies against their sister states, and left their wartime debts unpaid.
Some observers thought democracy in America had become too much of a good thing. The states, they believed, had swung from one pendulum to the other. Before the Revolution, there had been too little official responsiveness to popular pressures; now, perhaps, there was too much. Before the Revolution, there had been too much centralized power; now, it seemed, there was too little. The delegates to the Philadelphia Convention of sought to strike a happy balance.
They aimed to craft a government that would derive its powers from the people and secure the consent of the governed, but also enjoy some independence from shifting popular passions. Representatives would serve for two years; presidents for four; senators for six; judges for life.
Biannual elections would keep the government accountable, but no single election would radically change its composition. To effect dramatic change, a political movement would need to win repeatedly over time. By its own terms, the Constitution would enter into force only if conventions in nine states ratified it. By modern standards, the process by which the Constitution was ratified was intolerably exclusive. Few Black Americans or other people of color — and no women — voted for delegates to the state ratifying conventions.
But modern standards have been shaped by impulses and ideals that ratification helped unleash. By the standards of the late 18th century, the process was astonishingly democratic — almost breathtakingly inclusive. Property qualifications for voting — and for service as delegates — all but evaporated.
Up and down the eastern seaboard, more freemen were allowed to vote or stand for election than ever before anywhere in the world. The answer, of course, is nowhere. They are the explicit orders of what both states and the federal government cannot do with their sovereign powers: Tracking his individual rights reading of the Tenth Amendment discussed above, Randy Barnett argues that the Tenth Amendment along with the rest of the Constitutional protections against state action define a kind of individual popular sovereignty which make it unconstitutional for people to sacrifice individual autonomy choices.
Barnett, supra note 76, at — But see Baker, supra note , at No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. XIX emphasis added ; id. These most explicit limits on state powers are all about ensuring the equal participation of Americans people in American citizenship Through broad terms, the Constitution vaguely places the power to discriminate against, or to interfere with, the rights of certain classes of people beyond the sovereign powers of either the state or federal government.
In addition to the protections afforded explicitly in the Constitution, it should be tied up in our sovereign powers as a collective to define how our society may or may not operate and who is equal among us.
The evolution and recognition of equal rights for women and homosexuals—outside of constitutional amendment and over the objections of certain state government—are examples of this. Though this case is admittedly much more complex, and lies beyond the core thrust of this Article, there is an argument that a popular sovereignty Tenth Amendment would provide a constitutional home to some degree of popular constitutionalism. And if anything is at the very heart of popular sovereignty—the power of the people—it is the power of the people to choose government representatives and therefore to vote, unobstructed, by other sovereigns.
Voting is the power that cannot ever belong to a government in a democratic republic. However, the mediation of how a power is expressed is not the usurpation or legal wielding of it. While states may be able to set the ways in which an election is run, they cannot interfere with the fundamental power of the people to decide that election. In order for the authority described in the Elections Clause to be consistent with the prevention of tyranny and the general right of the people to ensure that through democratic elections their government represents them, there it must be a limit to the power that state legislatures have.
State legislatures could not—for example—hold elections in the restricted access areas of their offices. Though it is an absurd hypothetical, it is difficult—without the Tenth Amendment—to think of why it is unconstitutional, or how it could be struck down other than through various voting rights statutes.
But somehow, we still believe it ought to be prohibited by some other portion of the Constitution. Otherwise, as the anti-federalists feared, we might have a tyrannical government insufficiently answerable to the people.
That is because the most natural—and necessary—reading of the Elections Clause is not a grant of power or sovereignty—or the go-ahead to interfere with the sovereignty of the people—but a grant of procedural authority. Someone has to organize elections, but that does not mean they control them. The Framers split the atom of sovereignty. However, as I will show in this Part, the principles of divided and dependent sovereignties were acknowledged in western political philosophy long before the American Constitution.
More specifically, the Tenth Amendment endows the people with the right to choose and define their local government. The meaning of sovereignty has changed and been debated throughout the history of political thought, but in its most basic form it means absolute or supreme authority within a territory.
Yet the absoluteness or supremacy of governmental authority has long—and rightfully—been dismissed as a dangerous fiction. The main currents in Western political philosophy that flowed into our Constitution recognized bifurcated sovereignty long ago and, even longer ago, acknowledged that these government powers must be limited or subject to oversight by divine or popular powers. Western political philosophy struggled for a long time with the normative questions of governmental power and authority.
Niccolo Machiavelli is one of the only thinkers who believed in truly absolute sovereignty. He sharply criticized sovereigns for even being concerned with morality, asserting that legitimacy flows from the power to take it and keep it.
Indeed Machiavelli discouraged a sovereignty that was achieved through the consent and power of others because he thought it put the sovereign in a weaker position of dependence—limited sovereignty. Machiavellian sovereignty and power are coextensive and absolute, and as such, a rare example of truly absolute and whole sovereignty.
Other political philosophies put the sovereign necessarily subordinate to God, the laws of nature, or the will of the people see Table 1. French lawyer and philosopher, Jean Bodin —96 is often credited as the first political philosopher to articulate a unique concept of sovereignty. In a time when religious and political powers were starting to compete—or at least needed to reconcile their co-existence. Bodin also suggests that sovereignty is an abstract notion; that a sovereign exists separate from the government, such that not all governments are true sovereigns if they lack legitimacy or power.
Although Bodin calls the sovereign absolute, they are far from it, and their power exists apart from their personal identities and so can be taken away. Sovereignty is tied up in their legitimacy and authority in concert with the recognition of a higher power, and dependent on it for oversight—to keep the sovereign in check from becoming a tyrant.
Thomas Hobbes argued that sovereignty was formed through a contract in which the people gave up their power to the sovereign—the famous leviathan—in exchange for security from the harsh world.
The leviathan becomes the sovereign power with legitimate authority from the initial contract. Once constituted, the will of the sovereign reigned supreme, except for similar limitations as prescribed by nature and God.
Grotius argued the right of governing could be given to the government by the people without retaining rights for themselves. Sovereignty was a permanent conveyance:. At this point first of all the opinion of those must be rejected who hold that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make a bad use of their power.
We refute it by means of the following arguments. To every man it is permitted to enslave himself to any one he pleases for private ownership, as is evident both from the Hebraic and from the Roman Law. Why, then, would it there not be as lawful for a People who are at their own disposal to deliver up themselves to some one person, or to several persons, and transfer the right of governing them upon him or them, retaining no vestige of that right for themselves?
Grotius, like Machiavelli, lets his sovereign have an absolute power that is concerning for anyone skeptical of authoritarianism. Thankfully, these strict or rigid notions of relinquished sovereignty are not the stream of thought that influenced the drafting of our Constitution and the subsequent development of our nation.
John Locke—arguably the most influential thinker for our founding fathers—wanted to build a system that prevented tyranny, and so argued that the people may need government to protect their property and liberty, but that government must always answer to them, and through representative government the people would be protected from the potential dangers of government.
Dent ed. Rousseau put forward a social contract theory that meant the people retained sovereignty although they formed a government. To preserve these powers and the authenticity—and non-corruption—of the general will, the people must be involved in and close to their government. These political philosophers were influential on the founders, with their careful distrust of a powerful government unanswerable to the people. The field of political theory has long acknowledged that government must be kept in check by a higher power.
We the people, and not God or natural law, Cf. Swift v. Tyson, 41 U. Sovereignty, as it made its way into American government, is a matter of authority—of power and legitimacy—negotiated by supremacy. It is not absolute power but supreme power, and supremacy is not incompatible with several spheres of sovereignty, rather it is necessary to make sense of them.
Authority must be legitimate or else it would be mere coercion. Checked by God or the people, almost all other Western political theorists who developed the traditional idea of sovereignty recognize the limited and limitable aspects of sovereignty as opposed to other authorities—other sovereign powers.
Supremacy can extend to separate but parallel realms. The U. Constitution itself explicitly recognizes this in the Supremacy Clause, U. VI, cl. It is up to the courts to negotiate their conflicts and ensure that a supreme authority is preserved in its various constitutionally proscribed and circumscribed realms. It is much easier to write about and understand a system of rigid non-overlapping powers. However, the Court has already recognized and written hundreds of opinions that take on the question of mediated, complex, overlapping sovereignty.
While the domestic dependent sovereignty of Indian tribes is not a perfect model for the tripartite sovereignty outlined by the Tenth Amendment, it proves that our judiciary is capable of working with unwieldy and complex notions of sovereignty.
Indian tribes were once entirely independent nations with singular authority over their territories. After the arrival of various European nations, American Indian tribes made treaties with the various European nations in a government-to-government relationship. However, the power of the European colonies and the ideology of Manifest Destiny were quickly at odds with the sovereignty of Indian tribes. America needed land, and needed to de-legitimize Indian land claims, so it was unclear what would happen to Indian self-rule.
Eventually, the Supreme Court recognized that although it seemed contrary to natural law, the rights of the Indian tribes to their lands was a right that the courts of the conquerors could not recognize. Chief Justice John Marshall then addressed the direct question of tribal sovereignty in a series of cases dealing with the Cherokee tribe of Georgia. Georgia, 30 U. Since then, a body of federal common law and constitutional law has developed to determine what tribal sovereignty means within the Constitution and the in context of federalism generally.
Tribes are independent of state governments and state laws, Worcester v. Georgia, 31 U. Suquamish Indian Tribe, U. However, they are limited and dependent sovereigns, and to give coherence to that complicated idea, the Court first recognizes that 1 tribal sovereignty is always subject to the plenary power of Congress Lone Wolf v.
Hitchcock, U. Lara, U. Shirley, U. A-1 Contractors, U. Jicarilla Apache Tribe, U. Wheeler, U. If the Court has figured out a way to define Indian tribal sovereignty such that it does not contradict the Constitution, surely recognizing and developing doctrine to protect the many competing interests implicated in sovereign powers of the collective people of the United States is not beyond them.
It is reasonable to imagine that the Court could discuss the complicated aspects of popular sovereignty in similar terms of implicit powers that it uses to determine the appropriate scope of Indian sovereignty.
Indian sovereignty has even more questionable contradictions than a recognized popular sovereignty doctrine would. First, Congress rather than some other part of the Federal Government can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity. Second, the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members. We may uncover a similar seemingly irreconcilable tension between the robust view of popular sovereignty advocated by this piece and judicial review.
It would seem constitutionalism necessarily places limits on democracy, just as Congress necessarily limits Indian tribal sovereignty. However, unlike the Indian tribes, the people of the United States continue to wield powers over the various constitutional lawmakers and interpreters: the power to abolish the Constitution or the entire government. While Congress may be able to dissolve the sovereignty Indian tribes without their consent, it is difficult to imagine any of our governments explicitly dissolving the sovereignty of the people without an uprising.
Slow encroachment is possible—and indeed already a problem—but the power of the people over the existence of our government creates a situation, not of one-way dependency as with the Indians, but of far less contradictory co-dependent sovereigns. In this final Part, I briefly outline some implications of a reinvigorated popular sovereignty Tenth Amendment.
As already alluded to throughout this Article, the core of popular sovereign power is the right to choose government representatives.
As such, voting rights are the obvious place where this argument has the most salience. However, I will also briefly discuss the potential of the Tenth Amendment to provide a textual constitutional home for popular constitutionalism and the political question doctrine. First, a popular sovereignty Tenth Amendment would serve as a constitutional home to several interpretive constitutional law doctrines that are currently without an explicit textual constitutional basis.
Specifically, it would give the federal judiciary and executive constitutional cover when relying on popular sentiment to interpret the Constitution, and it would allow the Court to walk ignore political questions which must be left up to the voters.
While I believe that voting protections are the core of popular sovereignty, another potential use of a popular sovereignty Tenth Amendment in constitutional law is to create a constitutionally recognized home for the concept of popular constitutionalism. The scholars who have pioneered popular constitutionalism have argued I mean here to very carefully distinguish popular constitutionalism from popular sovereignty.
A too common mistake made in legal academia, this Article is careful to draw strict distinctions between popular sovereignty—the power and authority of the people—and one of its potential though not necessary components: popular constitutionalism—the power or right of the people to interpret the constitution. Hulsebosch, Bringing the People Back , 80 N.
These scholars, such as Mark Tushnet and Larry Kramer, have argued that the founding generation not only believed that the people had the capacity to make and enforce constitutional meaning, but that the Constitution leaves subsequent generations with the power and the responsibility to continually be a part of this process of making and interpreting constitutional law.
Through political accountability and the ultimate threat of revolution, the people even hold interpretive powers above the Court. He suggests that we have paid far too high a price—in entrenching the interpretations of a wealthy educated majority—for judicial review. However, I agree with most popular constitutionalism scholars that popular constitutionalism is reconcilable and often dependent on judicial review.
Reva Siegel, See Siegel, supra note Kurt Lash has argued, quite persuasively, that popular sovereignty as expressed through popular constitutionalism, is an answer to the counter-majoritarian difficulty Alexander M. Lash argues that the supermajority of the people generally—composed of greater numbers than usually the majority of the electorate—is the only body capable of giving legitimacy to the invalidation of duly enacted laws, and potentially even the departure from unpopular—and now perceived illegitimate—judicial precedent.
A popular sovereignty Tenth Amendment could allow for executive actions and judicial review that listens to the people, and can explicitly cite changes to society, public opinion, or general norms in their opinions. The Constitution, it is true, had set precise limits for federal sovereignty; but each time that sovereignty is in competition with that of the states, a federal court will pronounce.
The Tenth Amendment can provide a textual source in constitutional law for this principle of popular voice as a pre-constitutional power retained by the people This argument makes even more sense considering that judicial review is post-constitutional.
Woolsey, 59 U. If this court is to have an office so transcendent as to decide finally the powers of the people over persons and things within the State, a much closer connection and a much more direct responsibility of its members to the people is a necessary condition for the safety of the popular rights.
We now are in an age of modern technology and modern media where the nation is engaged in national conversations that the court can listen to. We can track how the will of the collective is changing over time, and our government—the Court especially—should no longer pretend to be blind to the constitutional understandings—of equality in particular—that are evolving in this country.
Let them listen and cite that listening as a legal part of their recognition of popular sovereignty. Finally, the Tenth Amendment may provide a constitutional text—based home for political question doctrine. When the political question doctrine was first invented by the Court in Luther v. Borden, 48 U. The power to decide questions of policy belonged to the people and their representatives and not to the judiciary. It was the abstract idea of popular sovereignty that they cited, saying that,.
The Tenth Amendment could be a new textual, instead of a structural, home for the political question doctrine since the Court could claim that the power to decide political questions was a power reserved to the people under the Tenth Amendment.
Election laws and procedures necessarily give rise to, or can destroy, the legitimacy of an elected government as the means by which our governments actually represent the choice and consent of the governed. As the majority opinion stated,. City of Tuscaloosa, U. Voting rights are not merely individual rights, but an exercise of collective powers that do not, and cannot, belong to the states or the federal government without tyranny.
It cannot be a matter of optional government policy to have easily accessible elections. Yet without a structural protection and recognition of the power of the people, that is what it remains. This status quo is further suspect because it circumvents the government legitimacy questions raised by ignoring popular sovereignty as a continual check on governmental power.
It is vital that this power of the people not be infringed. The Court should strike down laws which unduly infringe upon the ability of citizens to vote for their government as not only a violation of any particular right to vote as a member of their protected group U.
The default of our voting system should be to encourage the participation by the people from whom the entire system gets its legitimacy. For example, a recently enacted Oregon law that automatically registers voters Waldman, supra note Elections should be easy—on Saturdays and without identification requirements that impose unofficial economic requirements See Rosenstone, supra note Unprotected classes of individuals should have equal access to vote because they are equal members of the people of the United States who are the source of power and legitimacy of our government.
After Comstock and its accommodation framework, it is easy to see how a court could use the Tenth Amendment to protect the powers of the people.
The judicial branch has long recognized its unique power, and indeed responsibility, to strike down those laws that are contrary to the text of the Constitution. As such, any law that is made by either a state or the federal government that interferes with the core sovereign power of the American people should be struck down as unconstitutional.
It is time to bring the people back into the Tenth Amendment, in order to ensure that the people are always in our government. This piece outlines a grave hypocrisy in the rise of state sovereignty through a textual reading of the Tenth Amendment without the people. However, in closing it is necessary to remind ourselves that the danger of tyranny alluded to throughout this Article is very real.
Evans, U. Hodges, S. It is surely a gross perversion of popular sovereignty and a contradiction to use it as a vehicle to refuse to include all of the people as equal members of the empowered electorate.
It is a veiled tyranny, but a threat of tyranny nonetheless. As President Lincoln observed:. They are as opposite as God and mammon; and whoever holds to the one, must despise the other. The Tenth Amendment appears as a sword used by discriminatory state governments. If, as I suggest, a federal court has the power to strike down a state law which unconstitutional infringes upon state sovereignty, might Congress have a similar power to prevent them through legislation.
Without recognizing the place of the people in our system of divided government, we threaten the fundamental democratic legitimacy of our Republic. The final four words of the Tenth Amendment cannot continue to be ignored by purported textualisms. For our Republic to survive as a truly democratic one, we need to remember the people.
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