Who Represents “We the People?”

In a recent Salon editorial titled “Superdelegates have destroyed the will of the people,” self-described “political activist and hopeful millennial” Danielle Corcione argued that the only legitimate candidate in a democratic government is one who has received a clear popular mandate and “closely aligns” with the will of primary voters.

Prominent conservatives like Pat Buchanan and Stephen Moore have raised strikingly similar concerns in the last couple of months. By “denying” the people the right to choose their candidate, Moore argued, “the party’s brain trust… is doing everything it can to disenfranchise millions of new Republican voters and deny Trump the nomination.” Donald Trump, too, chimed in after failing to mobilize enough voters to attend Colorado’s precinct caucus elections. Cruz, he claimed, had won a “voterless” and illegitimate victory.

There are many problems with these claims, but perhaps the most fundamental problem is a philosophical one. The versions of popular sovereignty being voiced here are, in fact, fundamentally at odds with the nature of American republicanism. It is true that, according to the Framers of our Constitution, “We the People” are sovereign. Yet it does not follow that politics is a mere numbers game in which every policy or candidate favored by 51 percent of the people is an automatic expression of that sovereignty. Legitimacy in our republican government derives from both quantitative and qualitative considerations. Discerning this balance is often difficult, but can help us better judge when “We the People” have authoritatively spoken.

The Reason of the Public is Sovereign

In a 1776 letter, John Adams argued that, while “It is certain in Theory, that the only moral Foundation of Government is the Consent of the People,” in practice, consent should be expressed through those who are independent and mature enough to form “a Right Judgment.” Why? Because the goal of good government is the protection of natural rights, and voters who possess independent and well-informed judgments will make better decisions about which candidates and policies protect their own rights and those of their fellow citizens.

Over a decade later, the Federalist Papers made a similar case. Objecting to the idea of frequent constitutional conventions, James Madison observed that these would make “the passions . . . not the reason, of the public . . . sit in judgment. But it is the reason of the public alone, that ought to control and regulate the government.”

It is significant here that Madison refers to the sovereign “reason of the public,” not their sovereign “will.” Nor does this simply boil down to semantics. As Nathan Schlueter recently pointed out here at Public Discourse, when Federalist 10 argues that a majority seized by “passion” is a faction, too, it implies that justice and reason are the ultimate criteria against which laws should be measured. In other words, not every expression of the public will is a sovereign expression of that will.

The Rationality of Institutions: A Lesson from Rhode Island

This sounds good in theory, but, practically speaking, how can one discern what motivates a group of hundreds of thousands of individuals? Further complicating things, isn’t it true that every popular movement appeals to people’s passions? Caught up in the moment, it is not always obvious whether passion is the governing motive or not. Of course, one might look at a movement’s goals and ask if they are rational. But even here there are complications. Political leaders never fail to clothe their causes in justifications (or rationalizations) of how they serve the common good. How can a people objectively distinguish between a popular movement and a potential faction? The answer to these questions lies in institutions.

In 1842, the “Dorr Rebellion” broke out in Rhode Island, following debates over expanding the franchise. The rebels, led by Thomas Dorr, set up a rival constitution and government alongside the long-established ones. There were now two governing bodies claiming to represent “the people” of their state. The original government appealed to the authority of the state’s governing charter, while the Dorrites claimed that 14,000 citizens (a slim majority of the population) had ratified their constitution, giving them a popular mandate. Without an impartial authority to verify these ratification proceedings, Rhode Island came to the brink of civil war. Which government actually represented the settled and rationally formed will of the people?

Arguing before the US Supreme Court, Daniel Webster defended Rhode Island’s long-established charter government against the Dorrite rebels. True, Webster argued, the theory of the American Revolution established that “the people are the source of all political power,” but the people have, as a deliberate whole acting under peaceful and settled conditions, also “prescribed forms for the conduct of elections.” In cases where the government is not guilty of “a long train of abuses and usurpations” it is through these institutions that “we are to ascertain the will of the American people. . . . We are not to take the will of the people from public meetings, nor from tumultuous assemblies.”

When the popular will is channeled through institutions, and organized around them, its rationality becomes evident. The voice of the people acting in this way is, as Webster observed, “regular and harmonious in its features, and gentle in its operation.” Institutions force previously isolated individuals to cooperate, to listen to opposing points of view, and to think about the decisions they are about to make. They encourage mutual respect and, as a result, moderation. They delay and complicate the way that consent is expressed, certainly, but this is precisely why they are necessary: they help ensure that the public will is reasonable.

Outside of institutions, there is much more room for misunderstanding and hasty decision-making. This is one reason why, except in cases of clear and systemic tyranny, leaders who dismiss institutions are usually demagogues. Such figures feed on the ignorance, misrepresentation, and miscommunication that institutions are meant to restrain. They depend on an isolated and unconnected electorate.

A Cautionary Note

All analogies are imperfect. The purpose of this one is not to imply that Trump’s supporters are equivalent to an 1840s mob or that the Democratic Party’s superdelegate system is a prudent way to read the popular will. In fact, however true it may be that the rational and sovereign will of the people is expressed through institutions, the Framers recognized that, in practice, popular government often needs to make concessions to the will of the majority.

James Madison’s 1829 proposal for broadening the Virginia franchise is a useful illustration of how government can strike this balance. Admitting that not all of his fellow citizens were likely to vote with an eye to the common good, Madison argued that this doesn’t mean that the state government should make it difficult for them to give their consent. In Madison’s view, “it cannot be expedient to rest a republican government on a portion of the society having a numerical and physical force excluded from, and liable to be turned against it.” To some extent, he added, making it easier for these citizens to exercise their authority will allow them to develop the “political and moral influence” they lack.

The cautionary note that Madison sounds is one that our current political parties would do well to observe. Although the popular will is refined when filtered through institutions such as political parties, institutions must be accountable to the people. The goal shouldn’t be excluding Trump or Sanders supporters from our parties, but involving them, listening to them, and informing them. Whatever delegate-selection process parties decide on, institutional restraints and experienced leadership should be balanced with accessibility to those who are less politically savvy. In many ways, Colorado’s GOP delegate-selection process is an example of how this can be done well. But it is worth considering if there are ways state parties can better communicate how these processes work in the future, reduce the fees delegates are required to pay, and allow space for even more deliberation.

On the other hand, those supporting Trump and Sanders should bear in mind that representing the aggregate “will of the people” has never been enough to confer legitimacy in our constitutional system. As Adams and Madison argued, and Webster affirmed, the people’s will is authoritative only when it is reasonable, and it shows itself to be reasonable through institutions. Of course, institutions can be corrupted. But as Andrew Jackson discovered (to his embarrassment) after denouncing the “corrupt” Adams administration, the Washington “establishment” is simply the structure that gathers around whoever has power. Change the captain, and the ship and crew still remain. Unless the “elite” is crookedly rigging elections or excluding the rank-and-file from the party structure, working within institutions is in fact the only way to guard them.

In the meantime, one can be fairly certain that men who condemn every power structure they don’t happen to control represent the interests of only one entity: themselves.