"We have met the enemy and he is us."
Pogo, the comic strip by Walt.
"We have made the world safe for hypocrisy."
Two lines from the Vietnam era that sum up a LOT.
Larry D. Kramer has a volume "The People Themselves, Popular Constitutionalism and Judicial" (Oxford U. Press, 2004) that addresses the question of who is running the store here, us or them, the people or the government.
The theory is that our Founding Fathers built a government based on the theory that the people had sovereignty and that the government worked for the people.
It sounds attractive in theory, right?
Why should you be subordinate to any president? He's just a guy who got elected, and probably not all based on superior character or merit. Just lucky in his choice of parentage, in other words. You could just as well have been president, and anything you might not know would be supplied by these really smart advisers, all expert in their fields. What could be simpler? And the rest of the country would fall into line.
Today, however, although we like to say we enjoy popular sovereignty, we really don't. You and I don't really have much say in how things are or should be, even though we go to the polls every election and do our bit to make the thing seem real.
If enough grains of sand get together and hold hands, you have a beach, but one individual grain makes not a whole lot of difference. Take care of the individuals, however, and you keep the beach intact.
Did the grains of sand vote to be there and form a beach? More likely they were washed up by waves, greater forces to which they have succumbed and now lend their weight.
People like to go the beach. Someday I'll tell you about my lifeguarding days at a beach.
Edmund S. Morgan's book, "The Genuine Article, A Historian Looks at Early America" (w.w. Norton, 2004) puts popular sovereignty in its proper light as our organizing principle.
Popular sovereignty, the idea that we run government rather than government running us, is the successor to the last previous great fiction, the divine right of kings.
The divine right of kings was a good way, in the days of kings, of keeping the population under control, which is what government is all about, isn't it.
The way the theory of the divine right of kings worked wasn't that the king was divine, although a few kings named James and Charles might have thought so. In fact they were filthy, lying slobs and everyone who counted knew it. But they had to play along, otherwise there would be chaos, and even filthy, lying, slobs are better than nothing.
Morgan points out that men willingly live by such fictions. They have to. They have no choice. So they, meaning we, play the game as though it were real, for in a sense, it is.
Fictions create their own reality under which people live. What do you think living under a theocracy is? A reality based on a fiction, a myth or belief in something that isn't real, except for our purpose of running a society, which is real enough.
If everyone knew that James and Charles I and II were slobs, why did they play along, and why did they chop off II's head? The people played along as long as the game provided the promised reward, a tolerable government. Why chop off the king's head? He failed to uphold his end of the bargain. He made it too difficult to believe.
The divine right theory held not that the king was a god but that he held his position by the grace of God. The king could do no wrong, not because he was personally infallible but because if only he knew the proper facts, he would do as the people wished and the people wished only to do right. So if the king did wrong, it was because corrupt ministers filled his head with misinformation for their own nefarious purposes. The misled the king. So Parliament would petition the king and acquaint him with the facts. This is why the right of petition was so much larger in Britain before our Revolution than it is here. We don't have a king we're trying to straighten out, although with the war in Iraq creating what seems like a great deal of chaos, and our troops there dying, we do have an increasing number of people trying to catch the president's ear. One, Cindy Sheehan, who lost a son fighting in Iraq, has camped out, with followers, near the president's ranch in Crawford, Texas while he vacations.
Morris calls popular sovereignty a fiction, one of those beliefs we live by. We don't really act as though we believed it. According to Kramer, we've abdicated our responsibility and left it to the Supreme Court to have the final say in our democracy. We don't really seem to want to have all of us exercise the final say when we can delegate the responsibility to a really cool, smart, and well-trained in law, deliberative body called the Supreme Court, which, after all, is appointed by popularly elected presidents and confirmed only after the consent of the popularly elected Senate has been achieved. So we have an attenuated democracy. We don't seem, really, to want a more immediate democracy. If we did, we supply every person entitled to vote with a hand-held transmitting computer that asked each individual how he voted on every issue. We wouldn't need representatives, since we could make our own individual feelings made officially known. It's only a matter of time before we see this proposed, but it will be rejected not because it's too expensive or unwieldy, but because it's too democratic. We love democracy, but not too much. We topple Saddam to impose democracy, but don't insist that Iraq adopt a democratic constitution.
Meanwhile the president tells us we're fighting and losing loved ones because he's bringing democracy to Iraq. We all know this is a fiction, not wanting to call it a big lie. Only the bad leaders resort to the big lie.
We resort to ideal principles that we have no idea how to achieve and probably don't really want to achieve it anyway. It would be too impractical. We'd have even more idiots running government than we already have. We don't trust government all that much, and each other even less. Just ask yourself how many people you actually agree with when you see their arguments in the newspaper or in discussion sites.
Morgan says that what we do in the face of a grand organizing principle such as the divine right, or popular sovereignty, is to suspend our disbelief, the way we do when viewing a play or a movie. We get into the moment and act as though we really believe the Empire needs to be confronted by Luke Skywalker and Han Solo, even though in a short while we'll walk out of the theater into broad daylight on a Saturday.
It is safe to suspend our disbelief up to a point, but if we suspend our disbelief entirely we are ripe for tyranny, Morgan points out. P. 224
Which is why we wonder what kind of a conservative John Roberts, nominee to replace Sandra Day O'Connor on the high court, is.
Morgan, Sterling Professor emeritus at Yale, has something interesting to say about conservatism, as well.
Conservatism in America has been for the most part an intellectual desert. It has been too often a rear-guard, somewhat desperate and indiscriminate struggle against change, its spokesmen more stubborn than rational. For intellectual support it has had to resort to the likes of John Caldwell Calhoun with his absurd and doctrinaire formulas for preserving the status quo, whatever it might be. For more respectable philosophic foundations American conservatives have had to look abroad to Edmund Burke.
As to what kind of a conservative John Roberts might be, see the continuation below, a copy of a NYT article today by Janny Scott, from which the following quote:
Morton J. Horwitz, a professor of American legal history at Harvard, who never taught Mr. Roberts, said he was struck recently when reading excerpts from a paper Mr. Roberts wrote as a college senior, "The Utopian Conservative: A Study of Continuity and Change in the Thought of Daniel Webster."
It seemed apparent to him that Judge Roberts "was a conservative looking for a conservative ideology in American history."
"It was interesting to me how self-conscious it was in terms of his own discovery of where he stood," said Professor Horwitz, a self-described liberal.
"My guess is he came to Harvard College with conservative prejudices and tried to educate those prejudices whenever he had the opportunity."
Some students lose their prejudices, he said. "But others, especially the more intellectual types, actually educate their prejudices."
Morgan traces our notion of popular sovereignty to the session of Parliament in 1628 which produced the Petition of Right, in which the Commons, in order to teach the king what he believed, namely what the people wanted, which was "right" in the abstract and in the specific, spelled it out. The king didn't like being told what he was all about and what he really believed, so he suspended Parliament for a decade until he ran out of money again and had to call them back in 1640 to cough up more dough.
Charles I had made the divine right fiction unworkable by treating it too literally.
This is the risk one runs of putting too much faith in the theory of Larry D. Kramer's volume on popular constitutionalism. He may be quite correct historically that we insisted that the people really ran the show, when today it may be closer to the truth that the Supreme Court really runs the show.
To insist on a radical change now, such as allowing the Congress to over-rule decisions of the Supreme Court, or easing the amendment process to allow ready changes, is apt to do more harm than it will prevent. That will be the center of the debate, if ever such a debate occurs.
Meanwhile it may be far better to continue to entertain the fiction that you and I outrank the generals AND the president, so long as we don't try to act on it on day to day matters. If we really think they are out of line, our recourse is to seek to bring a constitutional issue before the high court.
And will the Court pay attention? They will if they think the people, those folks who bring us pop sovereignty, will stand for it. Sometimes the Court is surprised, as in Dred Scott and Roe v. Wade.
Significant portions of the population in each of the eras represented by these notable decisions were opposed enough to go to war, actual in the case of Scott, and virtual in the case of Roe except for occasional shootings resulting in death.
In the final analysis there is no stopping point where we can say that sovereignty rests. Sovereignty is a movable feast, sometimes resting here, for as long as people will play along, and sometimes there, but always somewhere, alighting like a turkey vulture on this branch or that, waiting for the next feast, ever ready to fly off to a more convenient perch for the time being.
Morgan points out, P. 214, that the will of the people is no easier to ascertain than the will of God. Just wait until we all have those v-Pods, above, for voting, and things may change, however.
Under the new fiction, pop-sov, Morgan says that
"each of the different branches of government claimed to know what the people wanted (they would only want what was right), just as the Commons had formerly known what the king wanted better than the king did."
...The people were now supposed to be the masters of government, not its subjects, the fiction that still guides us. Since it has lasted so long, it is evidently an easy fiction to accept, even when its divergence from facts grows wide. (Writing in 1978).
Our colonists had not forgotten the Petition of Right of 1628, Morgan says.
By 1774, as they saw it, the House of Commons had violated right in taxing them without consent, in curtailing trial by jury, in placing a standing army among them, and in reducing the popular element in one of their provincial governments...
When the First Continental Congress assembled at Philadelphia in 1774, its members faced the problem of making the government of a sovereign people do right. And that problem in turn required them to ask whether they were a part of that people -- that distant people, three thousand miles across the ocean....
[They had to ask] who they were and what they were up to....
In doing so, they had to reassess some of the fictions that had grown up around popular sovereignty since 1628. Because they had already rejected Parliament's claim to represent them "virtually," they were particularly sensitive about stretching the concept of representation in any way....
They did not in fact consider themselves as a representative assembly because none of them had been elected by a popular vote....
But many of them were eager to promote a new fiction that went by the name of America. [and began speaking of "American liberty," "the rights of America," the "common good of America," and even "an American bill of rights...."
The sovereignty of the people had often been justified on the grounds that the people, rightly informed, would do no wrong. For centuries Parliament had been the accepted voice of the people. Now it had done wrong, and it was becoming ever more clear that the people of England were not going to correct it. To be sure, Parliament had been led astray by a corrupt ministry (as the ever right king had been in 1628), but it began to appear that the corruption had sunk in to the English people themselves. And if a people could do wrong, who was left to correct this? P. 218.
The answer to that last question, of course was either the people in open rebellion, or secession, or in the bringing of constitutional cases before the high Court today.
To sustain the fiction of popular sovereignty, the Constitution would have to be seen as an act of the people, independent of government. Hence the Convention [in 1787] provided for ratification of the Constitution by special, popularly elected state conventions.
...
But consistency in the application of fictions can lead to political schizophrenia. The sovereignty of the people, taken literally, can generate a more autocratic government than the divine right of kings did. The power of a James I or Charles I never approached that of modern despots who rule in the name of the people.
Our own government purports to be of the people, by the people, and for the people, but all governments are of the people, by the people, and for the people.
In early Massachusetts, the Reverend John Cotton, fresh from the England of Charles I, rejected democracy as a poor excuse for government, for, he asked, "if the people be governors, who shall be governed?..."
Today we dismiss the question as sophistry...but...perhaps we should admit with John Cotton...that governors and governed can never be the same.
So, around and around we go, pausing to see where the vulture of sovereignty perches today.
Perhaps when it becomes too threatening we can shoo it into flight and it will come down somewhere more congenial as it has done in the past. Right now it seems to reside in in the colonnaded building in Washington that has "Equal Justice Under Law" inscribed on the lintel. Another fiction? Just remember that the biggest fictions have the biggest cathedrals erected to sell them to the people, who are either the sovereigns or the consumers of popular sovereignty no matter in which building it resides, Congress or the White House, or not residing anywhere, but an amorphous cloud of ants, or grains of sand on the beach called America.