By AZIZ HUQ
Review of The Sleeping Sovereign: The Invention of Modern Democracy, by Richard Tuck
New York: Cambridge University Press, 2015
Popular sovereignty is in the air. In the United States, Donald Trump’s calls for strict border control and putting “America first” in trade talks are rough, vernacular appeals to the ideal. One of the super PACs backing Trump calls itself the Committee for American Sovereignty. In the United Kingdom, the vote to leave the European Union was motivated by the Leave Campaign’s slogan “Take Control.” The Leave Campaign’s appeal drew succor from fears that British sovereignty had leaked, by quiet but inexorable steps, into the sucking void of Brussels-based bureaucracy.
Explanations for the appeal of popular sovereignty vary widely, even within the United States. The economic dislocations of globalization, the persistence of residential racial segregation, and resistance to the increasingly prominent role of women and minorities in public life—all can be cited with varying degrees of persuasiveness as motivating anxieties lurking behind the recent rise in popular-sovereignty claims. None of these explanations, though, explain why it should be that popular sovereignty—the raw sense that that there is a single, authentic voice that can and does speak collectively for us all—should provide a focal point for background anxieties. Why isn’t the focus on economic success simpliciter? Why the People, rather than a historical, or a religious, ideal? What’s so special about sovereignty?
One reason to think that the ideal of a single popular will should have fallen out of favor is Kenneth Arrow’s demolition of any claim that a simple procedure exists for determining what collectivities want seventy-odd years ago. Of course, the average American has never heard of Arrow. But it is passing surprising that his refutation of strong claims about the existence of a singularly valid collective choice mechanism has not made any discernable impression. On the contrary, the notion of a unified “people” with a single will remains good coin of the discursive realm in politics today.
Richard Tuck’s Seeley lectures, delivered in 2012 at the University of Cambridge, and now published as The Sleeping Sovereign, are framed as a history of the distinction between ordinary legislation and extraordinary constitution-making. But it is also an intellectual excavation of the idea of popular sovereignty. Genealogical inquiries need not explain, let alone justify, the contemporary use of an idea. Nevertheless, it is difficult to read Tuck’s history without wondering whether it has implications for our current moment.
Tuck’s history of popular sovereignty begins with the French theorist of monarchism Jean Bodin. It then runs through Rousseau and Hobbes. Swerving from the pages of theorists, it takes material form in May 1778, when the Commonwealth of Massachusetts convened a statewide referendum for the people at large to accept or reject a new, post-independence constitution. By a vote of 9,972 to 2,063, the good burghers of the Commonwealth rejected the document proposed by its General Court—thus demonstrating the sovereign power of the people at large to determine their own political structures. In contrast, eminently pragmatic Delaware had its constitution come into force simply by dint of a convention’s final vote.
Running alongside this history, though, is an equally deep-rooted skepticism about extraordinary appeals to the “sovereign” people. The avatars of this skepticism are the early seventeenth century Dutch jurist Hugo Grotius and the French clergyman and political pamphleteer Abbé Sieyès.
There is a nicely jarring quality to this line-up. To treat Sieyès as an enemy of popular sovereignty and Bodin as its shield-bearer is to scramble the standard allegiances between theorists and political moralities. Nowhere else is this reorienting ambition more striking than in Tuck’s treatment of Bodin and Hobbes, who are probably the political theorists most closely aligned with absolutism today.
Famously, Bodin described sovereignty as “the most high, absolute, and perpetual power over the citizens and subjects of a commonweal.” This definition, along with Bodin’s endorsement of monarchical rule, seems to situate him as a precursor of King James I of England, who ardently propounded the “divine right” of kings. Stephen Holmes, in his 1995 defense of liberalism Passions and Constraint, has already underscored numerous grounds for resisting this understanding of Bodin’s contribution. Consistent with Holmes’s revisionist account, Tuck argues that Bodin drew a distinction between an (objectionable) democratic government, characterized by popular control of “the actual operation of governmental power,” and an (unobjectionable) democratic sovereign, which was a “different kind of power which gave legitimacy to” those structures. This sovereign, said Bodin, was “responsible for the major features of a society’s political structures.”
In making this distinction, Bodin drew on examples of Roman emperors and dictators. Both could exercise power even as Rome remained a democracy wherein “at any time” the old Senatorial order could reassert itself. In the theoretical space opened by historical examples, Bodin fought a contemporary skirmish. He defended the role of the regional French parlements that exercised day-to-day governing power without in any sense drawing authority from the monarch. This explains why Bodin could be invoked by the Parliamentarians during the English Civil War and condemned by the monarchists such as Archbishop Ussher and Robert Filmer. The latter also expressly repudiated the sovereignty/government distinction in favor of a model in which both ultimate and immediate authority resided in the King.
Turning to Hobbes, Tuck focuses on a passage in De Cive, rather than the more familiar Leviathan. The former provides an extended, friendly metaphor for popular sovereignty, and explains its coexistence with a powerful, effective state. Hobbes imagines a democratic assembly of all people meeting to select a monarch, who then rules until the next meeting of the assembly. This might happen when the monarch dies. Or it might occur mechanically after some fixed period of time. Or else it might not occur until the monarch or its legatee decides to reconvene the assembly. In this last case, Hobbes cautions, the people “is radically dissolved.” Otherwise, after meeting and selecting a monarch, the people retain their sovereignty. This, Hobbes explained, was a “power” and not an “act.”
The core distinction that Hobbes’ metaphor mines runs between an enduring sovereign and a more mundane and transient government. It is the same distinction, Tuck explains, found in Bodin. He could also have noted that it is roughly the same distinction drawn in American political discourse today between the ‘government’ (or ‘Washington’ or ‘elites’) and the ‘people’ (or ‘real Americans’).
An early critique of popular sovereignty was offered by Hugo Grotius. Today, Grotius is blamed for everything from eminent domain to the law of the sea. In his day, he was a respected jurist and humanist. Unlike Bodin or Hobbes, Grotius refused to look beyond the immediate apparatus of everyday government to perceive some deeper, more ‘true’ or more enduring sovereign. “For the Nature of moral Things, he wrote, “ is known by their Operations, wherefore those Powers, which have the same Effects, should be called the same Name.” On Grotius’s view, there was a “common subject,” which was the “community in which legislation had force,” that formed a state by majority voting. In a later passage, Tuck also suggests that Grotius believed that the people could also be thought of as a “sovereign entity which has in general no power to exercise sovereign power.” The precise meaning of this last phrase, as well as the manner in which these two last passages are best reconciled, is unclear. As in many other places, Tuck’s exposition is poorly fit to readers not already deeply steeped in the relevant texts.
Like Grotius, Tuck explains, the Abbé Sieyès was an opponent of the government/ sovereignty distinction. But, Tuck notes, Sieyès resisted the idea of popular sovereignty even as he co-opted Bodin’s distinction by coining the terms pouvoir constituent and pouvoir constitué. To Sieyès, the former was akin to a people’s right of self-determination, a power that had to be exercised through the medium of representatives. Hence, he thought that the same elected body could act as both a legislature and a constituent assembly. Constitution-making, on Sieyès’s view, was not a distinctive or unique activity. It was also not something that the people could do directly.
In a pamphlet published in 1789, Sieyès advanced a striking and powerful argument against the notions of popular sovereignty exercised through plebiscitary pathways:
It is not a question of some democratic head count, but of proposing, listening, consulting, changing one’s opinions, in short forming a common will…. It is not in the watches of the night, with everyone in their own houses, that the democrats who are most jealous of their liberty form and fix their individual opinions, to be carried from there into the public space.
With only a little tweaking, this passage can be deployed against the idea, so common in American political culture today, that there is in fact a ‘real people,’ sitting out there in the “watches of the night,” in front of their cable television channels and drip-fed by their twitter accounts. The moral distinction between “Washington” and the “real America” is one that Sieyès might have recognized as misleading.
Tuck edges his account toward the present by taking up questions of how the U.S. Constitution should be interpreted. In the American context, the nature of sovereignty as popular or representational remains contested, with an added complication due to our distinctive brand of federalism. In the important 1823 case of McCulloch v. Maryland, for example, Chief Justice John Marshall, in the course of upholding legislation creating a national bank, rejected the idea of states as fundamental units of popular sovereignty. Instead, he noted, “when [the people] act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments.” This argument for bedrock popular sovereignty, though, is resisted by contemporary originalists such as Clarence Thomas. Tuck reads the Convention’s deliberations to favor Justice Thomas’s reading.
Tuck also finds the sovereignty-government distinction in the work of many leading early American thinkers. If one accepts that framework, he notes, an awkwardness arises: Article V of the Constitution places the American people in the position of exercising sovereignty once—and then denying themselves the same opportunity in perpetuity. In Hobbes’ terms, the American popular sovereign “is radically dissolved”: The Constitution gives it no license to return without the consent of Congress or the states.
Tuck flirts with Akhil Amar’s solution of an implicit popular power of constitutional amendment, as well as Bruce Ackerman’s alternative account of dualist democracy. But he ultimately sets them aside as inconsistent with early Republican understandings. The implication of his analysis is that popular sovereignty in the United States was, on one leading understanding, suppressed fatally by the Constitution. Paradoxically, then, one lesson of the intellectual history of popular sovereignty is that the nation where the latter was first realized no longer permits the people to speak of their own accord.
The long theoretical dispute that Tuck charts from Bodin and Grotius onward cannot be easily settled. There is no consequentialist weighing of the costs and benefits of understanding sovereignty this or that way. Nor is there a simple fact of the matter.
Still, it is hard to avoid noticing how much the weight of modern experience and theory lists against the possibility and attractiveness of immanent popular sovereignty, let alone claims to an unmediated sovereign will. Social choice theory from Arrow onward has rightly taught us to distrust seemingly straightforward claims about how elections or referenda reflect the popular will. Nor does practical experience provide better empirical support for the merits unmediated popular sovereignty. As Californians know by now, the modern experience of direct democracy is not a happy one.
So perhaps Tuck’s book is best read today against the grain. On its surface, that is, it is a restoration of popular sovereignty’s intellectual pedigree. But in important parts, Tuck the eminently careful historian has also limned a cautionary tale against reification of “the people,” and of taking the idea of democracy too simplistically. In this light, it may well be that it is Grotius and Sieyès, the skeptics of popular sovereignty, who are most urgently in need of recovery and celebration today. It may well be that we need to be committed less to the “people” per se, and more to democracy within, and not despite, its institutional and representational trappings.
Posted on 17 October 2016
AZIZ HUQ is the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School. His co-edited book, Assessing Constitutional Performance, was published in July by Cambridge University Press.