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21 thoughts on “What were they thinking? pg 8

  1. Librarian said:

    So the people are king.

    • Not quite.

      A king is a ruler, the boss of his subjects. He rules his subjects. “We the people” are neither rulers nor subjects, but citizens.

      Sovereignty is about the authority that a government has to govern. Back then, if you were a king or an emperor or a warlord, that authority came from the fact that you were the guy wearing the crown and wielding the army. Your legitimacy may have come from military victory, or tradition, or religion; but you were sovereign because of the fact that you had the power.

      England had modernized the idea to say it wasn’t the person who had the authority, but rather the institution. Fundamentally, though, it was still the same tautology: parliament was sovereign because it was in charge.

      The big change in the Constitution was the idea that the government’s authority didn’t come from the fact that it was governing, but rather that it was delegated from the citizens being governed. The ultimate authority came from the population. Not from individuals, mind you, but from the collective whole.

      It was more than just “government by the consent of the governed.” That saying’s about legitimacy, not sovereignty. This was much more. It was truly government “of the people, by the people, and for the people,” as Lincoln phrased it in his Gettysburg address. Even the other democracies of history had still been imposed by a lawgiver. This wasn’t imposed by anyone, but framed by representatives of the people, submitted to popular consideration and debate, and it would stand or fall by the people’s vote. The magnitude and importance of this was well understood by everyone involved, and was still a powerful idea to Lincoln’s audience three quarters of a century later.

      In the most important respects, you might say that the people were now the opposite of a king. In fact, I think if you’d suggested to any citizen at the time that the people were “king,” you’d have gotten a bloody nose.

  2. Mike Cody said:

    The people as rulers of the people, what novel concept. Shame it did not last, however.

      • amaROenuZ said:

        That’s…that’s pretty retro Nathan. Doge’s been out of the limelight for years.

        • Jeff B said:

          Can verify:

          “On June 9th, 2014, the official Republican National Committee Twitter feed posted a Doge image macro mocking Bill and Hillary Clinton. The same day, the official Democratic Party Twitter feed replied to the tweet mocking the use of Doge as being “as dated as your policies” (shown below).”


          (That said, it’s always been a favorite of mine, so I’ll allow it.)

      • Jeff B said:

        I’m not sure if increased meme dankness (dankosity?) would improve or worsen the quality of most legal discussions. But I’m eager to see the controlled experiment.

        • Depends on the issue. The dancing baby and the bukket walrus probably don’t have equivalent applications.

          • Jeff B said:

            Well, now I HAVE to do this.

  3. David Argall said:

    “We, the people,…” makes for nice propaganda, but no, it was not the people, or even the white males, who established the country. That was the decisions of the individual states. [The point that the Constitution was ratified by conventions rather than by legislatures is also only a propaganda point. The legislatures had to call the conventions, thus giving their approval, and the reason for conventions was tactical, avoiding many opponents and other difficulties that way, rather than based on any principle that set people over legislature.]

    • Librarian said:

      “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish, and declare, That these United Colonies are, and of Right, ought to be Free, and Independent States.”

      Sounds to me like it was under the “Authority of the good people of these Colonies” that independence arose, without disparaging the Legislatures of the several Colonies. Propaganda or not, the legal effect should be the same for the words used, IMO; that The People were set over the Legislatures forever.

      • Gregory T Bogosian said:

        But what does the people being set over the legislatures mean in practice? It doesn’t mean the right to elect our leaders, we already had that through the several states, at least the land owners did. It doesn’t mean the right to propose and ratify initiatives or any other form of direct democracy. The U.S. constitution has no passages allowing direct democracy. It doesn’t mean the right to overthrow the government and start over with a new constitution. The civil war is a very clear precedent showing that there is no right to cessation or insurrection.

        • Librarian said:

          Conquerors get to make the rules. Civil war didn’t work because, unlike the Revolution, the seceding side lost. The Principles in the Declaration of independence however, should still rule, if you take the threat of overwhelming force out of the opposing side. Minus a tyranny, the right is unnecessary, and with a tyranny, the right is an imperative duty for all men, regardless of the ultimate outcome. “The only thing necessary for the triumph of evil, is that good men to do nothing.”

  4. Raen said:

    Ah, the birth of a Brexit.

  5. James Weaver said:

    The People of the Roman Republic were considered co-sovereign with the Senate. Of course in the Roman Republic the People were actually the legislature, and the Senate was a purely advisory body, so it doesn’t really resemble a modern society at all.

  6. The British Parliament agrees that sovereignty begins with the people en mass, they just asserted that they _represented_ the people. From their point of view representing a six week old baby (who can’t vote to this day), or an American colonist (who was not permitted to vote) was no trickier a feat of mental gymnastics than representing a poor Englishman (who also couldn’t vote back then).

    The same trick is done by Congress, most American citizens don’t vote (many can’t, some just don’t bother), but Congress considers that it represents all of them anyway. This is of course particularly evident if you live in the District itself…

    • That’s not sovereignty, but representation. Parliament’s sovereignty is not conferred, but rather inherent in Parliament. It represents the people, but its authority to do so is its own, legitimized first by its wresting power from the monarch, and legitimized now by its continued exercise of sovereignty unchallenged ever since.

      • Furslid said:

        The problem with that distinction is that the people in an abstract whole can’t speak. Because of this the people can’t exercise sovereignty. Only some individual or group claiming to represent the people can exercise sovereignty. It seems to me that whatever group exercises sovereignty is sovereign, be it the king, parliament, congress, or whatever.

        What differences would I observe between worlds where the US people are sovereign and the US government is sovereign.

        • UsaSatsui said:

          If you don’t think “the people” can speak, you haven’t been paying attention.

          It’s more a philosophical idea than a legal one – instead of claiming the right to rule from divine providence or simply as rulers, we claim it is granted from the citizens. In practice, if we claimed some other source of sovereignty, I’m sure we’d come up with pretty much the same government. But the idea of “We the People” is important, because it’s a huge defining aspect of American culture.

          • Furslid said:

            I’ve seen lots of persons speaking. That’s different than “the people” speaking.

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