'The Ultimate Authority . . . Resides in the People Alone': The People and the Constitution

When Ronald Reagan proclaimed in his first inaugural “We are a nation that has a government–not the other way around,” he was not taking off on some libertarian tangent or making an obscure philosophical point. He was following in the footsteps of the Founding Fathers who erected a frame of government that began with the words “We the People.” He was also trying to return government to its important but limited role in people’s lives–a role that both political leaders and the people understood until 1912 but has been mostly misunderstood and abandoned since then. At Philadelphia in 1787, the Framers of the Constitution created a national government that would be effective–even energetic–in its functions but also limited to those functions. The people were to be the ultimate guardians of both the effectiveness and limitations of government. The only way such a republic–unprecedented in modern history–could work would be if the people acted as a vigilant and constitutionally-minded sovereign jealous of their rights.

The authority of the people is made clear in at least three respects in the Constitution, and their vitality is powerfully suggested in a fourth. First, the Constitution holds both the lawmakers and the executive accountable to the people through elections, whether direct or indirect. The foremost depository of the people’s will is obviously the House of Representatives, whose members are directly elected every two years. According to James Madison writing in The Federalist, every constitution is designed to find rulers with the wisdom and virtue to pursue the common good and to make sure those rulers remain virtuous while holding the public trust. Elections are the means to both of those ends. In other words, if those in office lose their virtue, they can be thrown out of office by the people through regular elections. The people are the true source of term limits.

Second, the Constitution embraces, indeed creates, the system known as federalism. Not only can the people exert their authority through elections at the federal (national) level, they can also throw their support behind the state governments against federal encroachment. The chief means of doing so in the original Constitution was through the Senate, whose members were elected by state legislatures. Indeed, the Framers of the Constitution originally thought that the people’s loyalties would lie overwhelmingly with the states, not the remote national government. Their opinion owed to the history of the Revolution–in which the states were extremely jealous of their powers; the confidence that men of great talents and ambitions at the national level would devote their energies to the high pursuits of “commerce, finance, negotiation, and war,” to quote Hamilton in The Federalist, not with local concerns; and the general tendency of human nature to prefer the things closest to us. (Not many people living in Dallas root for the Steelers.) To this end, should the national government extend its powers beyond those enumerated in Article I, section 8, the Senators–whose loyalties lie, and whose careers are made, not in the national capital but in the state capitals–would defend the prerogative of the states and thereby the liberties of the people.

Third, for the Constitution to be adopted, it was imperative that the first Congress adopt a Bill of Rights to be appended to it. The Bill of Rights, authored mostly by Madison, was meant to serve as an education to the people in what their rights are and an encouragement to them to guard those rights jealously. It is also abundantly clear what would be the greatest threat to their rights. The Bill of Rights begins with the words “Congress shall make no law respecting” and ends with the words “or to the people.” That is, the greatest threat to liberty would come from government–though republican–exceeding its constituted authority and encroaching on the rights of the people.

Finally, there is the latent suggestion in the Constitution that the people will be doing the vast majority of the work in civil society, and the government will be needed chiefly to establish the rule of law, to protect the society from internal and external enemies, and to set up a system of uniform commercial exchange.

One way of reading the vital Article I, section 8 and also the Bill of Rights is to turn the question around by asking not what the national government will be doing but rather what the people will be doing. “To regulate Commerce with foreign Nations, and among the several States”: Americans will be engaging in a vibrant commerce. “Securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”: Americans are going to be writing furiously and inventing things all the time. “To define and punish Piracies and Felonies committed on the high Seas”: American shipping will cover the globe. “An establishment of religion”: Americans will be going to church–or not–as they decide. “Freedom of speech, or of the press”: They will be talking a lot and writing, mostly about politics. All of these pursuits–highly regulated in regimes of the past–this new man called the American was allowed and expected to undertake on his own initiative.

And what about education and the family and poverty and people’s health and jobs? Didn’t the Founding Fathers care about those things? Of course they did. They wrote about such matters extensively and founded institutions to promote what they called virtue and to meliorate what today we would call “social problems.” At the same time, they also knew where such issues were best handled: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Founding Fathers showed an unprecedented confidence in human beings by setting up a frame of government that would protect life and liberty and allow the people to attend to their own pursuits of happiness. In other words, they introduced into the world true self-government.

What happened? It is a sad, century-long story. Simply put, the 17th Amendment killed federalism, and the 16th Amendment opened up our pockets. The Progressive Democrats were able to debauch our understanding of rights to such an extent that the nation was prepared by 1944 to accept F.D.R.’s “Second Bill of Rights,” really a list of entitlements provided to “all” by the federal government appropriating property from some. (Big Government became our friend and the provider of rights, not the potential threat to rights.) For about a hundred years We the People have been happy enough to re-elect Congressman Bacon and Senator Pork, believing in every district in the land that “Congress is corrupt, but our Congressman: he’s a good guy.” And, frankly, the people have steadily become less self-reliant, welcoming federal budgets stuffed with every conceivable “aid,” “program,” and handout from welfare to corporate welfare to federal subsidies for “green jobs” to the local park that was “supported” with federal funds. And so now we are bankrupt.

But the game is not up. The Tea Party has not only energized the electorate against Obama and the Democrats. The movement is genuinely devoted to recovering our understanding of and loyalty to the Constitution. For this reason–not, I think, because the candidates have come up with these ideas on their own–we are seeing serious discussions about Social Security and federalism and the outrage of federal mandates. We need to see more.

Who knows? 2012 may be the year–one hundred years after the election of the first anti-Constitutional president–that the nation wakes up and reminds itself of the basic axiom of republican government, as stated by Madison, “that the ultimate authority . . . resides in the people alone.” The liberty of Americans over the long haul demands that We the People return to the principles of true self-government.