Academic

Pettys on Fritz on Popular Sovereignty

By Lawrence Solum

Todd E. Pettys (University of Iowa - College of Law) has posted The Vitality of the American Sovereign (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

In his book American Sovereigns: The People and America?s Constitutional Tradition Before the Civil War, Professor Christian Fritz argues that two very different conceptions of the American people?s sovereignty - one broad and one narrow - battled for the nation?s allegiance in the eighteenth and nineteenth centuries. Under the broad conception, ordinary citizens could take control of the nation?s day-to-day governmental affairs whenever they were unhappy with their elected leaders? performance, and could alter their constitutional arrangements by any means they deemed appropriate. Under the narrow conception, citizens could influence day-to-day governmental affairs only through elections and other government-approved mechanisms, and could alter their constitutional arrangements only by those methods that were authorized by the ratified constitutional texts themselves. In Professor Fritz?s view, the broad conception faded from view in the years after the Civil War and the narrow conception now firmly prevails.

This review disputes Professor Fritz?s claim that the broad conception of the people?s sovereignty no longer plays a viable role in American politics. Citizens do still sometimes intervene directly in the nation?s day-to-day governmental affairs in ways that the people?s elected leaders have not approved, and they do alter their constitutional landscape by means other than those that the nation?s ratified constitutional texts explicitly authorize. More fundamentally, the American people have learned that they can transcend the more extreme elements of the broad and narrow conceptions of the people?s sovereignty. By engaging with their elected leaders in what can be called the ?sovereignty dance,? the sovereign people have learned that they can retain ultimate control over their government while still permitting government leaders to retain the credibility and power they need in order to do the people?s work.

Full post as published by Legal Theory Blog on September 01, 2009 (boomark / email).