“We the People” and the Right to "Alter or Abolish" the Government

The people’s sovereignty… expressed in revolution and resistance... suppressed under a dominating constitution?

Nov 04, 2024

“The Right of Revolution” in 1776

A 2005 law review article by Professor Christian G. Fritz, “Recovering the Lost Worlds of America's Written Constitutions”, explores the “rich and dynamic tradition” of constitution-making in the states. In doing so, Fritz also sheds light on the making of the federal constitution.

Prof. Fritz begins by explaining the model of government Americans inherited on the eve of their Revolution:

The traditional English model was the notion of a King and the people:

A King protecting his subjects was due allegiance — a contractual relationship.
The people retained the ability to cancel the contract through a right of revolution, if the King failed to provide protection.

Sir William Blackstone, the preeminent 18th century scholar of English common law, wrote that this revolutionary power of the people is the “law of redress”, the “inherent…powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish.” [1765 Commentaries on the Laws of England]

Blackstone said that the legal system may not say the people have this power; the laws may even say that obedience to the state is a duty.

Nevertheless, he continued,

…mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by … adherence to … political maxims which were originally established to preserve it.

Blackstone added that it is not possible to predict for future generations when the time has come for “redress”, but that it will be “whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation….”

The Declaration of Independence drew on this British constitutional understanding:

It proclaimed that the people have a right to “alter or abolish” government whenever government “becomes destructive” of its rightful ends.
It accused George III of breaching the contract of protection, thereby releasing the people from a duty of allegiance.

The Revolution embraced the concept that the people, rather than a monarch, were the sovereign:

In 1789, David Ramsay, one of the first historians of the American Revolution, highlighted the fact that the American Revolution replaced the idea of government as a “social compact between the people and their rulers” with the concept that “the sovereignty was in the people”.

In 1792, James Madison described the constitutions of Europe as “power granting liberty”, while in America, he said, the reverse was true: constitutions were “charters of power granted by liberty”.

The concept that the people, rather than a monarch, were sovereign, created conceptual problems for the people’s right of revolution and resistance:

One view was that people's sovereignty meant that “the people” could always express their will directly—just as they did during the Revolution.
Another view was that after creating governments based on their power as sovereign, the people would henceforth be bound by the constitution.

Prof. Fritz explains that holders of the second view:

Feared the horrors of “democratic excess” and said the people’s sovereignty should be bound by the government they created.
They asserted that the people's sovereignty only existed during the exercise of the franchise, after which the government possessed sovereignty until the next election.
Some of these fearful ones even returned to the outdated royal contract analogy and conceived of the government as having sovereignty independent of the people.

For holders of the first view, in sharp contrast:

Creating constitutions was merely an expression, but not the exhaustion, of the people’s role as sovereign.
They said it made no sense that governments created by the sovereign people might take over the people's sovereignty.

The view of people’s sovereignty as inherent and never-ending was strongly supported by James Wilson, one of the most significant ‘founding fathers’. Wilson was one of only six men to sign both the Declaration of Independence and the Constitution, was the author of the phrase “We the People”, and one of the first six justices on the Supreme Court.1

In 1787, Wilson told2 the Pennsylvania Convention debating the proposed federal constitution that:

The people are superior to … constitutions.
The consequence is, that the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them.
The supreme power resides in the people, and … they never part with it. It may be called the panacea in politics. It is a power paramount to every constitution, inalienable in its nature, and indefinite in its extent.
There is a remedy, therefore, for every distemper in government, if the people are not wanting to themselves; if they are wanting to themselves, there is no remedy.
The people have the right not only to correct and amend [government] , but likewise totally to change and reject its form…

Wilson elaborated :

Were we to ask some politicians who have taken a faint and inaccurate view of our establishments, where does [the] supreme power reside in the United States? they would probably answer, in their Constitutions.
This however, … is not a just opinion; for in truth, it remains and flourishes with the people; and under the influence of that truth we, at this moment, sit, deliberate, and speak.

Professor Akhil Reed Amar, in a 1994 law review article, “The Consent of the Governed: Constitutional Amendment Outside Article V”, highlights the last comment by Wilson that the Pennsylvania convention was operating under the “truth” of the “supreme power of the people”.

Prof. Amar says:

Wilson's …words reminded his audience that the ratifying Convention itself…embodied these … principles.

In other words, the Convention called to ratify a new Constitution for the United States was itself an act not authorized by the existing constitution—the Articles of Confederation—but rather by the power of the people.

Article XIII of the Articles of Confederation said:

The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them, unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.

Congress called the Convention to make revisions to the Articles of Confederation.

The 55 delegates from 12 of the 13 states who assembled at the call to consider amendments decided that instead of revising the Articles, they would propose an entirely new federal government for the United States.

Moreover, the delegates voted to submit the proposed new government to state conventions rather than state legislatures.

“Badges? We ain’t got no badges! We don’t need no badges!

Prof. Fritz calls the 1787 federal constitutional convention a “circumvention convention”, saying the proponents “realized they were proceeding without procedural regularity and with ‘questionable’ constitutionality”.

For example, John Jay wrote to George Washington:

To me the Policy of such a Convention appears questionable.
Would it not be better, for Congress plainly and in strong Terms to declare, that the present federal Government is inadequate…[and call for] State Conventions…[for] appointing Deputies to a general Convention, who…should take into consideration the articles of Confederation, & make such alterations amendments and additions thereto as to them should appear necessary and proper….

Henry Knox also wrote to Washington:

With respect to the convention proposed to meet in May, there are different sentiments—some suppose it an irregular assembly, unauthorized by the Confederation….
It may reasonably be doubted, whether the constitutional mode of amendment, would be adequate to our critical situation….
The proposed convention may be the best expedient that could be devised—unrestrained by forms, it would be able to consider every proposition fully, and decide agreably [sic] to the sentiments of the majority….

At the convention, various delegates said both the convention and the constitution were legitimate despite differing from the existing procedures set out in the Articles.

James Madison put it this way:

The people [are] in fact, the fountain of all power, and by resorting to them, all difficulties [will be] got over. They could alter constitutions as they pleased.

In the end, the delegates simply ignored the clause in the existing constitution.

Instead, they proposed what became Article VII of the new constitution:

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States….

The proposed federal constitution included its own method of amendment. It became Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof….

The question is whether Article V of the Constitution binds the people’s sovereignty and inherent power to alter or abolish government any more than Article XIII of the Articles of Confederation bound the people’s sovereignty and power in 1787

Prof. Amar answers this question by saying Article V is “nonexclusive”; it simply specifies how the government itself can amend the Constitution and “does nothing to interfere with” the “background … right of the people” to “alter our Government and revise our Constitution”.

Amar inexplicably tries to squeeze this “background right of the people” into a Congressional process:

Specifically, I believe that Congress would be obliged to call a convention to propose revisions if a majority of American voters so petition; and that an amendment or new Constitution could be lawfully ratified by a simple majority of the American electorate.

I say “inexplicable” because, as Prof. Fritz points out:

Since government could no longer be regarded as the British Constitution's bargain between rulers and the ruled, but rather a declaration by the people themselves, no one could bind the people to specified revision procedures.

Perhaps Prof. Amar is trapped by proceduralism.

As Fritz points out:

The depth of today's commitment to proceduralism makes it difficult to accept that Americans routinely bypassed established revision procedures and initiated constitutional change without the consent of the existing government.

Summing Up

Prof. Amar:

We have spent far too little attention … pondering the processes of constitutional change.
Conventional wisdom about the federal Bill of Rights is not much better. Mainstream scholars and citizens stress the Bill's commitment to individual and minority rights, but miss its even larger majoritarian and populist themes….
How could the mainstream forget, for example, that no phrase appears in more of the first ten amendments than “the people”?

Prof. Fritz:

The tensions between competing understandings of the sovereignty of the people …continues to shape debates over the current meaning of constitutionalism.
A failure to appreciate the repeated invocation by the people of their authority has not only narrowed our understanding of our constitutional history, but has impoverished our constitutional discourse and denied us the benefits of the essential dynamism inherent in the history of American constitutions.
What our history reveals is a richer texture of America's constitutional experience than contemporary constitutional theory suggests.
If we start to uncover the richer tradition which our history reveals about constitutions, we will also reconnect with a wider spectrum of ideas.
Appreciating the legitimacy of competing constitutional views would …elevate the level of our constitutional debate [and] also more faithfully reflect our constitutional past.

Civil War?

Prof. Amar:

The theory of Jefferson Davis and his fellow secessionists in 1861 was simple and clear:
(1) Article V is not the exclusive mode of legitimate constitutional change;
(2) We the People retain the right to alter or abolish our government at any time, and for any reason;
(3) We the People exercise this right by simple majority rule in special convention; and
(4) the relevant people is the people of each state.
This was a theory that hundreds of thousands fought and died for. And, as I understand him, President Lincoln crossed swords with ‘President’ Davis only over proposition Number 4, insisting—quite rightly, in my view—that secession could take place only if approved by a national majority, and not a mere statewide one.

Prof. Fritz:

The … view that the people in a republic—like a king in a monarchy—had plenary authority as sovereign… persisted from the post-revolutionary period up to the Civil War.
Competing views on the meaning of constitutionalism… remained in tension throughout the period up to the Civil War.
The actual practice of American constitution-making and revision before the Civil War is hard to reconcile with our belief today that a constitution is premised on proceduralism.
Our constitutional history indicates that changes without use of established procedures were not necessarily considered aberrations or illegitimate. Both successful—and unsuccessful—circumvention of constitutional revision provisions prior to the Civil War amply demonstrates this.
The phrase “people's sovereignty” captures the serious thought that Americans before the Civil War gave to how a collective entity (the people) could act as sovereign.

The Big Question

In 1964, the Kentucky legislature created a “Constitutional Revision Assembly” that drafted a new constitution.

After voter ratification, a legal challenge claimed that the 1891 constitution provided the exclusive means for its alteration.

In 1966, in Gatewood v. Matthews, a majority of Kentucky's highest appellate court disagreed with the challenge:

The sovereign power of the people [is] delineated in section 4 of the Bill of Rights:
"All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper."
The people are the source of all governmental power; and, as the stream cannot rise above its source, so there is no power above them.

A concurring opinion added:

The crucial problem for this Court is to protect at every stage the democratic process, the orderly and fair presentation to the people of any proposal pertaining to their basic law.
I think the method here employed is orderly, is in the open, and is as fair as any other method of presentation so far devised.
This is an exercise in freedom and the majority opinion amply protects this generation of Kentuckians in the exercise of their freedom to change their basic law to cope with the challenges of the present time.
How the citizens exercise that freedom is entirely up to them.

A dissenting opinion asked:

The practical application of [the people’s right to alter, reform or abolish their government] is almost impossible.
Who are "the people?"
How do "they" (the people) act?

Whoever “We” Are… Before “We” Act… Study History

The “people’s sovereignty” argument was used in the 18th century to propose a centralized government that is now part of a highly-centralized 21st century global system bent on grasping for more centralization even as already highly-centralized institutions are dysfunctional.

My friend W.D. James at

Philosopher's Holler

provides an excellent historical resource in his 3-part series “Reviving Federalism” (part 1 of 3 here).

James revives the 1603 treatise, Politica, by Johannes Althusius, an important 17th century work of law, theology, politics, and history.

James says Althusius provides “the first systematic modern counter-thrust at the developing theory of the centralized state”.

We need this kind of resource to help us consider what “we the people” want to do.

https://dl.ub.uni-freiburg.de/diglitData/introimage/althusius1603.jpg

I offer this post as a companion to my friend’s work.

Professor Amar says of Wilson: “We have not been taught—in high school civics, in college classrooms, in Supreme Court opinions, or even in law school casebooks and law reviews, just how central James Wilson was to the Founding generation, and to the Founding itself. Serious students of the Constitution pore over every nuance of The Federalist Papers, but how many of us have spent even a fraction of time studying James Wilson's equally influential, broad and deep speeches and lectures from 1787 to 1791?”

I have combined Wilson’s remarks as reported in volume 2 of The Debates in the Several State Conventions on the Adoption of the Federal Constitution, a five-volume collection compiled by Jonathan Elliot for the Congress in 1836, also known as Elliot’s Debates, with Wilson’s remarks as reported in Pennsylvania and the Federal Constitution, 1787-1788, compiled by John McMaster and Frederick Stone for the Historical Society of Pennsylvania in 1888.