Rulers and Ruled: Popular Sovereignty and American Constitutionalism

Abstract

In 1789, Thomas Jefferson and James Madison exchanged views on newly adopted Constitution and especially on need for its immediate amendment to include a bill of rights. The discussion also touched on meaning of popular sovereignty and role of a constitution in expressing fundamental law. Voicing an opinion that he would repeat often, although not always consistently, Jefferson admonished his friend that the earth belongs to living. ... No society can make a perpetual constitution or perpetual law/' With contentious debates of Philadelphia convention fresh in his memory, Madison replied that idea was fine as theory but not in practice: A Government so often revised would become too unstable to retain those prejudices in its favor which antiquity inspires, and which are perhaps a salutary aid to rational Government in most enlightened ages/' As a society we have embraced Madison's view, our veneration of Jefferson notwithstanding. We celebrate framers' foresight in balancing change and stability through elaborate process required to amend Constitution; we view it as a counterweight to whims of public opinion by requiring a supermajority of ratifying states to change fundamental law. Since flurry of amendments adopted soon after ratification (the Bill of Rights in 1791, Eleventh Amendment in 1798, and Twelfth in 1804), we have modified Constitution formally only fifteen times in 220 years, with three amendments coming immediately after Civil War and two others in experiment with national prohibition. This scanty record should not suggest that amending impulse is moribund, however. In his prize-winning Explicit and Authentic Acts: Amending U.S. Constitution, 1776-1995 (1998), David Kyvig locates amendment process at heart of American constitutionalism, and he points to more than 10,000 attempts to change Constitution as evidence of its vitality. He also argues that amendments are necessary to secure long-lasting constitutional change. Still, many textbook histories continue to