Edmund Morgan ...and Popular Constitutionalism

With the recent news of historian Edmund Morgan’s passing at age 97 I was inspired to thumb through one of my favorite books, Inventing the People.  One of the things I love generally about Morgan’s work is the ease with which he wrote.  Morgan wrote simply, gracefully, and efficiently.  This has been a major theme in his obituaries and memorials.  Perhaps one of the best memorials I’ve read so far is a piece of advice Morgan passed on to Honor Sachs (and to most of his students I’m sure): “Put an actor in every sentence.”   

Morgan’s books were also conceptually rich without being theoretically exhausting.  His goal was not to weigh readers down, but to open them to new worlds of ideas.  He did that with the skill of a master historian.  For those who have never read Inventing the People, just read the preface (3 whole pages!), and you’ll get a taste of Morgan in high form.

Inventing the People remains relevant in many ways, as does most of Morgan’s scholarship.  But for legal scholars the book is of most importance to those writing within the popular constitutionalism turn in constitutional theory and history.  This turn has generated new interest and new directions in constitutional history.  For example, popular constitutionalism’s focus on the constitutional ideas and practices of ordinary people has intersected nicely with the training in social history that most of us with Ph.D.’s in history receive. 

One of popular constitutionalism’s limitations, though, is that exactly who constitutes “the people” remains under-explored.  For most popular constitutionalists, “the people” are assumed to be actual people.  Certainly, there have to be actual people in order for the people to make sense.  But the people is something more than a collection or aggregation of individuals.

Morgan makes this clear by referring to “the people” as, simply, a “fiction” or “make-believe.”  (Note that he did not use the terms “ideology” or “discourse.”  Just “make-believe.”  So delightful!)  Of course, Morgan understood that “fiction” (his preferred term) was problematic, as he explained in the preface.  But his emphasis was not on the fiction’s untrueness; it was on its believability. Or perhaps we might say more accurately that Morgan was interested in the connection between the untrueness and its believability.  This could have led Morgan down a critical, dare I say Gramscian, path.  But that was not Morgan.  “I can only hope that readers who perservere to the end of the book will recognize that the fictional qualities of popular sovereignty sustain rather than threaten the human values associated with it,” he wrote (p. 15).  (I just love his humble invitation to read further.)  This is not to say that there isn’t a critical approach to be explored, though.

It could serve popular constitutionalists well to spend some extended time with Morgan’s book, and in particular to consider the fictional dimensions of the people.  How the work of actual people becomes the work of the people is a complex historical process, and I’m not convinced that popular constitutionalists have answered that question definitively.  But figuring out how the ideas and practices of groups of ordinary people becomes authoritative expression of “the people” is the next move that popular constitutionalists need to make.  Fortunately, there is already some movement in that direction.

More importantly, though, I just want to remember Morgan, one of my favorite historians.  I’d also like to point out that the good folks over at The Junto will be hosting a roundtable on Morgan’s work this month.  So read yourself some Edmund Morgan, and go check it out!

 

Comments

[Patrick S. O'Donnell]

There are also some interesting discussions as to “how the ideas and practices of groups of ordinary people becomes authoritative expression of ‘the people’” in Martin Loughlin and Neil Walker, eds., The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press, 2007).

In one sense, at least, it seems “the people” become authoritative when they make the choice to bind themselves, as it were, through constitutive rules that establish the “rules of the game” for collective self-governance, on analogy (after Stephen Holmes) with grammatical rules and principles “that allow interlocutors to do many things they would not otherwise have been able to do or even have the thought of doing.” These constitutive rules serve to structure power through the assignment of “powers” and the regulation of power, at once both enabling governance and setting limits on the exercise of governing power. The authoritative expression of “the people” arises the moment it decides to create and organized the power of collective self-governance and self-government, to give it direction and circumscribe its dimensions, to accord it limits. The people become authoritative in their exercise of the power of choice (much as the individual grows in autonomy through this self-same exercise), in the act of collective decision-making. Prior to that time “the people” are an amorphous mass, the hoi polloi bereft of the mechanisms that will allow them to deliberate effectively, to act consistently, to aggregate their preferences in a manner consistent with fundamental principles of freedom and equality.

From Condorcet to J.S. Mill and Hélène Landemore*(among others) in our day, we can also make a cognitive and epistemic justificatory defense of this constitutive choice, one that demonstrates its grounding in the idea of “collective intelligence,” for the constitutive establishment of the democratic and constitutional “rules of the game” render the authoritative expression of “the people” a means whereby democracy becomes “a smart collective decision-making procedure that taps into the collective intelligence of the group” (Landemore). This notion of the collective intelligence of the people as incarnate in “democratic reason” goes back to the democracy of classical Athens, at least according to a recent work by Josiah Ober in which he argues that the polity’s superiority over its city-state rivals was due to its unique ability, in the words of Landemore, “to process the distributed knowledge and information of its citizens better than less democratic regimes.”

* See her remarkable and indispensable book, Democratic Reason: Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press, 2013).

[Patrick S. O'Donnell]

I expanded on the above comment here: http://www.religiousleftlaw.com/2013/08/toward-making-sense-of-the-constituent-power-of-the-people-and-the-distributed-intelligence-of-democ.html

[Roman]

re: "when they make the choice to bind themselves." I think that is most definitely a starting point for understanding the people. That's why binding institutions are crucial to the story, and why I focus on constitutional conventions in my own work. But at the same time, there seems to be a bit of question begging going on in the very interesting theoretical points you make.

For example, you say that "The authoritative expression of “the people” arises the moment it decides to create and organized the power of collective self-governance and self-government, to give it direction and circumscribe its dimensions, to accord it limits." At first blush, there doesn't seem much to argue with here.
But the question remains, "who or what is the 'it'?", as my contracts professor used to ask us.

To take an historical example, the Rhode Island constitutional crisis of the 1840s centered around this question. After the state legislature refused to hold a vote on whether to hold a convention to draft a state constitution, many towns of Rhode Island got together, held such a vote, assembled a constitution, drafted a constitution, submitted it for a ratification vote, organized a government, and claimed the authority of the people. The existing government of Rhode Island refused to recognize the authority of the government organized under the new constitution. The existing government prevailed by force, as the Dorrites were quickly dispatched. The question this episode raised was whether the new government was created by the authority of the people? There seems to be some attempt to bind themselves here, but ultimately the Dorrites did not prevail, despite using very common procedures generally associated with the exercise of the people's sovereignty in the 19th century. So it seems, to me at least, that something more is required to become "the people" than the decision to bind.

[Patrick S. O'Donnell]

Roman,

I don't know enough about this historical episode to comment on it, although I'm inclined to say that if the "powers-that-be" act illegally (e.g., violating fundamental duties, oaths of office, the trust of the people, etc.), extra-constitutionally, and or egregiously violate basic constitutional principles, an opposition group that attempts to correct such violations, to (re-)commit themselves to these same principles, using means and methods consistent with such principles (among a few other possible conditions and via 'binding'), would be perfectly justified in claiming to act in the name of "the people," even if the government resorted to force and squashed their efforts (as in your exemplum). In other words, and in short, the criteria for identification need not include success in the endeavor. In that sense, "the people" remain normatively sovereign even if such sovereignty is not historically realized: de jure and de facto sovereignty need not coincide.