1 Popular Sovereignty

1.1 Introduction

Historical background

The modern meaning of sovereignty (but not popular sovereignty) was introduced by Jean Bodin in 1576. According to the New Columbia Encyclopedia, sovereignty is "the supreme authority in a political community".

The origin of popular sovereignty, on the other hand, goes most directly back to what is called the social contract school of the mid 1600s to the mid 1700s. Popular sovereignty is the notion that no law or rule is legitimate unless it rests directly or indirectly on the consent of the individuals concerned.

Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778) were the most important members of the social contract school. They all postulated that the nature of society, whatever its origins, was a contractual arrangement between its members. The reason men entered society was to protect themselves against the dangers of the "state of nature". But, their theories differed markedly in other respects.

Hobbes in Leviathan, published 1651, claimed that the first and only task of political society was to name an individual or a group of individuals as sovereign. This sovereign would then have absolute power, and each citizen would owe him absolute obedience. Hobbes concept meant that popular sovereignty only existed momentarily. In modern terms we might say that it consisted of "one man, one vote, once".

Locke in his writings e.g. Second Treatise of Government, published 1690, claimed as Hobbes before him, that the social contract was permanent and irrevocable, but the legislative was only empowered to legislate for the public good. If this trust was violated, the people retained the power to replace the legislative with a new legislative. It is unclear whether Locke deposited sovereignty in the people or in the legislative. Though he was less absolute than Hobbes, he clearly didn't intend popular intervention to be commonplace. If anything, Locke's vision is probably closer to the British view of Parliamentary sovereignty.

Rousseau (e.g. The Social Contract, 1762) claimed that laws enacted by the legislature could only address the common good of the society's members and they could only extend the same rights or obligations to all citizens. Rousseau, however, didn't elaborate on what would happen if these conditions were violated, but he did propose mechanisms to find out what the "general will" was and he did see the legislative powers as vested in the people itself.

Thus there was a development in political theory from the very limited role played by the people in Hobbes' theories, to the more significant popular sovereignty of Rousseau.

Rule by consent in other fields of thought

Ideas and thoughts legitimizing the rule of consent also may be found in many religious tracts. The Bible sums it up quite nicely and again not coincidentally: "Love your neighbor as yourself." (Mark 12, 31), and "And as you would like that men would do to you, do exactly so to them." (Luke 6,31). In other words; since you like to control your life, let others control theirs. The implied promise is that the individual and society will be happy and prosperous to the extent that this advice is followed and the people is given the maximum amount of individual and group liberty and sovereignty.

Contemporary psychologists as well, in their search for the sources of happiness and depression, have found the same result. Happiness, confidence and success are closely related to a belief in one's ability to influence one's own fate. Depression and failure are related to a feeling of inability to control one's own life, to a feeling of being controlled.

To most people these truths seem so self-evident that they need not be argued. However, more than 200 years after the American Declaration of Independence the individual "pursuit of happiness" that seemed self-evident to its framers, and that still seems self-evident to ordinary people today is still met, as it was 200 years ago, by enormous resistance among most of the political elite.

1.2 A contemporary definition of popular sovereignty

According to the New Columbia Encyclopedia, sovereignty is "the supreme authority in a political community". It is that individual or group that has absolute power to make law. The term popular sovereignty is supposed to mean that this ultimate power belongs to the people, but what is the most common contemporary interpretation? Most Western democracies claim to base their government on popular sovereignty, but in reality the people has little ultimate authority short of revolution. Most decisions, even fundamental decisions, are left to the legislatures. It is usually the legislature that controls the constitution, the most basic instrument of government, and the extent of popular authority is usually at this body’s discretion. Even where popular consent is required, the legislature usually has the sole authority to propose amendments. In reality this means that sovereignty is most commonly placed in the legislature. It is this body, rather than the people, that has the ultimate power to make law.

On the other hand, in order for a government to be truly popular it would have to provide the people with at least as much authority as any other body, and in addition a right to overrule that body. This is how I define popular sovereignty and it is this definition that forms the basis for the proposed governmental system.

A modern updated definition of popular sovereignty has to rest on the people's ability to:

adopt its own basic law (constitution)
propose and adopt amendments to the basic law (constitution)

If the people has these powers, it may institute any other changes it desires. If it doesn't have these powers, however, it is unclear how it can be legitimately said that the government rests on the supreme authority of the people.

1.3 Popular sovereignty and direct democracy

Direct democracy means that the people directly decides all issues, instead of delegating decisions to representative bodies like national legislatures; while popular sovereignty means that the ultimate political authority is deposited in the people. It follows that popular sovereignty and direct democracy are closely related, but they are not exactly the same. Crudely simplified we may say that popular sovereignty is political theory at a more basic level, while direct or semi-direct democracy is its practical and pragmatic manifestation. Much of the discussion in the following chapters will therefore focus on (semi) direct democracy, its implementation and effects.

As an aside I might add that it is possible to have direct or semi-direct democracy without popular sovereignty. Ordinary people may be allowed to make ordinary laws, but barred from changing the constitution. Such a combination was proposed in the United Kingdom around the turn of the century.

Similarly, it is possible to have popular sovereignty without direct democracy in its purest form. This is the usual form of popular sovereignty; a combination of representative bodies and ultimate popular authority. But it is not possible to envision popular sovereignty without such a form of semi-direct democracy.

Semi-direct democracy is a combination of direct democracy and representative (also called indirect) democracy. A semi-direct system is characterized by the people having delegated legislative powers to a parliament or other representative body, but having made this delegation revocable and limited. In addition to the legislature there must also be a mechanism allowing for the people to express its will directly.

For reasons of simplicity the rest of the book also employs the term direct democracy to describe the direct parts of a semi-direct governmental system.

The proposed governmental system is a semi-direct democracy.

History of direct democracy in Europe

The history of popular sovereignty and direct legislation goes back a long time. It can be found in some Greek city states of antiquity, and among the Germanic tribes of northern Europe. At the time of the Greeks and the Romans, the northern Europeans lived in small groups in sparsely populated areas. In such societies, there are definite limits to oppression. If people are dissatisfied, they simply gather together in a little group to move on to greener pastures elsewhere. This way of life naturally leads to an essential equality in fundamental political decisions. After all, these groups or tribes can only be kept together by voluntary compact. Thus the nature of frontier society gave every young able-bodied individual a stake in fundamental decisions.

Later, voting with your feet largely ceased being an option as the more fertile parts of Europe became more densely populated and land became scarce. The emergence of agriculture as the dominant food source reinforced the vulnerability of ordinary people. In an open landscape, with a sedentary lifestyle it became harder to escape tyrants and their professional fighting men. Over time this lack of effective countermeasures led to the emergence and growth of feudal institutions.

In the less accessible parts of Scandinavia and Switzerland, however, repression was more difficult to enforce, and the local landsgemeinde or things survived for a considerable period. The original landsgemeinde were general assemblies of all adult freemen that met once or twice a year to resolve important issues. In Norway during the time of the Vikings (around 1000 a.d. and even later) kings were still elected or approved at the local direct assemblies, and usually there was more than one contender. This multiplicity of choice acted as a brake on royal ambition. For a long time there was no real central government, and even after its creation, the geographical conditions were such that only occasional supervision of local communities could be accomplished. Even if you did have a fall-out with the monarch, you could usually escape to other Viking communities in Iceland, Normandy, Ireland, England, the Orkneys or the Baltics with impunity.

The regional representative assemblies assumed many powers of the earlier Norwegian direct assemblies beginning about 1000 a.d. However, these representative assemblies had almost un-fettered legislative powers at least until 1152 when the first serious attempts at national legal harmonization were made. The things or representative assemblies did survive until 1662, but their powers steadily eroded with the increasing influence of the church, the dwindling number and professionalisation of members, and the appointment by the king of an ever-larger fraction of the total.

Even after the time of the Vikings, during the more powerful Danish-Norwegian kings, central government enforcement was still difficult, and several tax collectors failed to return to the capital. On the continent or in the flat eastern part of Norway, the king or the feudal lord could employ heavily armed professional soldiers on the sedentary population. But heavy arms were of little help in Switzerland, Iceland or in the Norwegian mountains with their ample opportunities for ambush and guerrilla warfare. Neither were there many fields to burn as the population to a large extent relied on husbandry, fishing and hunting for subsistence.

Thus by the Middle Ages the democratic traditions of citizens' assemblies survived only in Iceland, in parts of Norway, possibly in parts of Sweden, and in the original Swiss cantons. Scandinavia eventually succumbed to absolutism, and direct democracy survived only in Swiss towns and cantons.

In Switzerland, 1291 marked the establishment of a defensive league between the original cantons of Uri, Schwyz and Unterwalden directed towards the feudal Habsburgs. Swiss history as well is filled with much strife even after this time. But the Swiss, contrary to the Scandinavians were never conquered and never ruled by monarchs (with the exception of Napoleon).

It was the democratic traditions of Switzerland that later inspired Jean-Jacques Rousseau. Rousseau's writings (e.g. The Social Contract, 1762) led to the adoption of the referendum in the French Constitution of 1793, i.e. during the French Revolution. Though this Constitution never came into operation, Napoleon used the referendum occasionally. It also led to a revitalization in Switzerland itself.

In 1848, the new Swiss federal constitution gave the Swiss people the power to demand the complete revision of the Constitution through the election of what was in effect a constitutional convention. In 1874 the Swiss used this power to force the adoption of the legislative referendum (the right to approve or reject ordinary federal legislation). Later, the threat of another confrontation with the people led the Parliament to propose and pass itself the constitutional initiative (approved 1891).

Direct democracy in the United States

The basis of the democratic traditions of the British colonies in North America is similar to that in Europe. The North American colonies were far removed from the hub of power. They were protected from royal interference by difficult communications and sheer physical distance. In this environment of freemen evolved the New England town meeting.

The town meeting is an assembly of all adults (originally all male adults) called every year to decide important local issues.

As in Switzerland several centuries earlier, the Americans resented central taxation and interference with what they perceived to be internal American affairs. As in Switzerland, geography hampered the military response of the central power, and eventually secured the freedom of the American people and the preservation of its democratic traditions. Thus as early as 1778, the Massachusetts constitution was adopted by referendum. But this was hardly an expression of popular sovereignty as I have defined it. Rather it was the people vesting its ultimate authority in a new legislature according to the Lockean vision. This becomes quite clear in the American Declaration of Independence of July 4, 1776:

...."whenever any form of government becomes destructive of these ends [life, liberty etc.], it is the right of the people to alter or to abolish it, and to institute a new government,..."

Also, it should be noted that though the American Constitution’s Preamble starts off with "We the people of the United States" ...... etc. There is no way for the people to amend the Constitution. Popular sovereignty in its more radical form was introduced later. Today, Delaware is the only state that does not require popular approval for constitutional amendments, but the federal Constitution has still not been updated.

The initiative, legislative referendums and other democratic reforms were also postponed for another century. When these issues emerged or reemerged, it was because of a maturing United States and a maturing political structure. The drive westward was being completed and the opportunities for voting with your feet internally in the United States were reduced. Simultaneously the political structures of the older states were setting, while the ordinary man’s entrepreneurial spirit especially in the West, was still not completely subdued.

It is to this entrepreneurial spirit we probably have to attribute the reform movement born in the American Midwest at the turn of the century. Many of these people had moved thousands of miles to get to a place that offered individual opportunity and individual choice. They didn’t need or want a corrupt or party ruled legislature to tell them what to do. In 1898 the reform movement managed to get the initiative adopted in South Dakota as the first state.

Direct legislation in the United States is still largely a western phenomenon. Mostly it has been introduced within a few decades of the state's erection, and before its political structure has become too entrenched. Though several efforts have been made at the federal level, the entrenched interests of pressure groups and party machines have so far successfully repulsed every effort. The initiative also has been fiercely resisted in most of the eastern states.

In Canada, direct legislation can be found in the province of Alberta and at the local level.

1.4 Summary

This chapter defines popular sovereignty as the people's power to:

adopt its own constitution
propose and adopt amendments to the constitution

Thus the practical manifestation of popular sovereignty is direct democracy.

A semi-direct democracy employs both a representative legislature as well as direct legislation. Throughout the rest of the text the term "direct democracy" will be used to describe the direct components of a semi-direct legislative system.

Revised: 2004-07-02