“We the People:” How Democratic is the American Constitution?

(“From Beyond the South:” I, 3)

The title of this post makes reference to the opening words of the Preamble of the American Constitution and the title of a book by Robert Dahl. My answer, however, is different than Dahl’s. While his answer is “not so much,” I dare say that the American Constitution could not be anything besides democratic. “We the People” does invoke America’s political sovereign, but it is not fully clear at first sight who “We the People” actually is. That which follows is no more than a hypothesis, so read it with care.

Every society shares a self-understanding that constitutes it as a political community. It is a truth which Eric Voegelin called “civil theology.” As with any society’s “unwritten constitution,” this self-understanding is always found already “there,” fully in practice, before the attempts to describe and explain it. It is there, even before the written constitutions. The goal of a written constitution is to emulate the closest possible the unwritten structure, or, else, it will be condemned to a short life — as happened, for instance, with the Articles of Confederation. The Constitution of the United States has been stable for so long because the Framers managed to capture the essence of the American self-understanding and to translate it into a legal document.

In brief, Americans understand themselves as “E pluribus unum” (“Out of many, one”). The Articles of Confederation got the “pluribus” part right, but failed to count for the “unum.” The void was filled by the Constitution, which provided a proper channel for Americans to finally act as one people — something that did not existed before, ever. The fundamental difference between the Constitution and the Articles is presented by the very three first words of the Preamble: “We the people.” The discovery of the one American people is so strong that, centuries later, it still baffles thinkers as Robert Dahl. It goes even further, pushing them towards believing it to be the only form in which the American people actually exists. In other words, Dahl and others end up focusing on the “unum,” relegating the “pluribus” part.

As “E Pluribus unum,” the American “political theology” — Carl Schmitt’s equivalent to Voegelin’s “civil theology” — follows the British political theology. The Framers were all former Englishmen, and, thus, their constitutional experience was completely British. Forced to establish a stable Constitution, they sought inspiration in the one they knew. However, the concrete differences between America and Great Britain ended up hiding most of the constitutional parallels between the two. For instance, in both sides of the pond there was an agreement on the rights of Englishmen — currently known as individual or human rights. Those were considered “self-evident truths.” Still, the most striking link between the American and the British constitution is their inspiration on Christian theology — that is, they are both “trinitarian.”

Usually people focus on what could be called “horizontal trinity,” which describes the way the government is organized and exercised. As Montesquieu has famously described, the government has three powers, and each power is given to a particular branch, either: the Executive, the Legislative, or the Judiciary. However, albeit relevant, that would not be the most important trinity in those constitutions. The British and the American constitutions are trinitarian, not because their governments have three branches, but because their sovereigns are, at the same time, one and three.

Schmitt argues that the ground of any legal order, i.e., of any political society is a sovereign decision. Schmitt points that the sovereign manifests itself during exceptional times, which shows the problem of finding him in the first place. The sovereign is not the one in charge of government, but who that establishes the constitution of a particular polity. Hence, in times of business-as-usual, there would be no need for the sovereign to make himself manifest. According to Schmitt, the fate of any sovereign would be to emerge, make a fundamental decision to which everyone abides, and immediately disappear again. This seems to stress that any quest to find an actual concrete sovereign is futile. As said above, societies are usually already acting as such before any question about their constitution would come forth. Sovereignty seems to be the capacity of any community to determine itself as a polity. Thus, the sovereign could only be the society as whole; while its constitution is to be found in the way the society practices it.

There being nothing concrete that could possibly be identified as the sovereign, it would be wrong to say that, for instance, in the United Kingdom, the sovereign is the Queen, or the Parliament, or the House of Commons. In British Constitutional Theory, sovereignty is usually attributed to the image of the “King-in-Parliament;” which seems to recognize the sovereignty of the Realm as a whole over itself. Putting in another way, the British constitution understands that all three of its recognized estates — the monarch, the lords, and the commons — as sovereigns, but only when together, as one, in Parliament. The fact that political power is currently concentrated with the commons does not change that. The fact that the monarch and the lords are still recognized as such is evidence that there are limits to that power. England still does not understand itself as a society of commons; so says its constitution.

On the other side of the pond, there was a time when Americans decided that they could no longer be part of the British Empire. After conquering their independence, forced to establish a constitution of their own, Americans had to face the fact that their circumstances were not similar to those found in Great Britain. For instance, in America there was no monarch, nor lords; only commons. From the British constitution, only the democratic element was retained. On the other hand, there was no unity at all, but 13 different colonies. Hence, it was impossible to simply copy the British constitution and apply it to them. If there were to be a United States of America, soon they realized, it could only be as a liberal confederate democratic Republic.

Still, as mentioned, the first written constitution did not last long. It was only in the second attempt that the form of the American political sovereign was discovered. America was also a trinity, even though, very different from the British one. The Constitution of the United States recognizes the sovereignty of “We the People,” the American people as a whole, but such a sovereignty is exercised in three distinct ways: united as the American People; as a set of peoples from each state separately; and as a multitude of individuals, associations, and communities. Thus, the sovereign in the United States is not simply the People, but the “People-in-Government” or, in Lincoln’s words, the “Government of/by/for the People” — manifested in the Federal government, in the government of the states, and in the self-government of the citizens. Therefore, in the US, just like in the UK, the political sovereign would be one and three at the same time.

If I am right, the trinitarian symbol would be key to understand the way the American constitution works. For instance, any amendment to the common constitution only happens when all parts agree on it. Why did secession lead to war? Because the Union did not agree with it. Why did popular suffrage for Senators work? Because it still respects the constitutional framework. Why did “Prohibition” fail? Because civil society never agreed on it. So on and so forth. Moreover, since the parts are both whole-in-themselves and parts of a whole, there are always tension between them and between them and the whole. These tensions are intrinsic to the Constitution and, thus, unsolvable. While there are tensions, the constitution is preserved.

It is the democratic tug-of-war between the Union, the States, and the Civil Society that keeps the American society together as a whole. It is the constant political clashes that make the Americans who they are: Americans. Instead of breaking them down, it only makes them stronger. Ironically, the United States of America have only become a stable secular liberal political society because it was constituted in a way that their concrete circumstances fit into the form of the Holy Trinity — “E Pluribus Unum:” One God, Three Persons; One People, Three Sovereigns.

Paulo Sanchotene

[edited] Originally published at:
https://www.facebook.com/frombeyondthesouth/posts/205067789909262