Our Republican Constitution

AT THE CONCLUSION of the Constitutional Convention in Philadelphia in 1787, anxious citizens gathered outside Independence Hall to learn what had been produced behind closed doors. As I mentioned earlier, it is said that, as Benjamin Franklin left the building, a woman in the crowd asked him, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin is reported to have responded, “A republic, if you can keep it.”

We have seen that, though the new form of government devised in Philadelphia was not a monarchy, neither was it democratic. Nevertheless, Franklin still called it “a republic.” This was because the meaning of that term had just been altered by the men in the building Franklin was leaving. A Republican Constitution was no longer a democratic one (if it ever truly was).

In this chapter, I explain how the text of the original Constitution that was drafted by the framers in Philadelphia acknowledges the individual sovereignty of the people. We will then see how the Supreme Court recognized this in its first great constitutional case. Then, in Chapter 4, we’ll examine how the text of the Constitution was amended by a new Republican Party to improve our Republican Constitution.

INDIVIDUAL SOVEREIGNTY IN THE CONSTITUTION

The text of the Constitution expressly acknowledges the underlying political theory of the Declaration, namely, its roots in the natural and inalienable rights of individuals—that is, that first come rights and then comes government. This is why whole passages of its text must be ignored or interpreted out of existence to transform it from a Republican Constitution into a democratic one.

To be clear, the question of whether the meaning of the Constitution specifically references individual natural rights is separate from the question of whether the courts are empowered to enforce that meaning against Congress or state legislatures. One can accept that the answer to the first question is yes, while still maintaining that the answer to the second question is no.

Later on, I will suggest that courts have a duty to protect the natural rights of the people, but that they can accomplish this by enforcing the structural features of our Republican Constitution and by holding federal and state governments to what the Declaration called their “just powers.” At this point, however, I am concerned only with how the original meaning of the text of the Constitution is republican.

Masters and Servants, Principals and Agents

To begin with, the Constitution nowhere speaks of the “rights” of either states or of the federal government. Instead, it speaks of “powers,” which are what masters delegate to their servants. A master or “principal” delegates powers to her servant or “agent.” And according to long-standing principles of agency law, an agent must exercise these powers on behalf of and subject to the control of the principal.¹ This is because the principal is the ultimate sovereign power in the relationship of principal and agent.

The Constitution is fastidious in this regard. Consider the Tenth Amendment, which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This is pure agency talk. The Constitution delegates powers to the national government. That which is not delegated is reserved either to state governments, or to the ultimate sovereign, the people themselves.

In some ways, the Tenth Amendment is merely restating the first sentence of Article I, which defines the “legislative power” of Congress. “All legislative power herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Neither the executive nor judicial powers are qualified by “herein granted.”

For this language to serve any purpose, “herein granted” must refer to a limited set of legislative powers. Otherwise the sentence would mean the same as if it said “all legislative power shall be vested in a Congress of the United States.” But that is not what it says.

Further, “herein granted” is an express reference to the written Constitution. Therefore, the only powers that may be justly or properly exercised by Congress are those found somewhere within the Constitution’s text.

The “Rights . . . Retained by the People”

Although the underlying assumption that “first come rights and then comes government” pervades the document, it is expressly recognized in the Ninth Amendment, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”²

Notice the use of the term retained, which means these rights preceded the adoption of any enumeration or listing of rights, whether in the original Constitution or in any of its later amendments. We know that the rights that were “enumerat[ed] in the Constitution,” such as the freedoms of speech, press, assembly, and the free exercise of religion, are clearly individual rights. This strongly implies that “other” unenumerated rights belong to individuals, too.

Furthermore, “the people” to whom the Ninth and Tenth Amendments refer are expressly distinct from the governments of both the United States and the states, including their respective legislatures. Because all “powers not delegated” by the people are reserved to them, this means that the only powers the federal government has are those “delegated . . . by the Constitution.” In other words, the government of the United States has no inherent power, but only those that are “herein granted” as a matter of written positive law.

In sum, the “retained” rights to which the Ninth Amendment refers belong to the people as individuals rather than as a group. So too do the reserved powers not delegated by “the people” to either the state or federal governments. Thus, when read together, the text of the Ninth and Tenth Amendments strongly implies that sovereignty resides jointly in the people as individuals, each and every one.

The Rights Retained by the People Are Natural Rights

That “rights . . . retained by the people” is a reference to natural rights is supported by the weight of the available evidence of original meaning, which I have surveyed in detail elsewhere.³ I won’t rehearse all that evidence here, but consider a proposal that circulated among members of the House select committee that, in 1791, was charged with drafting amendments in response to the demands of several state ratification conventions.

This proposal was found in the 1980s among the papers of James Madison, who served on that House select committee and was determined to be in the handwriting of fellow committee member Roger Sherman, a representative from Connecticut who had previously been a delegate to the Constitutional Convention in Philadelphia. Before that Sherman served with Jefferson on the Committee of Five, which composed the Declaration of Independence.

The second amendment in Sherman’s draft begins as follows: “The people have certain natural rights which are retained by them when they enter into Society.”⁴ In this passage, Sherman uses all the terminology eventually employed in the Ninth Amendment—“the people,” “rights,” and “retained.” Then the “rights . . . retained” by “the people” are explicitly characterized as “natural rights.” Sherman’s proposal ends with the following injunction: “Of these rights therefore they Shall not be deprived by the Government of the united States.”⁵ This indicates what is meant by “deny or disparage” in the Ninth Amendment.

But what was meant by the term natural rights? The middle of Sherman’s draft provides some examples: “Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances.”⁶ While some of these natural rights were enumerated in the First Amendment, the rights “of acquiring property, and of pursuing happiness & safety” were not. These individual rights remained unenumerated rights retained by the people. And “such are” signals that the rights listed by Sherman were not the only ones that were retained by the people.

Sherman’s rendition of natural rights was entirely commonplace. You will recognize that language from the Declaration of Rights in the Virginia Constitution of 1776, which had been drafted by George Mason. By 1791, Mason’s language had become the canonical statement of natural rights. In addition to Virginia, four more states included a variation in their constitutions, while a fifth employed Jefferson’s compressed version from the Declaration:

• Massachusetts: “All men are born free and equal, and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”⁷

• New Hampshire: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.”⁸

• New York: “We hold these Truths to be self-evident, that all Men are created equal; that they are endowed by their Creator with certain unalienable Rights; that among these are Life, Liberty, and the Pursuit of Happiness.”⁹

• Pennsylvania: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are, the enjoying and defending of life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.”¹⁰

• Vermont: “That all Men are born equally free and independent, and have certain natural, inherent and unalienable Rights, amongst which are the enjoying and defending Life and Liberty; acquiring, possessing and protecting Property, and pursuing and obtaining Happiness and Safety.”¹¹

It is perhaps no coincidence that, other than Mason’s and Jefferson’s Virginia, all these were northern states that had or would abolish slavery.

Similar provisions were proposed by state ratification conventions. Given its Declaration of Rights, it is unsurprising that Virginia offered the following as its first proposed amendment: “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”¹² From New York came the following proposal: “That the enjoyment of Life, Liberty, and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.”

Though Sherman’s wording was not adopted by the House, very similar wording was again proposed in the Senate: “That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.”¹³

We can only speculate about why Congress declined to propose this language be added to the federal Constitution. Perhaps this was due to the fact that, in 1783, this language had been used by the Massachusetts Supreme Judicial Court to find that slavery was unconstitutional under its constitution. Still, this well-known legal development in Massachusetts did not stop Virginia from recommending its addition.

All these provisions affirm that the natural, inherent, and inalienable rights retained by the people include the rights to acquire, possess, and protect property and the right to pursue happiness and safety. Today we would characterize the right to acquire, use, and possess property as an “economic” liberty, and the right to pursue happiness as a “personal” liberty, but this distinction is anachronistic when applied to the founding, when these unenumerated natural rights were considered inextricably intertwined. Indeed, the right to acquire, possess, and use property is a vital means to the pursuit of happiness, as the Massachusetts and Vermont constitutions both say.

But the last sentence of Sherman’s draft is also evidence that what has come to be known as the Bill of Rights as a whole, and the Ninth Amendment in particular, was a limitation on federal as opposed to state power. “Of these rights therefore they Shall not be deprived by the Government of the united States.” What of the states?

While Article I, Section 10 bars states from making any “law impairing the obligation of contracts,” in Barron v. Baltimore¹⁴ the Supreme Court denied that the Takings Clause of the Fifth Amendment could be enforced against a state in federal court, and this came to be the prevailing doctrine.

For better or worse, the original Constitution included very few protections of the rights retained by the people against their own state governments. As a result, from the perspective of the federal Constitution, state governments were deemed to be powerful enough to authorize the enslavement of some of their people by a subset of their citizenries.

This grave and nearly fatal flaw of the original Constitution almost destroyed the United States. But it was corrected by a different group of framers and ratifiers who improved our Republican Constitution by providing greater protections of the rights retained by the sovereign people.

INDIVIDUAL POPULAR SOVEREIGNTY IN THE SUPREME COURT

During the Revolutionary War, the state of Georgia contracted with South Carolina merchant Robert Farquhar to supply some goods on credit for the war effort. Georgia later refused to pay for the goods, because Farquhar was a British loyalist. In 1792, after Farquhar died, the executor of his estate, Alexander Chisholm, who also hailed from South Carolina, brought an action on the still-uncollected account in the Supreme Court of the United States.¹⁵

Article III, Section 2 of the Constitution says, “The judicial power of the United States shall extend to . . . controversies, between a state and citizens of another State.” So the text of the Constitution seemed quite clearly to allow “a state”—here the state of Georgia—to be sued in federal court by a citizen “of another State,” here a citizen of South Carolina.

Despite this, not only did Georgia contest the jurisdiction of the federal courts, it refused even to show up in the Supreme Court to make its argument, so an attorney needed to be appointed to argue its side. Georgia asserted that, as a “sovereign” state, it could only be sued if it consented to such a lawsuit.¹⁶ Then and now this was known as the doctrine of “sovereign immunity.”

Arguing on behalf of the estate was Edmund Randolph, who at the time was also the first attorney general of the United States.¹⁷ Before that, Randolph had served on the Committee of Detail, which was charged by the Philadelphia convention to create the first written draft of the Constitution.

Decided in 1793, just four years after the enactment of the Constitution, Chisholm v. Georgia was the Supreme Court’s first great constitutional case. In its decision, the Court, by a vote of four to one, rejected Georgia’s assertion of sovereign immunity. Although the justices might have rested their opinions on the plain text of Article III, two of them went further to explain why the text comports with the underlying republican theory of the Constitution. They concluded that members of the public could sue state governments because “sovereignty” rests with the people rather than with state governments. In short, they affirmed that, in America, the states are not kings, and their legislatures are not the supreme successors to the Crown.

In Chisholm, because each justice delivered his own opinion “seriatim,” there was no joint opinion of the Court. The practice of adopting an “opinion of the court” was later adopted by John Marshall, the third chief justice. Ever since, issuing opinions of the court has served to elevate the text of the Court’s opinion to the status of written law to be studied and followed as “precedents,” rather than being mere “opinions” in which each justice explains his individual vote.

Justice James Wilson had been a highly influential member of both the Continental Congress and the Constitutional Convention in Philadelphia. At the convention he had served with Randolph on the Committee of Detail. In his opinion, Wilson began by stressing that the Constitution nowhere uses the term sovereignty. “To the Constitution of the United States the term Sovereign, is totally unknown,” he wrote.¹⁸ There was only one place in the Constitution “where it could have been used with propriety,” referring to the Preamble.¹⁹ “But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves ‘Sovereign’ people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.”²⁰

Wilson contended that, if the term sovereign is to be used at all, it should refer to the individual person. Laws “derived from the pure source of equality and justice must be founded on the CONSENT of those whose obedience they require. The sovereign, when traced to this source, must be found in the man.”²¹ In other words, obedience to law must rest on the consent of the individual person who is asked to obey the law. Wilson believed that the only reason “a free man is bound by human laws, is, that he binds himself.”²²

For Wilson, states were nothing more than an aggregate of free individuals. “If one free man, an original sovereign,” may bind himself to the jurisdiction of the court, “why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired.”²³ In this sentiment, Wilson was not alone.

Our first chief justice, John Jay—who, with James Madison and Alexander Hamilton, had authored some of the early Federalist Papers—offered his own opinion in which he referred tellingly to “the joint and equal sovereigns of this country.”²⁴ Jay then affirmed the “great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined.”²⁵ Notice that both “citizens” and “sovereigns” are plural, not singular. And in this discussion Jay expressly said he was talking about “that popular sovereignty in which every citizen partakes.”²⁶

Neither Wilson’s nor Jay’s individualist conception of popular sovereignty conforms to the modern notion of popular sovereignty as a purely “collective” concept. Their opinions in Chisholm present the radical yet fundamental idea that if anyone is sovereign, it is We the People as individuals, in contrast with the modern view that locates popular sovereignty in Congress or state legislatures, which supposedly represent the “will of the people,” or in a majority of the citizenry, rather than residing in each and every citizen who constitutes the citizenry as a whole.

In Chisholm, only Justice James Iredell, of North Carolina, appeared to favor the concept of legislative supremacy. In his opinion—which was based mainly on his analysis of Article III and the Judiciary Act, which empowered the federal courts—he contended that legislatures have all the powers formerly held by the king unless expressly constrained by a written constitution or by a constitutional act of Congress. “A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority,” he stated, “unless in the special instances where the general Government has power derived from the Constitution itself.”²⁷

Later, in his 1798 opinion in Calder v. Bull, Iredell made this even clearer. In contrast to the opinion of Justice Chase, Iredell maintained that, if a constitution “imposed no limits on the legislative power, the consequence would inevitably be that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void.”²⁸ In other words, only the will of a democratic majority in adopting constitutional limits on legislative power can be enforced by the judiciary.

Iredell was here anticipating the theory of the Democratic Constitution, which would soon arise in the nineteenth and twentieth centuries. With the triumph of the Democratic Constitution, Iredell’s opinions in Chisholm and Calder would later come to be hailed, and those of Jay, Wilson, and Chase dismissed.

RECONCILING INDIVIDUAL SOVEREIGNTY WITH “THE CONSENT OF THE GOVERNED”

The Declaration of Independence famously declared: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It then affirmed “[t]hat to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” This last sentence has proven to be problematic.

If the “consent of the governed” is taken to mean the consent of a majority of the people, then the “consent of the governed” can be used to violate the unalienable rights for which “governments are instituted among Men.” The situation is still worse if the consent of a majority of a small body of men and women called “legislators” and “representatives” is taken to be the same as the consent of the people themselves. The problem with the “collective” conception of popular sovereignty based on “the will of the people” is that it invites this majoritarian interpretation of the “consent of the governed.” For it would seem that the “will” of We the People could not be identified in any other way. After all, the citizenry will never be unanimous about anything.

Suppose, however, that the flaw in this reasoning is to insist that popular sovereignty entails rule by the people themselves. Rather, rule is by “governments . . . instituted among Men,” who are not to be confused with people themselves. What the people must consent to is the scheme of governance, not to the individual laws that may be imposed upon them. And yet, each “joint sovereign” individual is never asked for his or her explicit consent. The Constitution itself was only ratified by a majority of elected delegates to state ratification conventions.

How do we reconcile the individual conception of popular sovereignty based on the consent of each and every person with the fact that such unanimous consent to governance is never expressly solicited, and would be impossible to obtain? If the only reason “a free man is bound by human laws, is, that he binds himself,” as Justice Wilson insisted, in what sense can an individual who is never asked for his or her consent be said to have consented to be governed?

As it happens, there was an answer to this question that can also be found at the time of the founding and long before. If we start with the republican proposition that it is the people as individuals who are sovereign, and that they retain their preexisting rights while delegating powers to their agents, then, in the absence of such express consent, we must ask what each person could be presumed to have consented to.

In his 1845 book, The Unconstitutionality of Slavery, radical abolitionist Lysander Spooner contended that, since the consent of the governed “exists only in theory,” the people cannot be presumed to have given up their preexisting rights.²⁹ “Justice,” he said, “is evidently the only principle that everybody can be presumed to agree to, in the formation of government.”³⁰ Although this is where I first noticed the concept, Spooner was far from the first to make this argument, which crops up in some interesting places.

In his Second Treatise of Government, John Locke observed that “men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require.” He then considered the scope of the legislative or police power that is given up, employing an analysis based on “supposed” consent very similar to Spooner’s reference to “theoretical” consent:

[Y]et it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one’s property, by providing against those three defects . . . that made the state of nature so unsafe and uneasy.³¹

In the absence of any explicit consent from the individual, like Spooner, Locke asked what a “rational creature can be supposed” to have consented to when leaving the state of nature. And the individual can only be “supposed” to have consented to the common good, which consists of the protection of each person’s life, liberty, and property.

This idea of “supposed” or presumed consent appears again in an official opinion of our first attorney general of the United States, Edmund Randolph—the attorney who represented Alexander Chisholm in the Supreme Court. President George Washington had queried each member of his cabinet as to whether the Constitution gave Congress the power to incorporate a national bank.³²

In his opinion, Randolph observed that a legislature governed by a written constitution without an express “demarcation of powers, may perhaps, be presumed to be left at large, as to all authority which is communicable by the people,” provided that such authority “does not affect any of those paramount rights, which a free people cannot be supposed to confide even to their representatives.”³³ Once again, given the sovereignty of the people as individuals, the people cannot be “presumed” or “supposed” to have confided in their legislature any power to violate their fundamental rights.

But perhaps the most striking use of this notion of the presumed or supposed consent of the governed appears in the 1798 Supreme Court case Calder v. Bull. Calder has become known for its clash between Justice Samuel Chase, who invoked “the great first principles of the social compact,” which he said restrict the “rightful exercise of legislative authority,”³⁴ and Justice James Iredell, who seemed to assert a far more unlimited conception of legislative power. Generally overlooked, however, is the fact that, like Locke, Randolph, and Spooner, Chase too employed the notion of supposed or presumed consent.

Justice Chase began by providing examples of legislative acts that violate these “great first principles,” such as a law “that punished a citizen for an innocent action,” or “a law that destroys, or impairs, the lawful private contracts of citizens,” or “a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B.”³⁵ Such an “act of the legislature (for I cannot call it a law)” was beyond the legislative power, he said, because “[i]t is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.”³⁶

In other words, just because a legislature enacts a statute does not automatically make the statute a law. And a court may need to pass on the question of whether or not a statute is a product of a “rightful exercise of legislative power.” If not, then such a statute would deprive a person of life, liberty, or property without what the Fifth and Fourteenth Amendments call the “due process of law.” Even if it is enacted according to the established legislative procedures or “process,” a statute that exceeds the just powers of the legislature to enact cannot properly be considered a “law.” And no person can be presumed to have consented to being deprived of his or her life, liberty, or property except by a proper law.

When discussing presumed or supposed consent, the issue is the relevant default rule when the legislature is exercising implied powers rather than those that were expressly delegated. For Chase in Calder, the legislature has only those powers that are expressly delegated, together with those implied powers that are not fundamentally unjust, such as punishing a person for acts that were legal when performed. Like Locke, Chase asked whether, in the absence of a clear statement in a written constitution, a free and rational person could have consented to that.

Just seven years after Calder, in the case of United States v. Fisher, Chief Justice John Marshall adopted a similar “clear statement rule” with respect to presumed legislative intent: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.” To come full circle, in his book, The Unconstitutionality of Slavery, Lysander Spooner relied heavily on Marshall’s rule of construction in Fisher.

To be sure, natural justice or natural rights lurk in the background of all these considerations of “presumed consent.” But these rights are not identified and then directly protected as such. Instead, the prior existence of such rights justifies skepticism about the claim of implied legislative power in the absence of an express consent.

When combined with the concept of individual popular sovereignty, all these invocations of “presumed,” “supposed,” or “theoretical” consent cast the issue of popular sovereignty and the “consent of the governed” in a new light and support the approach to constitutional legitimacy I presented in Restoring the Lost Constitution.³⁷

The argument has the following steps:

• First, ultimate sovereignty rests not in the government, but in the people themselves, considered as individuals.

• Second, to be legitimate, the government must receive the consent of all these sovereign individuals.

• Third, in the absence of an express consent by each person, the only implied consent that can be attributed to everyone is a consent only to such powers that do not violate their retained fundamental rights.

• Fourth, the equal protection of these rights retained by the people is what assures them that the government is actually conforming to the consent that it claims to be the source of its just powers.

• Finally, only if such protection is effective will the commands of a legislature bind in conscience on the individual.

DID THE ELEVENTH AMENDMENT REPUDIATE INDIVIDUAL POPULAR SOVEREIGNTY?

Some believe that the Supreme Court’s decision in Chisholm was swiftly repudiated by the passage of the Eleventh Amendment, which reads, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”³⁸ For example, according to Bruce Ackerman, however inspiring may be the opinions of Jay and Wilson, “Americans of the Founding era emphatically disagreed. It took them only one year to mobilize in Congress and the states to enact the Eleventh Amendment which repudiated Chisholm and propelled the Constitution in a different direction.”³⁹

While the Eleventh Amendment certainly stops citizens like Chisholm from suing states like Georgia in federal court for breach of contract, did it repudiate the conception of individual popular sovereignty expressed by James Wilson and John Jay? I think not.

Ackerman is claiming that the highly technical language of the Eleventh Amendment construing Article III’s state citizen diversity should be read as a repudiation of the idea expressed in Chisholm that the people as individuals are sovereign. He offers no evidence whatsoever that the amendment was so read at the time, and this reading of the text itself is so implausible as to border on absurdity.

Nor does the original meaning of the Eleventh Amendment “repudiate” the principle of individual popular sovereignty announced in Chisholm in favor of a general unwritten principle of state sovereignty or, perhaps more narrowly, state sovereign immunity. Instead, it merely does what it says and nothing more: insulate a state from suits in federal court by citizens of other states and of foreign nations.

It was not until 1890 that the Supreme Court first alleged that the underlying principle of Chisholm had been repudiated by the Eleventh Amendment. In Hans v. Louisiana, decided nearly one hundred years after Chisholm but just six years before Plessy v. Ferguson,⁴⁰ Justice Joseph Bradley claimed that the views of state sovereignty articulated by Justice Iredell in his solo dissent “were clearly right, as the people of the United States in their sovereign capacity subsequently decided”⁴¹ when they enacted the Eleventh Amendment.

As it happens, however, Chief Justice John Marshall did not agree. In a little-noted passage of his opinion in Fletcher v. Peck,⁴² some twenty years after the Eleventh Amendment was adopted, Marshall observed: “The Constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract was suable in the courts of the United States for that violation.”⁴³ Marshall then concluded that, although “this feature is no longer found in the Constitution,” it nevertheless still “aids in the construction of those clauses with which it was originally associated.”⁴⁴

In other words, according to John Marshall, Chisholm was a faithful interpretation of the original meaning of the Constitution at the time it was decided. And it remained a correct reading of the general principles of our political institutions even after the text was amended to carve out a limited immunity for states.

The text of the Eleventh Amendment, which reversed the outcome of Chisholm, said nothing to repudiate the underlying principle of individual popular sovereignty articulated by Jay and Wilson—the principle that was reiterated by Justice Chase in Calder. It merely changed the text of Article III to deny federal courts the jurisdiction to hear such cases. This far narrower proposition has been endorsed by a broad swath of ideologically and methodologically diverse Eleventh Amendment scholars.⁴⁵

To repudiate the republican principle that sovereignty resides in the people as individuals, the Eleventh Amendment would have to have said and done a lot more than it did.

Although the text of the original Constitution established a new republican form of government to supersede the more democratic governments of the states, the new federal system was still incompletely republican. Some states continued to allow the enslavement of blacks; free blacks in the North were often treated as second-class citizens; and women, though citizens, lacked some of the privileges of citizenship enjoyed by men. The rise of a new Democratic Party in the 1820s, committed both to slavery and to majoritarian rule within the states, exacerbated these problems and led to the establishment of a new antislavery Republican Party in the 1850s.

In Part II, I explain how these political developments eventually led to the adoption of amendments that greatly improved our Republican Constitution. I then tell the story of how the rise of progressivism in both political parties led to an assault on our Republican Constitution that has greatly undermined its republican features to this day. The progressives gave us the concepts of “judicial restraint” and “deference” to the majoritarian branches, along with the concept of “a living constitution.”

All of these tropes were devised to evade the constraints on their progressive legislative agenda imposed by our Republican Constitution. So our Republican Constitution had to go. This story will make clear how the tragedy of the Supreme Court’s decision in the Obamacare case was made possible by modern-day “judicial conservatives” accepting as valid the progressive attack on our Republican Constitution, and why it is entirely legitimate for judges to preserve its republican structural features.

CHAPTER 3

“WE THE PEOPLE” AS INDIVIDUALS