Popular sovereignty

Wegman, a former New York Times editorial board member and Brennan Center senior fellow though, presents Wilson a bit differently than we do at the James Wilson Institute.

Wegman contends that Wilson is best understood as a democratic champion of popular sovereignty that the contemporary left can claim as the founder of their own.

Yet Wilson's own writings, above all his lectures on law, resist easy modern categorization, particularly because of Wilson's deep education in the natural law.

Today we discuss the recent Anchoring Truth symposium on the book that we hosted.

And we have Wegman, who is a avowed progressive, providing a book, which is an appreciation of one of the American founders, to an audience of his, which is significantly comprised of progressives who are deeply skeptical of the wisdom that the founding generation can provide to the present.

So Wilson is casting, sorry, Wegman is casting Wilson as something like the founder that's acceptable to the progressives.

And the vehicle by which he is doing this is to cast Wilson as ahead of his time by being one of, if not the only founder to advocate for something that would approach the kind of popular sovereignty or support of democracy as is understood in the present, but it's a popular sovereignty without the kind of metaphysical and moral constraints that Wilson in his own writings and speeches insisted upon.

Candace, you show that even Wilson's judicial role was tightly constrained by analogy and precedent and the people's consent expressed in the common law.

But the reason why I bring this up is because Thomas Paine didn't happen to make this argument just by accident.

It fit into his overall way of thinking about … the nature of political authority and legitimacy because he was a very, very, very strong proponent and believer in the idea of popular sovereignty, which is that the people are sovereign, and any constitution that is going to be established … needs to be established by them.

It needs to be approved by them, which means it needs to be interpretable and understood by them.

And it also means that they're the ones who have really a duty to interpret it.

As a reminder listeners, this has been the first part in a two-part episode.

In the second part, which we will be releasing in a few days, we turn to the other side of this history, the long struggle for popular sovereignty in Haiti.

In the second part, we trace the development of Haitian social movements, from resistance to the American occupation, through the overthrow of the Duvalier dictatorship, to the mass mobilizations that swept Haiti in 2018.

And finally, we ask the question of what possibilities exist for rebuilding popular power in Haiti today.

You bring up being a good common law constitutionalist.

It might be helpful at this moment to situate your work within the work of not only your colleague, Joel Alisea, and his more popular sovereignty form of originalism, and then The common good constitutionalism of Professor Adrian Vermeule, points of overlap and perhaps points of distinction as well with the natural law approach of our founders at the James Wilson Institute would, I think, be helpful for our listeners since I think they are broadly aware of some of these, we call them debates within the family, right?

I'm happy to do that.

I'm happy to do that.

About non-traditionalist judging, you write, quote, to fail to account for tradition is to deprive ordinary citizens of a role in the process of change.

Judges who think the Constitution is theirs to do with as they will alienate the public from the Constitution, close quote.

Is the methodology of these consequentialist judges, judges like Brennan and Posner who you mentioned, who seek to achieve practical purposes through the law, is their methodology self-defeating, as it were, because it causes the long-term harms of weakening popular sovereignty in its attempt to manufacture good political outcomes?

Good.

He was this 21st century man trapped in the 18th century.

He was talking about political equality, and he was talking about popular sovereignty, the idea that all political power resides in the people, all authority resides in the people.

And he was talking about direct election of presidents or direct election of legislators.

It was just such a breath of fresh air compared with the kind of potted history that I had grown up with and that I think most of us had grown up with.

All of them agreed with that.

But they varied in their degree to which the people's authority ought to be passive or active in political decision making.

And this is something that I find so interesting about these four men and many others is that popular sovereignty, that is the sovereignty of the people, for someone like Sherman, that was passive.

Once they voted their representatives into office, their role was finished.

But the idea was, yeah, but maybe the South gets two or three out of the Mexican session.

And then lastly, How would slavery be determined in that Southwest, the big issue? How do you do it? By what principle? Clay said, popular sovereignty.

Let the people have a referendum and vote.

Liberal democracy.

So that statehood, for any territory in the Mexican session, except for California here, This is the stuff of compromise.

Don't look for hard principles here.

Except for California, everything else in the Mexican session will be determined on popular sovereignty.

The people who settle the territory, at some stage of the territorial process, could be early, could be late, will vote whether slavery shall exist.

So boundaries and territory, clearly delineated boundaries and territories, I think are very important.

But beyond that, I think you have the question of what I would call popular sovereignty.

So the ruler of the state needs to be understood, whether they are democratically elected or not is a different story, but they need to be understood as part of the people.

And here's where the question of nationalism matters, right? You need a Lebanese president for the Lebanese state.