In Inventing the People (1988), Edmund Morgan famously argued that the doctrine, or “fiction” as he termed it, of popular sovereignty was invented in middle seventeenth-century England as Parliament and the king engaged in civil war. Initially, the idea that the people were the basis and purpose of government was not intended to overthrow the king, or the then-prevailing doctrine of the divine right of kings that connected king to God. It simply sought to place the king in proper relationship to government by resting his authority upon both God and the people. But the basic idea of popular sovereignty, that the people could “begin, change, and end governments,” had radical implications (Morgan, P. 59), which became real when Americans rediscovered popular sovereignty in the late eighteenth century to overthrow monarchy and create new republican governments based solely upon popular authority.
But while Morgan adverted to earlier thinking about the people, principally the sixteenth-century French monarchomachs (“king killers”), he did not give it sustained attention. He is not alone, of course. It is a curious thing that what is perhaps the master concept in Western constitutionalism has until recently received scarcely any attention. To the extent it has been examined, it is usually presented as both cause and consequence of late eighteenth-century revolutionary politics in America and France. Daniel Lee’s new book on popular sovereignty in early modern legal and political thought offers a corrective, and challenges us to rethink the nature and meaning of popular sovereignty as it emerged in the late eighteenth century, a point in a longue duree that he traces back to the Roman Republic.
What we now know as popular sovereignty grew out of several not always compatible concepts of Roman public and private law, including dominium, imperium, and iurisdictio. The root concept, however, was the lex regia (“royal law”), “the legal device or instrument by which Roman popular sovereignty was fully alienated and transferred to the Roman Emperor as ‘lord,’ or dominus, of all the world” (Lee, P. 26). While superficially this concept could appear to lead directly to a more modern idea of popular sovereignty, in reality the path from former to latter was long and at times dizzying. Lee does a wonderful job of tracing this idea and its shadows through various intellectual traditions from scholasticism, humanism, and natural law, to French and English radical and absolutist thought in the sixteenth and seventeenth centuries. While the analysis is anatomical in detail at times, he frames each chapter so that the reader can understand or at least contemplate the relationship between the ligaments of analysis and the body of the narrative.
While there are many themes dancing around within this book, a couple particularly captured my attention. One concerns the origins of the idea of the constituent power—the idea, as Morgan put it, that the people can begin, change, and end government. The origin of this idea is commonly traced to Emmanuel Sieyès, a thinker in and of the French Revolution. Lee, however, traces this concept to the sixteenth-century French monarchomachs, who introduced both a theory of resistance into popular sovereignty and the idea that “the people always bear the proper and exclusive right of sovereignty” (P. 157). This was a first step toward linking popular sovereignty to revolution, a connection realized a couple of centuries later, in the late eighteenth century.
A couple of other themes revolve around the concept lex regia itself, and demonstrate that there was never a single concept of popular sovereignty. One concerns whether the Roman people ever actually conveyed their authority to the emperor. While there is some scanty evidence of such conveyance, Lee concludes that ultimately the lex regia operated as a fiction to legitimate the Roman emperor’s authority. But this was a problem that would plague the development of popular sovereignty throughout the early modern period, as various polities also tried to account for their own moment of popular creation in the absence of clear evidence. Although beyond the scope of Lee’s book, this problem would be resolved by the French and American revolutionary experiences in the late eighteenth century, which tied the constituent assembly to the people transforming popular sovereignty as both idea and practice.
A final theme of Lee’s book is also important for understanding the legacy of early modern ideas of popular sovereignty. This theme concerns the question of whether the popular grant of authority to the princeps (“prince”) was a complete alienation of popular authority (translatio), or a temporary grant that could be later recalled (concessio). In the early modern period this debate helped to frame the questions concerning the nature and legitimacy of the prince’s political authority. Variations of this debate persisted well beyond the early modern period. I have seen it in nineteenth-century America. As popular sovereignty sunk deep roots in constitutional development, variations of the debate over full or temporary alienation, this time to constituted authority, were part of a debate over how to limit the political authority of the people themselves.
Lee lays out well the intellectual debates, and provides us with the intellectual context of the history of popular sovereignty over a longue duree, a history that has been lacking for far too long. Lee’s book is now the starting point for any study of popular sovereignty, popular constitutionalism, and, I would say, the rise of constitutionalism more generally.