‘People’ is not a thing
Americans love their rights. Progressives, conservatives, libertarians, and people anywhere in between all have their favorite freedoms enshrined in the Constitution. Yet Americans also love “the people”.
You see, we don’t all like the same rights. And if someone objects to a particular right, they often claim that this area of governance should be left to the “people” to decide for themselves through the political process – regardless of what the Constitution says.
The most recent example occurred on December 1 during argument before the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization, a case testing Mississippi’s abortion ban after 15 weeks of pregnancy.
Mississippi Solicitor General Scott Stewart, in his case for the state, said the overturning of Roe v. Wade would send the matter back to the “people” to decide. “This is a burning and difficult question for everyone,” he said. “That’s why it belongs to the people.”
Policymakers used the same argument when debating same-sex marriage a few years ago. Former Governor of New Jersey. Chris ChristieChris ChristieChristie attributes events leading up to January 6 to Trump’s “C-team players” Christie says Trump, Meadows should have warned him of a positive COVID-19 test. Biden appoints Meg Whitman as Ambassador to Kenya MORE said the courts should “let the people decide”, rather than interfering in the political debate. Meanwhile, gun control advocates want “the people,” not the Constitution, to decide what guns the average person can own.
The current Supreme Court tenure provides an assortment of love and hate rights, which will highlight the tension. Over the next few months, judges will hand down rulings on abortion, guns, free speech, criminal procedure, religious freedom, equal protection and other divisive issues. In each case, those who trust the politicians more than the Constitution will fall back on the popular slogan: “Let the people decide”.
But when you hear the argument, beware. Rightly or wrongly, the rhetoric of the “people” reveals a common misconception that leads to dangerous tendencies. Yes, it is better to let elected officials solve certain problems. But not that much. And this is because the government is not “the people”.
The Constitution opens with the sentence: “We, the people. But the concept is legal fiction. “The People” is not a thing. He has no will. It’s just millions of people. The delegates who ratified the Constitution in 1787 could not have represented all the different points of view and interests.
The delegates didn’t even try. The voters who sent them to Philadelphia mostly included only adult white males – often only those with property. It was very democratic at the time, but the process still excluded a large part of the population.
Even today, as more people have access to the polls, no vote can capture everyone’s hearts and minds. Even a landslide victory in a perfect election with fully informed citizens would leave millions of people dissatisfied.
The imperfection of the process is not an argument in favor of anarchy. Legitimate governments can exist without the unanimous consent of the governed. But appealing to the “people” denies the real diversity of the population and ignores the limits of Congress or any other elected body.
“We the people” have different ideas about what to do with our possessions, how we should raise our children, and how we should worship God. The genius of our unanimously adopted Constitution is to separate rights from politics.
Democratic majorities – often ruled by emotion in times of crisis – can reject the wisdom of the ages while ignoring minority voices. But the Constitution offers a guarantee. It protects “the people” as an individual, not as a collective, guaranteeing many types of rights without the need for slogans, campaigns and elections.
Lawmakers remain important. Otherwise, why have legislatures? But when citizens trust the political process, it is not because they want to leave the decisions to the “people”. It’s because they want to leave the decisions to the politicians, period.
Like the Constitution itself, elected officials are not “the people”. They are just a good way to solve some problems. For everything else, we have our often loved and often hated rights.
So as the Supreme Court continues its work and you hear assertions that certain rights should be left to ‘the people’, acknowledge what is being said and ask the crucial question: ‘should we protect the underlying right, or should we let lawmakers tinker?
Sometimes, but not often, elected officials should get the green light. But when we call them to act, we need to recognize them for what they are. They are politicians with programs. These are not the romantics, but non-existent, “We the People”.
Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice, a not-for-profit public interest law firm located in Arlington, Virginia.