February 17, 2011
To the Members of the 112th Congress:
I wrote in the last letter about the sovereignty of the people and about the oaths you take as members of Congress to uphold the Constitution. Both seem to me to be related in a beautiful way to the American experiment in self government.
Whenever I happen to think about it, I can’t help feeling a fresh sense of wonder, and then of gratitude, that the American people, upon achieving sovereign independence and proclaiming to the world their right to govern themselves, submitted their sovereign power to a Constitution, which was at once their creation and the Supreme Law over them. This great political act reflected, I think, our recognition that the people’s sovereign power is itself subject to what Thomas Jefferson called “the great principles of right and wrong.” As Jefferson put it, it was not an “elective despotism” we fought for; we seemed to understand that if our right to self government was to lead to good government, we must establish conditions under which our authoritative consent might become reflection and deliberation—conditions for drawing out from our sovereign selves what Publius called “the cool and deliberate sense of the community.” To form ourselves into a community in which, in Madison’s word, “Reason” might rule, we formed ourselves into a constitutional people. We devised for ourselves constitutional ways of constructing and shaping the authoritative consent of the people into constitutional deliberations by which we would be governed.
Think what a people we must already have been, to be determined and able to do such a thing.
When the American revolutionaries and founders looked back on the history of popular governments in the world (and they were avid students of that history), they beheld scene upon scene of turbulence and instability, of violent agitation between the extremes of anarchy and tyranny. So terrible was the picture, as Publius said, that it gave advocates of despotism an argument against free government altogether. Nonetheless, because of what they called their “honorable determination … to rest all our political experiments on the capacity of mankind for self-government,” the American Revolutionaries insisted that American government would be founded on the”consent of the governed.” In fact, as the founders knew, the proud American people would not accept any other form of government.
But this would have been a false pride, it would have been not an honorable but a foolish determination, if the American people did not possess the capacity for self-government they generously claimed for mankind. But they proved themselves not only determined to establish a government based on consent, but capable, in Benjamin Franklin’s famous phrase, of “keep[ing] it.”They proved themselves not only to have the pride to insist on freedom, but the virtues necessary to do honor to it (may this always be the case). In subjecting themselves to the Constitution as they did, they proved themselves already to possess a constitution, in their souls—the constitution of a free people, without which the written Constitution would be useless parchment.
This constitution in our American souls expressed itself in a small way recently in our expectation and gratification that members of Congress should take an oath to uphold the Constitution. This is an oath of fidelity to the Constitution, and not to us, the people. Our high regard for this oath, it seems to me, is the sovereign people’s way of telling our representatives that we expect you to be somewhat independent of us, that we think good government depends upon it. Those who originally conceived this Constitution said in many different ways that you would do your job well by remaining true to the Constitution, even when some people—I mean, us—clamored for you to do otherwise. In such moments, we count on you to “refine and enlarge” the public’s view with your constitutional deliberations. Your oath opens a slight but decisive space between the people and their representatives, in which you can exercise your constitutional judgment in carrying out your lawmaking duties. Of course, you will often disagree among yourselves about what your duty to the Constitution requires of you. But articulating those differences will benefit all of us by contributing to a constitutional politics which will be the most reliable source of enduring sound policy. If we are as good as we claim to be, you will earn our respect, and our vote, when you respect the Constitution and help us to do the same, even despite what we sometimes might think is our contrary interest.