The People as Constituent Power 161
which, revolutionary in origin, soon became institutionalized in the public law of
the United States.^3
The constitutional convention in theory embodied the sovereignty of the people.
The people chose it for a specific purpose, not to govern, but to set up institutions
of government. The convention, acting as the sovereign people, proceeded to draft a
constitution and a declaration of rights. Certain “natural” or “inalienable” rights of
the citizen were thus laid down at the same time as the powers of government. It
was the constitution that created the powers of government, defined their scope,
gave them legality, and balanced them one against another. The constitution was
written and comprised in a single document. The constitution and accompanying
declaration, drafted by the convention, must, in the developed theory, be ratified by
the people. The convention thereupon disbanded and disappeared, lest its members
have a vested interest in the offices they created. The constituent power went into
abeyance, leaving the work of government to the authorities now constituted. The
people, having exercised sovereignty, now came under government. Having made
law, they came under law. They put themselves voluntarily under restraint. At the
same time, they put restraint upon government. All government was limited gov-
ernment; all public authority must keep within the bounds of the constitution and
of the declared rights. There were two levels of law, a higher law or constitution that
only the people could make or amend, through constitutional conventions or bod-
ies similarly empowered; and a statutory law, to be made and unmade, within the
assigned limits, by legislators to whom the constitution gave this function.
Such was the theory, and it was a distinctively American one. European thinkers,
in all their discussion of a political or social contract, of government by consent and
of sovereignty of the people, had not clearly imagined the people as actually contriv-
ing a constitution and creating the organs of government. They lacked the idea of
the people as a constituent power. Even in the French Revolution the idea devel-
oped slowly; members of the French National Assembly, long after the Tennis
Court oath, continued to feel that the constitution which they were writing, to be
valid, had to be accepted by the King as a kind of equal with whom the nation had
to negotiate. Nor, indeed, would the King tolerate any other view. On the other
hand, we have seen how at Geneva in 1767 the democrats advanced an extreme ver-
sion of citizen sovereignty, holding that the people created the constitution and the
public offices by an act of will; but they failed to get beyond a simple direct democ-
racy; they had no idea of two levels of law, or of limited government, or of a dele-
gated and representative legislative authority, or of a sovereign people which, after
acting as a god from the machine in a constituent convention, retired to the more
modest status of an electorate, and let its theoretical sovereignty become inactive.
The difficulty with the theory was that the conditions under which it could
work were seldom present. No people really starts de novo; some political institu-
tions always already exist; there is never a tabula rasa, or state of nature, or Chart
Blanche as Galloway posited for conservative purposes. Also, it is difficult for a
3 See, for example, J. A. Jameson, The Constitutional Convention: Its History, Powers and Modes
of Proceeding (N.Y., 1867); H. C. Hockett, The Constitutional History of the United States, 1776–1826
(N.Y., 1939).