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Inventing American Constitutionalism

On "Power and Liberty," a condensed version of Gordon Wood's entire sweep of scholarship about constitutionalism.

Well, you see, when we get to the Federal Constitution, there’s opposition from the anti-federalists, and large opposition. The country was really divided. In fact, if they’d been a poll taken, the Constitution needed. It was an unusual situation. This was an unanticipated creation, this federal government. And the anti-federalists raised the issue of sovereignty. They said, “Look, sovereignty says, the doctrine says, there must be in every state, one final supreme lawmaking authority. And we can look at this constitution and its supremacy clause, that’s going to be the Federal Congress, and our states, which will be reduced to nothing, to measuring the height of fence posts and laying out roads. And that’s all states will have to do. This is intolerable for us.”

And it was a very embarrassing argument for the Federalists, which is the name that the supporters of the Constitution took. They were awkward. They said, “Well no, we’re going to divide power. Some power’s going to be given to the federal government, some powers will remain with the states.” But the anti-federalists, just the way the British had, just came back over and over again, so there must be in every state. And they invoked this doctrine of sovereignty.

And it’s James Wilson, who is, I think, relatively unrecognized founder, very smart Scotsman, who had immigrated to the colonies as a young man. He was a graduate of St. Andrews in Scotland. He comes up with a solution. He says, “We’re going to relocate sovereignty in the people.” Now, this isn’t just meaning that powers all derive from the people. And all good wigs in England believe that, saying that this actual law making authority, final supreme power, rests in the people. And they’re doling out bits and pieces of it to the different agents, some to the federal government agents, and some to the states. And once that idea, he did it in a lecture he gave out of doors, and then also repeated it in the Pennsylvania Ratifying Convention. And once Madison and others heard this, they said, “Ah, that’s all we need. That solves all of our problems, all of our intellectual problems, this doctrine of sovereignty resting in the people.” And so, that’s the origins of it.