In this week's LEGS meeting, Rob Hunter will present his paper, "The Elusive Sovereign: The Search for a Theory of Constitutional Self-Government."
Rob Hunter is interested in constitutional politics, political theory, and American political development. His dissertation research focuses on the question of constitutional authority and authorization by examining the relationship between institutional change and the political exercise of constituent power. He has also written on the relationship between legitimacy and interpretation in American constitutionalism, the political development of criminal procedure, and the role of the concept of the rule of law in democratic theory.
Popular sovereignty is at root the idea that legitimate constitutional government takes the form of the people expressing a single will that derives practical force from their possession of supreme power. This conception of constitutional government can, and should be, disjoined from the commitment to self-rule that characterizes constitutional theory. I argue for this conclusion in four main steps:
First, I provide a brief historical survey of the development of the concept of popular sovereignty, showing how the transition from sovereignty to popular sovereignty inverted traditional understandings of constitutional legitimacy. As a result of this inversion, popular sovereignty became a theory of collective self rule, with a specific content: the idea that it is the members of a political community who exercise the unitary and absolute powers of sovereignty.
Second, I explore the idea of popular sovereignty, understood in the American context as an instantiation of the primitive value of political equality. I find that taking a commitment to equality seriously in the context of motivating the project of self-rule generates a series of related desiderata which I call the requirements of self-rule.
These requirements will be used in the fourth section of the paper to evaluate the contemporary theories of self-rule I present in the third section. These theories may be seen either as extensions of the theory of popular sovereignty, or as articulations of the concept of self-rule.
I argue in the fourth section that it is more appropriate to view them as the latter, given the theoretical inadequacy and empirical inadequacy of popular sovereignty. A more ahistorical approach to theorizing about self-rule, building on requirements or desiderata like those outlined in the second section, will, I believe, be a more profitable way to theorize about constitutional legitimacy.
I hope to motivate the position that constitutional theory should be highly contextualized, focusing on questions of democratic theory, institutional design, and political authority, rather than the unlikely prospect of unified collective agents wielding unbridled power.