It is the People who are inherently invested with all authority and legislative power to create and alter governments, constitutions, charters, and laws. This observation is so fundamental that is it known as the First Principle of governance. It is an axiom; popular sovereignty cannot be deduced from any other proposition or assumption. In contrast, constitutions and governments are inherently derivative.
Recognition and use of popular sovereignty is apparent whenever People come together to establish or reestablish a society. Its use by the citizens of this nation became visible during the British colonization of North America. It found expression in the Mayflower Compact of November 11, 1620, the Virginia Declaration of Rights of June 12, 1776, the Declaration of Independence of July 4, 1776 and the U. S. Constitution of September 17, 1787. The founding generations of Americans thus practiced firsthand the power to create and alter their governments, constitutions, and laws.
James Madison pointed to the primacy of popular sovereignty on August 31, 1787 at the Constitutional Convention in Philadelphia–in response to delegate Mr. Daniel Carroll of Maryland, who had asserted there was no way to amend the Maryland Constitution other than by what was contained therein. Madison replied:
"The difficulty in Maryland was no greater than in other States, where no mode of change was pointed out by the Constitution, and all officers were under oath to support it. The People were in fact, the fountain of all power, and by resorting to them, all difficulties were got over. They could alter constitutions as they pleased. It was a principle in the Bill of Rights, that first principles might be resorted to." [original]
Madison was likely making reference to Amendments 9 and 10:
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [original]
Earlier, on June 6th, at the Constitutional Convention, James Wilson, second only to Madison in fashioning the Constitution, characterized our republican structure:
"The Legislature ought to be the most exact transcript of the whole society. Representation is made necessary only because it is impossible for the People to act collectively." [original]
Wilson was acknowledging the obvious impossibility of assembling great numbers of People from distant geographic areas to operate a polity. These physical constraints dictated the structure of our government in 1787. Representatives were a practical necessity.
To overcome resistance from the 13 sovereign state governments who would not dilute their power by ratifying the Constitution, James Madison and the Framers wisely took the decision of ratification directly to the People via conventions with specially elected delegates. Take Delaware for example:
We, the deputies of the people of the Delaware state … have approved, assented to, ratified, and confirmed, and by these presents do, in virtue of the power and authority to us given, for and in behalf of ourselves and our constituents, fully, freely, and entirely approve of, assent to, ratify, and confirm, the said Constitution. [original]
Given that technology was lacking to overcome the great distances of Colonial America in assembling the growing numbers of People, they had no choice but to build a representative structure as the sole legislative branch of the government. To have designed a constitutional procedure whereby the People could amend, establish policy or make laws directly at that time was simply not on the horizon.
Nevertheless, today, as at our founding, the Constitution can be amended two ways: as specified in Article V by elected representatives and as implied in its Preamble by the People directly. The language of Article V is tailored to potential use by the federal and state governments. That structural specification has no effect on the sovereign constituent power of the People.
Constitution does not and cannot limit the powers of its creator—the People. It would be ludicrous to suggest that the creator is subject to its creation, i.e. the officialdom of government. The People can at any time exercise popular sovereignty to amend the Constitution and enact a law establishing legislative procedures to legislate in an orderly fashion. Contemporary scholars agree:
- For the People: What the Constitution Really Says About Your Rights
- “The Consent of the Governed: Constitutional Amendment Outside Article V,” 94 Colum. L. Rev. 457
- “Philadelphia Revisited: Amending the Constitution Outside Article V,” 55 U. Chi. L. Rev. 1043
- "Of Sovereignty and Federalism," 96 Yale L.J. 1425
- "The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Problem of the Denominator," 65 U. Colo. L. Rev. 749
- "Direct Democracy and Civic Maturation," Hastings Constitutional Law Quarterly, Vol. 29, #2, 185-246
The Philadelphia II election bypasses the Congress and presents the National Initiative directly to the People relying on the Peoples’ self-ratifying, self-enacting authority. Citizens, if they so choose, may amend the Constitution by ratifying the Democracy Amendment and enact the Democracy Act as a federal statute. Should a sufficient number of citizens voting agree to these actions, the People will establish, for the first time, legislative procedures and legislative elections with which they can continue to exercise their legislative powers in an orderly, deliberative and statutory manner.
Due to the monumental nature of this legislation, it is wise, even necessary, for the People rather than the Congress to enacted the Democracy Amendment and the Democracy Act. In doing so they will have again followed the good advice articulated by James Madison at the Philadelphia Convention on June 5, 1787:
"For these reasons as well as others he [Madison] thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the People themselves." [original]
and on July 23, 1787:
"These changes would make essential inroads on State Constitutions … and in the case of these a ratification must of necessity be obtained from the People." [original]