In the introduction, I sketched out the distinctions between the electoral and sovereign capacities of the people. Many states inappropriately burden their citizens with a duty for which they are unfit: in no government beyond the size of small towns should direct democracy be utilized to enact statutes or ratify state constitutional amendments.
This problem, the conflation of the electoral and sovereign capacities of the people isn’t new; it goes back to the mid-17th century English Revolution and was only sorted out in the minds of some men just as the 1787 federal convention was under way. While our Framers and conservatives of today accept and glory in the supremacy of a written Constitution, the question of who or what institution exercised sovereign power in the English monarchy and our post-1776 state constitutions wasn’t clear in the hundred plus years leading to our Federal Constitution.
By sovereign is meant all earthly lawmaking power within the civil society. In the 17th century, England was consumed in war, revolution, and religious turmoil as a consequence of answering a simple question, “where the sovereign?” To England’s Stuart Kings, sovereignty resided within them by Divine Right. As such, the monarch was the sole lawgiver.
After the defeat of royalist forces by those of the parliament in 1649, Oliver Cromwell and parliament devised the first written English constitution, The Instrument of Government. Monarchy and the House of Lords were replaced with a commonwealth in which the House of Commons served as electoral representatives and sovereign delegates of the people. Instead of sovereign authority in a king, sovereignty was expressed through a popularly derived institution. This well-intended but ill-designed form of popular government was certain to collapse no matter where it was instituted, and the English people were, in their hearts, still of the monarchal bent.
In 1660 parliament met in convention to deal with the anarchy raging between various religious sects, republicans, and royalists. Yes, members of the legislative power, parliament, met in a body, a convention, outside of their authority. As opposed to today, in which the term, “convention” is associated with authority above government and answerable only to God, the 17th century connotation of convention was that of an inferior parliament, because only the king could legitimately call on parliament to meet. This low status of conventions as inferior to both parliament AND the later colonial governments chartered by the king carried on into the 1780s.
However, the common thread to discern among conventions from 1660 all the way to a future Article V convention is this: English speaking peoples held conventions to deal with either inadequate or oppressive governments. Until the 1787 federal convention, subsequent ratification conventions, and Article V of the US Constitution, these meetings were extra-governmental and regarded as less than legitimate. But the fact remains that conventions of the sovereign people are well established in our history and should be resorted to when circumstances, such as now, compel us.
Monarchy was restored in 1660 upon the coronation of Charles II. Although he was the son of Charles I, he owed his throne to the invitation of the convention parliament. Did divine right to rule actually exist if the crown upon the king’s head was a gift from a convention? Sovereignty had slid a notch toward the people. Charles II died in 1685. His successor and brother, James II sought to reestablish royal powers and would suffer only those parliaments that did his bidding.
By 1688, more religious and political turmoil so reduced the practical authority of James II that the nation invited William of Orange, grandson of Charles I, to replace James II. On January 28th 1689 another convention parliament resolved that King James II had abdicated the government and his throne. This Glorious Revolution was followed by the celebrated English Bill of Rights in 1689 which established the principles of a limited monarchy.
Once again, an unauthorized convention demanded by society was held to reestablish that which all people desirous to be free must have: government. While England still had kings, sovereignty had moved toward the people’s representatives AND delegates in parliament and would never again be threatened by the discredited concept of the divine right of kings.
Next: Electoral vs. Sovereign Capacity: American Conventions.
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Coward, Barry. The Stuart Age: England 1603-1714. Essex England: Pearson Education Limited, 2003.