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Part III

Published online by Cambridge University Press:  23 November 2023

Ewa Atanassow
Bard College, Berlin
Thomas Bartscherer
Bard College, New York
David A. Bateman
Cornell University, New York
When the People Rule
Popular Sovereignty in Theory and Practice
, pp. 255 - 334
Publisher: Cambridge University Press
Print publication year: 2023
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This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC 4.0

14 The Place of Constitutional Courts in Regimes Embracing Popular Sovereignty Recent Problems in American Self-Governance

Carol Nackenoff

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Alexander Hamilton, Federalist 78 (2003 [1787–1788])

The United States was not constituted to give unlimited sway to popular sovereignty.Footnote 1 Political institutions designed in the founding era were designed to check, as well as give voice to, the will of majorities. At the end of the eighteenth century, the idea of a written constitution as fundamental law, whose provisions had a status higher and apart from ordinary statute law was new, yet the framers understood the new constitution to place certain matters beyond the purview of the legislative – or the executive – authority.Footnote 2 Delegates who met in Philadelphia in 1787 and who drafted the constitution expressed realmisgivings about what popular majorities might do.Footnote 3 They had before them examples of Daniel Shays’ rebellion and expressed worries about debtor relief and other provisions in newly enacted state constitutions. One prominent thesis about the founding era is that, in 1787, wealthy elites, concerned over what they viewed as a dangerous excess of democracy, managed a kind of coup against the Declaration and the democratic sentiment in the Articles of Confederation.Footnote 4 The House of Representatives, the body closest to the people, with members directly elected by them, was checked by the Senate and by the possibility of a presidential veto of legislation, yet one of Thomas Jefferson’s complaints to Madison about the new American Constitution was that it was too easy to pass legislation. He thought any bill should have to be engrossed one year and considered without amendment the next before it could be passed, with a two-thirds vote of both Houses required if greater speed were deemed necessary.Footnote 5

The federal judiciary, the Third Branch, was designed to play a role in curbing popular majorities. The scope of that power has been the subject of a great many scholarly treatments and disagreements; suffice it to say here that the power of judicial review, long established, is often justified today in terms of the protection of individual rights enshrined in the Bill of Rights and elsewhere in the constitution (e.g., habeas corpus) against majorities that may wish to trample these rights.Footnote 6 As we will see, the role of constitutional courts in regimes that celebrate popular sovereignty is complex, and invocation of language about judicial activism and restraint is not of much help.

The relationship between constitutional courts and popular sovereignty is potentially fraught in any nation that aspires to democracy. In some nations and under certain circumstances there are provisions that permit an override of the judiciary. In a few nations, a simple legislative majority can negate some kinds of decisions of constitutional courts. In Canada, the “notwithstanding clause,” found in Section 33 of the Canadian Charter of Rights and Freedoms permits both the federal and provincial legislatures to expressly declare by a simple majority that a law shall operate even if a constitutional court has ruled the law unconstitutional, when the matter involves Sections 2 and 7–15 of the charter, which contain many of that charter’s most important rights guarantees.Footnote 7 A Section 33 override lasts for five years, but can be renewed upon its expiration. After the provision was added to the Canadian Charter in 1981, then-Prime Minister Pierre Trudeau said: “[I]t is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people rather than by the courts.”Footnote 8 In Israel, a similar notwithstanding clause was added to the Freedom of Occupations chapter of its “Basic Law” in 1994, allowing a simple majority of the Knesset, to override certain judicial decisions.Footnote 9 The override can last for four years. In a different sort of constitutional arrangement, there may be “directive principles of public policy” that are committed solely and expressly to the legislature, unenforceable by courts.Footnote 10

The US Constitution does not provide for such overrides of the judiciary, and with its cumbersome Article V amendment process, “correcting” unpopular readings by use of formal amendments has been difficult.Footnote 11 However, Congress can sidestep and effectively erase court readings of ordinary statutes by passing new laws. On occasion, a displeased federal legislature has also stripped federal courts of jurisdiction to hear certain kinds of cases.Footnote 12

If apex courts protect the separation of powers, they help prevent any one branch of government from claiming to be the sole voice of the popular sovereign.Footnote 13 When perceived as protecting constitutional barriers to raw democratic power, constitutional courts have often been targeted by contemporary populist attacks on liberal institutions. This is part of a pattern of attacks on the foundations of liberal constitutional order in the name of democratic equality and popular sovereignty flagged by Ewa Atanassow earlier in this volume.Footnote 14 Andrew Arato observes that “in the populist struggle against enemies, from Peron to Indira Gandhi, and from Fujimori to Orbán, the one constant is the attack against independent apex courts, that fully ceases only when such a body entirely loses its independence ….”Footnote 15 Since the time of Peron, populist regimes have attacked, or exhibited antagonism toward, independent apex courts.Footnote 16 When courts uphold a secular liberal democratic order, they may also be seen as facilitating the “spread of a cultural liberalism at odds with custom and religion.”Footnote 17

Support by political elites for courts could even be another factor contributing to the erosion of public faith in the project of legal neutrality.Footnote 18 There is evidence that elites have been turning to constitutional courts to entrench their most important policy and rights preferences (e.g., property rights) against waves of democratization.Footnote 19 Judicialization of political conflicts over the past half-century or more, removing political disputes from legislatures to courts, is a manifestation of this process. For some scholars, this behavior of constitutional courts represents a transition from judicial review to judicial supremacy.Footnote 20

American Support for Constitutional Courts

While the rise of populism has also affected American politics, the US Supreme Court still enjoys a good deal of legitimacy. Despite occasional attacks by former president Trump on the judiciary, blaming “Obama judges” for decisions with which he disagreed and expressing (as a candidate) the belief that a Mexican-heritage judge could not be impartial, the court has fared reasonably well, and the chief justice, a Republican appointee, has defended judicial impartiality.Footnote 21 In Gallup Polls, Americans express considerably more confidence in the Supreme Court than in Congress, although that poll registered an 11 point drop in confidence in the Court between 2021 and 2022.Footnote 22

Support for the court has waxed and waned. When populist and progressive reformers were frustrated with the court for invalidating state and federal legislation dealing with social and economic ills a little more than a century ago, there were numerous calls to end judicial review.Footnote 23 That progressive era tide subsided. Yet, it remains the case that “[a] central puzzle for the study of judicial review is identifying how judges are able to exercise the power of judicial review so successfully and so often.”Footnote 24

Current levels of support for the Supreme Court are affected by partisanship. At the same time that former president Trump was challenging judicial independence, Republicans were gaining additional seats on the Supreme Court and on the federal bench. While 46 percent, of the US citizens surveyed in August 2022 in the Annenberg Civics Knowledge Survey trusted the Supreme Court to work in the best interests of the American people (down from 68 percent in 2019, when the question was last asked), 70 percent of Republicans expressed a great deal or a fair amount of trust in the Court, while only 32 percent of Democrats (and 44 percent of independents) did. Only 40 percent of those surveyed in 2022 believed that Supreme Court justices “set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case,” but ony 29 percent of Democrats, as opposed to 55 percent of Republicans (and 41 percent of independents) took this position.Footnote 25

There may be good reason to believe that the more politicized the court appears the less deference is accorded to court interventions in political controversies. The polarization of American politics has now become more pronounced on the Roberts Court. Major decisions that split justices along partisan lines and bitter, partisan confirmation battles (including the majority-Republican Senate’s refusal to hold confirmation hearings in the case of Merrick Garland (President Obama’s last nominee) fuel perceptions that the court is ideologically driven. “For the first time in the Supreme Court’s history, every Republican on the court is to the right of every Democrat,” observed Jeffrey Segal, who has used what are known as Martin–Quinn scores to plot the relative location of Supreme Court justices on an ideological continuum by looking at the votes they cast on cases.Footnote 26 A court that overturns long-standing precedent by narrow margins is likely to be perceived as simply another arena of partisan warfare.

Some legal scholars in the United States have been concerned (even prior to Bush v. Gore in 2000), about the propensity to defer to the court’s declarations about constitutional meaning. This deference occurs alongside the court’s willingness, in recent decades, to wade into politically charged controversies, sometimes declaring that it alone can determine the meaning of the constitution, and leading to charges that prudential judicial restraint is a thing of the past.Footnote 27 When other branches as well as the public are willing to accept that the court alone determines the meaning of the language in the constitution, deliberation about that document’s values and meaning – along with a sense of ownership – as Cass Sunstein and others have noted, declines.Footnote 28 Such a court may then be contributing to a democratic deficit.

In this vein, Mark Tushnet toyed with the idea of taking the constitution away from the courts, or at least providing instead for a form of weak judicial review as a way for American citizens to own the constitution again.Footnote 29 Weak-form systems of judicial review “openly acknowledge the power of legislatures to provide constitutional interpretations that differ from … [or] alter … the constitutional interpretations provided by the courts.”Footnote 30 This kind of review is a kind of dialogue between the court and the legislature, allowing for revision of the court’s constitutional judgments.Footnote 31 “Weak-form review combines some sort of power in courts to find legislation inconsistent with constitutional norms with some mechanism whereby the enacting legislature can respond to a court decision to that effect.”Footnote 32 However, Tushnet argues, legislative interventions cannot be too frequent or become routine if the system is not to morph into one of parliamentary supremacy.Footnote 33

While there are dangers to institutionally constrained, liberal popular sovereignty arising from attacks on constitutional courts, there are also dangers that flow from extreme deference to such courts if popular sovereignty is to be anything other than a fiction we invoke.Footnote 34 If the Supreme Court engages in decision-making that undercuts processes that help construct a democratic “people,” such decisions become highly problematic, even if they are accepted by a majority of “the people.”

Determining who are the sovereigns in the United States adds another complication. Atanassow, Bartscherer, and Bateman write in the Introduction to this volume that “the fundamental questions of popular sovereignty” concern questions of people: Who is or are the people, against whom is it defined, and who can rule in its name?Footnote 35 As Azari and Nemecek point out in this volume “there are many overlapping relevant political communities” in the United States; we will explore some dimensions of this particular problem below.Footnote 36

Situating the Us Court Among Popular Sovereigns

At the height of the Warren Court’s liberal rights jurisprudence, Alexander Bickel famously worried about an unelected tribunal whose members have lifetime appointments to insulate them from political pressure; identifying a “countermajoritarian difficulty,” he recommended the court exercise the “passive virtues.”Footnote 37

A major counterargument in this long-running discussion is that the court has largely worked in concert with other branches of the federal government and is much more aligned with dominant political coalitions than Bickel’s worry suggests.Footnote 38

The court can do harm not only by thwarting the wishes of popular majorities but also by acceding to them. An illustration that the latter problem poses for systems of popular sovereignty with limits is that some of the court’s most egregious decisions regarding indigenous peoples have been robustly majoritarian. Lone Wolf v. Hitchcock (1903), referred to as “the Indians’ Dred Scott decision” established congressional plenary power over Native Americans. The court held that Congress could legislate for American Indians just as they did for ordinary Americans, and no longer had to respect past treaties. In an act of what some would call judicial restraint, the court took itself out of the business of reviewing congressional decisions that established direct governance over Native Americans, stating (with great misrepresentation): “Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”Footnote 39 Supporting settler colonizers and also progressive reformers who wanted Indians to live under the law like other Americans the court followed public sentiment and dominant narratives.Footnote 40 This meant that Native Americans were generally legislated for without representation, since “Indians, not taxed” were still deemed ineligible to vote by some western states when they set voter qualifications. Even after the Indian Citizenship Act of 1924, Native Americans living on reservations were sometimes deemed under guardianship or not state residents and were not fully enfranchised until courts intervened in the years leading up to, and immediately following World War II.Footnote 41

While the McGirt decision (2020) was celebrated as a victory for Native American authority over reservation lands and a rebuff to states seeking to enforce their own criminal laws over crimes committed there, in fact the court’s 5–4 holding simply established that unless and until Congress explicitly abrogated a treaty promise, tribal authority over lands that were explicitly protected by treaty remained intact.Footnote 42

An issue that has too often been neglected in considerations of when popular majorities should be curbed is which majorities, if any, are being thwarted (although it is sometimes suggested that federal courts lean in the direction of supporting federal power).Footnote 43 Some make the argument that the majority the court should follow is the one that adopted the constitution – even against temporary latter-day majorities.Footnote 44 This claim, however, would require that constitutional meaning can be clearly ascertained, which does not help us very much if meaning often has to be constructed.Footnote 45

Popular sovereignty is exercised through an ensemble of institutions in the American constitutional structure. By constitutional design, each branch of the federal government makes efforts to represent “We the People.”Footnote 46 Popular sovereignty is exercised at the subnational as well as the national level. This makes an attempt fruitless to locate a specific guardian – or single institution policing the boundaries – of popular sovereignty. With multiple layers of governance, national power is not all-encompassing, and powers are sometimes concurrent or overlapping; there may frequently be more than one sovereign. Court can thwart popular majorities at one level of government while supporting popular majorities at another.

We therefore must incorporate federalism when exploring the relationship between national-level constitutional courts and popular sovereignty in the United States. While Article V federal amendment procedures are cumbersome, state activity in constitutional amendment and rewriting is ongoing and dynamic, responding far more readily to popular pressures. In practice, as Robinson Woodward-Burns argues, states play an important role in constitutional development as nationally divisive controversies are pushed to the state level. Finding a positive association between the topics of federal and state constitutional proposals, Woodward-Burns argues that state constitutional reforms help stabilize national constitutionalism; the result is a patchwork of changes that are nonbinding on national actors. Many matters are left to the states, partly because the court accepts such a small percentage of cases that parties would bring before it. Most regulation of elections, police powers, referenda, and grassroots initiatives occur at the state level.Footnote 47

When thinking about matters best left to the voters and their elected representatives and matters that ought not be decided by majority vote for the sake of preserving the health of bounded popular sovereignty, constitutional courts sometimes have conflicting claims of both state and federal majorities to factor in alongside a founding document that seeks to limit certain kinds of harms that national majorities might inflict. As Keith Whittington observes, “State laws pose the question of not only whether the political majority should get its way but also which political majority should get its way.”Footnote 48

Several important cases decided in the recent past raise pointed questions about the role the Supreme Court has to play in maintaining the health of popular sovereignty in a liberal institutional order. In the Crawford decision (2008), the court upheld vigorous new state requirements for voter identification, imposed in the name of enhancing confidence in the integrity of the electoral system, without any evidence of in-person voter fraud, giving the green light to states wishing to impose such burdens on what had been considered an extremely important right. In Citizens United (2010), Justice Kennedy, writing for the court, found that only quid pro quo corruption warranted congressional intervention in election contributions by individuals or corporations; the appearance of corruption rationale the court held sufficient to justify the Federal Election Campaign Act in Buckley (1976, 26–30) (for undermining faith in the integrity of the electoral system) was no longer sufficient. In Shelby County v. Holder (2013), the court invalidated the congressional formula used in the preclearance provisions of the 1965 Voting Rights Act – reaffirmed by Congress most recently in 2006 – effectively erasing Section 5 and leaving the Department of Justice the recourse of initiating prosecution on a case-by-case basis under Section 2.Footnote 49 The court went further in Brnovich (2021) and made it much more difficult for the federal government to prevent states from implementing new voting restrictions under Section 2, absent proof of a racially discriminatory purpose.

In addition, in Schuette (2014), the court determined that state voters could instruct the state of Michigan not to take race into account in admissions and hiring. In Obergefell v. Hodges (2015), the court, nationalizing a right, held that majorities within states could not bar same-sex couples from marrying. And in Rucho v. Common Cause (2019), the court determined that extreme politically motivated gerrymandering in the states did not present a justiciable question.

This array of important decisions sometimes thwarted the will of national majorities expressed in statute law in favor of states, or a majority of voters in some states; sometimes upheld emerging national majority opinion and rights of gay couples against majorities in dissenting states; sometimes empowered state citizens to challenge state actors seeking to promote racial diversity in state institutions; or empowered members of one political party to reduce the effectiveness of the vote of the opposition party within a state. All these cases had invited Supreme Court interventions in the political process and raised, directly or indirectly, equal protection issues.

For liberal legal scholars such as the late John Hart Ely, the strongest rationale for judicial review is to correct a democratic deficit and pursue representation reinforcement where the political process had failed. In Democracy and Distrust, Ely famously claimed that the constitution embodied a textual commitment to democracy as a process for resolving issues.Footnote 50 The judiciary played an important role in upholding that commitment, by protecting discrete and insular minorities who had been systematically barred from achieving their goals through the political process (via discrimination). When Congress chose to impose some costs on white Americans by enacting affirmative action, the court had warrant to uphold such measures; since African Americans had been systematically excluded from participation in the political process, they could not rely upon the political process to achieve redress (Ely, 1980). As one scholar restates Ely’s formulation, judges “should try to make representative democracy more democratic. They should try to make democracy work according to its own underlying principles.”Footnote 51

Somewhat similarly, Akhil Amar, for whom the underlying and legitimating principle of America’s constitution is popular sovereignty, contends that statutes passed when suffrage has become more inclusive may trump the earlier written constitution, especially when a modern Congress is protecting citizens at risk of being systematically injured on the basis of their birth status. If a post-Nineteenth Amendment statute protective of women’s rights conflicted with an older statute or even a constitutional provision that restricted women’s rights or interests, the recent one should be preferred since women were not excluded from the decision-making process or the electorate – correcting a retrospective democratic deficit.Footnote 52

Below, we take a deeper dive into two of the cases mentioned above that are less well mined than the others, posing questions about the relationship between constitutional courts and popular sovereignty in the context of equal access to the political process. Such access is essential if the voice of the “people” is to be credited in a liberal political order. In both cases, the response of the court is troubling.

Partisan Gerrymandering: Rucho v. Common Cause (2019)

Since Carolene Products (1938, footnote 4), the court has frequently reiterated that it closely scrutinizes cases in which government impinges on the rights of discrete and insular minorities. Race, the court recognized, is different, and the Thirteenth, Fourteenth, and Fifteenth Amendments are read as conferring special court responsibility to closely scrutinize classifications based on race. Certain classifications are inherently suspect (Yick Wo v. Hopkins, 1886; Korematsu v. United States, 1944). The constitution says nothing about parties; the framers viewed parties as factions inimical to the general interest.Footnote 53 And yet parties quickly became essential to organizing political preferences, and the party system became integral to American politics without formal amendment to the constitution. What about the rights of persons who identify with a political party – are there any equal protection rights, or associational rights?

Inherent in the notion of free and fair popular elections is that, when the voice of the people is authoritative in determining political outcomes, votes should be counted equally. That principle is sometimes modified or violated in the United States. The Electoral College and the election of US senators modify this principle. The Electoral College design provided for no direct election of the president; each state made provision for selection of electors, but since South Carolina allowed for their direct popular election (1868), all states allowed voters to select electors.Footnote 54 Since 1832, almost all states have allocated their electors on a winner-take-all basis. Some scholars complain that the method of election of US senators provided for in the US Constitution – with sparsely populated states (e.g., Wyoming) having the same number of senators as heavily populated states (e.g., California) – is highly undemocratic, yet a clause in the constitution stipulates that no state can be deprived of its equal representation in the Senate without its own consent, effectively making change impossible.Footnote 55 States, not American citizens at large, were to be represented in the Senate.

The right to vote – and to have one’s legitimate vote counted – has often been thought of as having special status in American democracy. “The political franchise of voting” was deemed a “fundamental political right, because preservative of all rights” in an important 1886 Supreme Court case (Yick Wo, 370), and quoting that case in a 1960s apportionment case (Reynolds v. Sims, 1964, 361–62), the court stated:

Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.

While the court occasionally protected the rights of blacks denied the right to vote because of white-only primaries and grandfather clauses (Smith v. Allwright, 1944; Guinn v. United States, 1915), beginning in the 1960s, the political branches of the federal government weighed in more vigorously to protect voting rights of African Americans, and the court supported these efforts for nearly half a century. Because of a legacy of black vote denial and voter intimidation in the South and the purpose of the Civil War Amendments, the power given to Congress to enforce those amendments (e.g., §5 of the Fourteenth Amendment and §2 of the Fifteenth) and the 1965 Voting Rights Act with subsequent amendments, race has generally been treated differently in the court than other kinds of interference with counting votes equally. In 1960, the court held that when Tuskegee, Alabama, redrew its boundaries to become an irregular twenty-eight-sided city, removing all but about five black voters and no white voters, it violated the Fifteenth Amendment (Gomillion v. Lightfoot, 1960). When it comes to drawing electoral districts on a racial basis, the court has held that voters should have an equal chance to elect the candidate of their choice, and no changes in a VRA-covered state or district can lead to retrogression in the right to vote.

Since 1993, the court has demanded that, even when race is a predominant factor in redistricting based in a desire to remedy past racial discrimination, such plans must be viewed using the highest level of scrutiny: The government must demonstrate a compelling interest in using the race classification and the remedy has to be narrowly tailored to achieve this compelling purpose (Shaw v. Reno, 1993).

The Supreme Court also began to intervene in districting that was not simply race based in the 1960s, determining that the equal protection clause of the Fourteenth Amendment and Article I §2 of the constitution required that districts be drawn so that they were as closely equal in population as possible. This rule governed both state legislative districts and US congressional districts (Baker v. Carr, 1962; Reynolds v. Sims, 1964; Westberry v. Sanders, 1964). Justice Felix Frankfurter, objecting to the court’s intervention to equalize the population in state districts, cautioned that “there is not under our Constitution a judicial remedy for every political mischief.”Footnote 56

When the court issued its decision in Rucho v. Common Cause in 2019, it declared state legislative gerrymandering of electoral districts designed to advantage a specific political party a political question. Political questions are matters the court refuses to engage in, either because they are thought to be textually consigned by the constitution to a coordinate branch of the federal government or, for prudential reasons, the court thinks it cannot find a judicial remedy or manageable standards for resolving them.Footnote 57 Infrequently used in recent years, invocation of the political questions doctrine is often applauded as an indicator of the court’s wisdom and self-restraint. But “when the Court refrains from engagement because it cannot devise or identify appropriate tests or standards, it means that constitutional guarantees may not yield judicially enforceable rights.”Footnote 58

The issue of partisan gerrymandering as an equal protection issue under the Fourteenth Amendment was not new to the court. Since 1986, the court has been asked to determine that gerrymandering for purely partisan purposes constituted vote dilution, impeding the ability of voters to elect the candidate of their choice. That year, the court held that cases of partisan gerrymandering could, at least in some cases, be heard. But “unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole,” and “plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” And furthermore, the constitution does not mandate proportional representation; legislatures do not have to “draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote total will be.”Footnote 59

In Rucho, the court found no judicially manageable standard for intervention in even the most extremely partisan gerrymanders; dissenters said the tools and standards were there to be used. Blatant partisan gerrymanders are troubling; they may contribute to polarization, they threaten democracy, and may undermine faith in the democratic process. But the federal judiciary declines to intervene. The remedies the court left were state constitutions and statutes, congressional legislation, or possibly independent redistricting commissions (which the conservative minority would have barred under Article I §4 because establishing them took power away from the legislature in Arizona State Legislature v. Arizona Redistricting Commission in 2015).

Deference to “we the people” does not seem to promote the health of democratic self-governance. Elected leaders have incentives to entrench themselves (either collusion among the elected or collusion to maximize the strength of their parties in Congress) at the expense of voters. Vote dilution, the ability to elect candidates of one’s choice, associational rights, and equal protection now depend, in this context, on elected branches. The invocation of the political questions doctrine to extricate the court from this controversy arguably undermines faith in the democratic process, discourages voters whose candidates have been deliberately engineered out of contention, and depresses participation in the political process. The court’s nod to restraint by deferring to legislative redistricting practices deliberately aimed at minimizing the other major party’s electoral chances tends to undermine free, open, and fair elections – much as the court’s more interventionist Citizens United decision in 2010 did.

Rights of Minorities and Schuette v. Coalition to Defend Affirmative Action (2014)

This case is not about how the debate about racial preferences is resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.Footnote 60

Justice Kennedy, author of the fractured holding in Schuette v. Coalition to Defend Affirmative Action (2014), also penned the major gay rights and gay marriage decisions in Romer (1996), Lawrence (2003), Windsor (2013), and Obergefell (2015). Only two other justices supported the language in Kennedy’s Schuette opinion; three other justices wrote concurrences. It is useful to compare Schuette (2014) and Romer v. Evans (1996) as we consider why popular majorities in the states are permitted to make some decisions that have meaningful consequences for minorities but not others. Michigan voters adopted a constitutional amendment by ballot initiative, prohibiting state universities, employers, and contractors from discriminating or from giving any kind of racial preferences.Footnote 61 Schuette held that this amendment did not violate the Fourteenth Amendment equal protection clause. The court had never maintained that the federal or state governments were required to use affirmative action to remedy society-wide inequalities – at best, for a few years, such remedies were permitted;Footnote 62 and recognition of race for remedial purposes is now subjected to strict scrutiny and is acceptable only in very narrow circumstances.Footnote 63 Kennedy reasoned – and the effect of the decision means – that if the voters of Michigan choose to bar the state from recognizing race in their university admissions decisions, they may do so.

Colorado voters attempted to exclude LGBTQ individuals from the protections of antidiscrimination legislation in employment or housing by constitutional amendment (Proposition 2). Passage of Proposition 2 also retroactively invalidated measures that had been passed (including by municipalities) to extend antidiscrimination protections to gays and lesbians.Footnote 64 In Romer v. Evans, Kennedy saw no rational basis – only animus against a group of people based on their sexual orientation – and sided with liberals to strike down Proposition 2. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”Footnote 65 Kennedy’s reasoning in Romer was that the Colorado Amendment “exclud[ed] sexual minorities from accessing political remedies that were freely available to others.”Footnote 66 The perspective that treating gays and gays alone differently violated equal protection (and privacy) without having to consider them a suspect class paved the way for the larger same-sex marriage decision in Obergefell (2015). In the case of gays and lesbians, a national majority was rather quickly moving toward reading equal protection more generously, and the court moved to endorse that position.

Perceived animus toward LGBTQ citizens invalidated Colorado voters’ determination not to extend antidiscrimination protection to gays and lesbians, whose identities (or behaviors) they did not wish to affirm; there was no perception of animus in Michigan voters’ determination to bar state actors from taking race into account to enhance diversity. Yet, placing racial minorities outside the normal political process (by making it impossible for underrepresented minorities to pursue greater access to employment and educational opportunities through the normal legislative process)Footnote 67 should arguably be more closely scrutinized than a voter decision such as Colorado Proposition 2, because a lower level of scrutiny (rational basis plus) was applied when the issue was sexual orientation. The result is somewhat ironic, given that strict scrutiny for classifications based upon race is now the norm. Today, “affirmative action” and “preferences” are dog whistles about race, especially in the context of Michigan’s earlier experience with Grutter and Gratz. Justice Kennedy saw race-neutral language in the amendment.

John Hart Ely himself would probably have concluded that if white voters chose not to disadvantage themselves in pursuit of greater racial equality once barriers to African American voting fell, they were not required to do so. But when the court endorsed what Michigan voters chose, they stepped away from claiming constitutional grounds for measures supporting diversity or racial inclusiveness.

Racial discrimination may currently be more subtle than sexual orientation discrimination, but it is engrained in the social fabric.Footnote 68 The difference between categorization based on sexual identity or orientation (Romer, 1996; Obergefell, 2015) and racial categorization (Schuette, 2014; Fisher v. University of Texas I, 2013) may be that the court is much better at seeing – and addressing – overt discrimination than more subtle forms. This may help explain what Russell Robinson (2016, 153) terms “LGBT exceptionalism” within the court – advantages LGBT people enjoy relative to other contemporary civil rights constituencies. The Bostock decision (2020), in which the court extended Civil Rights Act Title VII protections (“because of … sex”) to those experiencing employment discrimination because of sexual orientation is a case in point.

Just as the Rucho majority declined to intervene in extreme cases of motivated partisan gerrymandering, and the Brnovich majority declined to invalidate measures passed by Arizona’s legislature that would make it harder for some citizens (including Native Americans, rural Latinos, and blacks) to cast ballots, the court passed the baton to Michigan voters in Schuette, saying: “The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow” (Schuette, 2014, 314). Is it best that the court leave these kinds of matters to the democratic process in the several states?

Since Michigan voters were allowed to determine what equal protection meant or required, this did allow citizens to deliberate and own the meaning of the constitution in an area where affirmative action has not been mandated. They were constraining, by constitutional amendment, state actors. However, the court is most certainly not making clear which classifications it is willing to turn over to the elective branches, which it is not, and why. The constitution presumably took some contentious issues off the table, removing them from resolution through the democratic process.Footnote 69


Systems of robust legislative supremacy, even with a written constitutional framework, rely on internalized norms for boundary maintenance – either self-policed by legislators or vigilantly policed by an attentive citizenry. Notable examples since the early twentieth century have shown that such systems run risks of fascism, authoritarianism, or totalitarianism.Footnote 70 American judicial review, within a written constitutional framework, is one significant structural impediment to full-throated majoritarian rule. The results are imperfect.

It is hardly certain that robust constitutional courts could serve as bulwarks against radical popular sovereignty on the left or the right, against authoritarianism or rising ethnic and racial animus, or even against strong-willed majorities. However, there remains considerable support for a US Supreme Court that thwarts some majorities some of the time. Balancing the claims of national majorities, state majorities, and even occasionally making borderline antimajoritarian decisions, the court could probably maintain legitimacy while doing a better job that it has of late in expanding the scope for participation in the electoral process, enhancing faith in the fairness of elections, reinforcing representation, extending principles of equal protection, and thereby advancing a more inclusive version of the “people.” Perhaps a “no backsliding” principle for rights, equal protection, and access to the democratic process would be consistent with a commitment to enhancing popular sovereignty, although by defending a particular vision of popular sovereignty, it would discourage some deliberation.

Article III courts could be more vigilant in promoting the health of democracy as process, while limiting the harm majorities impose on minorities. These are roles courts can perform reasonably well – probably better than other branches. Mariah Zeisberg urges us to think about “distinctive governance capacities” of the branches. Though writing in the context of war powers, her point is applicable here: “the Constitution fails to provide for one authoritative institution to settle” many controversies.Footnote 71 We can evaluate branches’ competing claims of authority “in terms of how well they bring their special institutional capacities to bear on the problem of interpreting the Constitution’s substantive standards …”Footnote 72 They “exercise distinctive capacities that predictably generate distinctive perspectives on both policy and constitutional meaning.”Footnote 73

This perspective seems akin to that of Stephen Breyer (2010): Judges need to consider comparative institutional expertise and specialization when they think pragmatically about the constitution. For Breyer, a workable constitution is one that allows problems to be solved in a way that the public, and other governmental institutions, can find acceptable. Constitutional Courts have an important role to play in persuading other participants in the political system that their comparative institutional expertise and specialization includes promoting the health of the democratic process, limiting the harm majorities sometimes impose on minorities, and by doing so, preserving the health of popular sovereignty.

15 Popular Sovereignty, Populism, and Stories of Peoplehood

Rogers M. Smith

As right-wing authoritarian movements labeled populist have gained prominence in many lands, analysts have debated what the term “populism” means, what are the causes of populism, and how best to respond to them. Most writers recognize that populist movements champion popular sovereignty, even if they are not truly committed to competitive democratic processes. Yet, even though much scholarship affirms that conceptions of “the people” are political creations, “popular fictions,” few scholars have focused on populist “stories of peoplehood,” their accounts of who “the people” are and why they should rule.Footnote 1 Nor have many addressed whether it makes sense to devise competing narratives of national identities and popular sovereignty, or the tasks required to do so. Here and elsewhere, I argue that it does make sense to counter right-wing populist narratives with better national stories, along with other responses explored in this volume.Footnote 2 I lay out some guidelines for doing so and for assessing the results, using the example of the United States.

Definitions and Diagnoses

Contributors to The Oxford Handbook of Populism see populism as “a thin-centered ideology that posits a struggle between the will of the common people and a conspiring elite.”Footnote 3 Though like most in this volume I largely embrace this definition, I modify its “thinness” with one addition below. I build on the answers scholars commonly give to explain the recent surge of populist movements. Most agree the major drivers include both economic anxieties linked to globalization and new technologies, and cultural anxieties stirred by heightened immigration, secularization, and other social transformations. While concurring, I focus here on the content of populist ideas. For even though globalizing forces fostering job displacements, economic inequalities, demographic diversity, urbanization, and often senses of disempowerment provide conditions conducive to populist revolts against economic and cultural elites, those revolts are neither inevitable nor wholly self-actualizing. Elements of contingent political agency are always at work.

I have long contended that would-be political leaders – a capacious category that includes all those that Antonio Gramsci called “intellectuals” – must advance stories of peoplehood that persuade people to interpret their experiences in certain ways.Footnote 4 They can offer many different narratives to do so, some better and some worse, in terms of both their practical efficacy and their normative desirability. Failure to attend to the content of populist stories of peoplehood, their themes identifying who “the people” are, how they are aggrieved, and what they should do, can lead scholars to overlook both significant causes and possible cures for authoritarian forms of populism today. I have therefore proposed adding to the Oxford Handbook’s definition the observation that every populist ideology has some story, or often stories, explaining who the people are and why they are more deserving than elites.Footnote 5 We must grasp the appeal of these stories and meet them with better ones if we hope to build political communities that are more fully democratic and respectful of the rights and dignity of all.

Turning to Stories

Doing so is necessary because people have always created and sustained political communities not just through coercive force, but also through persuasive stories. In Israeli historian Yuval Harari’s words, one cannot “organize an army solely by coercion.” There must be “some true believers” who provide uncoerced loyalty, even when it is risky to do so.Footnote 6 Persuasive stories of peoplehood win such loyalty by inspiring trust among fellow members of a community, and between the members and their leaders, as well as senses of the worth of their community membership.Footnote 7 When they gain acceptance, stories help to constitute “political peoples,” defined as “any and all human associations, groups, and communities that are commonly understood to assert that their members owe them a measure of allegiance against the demands of other associations, communities, and groups … the more demanding the claims, the more political the group.”Footnote 8

For any story of political peoplehood to sustain senses of collective identity and cooperative endeavors over time, it must convincingly advance three basic themes, though it can do so with different emphases. It must have an economic theme promising both personal and collective material well-being. It must have a political power theme promising both personal safety and community power sufficient for collective self-defense, as well as, perhaps, a measure of political voice. For many, feelings of wealth and/or power are ends in themselves. Yet, many find such goals avaricious and discreditable. Successful stories must therefore also have constitutive themes presenting “membership in a particular people as intrinsic to who the members really are, because of traits deemed to be normatively good.”Footnote 9

Even though no political society can long endure if it does not have credible economic and political power stories – with confirming results – it is also true that no political society can sustain itself through economic and political power benefits alone. In addition to moral doubts about those goals, there are inevitably economic and political down times. So political communities’ longevity depends also on senses of allegiance rooted in beliefs that belonging to that community is part of its members’ core identities, and a part that gives their lives meaning and worth. Constitutive themes may feature religion, ancestry, ethnicity, race, gender roles, language, culture, class, customs, and more. However, they always present the traits they feature as of high value, and as integral to “who we are.”

Toward Good Stories of Peoplehood

Today many liberal democratic writers are worried that claims of “popular sovereignty” are bolstering intolerant forms of populism.Footnote 10 They tend to respond with three basic claims.

First, many argue that desirable national identities must be fundamentally “civic” and liberal democratic in nature, resting on an ideology championing universalistic commitments to democracy and human rights, rather than “blood and soil” conceptions of nationalism or of a democracy’s people.

Second, many suggest that desirable liberal democratic national identities must somehow simultaneously reflect the distinctive cultural traditions prevalent in particular societies. This second response is in tension with the first. How distinctive can national identities be, if all the desirable ones rest on commitments to the same universal principles of liberal democracy? Most writers display some awareness of this problem, but few address it very fully.

Third, most critics of populism instead elaborate the economic and cultural grievances that they see as driving populist movements, and they offer economic and social policies to ameliorate those grievances. The economic policies seek to promote greater employment, wages, and benefits, while the social policies focus on finding compromises with the opponents of demographic diversity and, especially, heightening immigration. Most writers do not articulate specific “stories of peoplehood” for particular modern nations, precisely because they do not wish to favor any “ethnocultural” conceptions of nationality more than “civic” ones.

I also favor strengthening commitments to democracy and to human rights, and adopting economic and social policies that address the hardships and grievances many now feel. To do so, however, political and intellectual leaders need to elaborate good stories of peoplehood that can motivate allegiance to desirable popular movements by articulating appropriate senses of shared identity, helping to restrain illiberal, authoritarian impulses while delineating and defending needed policies.

What makes some stories of peoplehood better than others? Two things are key. Stories must do a good job empirically of engaging and inspiring people. Stories must also convey substantive messages that their adherents can credibly present as normatively commendable – in part because they support democracy and human rights, in part because they help fulfill a people’s distinctive aspirations in other ways.

Insisting that stories must be good according to norms of democracy and human rights risks, however, reproducing the formula for countering problems of populism just summarized, instead of improving it. It can seem like good stories of peoplehood must all be variants of the same abstract liberal democratic creed. This criticism assumes a view I do not take: that principles of democracy and human rights are universal moral conclusions reached through detached philosophic reasoning. My argument instead builds on Michael Walzer’s conception of normative prescription as, at its most truthful, connected social criticism – the fruits of efforts to interpret the experiences, identities, and moral values people find in their social worlds, and to reason from them.Footnote 11 That reasoning may or may not eventually take the form of claims for universal principles of reason, or perhaps divine revelation. Rational principles or revelations are not the starting point, however, for treating the values in particular social realms as concerns political actors should take seriously. The starting points are the beliefs of the people whose identities a story of peoplehood seeks to express and shape. In today’s world, even these points of origin will prompt many, though not all, reflective persons to elaborate stories in which concerns for democracy, human dignity, and human rights have prominent places.

The Three R’S of Stories of Peoplehood

The logic of seeking through connected critical engagement to develop good stories of peoplehood points to three interrelated criteria to guide these endeavors – the “three R’s” of writing good peoplehood stories. Stories must be resonant, respectful, and reticulated. Just as in the case of “reading, ‘riting, and ‘rithmetic,” it is a reach to get to that third R! Winning acceptance of this novel criterion of reticulation is, however, the most important task for resisting repressive stories today.

First, resonant. Stories of peoplehood must speak to and from the identities and interests that the audiences whom the stories address already possess, even when political narrators seek to convince people to reconceive those identities and interests in some ways, as they always do. The stories must find a persuasive place for the economic and cultural anxieties people are experiencing. They must articulate community policies and goals in which people can see many of their values advanced. As Alinsky-style organizers have long preached, would-be leaders must take people where they are.

Consequently, composing good stories of peoplehood requires a rich knowledge of particular political contexts, the traditions, values, preexisting identities, and practices that the inhabitants of certain areas possess, as well as the challenges they face. This criterion assures that stories of peoplehood will differ significantly for populations in different places. They will always have varying preexisting identities, histories, and problems. Thus, it is not exceptional, it is inevitable, that successful stories will present their people as in some ways exceptional. Resonance is, moreover, not just necessary for stories of peoplehood to gain acceptance. Resonance is needed if stories of peoplehood are to be good normatively – for stories must also conform to the second R, which requires that stories be respectful.

Who must stories of peoplehood respect, how, and why? The answers are always contested. Yet today, these contests take place on material and moral planes with different horizons than in the past. Most people today have far more access to more news than they did through most of human history. Few persons can escape awareness of the challenges facing people in remote regions. Most know that many religious, philosophical, moral, legal, and political traditions insist on the value and dignity of every human being. Most now identify with at least some of those traditions. Frequently their governments are signatories to international treaties that promise respect for human rights and democracy. Journalists, religious leaders, advocacy groups, and sometimes states bring pressure to live up to those commitments. As a result, in virtually every context today, many “local” values give strong reasons for insisting that states should act with respect for all human beings – especially those over whom states are exerting power.

Most moral traditions agree that respect requires, first, giving some minimal hearing to people’s voices, to their concerns, hopes, and fears. As elites so often need to recognize, it is impossible to claim to respect those to whom one refuses to listen. Respect means, second, engaging with people in a spirit of accommodation whenever possible. It means accepting that others are entitled to pursue their ways of life, unless their ways damage the legitimate pursuits of others.

Of course, that “unless” is a huge qualification. Some societies deem repugnant practices that other societies valorize, such as cross-ethnic or same-sex marriages. Virtually every society displays intense internal disagreements over some members’ preferred pursuits. Yet, even in the most restrictive societies, there are values and traditions holding that all persons initially deserve to receive respect, even if their conduct ultimately warrants contempt. Consequently, those narrating stories of peoplehood in most societies can still urge basic consideration for all, in ways that resonate with moral commitments their audiences can see as their own.

The second criterion leads logically to the third. Good stories must be reticulated stories, narratives that openly embrace a significant measure of pluralism. Reticulated is a term for networks that display legible patterns. Good stories of peoplehood portray, and so help people to weave, political networks of groups, institutions, and policies that display two kinds of patterns. One is internal to the political communities the stories depict. One is visible in those communities’ external relationships with other societies.

Internally, out of respect for all, narratives should not urge total civic unity or uniformity. Instead, they should promote pluralistic solidarity, by authorizing institutions and policies that include accommodations for the society’s subgroups, especially vulnerable ones such as minority religions, disadvantaged ethnic groups, impoverished regions, indigenous communities, and more, to the greatest degree possible, consistent with the stories’ constitutive themes. These accommodations can take many forms, including federalism, targeted aid programs, special representation in legislatures, exemptions from generally binding laws, and others.

Externally, stories should support openness to accommodating, and often allying with, the policies and institutions of other societies, whenever they share a community’s objectives. This openness should include receptivity to transnational regional and international institutions and associations. By urging cooperation in common endeavors and policies of accommodating diversity within and beyond existing borders, reticulated stories can promote broad and inclusive flourishing, in ways that will resonate with many and show respect for all.

Though general, these criteria are specific enough to aid assessments using empirical metrics. Modern polling and voting data provide evidence for how many in the audiences for particular stories of peoplehood actually embrace them. Analysts can also measure the extent to which institutions and policies display respect by tabulating the rights granted to the diverse communities and individuals with whom a government deals. They can similarly add up the accommodations and partnerships a society offers to the subgroups within it and societies outside it. The results will be rough quantitative metrics for how reticulated societies and their stories of peoplehood are, like the measures scholars use to assess how democratic and free societies are.

Competing Stories of American Peoplehood
America First!

To make this argument more concrete, consider the United States. In 2016, the United States elected a president who made a distinctive story of peoplehood the centerpiece of his Inaugural Address, promising: “From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first. America first.”Footnote 12 This narrative resonated powerfully with many millions of Americans, even as it repulsed millions of others. It scored poorly, however, on the other two criteria for good stories of peoplehood, respectfulness and reticulation.

Donald Trump’s Inaugural fit perfectly with the Handbook’s definition of populism as an “ideology that posits a struggle between the will of the common people and a conspiring elite” – and it told a potent story of peoplehood. Trump narrated America’s past as one in which “a small group in our nation’s Capital has reaped the rewards of government,” while “the people have borne the cost” of “American carnage.” He promised, “January 20, 2017 will be remembered as the day the people became the rulers of this nation again.” This was Trump’s main political power theme, though he also vowed protection against crime and greater military power. Trump’s economic theme was the promise that every “decision on trade, on taxes, on immigration, on foreign affairs, will be made to benefit American workers and American families.” New initiatives would “bring back our jobs … bring back our wealth,” with “new roads, and highways, and bridges, and airports, and tunnels, and railways,” getting people “off welfare and back to work.” Above all, Trump emphasized his constitutive theme of making America “great again.”Footnote 13

The new president explained that his America First vision rested on the principle that “it is the right of all nations to put their own nation first.” He maintained that Americans “do not seek to impose our way of life on anyone, but rather to let it shine as an example for everyone to follow.” He also pledged that his vision encompassed “all the citizens of America.” Americans, he said, form “one nation,” sharing “one heart, one home, and one glorious destiny,” with “no room for prejudice,” but rather an awareness “that whether we are black or brown or white, we all bleed the same red blood of patriots.” So, Trump concluded, “the bedrock of our politics will be a total allegiance to the United States of America, and through our loyalty to our country, we will rediscover our loyalty to each other.”Footnote 14

In terms of the three R’s of good stories of peoplehood, both polls and electoral results show that Trump’s America First narrative resonated with the concerns and identities of many millions of Americans. He also claimed to respect all American citizens, though his denunciations of the nation’s previous leaders made clear that this respect did not extend to all. His vision also had little room for reticulation, for recognition of the many diverse communities and commitments that characterize modern America. Instead, he demanded “total allegiance” and loyalty, as authoritarian populists do.Footnote 15

Trump’s prior challenges to Barack Obama’s citizenship already suggested that he did not respect an African American president. During the campaign, he denied that an American-born judge of Mexican descent could be faithful to US law, and he disparaged black and brown Americans by grossly overstating criminal statistics for blacks and immigrants.Footnote 16 In office, Trump’s comments suggesting there were good people among the white supremacist protestors at Charlottesville, criticizing African American athletes and celebrities protesting against police violence toward people of color, and urging Congresswomen of color to “return” to their home countries, continued to express hostility toward a truly diverse America.Footnote 17

Trump’s deeds matched these words. His Justice Department’s Civil Rights Division pursued lawsuits against universities’ affirmative action policies.Footnote 18 The Justice Department and the Department of Housing and Urban Development stopped filing disparate impact suits to advance the Fair Housing Act’s goal of fighting racial discrimination in housing.Footnote 19 Trump officials ended a federal grant to a group working to oppose white nationalist extremist organizations.Footnote 20 The president created a commission to investigate vote fraud led by one of the nation’s most extreme proponents of anti-immigrant and voter restriction laws.Footnote 21 Early on, Trump appointees praised the race-based National Origins Quota system of the 1920s.Footnote 22 Trump officials then curbed visitors from Muslim and African countries, while favoring immigration legislation that would replace family unification priorities with preferences for high-skilled immigrants, probably limiting both the diversity of newcomers and overall legal immigration.Footnote 23

This record makes it impossible to see Trump’s program as respectful toward all Americans, or even as clearly committed to democracy, human rights, and the rule of law. Despite his loss in 2020, Americans still need stories of peoplehood to check these features of the Trump movement’s MAGA (Make America Great Again)/America First vision, while responding to the concerns in it that do express respect for all. Americans have long told many stories, from utopian religious narratives to radical socialist and anticolonial accounts; but four narratives have most normative and political power.

First, American politics as a democratic project, the view of John Dewey and others. Second, America as a specifically consumers and producers democracy, a vision advanced by Progressive Era and New Deal activists, and Franklin Roosevelt. Third, America as a constitutional endeavor to form a more perfect union, without effacing diversity, the “e pluribus unum” story told best by Barack Obama and extended by Joe Biden. And fourth, America defined by the Declaration of Independence project of extending rights to all, the vision propagated by Abraham Lincoln.

Democratic Stories

Many of the constitution’s framers like James Madison feared too much democracy. They preferred republics, with governance by elected representatives, to direct popular rule.Footnote 24 Yet with fits, starts, and major reversals, US history displays steps toward greater democracy. These include the expansion of the franchise to all white men, then all men, then all male and female citizens over twenty-one, and eventually eighteen-year-olds as well; the adoption of direct election of judges in many states and of US senators; and the democratization of candidate selection processes through primaries in the twentieth century.Footnote 25 Stories of America as a democratic project have done much to advance inclusive, egalitarian visions of American peoplehood in the past. They may be the best to do so today.

Indeed, democratic commitments suggest an alternative to the whole focus on national narratives proposed here. Perhaps egalitarian inclusion is most attainable through grassroots democratic engagement in self-governance, pursued without any larger account of who “the people” are. Organizing democratically around resistance to specific forms of oppression, exploitation and domination may be sufficient, and safer. Dewey often argued in this vein, focusing on needs to combat democracy-distorting economic inequalities and corporate power, rather than on any tale of American identity.Footnote 26 Today, in calling for a “left populism” to oppose neoliberal policies, European political theorist Chantal Mouffe has acknowledged the risk that “to bring together … democratic demands in the creation of a ‘people’ will produce” or worse, presume, “a homogeneous subject, one that negates plurality.”Footnote 27

However, Mouffe ultimately agrees that democratic projects must “be congruent with the values and identities” of those they seek to enlist.Footnote 28 They must start from where people “are and how they feel, offering them a vision of the future that gives them hope.”Footnote 29 At present, Mouffe contends, this often means beginning “at the national level” and mobilizing people “around a patriotic identification with the best and most egalitarian aspects of the national tradition.”Footnote 30 Mouffe stops short of calling for better national stories, however, because she wants notions of “the people” constructed with “democratic values in the leading role” in defining political identities everywhere.Footnote 31

This is an endeavor worth pursuing, but there are reasons to doubt whether it can work on its own. History shows that if democracy means unqualified majoritarian rule, the rights of many minorities, especially ethnocultural minorities, will not be safe. Moreover, as Madison warned and as Rosenbluth and Shapiro have recently affirmed, the democratizing of institutions such as the selection of representatives can be done excessively or poorly.Footnote 32 Primaries often select polarized ideologues rather than candidates striving to meet widely felt needs. Furthermore, less than half of young Americans today take an active interest in politics; and many do not view democracy as the best form of government.Footnote 33 A democratically disengaged and disillusioned citizenry is not likely to respond to stories that feature democracy alone.

Consumer and Producer Democracy

Contemporaneously with Dewey, economist Walter Weyl and reformers like Florence Kelley and the National Consumers League urged progressives to organize politically around a vision of America as a nation of consumers with common interests in restraining “plutocracy,” aiding workers, and achieving broadly shared economic prosperity.Footnote 34 In the New Deal era, Franklin Roosevelt called repeatedly for a new “economic declaration of rights, an economic constitutional order” ensuring that everyone had “a right to make a comfortable living” so that “purchasing power is well distributed throughout every group in the nation.”Footnote 35 He sought to achieve it through the Social Security Act, the National Labor Relations Act, and other major New Deal initiatives.

But as the Cold War abetted opposition to labor unions and egalitarian economic restructuring, this vision of American democracy increasingly narrowed to what historian Lizabeth Cohen has called a “Consumer’s Republic.”Footnote 36 Its focus became simply representing consumer interests in existing economic and political institutions. Today this consumerist narrative of American identity sounds more like recent neoliberal visions, from which many American feel left out, than a basis for civic renewal. Perhaps the left progressive resurgence spurred by Bernie Sanders can refashion it into a more inclusive, egalitarian, social welfare-centered story of American peoplehood; but how widely such social democratic visions can resonate is unclear.

The E Pluribus Unum Story

The first goal stated in the constitution is “to form a more perfect Union.” In 1789, Congress adopted a Great Seal of the United States with the motto “E Pluribus Unum” – out of many, one. Consequently, it has always been possible to narrate the American people as devoted to forming a greater unity out of their manifold diversity. No leader ever told that story as powerfully as Barack Obama, beginning at the 2004 Democratic Convention. There Obama expressed gratitude “for the diversity of my heritage.” He maintained that his story was “part of the larger American story” and that “in no other country on earth” could his life be “even possible.”Footnote 37 Obama traced that possibility back to America’s founding commitment to the proposition that all “are created equal.” But he stressed, using biblical and familial language, that “alongside our famous individualism, there’s another ingredient in the American saga, a belief that we’re all connected as one people … I am my brother’s keeper, I am my sister’s keeper … It’s what allows us to pursue our individual dreams and yet still come together as one American family. E pluribus unum: ‘Out of many, one.’”Footnote 38

Obama thereby summoned the nation’s religious traditions of moral obligation and republican conceptions of civic duty in service of the constitutional endeavor of achieving a “more perfect union” – the phrase favored by his heir, Joe Biden. Obama’s subsequent election as the nation’s first African American president, and a two-term president, along with the popular vote victories of his secretary of state in 2016 and his vice president in 2020, all prove that his story has undeniable resonance. It promises respect for all, and unprecedented recognition for many forms of diversity as well. It thus complies with all three R’s of good stories of peoplehood. It also blends its e pluribus unum constitutive theme with calls for economic policies to expand opportunities for all, and with political power themes of protecting voting rights and promoting civic-minded decision-making.

Yet, while that combination had great strengths, Obama’s presidential record raises concerns. Obama’s emphasis on pragmatic deliberative democratic processes aiming at unity, rather than on substantive policies, meant that his vision of union could appear hollow. When Republicans in Congress refused to engage in good faith negotiations, Obama’s e pluribus unum narrative also gave little guidance on how to respond. His best hope was to defeat his opponents at the polls; but he failed to sustain the broad support he built in 2008. He then struggled to find a better story to tell than the one that had brought him to the White House. The quest for e pluribus unum, while valuable, proved not potent enough. Though Joe Biden has tried to bet less on bipartisanship, he may still prove to have been too wedded to it to succeed.

The Declaration of Independence Story

By proclaiming, “Four score and seven years ago, our fathers brought forth upon this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” Lincoln’s Gettysburg address traced the nation’s origin to 1776 and the Declaration of Independence.Footnote 39 Lincoln spoke in a broad tradition of invoking the Declaration in order to claim that more people should have their basic rights better secured. That tradition already included Jacksonian workers’ advocates and the antebellum women’s rights movement, and it has gone on to include champions of property rights, human rights, civil rights, LGBTQ rights, disability rights, and other rights.Footnote 40

Lincoln also spoke in the spirit of, though not in full agreement with, the advocates of antislavery constitutionalism, including the Massachusetts abolitionist Lysander Spooner and the formerly enslaved Frederick Douglass.Footnote 41 In 1845, Spooner published The Unconstitutionality of Slavery, arguing that the “people of this country” first “announced their independent political existence” in a document that amounted to “constitutional law” and that took as a “self-evident truth” the principle that all men had a natural right to liberty – a position Spooner insisted the 1787 constitution did not disavow.Footnote 42 Douglass argued, citing the Supreme Court, that when reading legal documents, “the language of the law must be construed strictly in favour of justice and liberty.”Footnote 43 Since the constitution did not use the word slavery and promised to secure “the blessings of liberty,” Douglass maintained Americans should read it as an antislavery document.

Lincoln did not agree that the constitution banned enslavement. Still, he and the new Republican Party came to adopt a moderate version of antislavery constitutionalism. They contended, with real if mixed historical evidence, that the intent of the constitution was to fulfill the principles of the Declaration by putting slavery on the path to gradual extinction.Footnote 44 Lincoln often called the Declaration’s proclamation of human equality and inalienable rights a “maxim” set up for “future use.” It should be “constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated,” and so “constantly spreading and deepening its influence,” thereby “augmenting the happiness and value of life to all people, of all colors, everywhere.”Footnote 45

Lincoln’s embrace of the Declaration as the foundation of his story of America also shaped his economic and political power themes, which called for national measures to promote broad economic opportunities while protecting property rights, and for republican self-governance. His dedication to the Declaration’s goals also eventually led him to conclude that if African Americans were to gain secure possession of basic rights, many would need the franchise. This evolution highlights a major difference between his story of American peoplehood and Obama’s and perhaps Biden’s. For Obama, the goal was simply fostering unity through processes of deliberative democracy. For Lincoln, the goal was more specific. It was the extension of basic rights to all, a project that could justify overriding, sometimes by force, the preferences of those who would deny rights to others.Footnote 46

Lincoln’s view stands in far more striking contrast to Trump’s America First vision. To be sure, Lincoln also sought to make America an example to the world. Yet, when Lincoln said the nation should spread the influence of the Declaration of Independence to benefit all people, everywhere, there is little doubt that he meant it. At the height of the anti-immigration Know-Nothing movement in the 1850s, Lincoln wrote, “I am not a Know-Nothing. That is certain … As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and catholics.’”Footnote 47 Lincoln clearly thought that if US policies worked against the goal of securing basic rights for all people everywhere, those policies violated the values to which Americans should be dedicated.

The Declaration of Independence Story Today

Whether or not the Lincoln Republicans were right to see the original constitution as dedicated to this Declaration of Independence project, they wrote their vision into the constitution in the form of the three great Civil War Amendments. Even before then as well as since, the Declaration has proven a great asset for inclusive, egalitarian reforms worldwide, though the wealthy have also used it to buttress their privileges.Footnote 48

Does this Declaration of Independence story, which presents the end of all legitimate governments as securing inalienable rights, reduce the tension between upholding a civic identity grounded on universalistic liberal democratic tenets, and celebrating a more particular conception of nationality? It does permit Americans to see their peoplehood as distinctive, though no more “exceptional” than other nations. Not only can Americans say theirs was the first nation “so conceived, and so dedicated.” Partly in pursuit of the Declaration’s vision, Americans went on to adopt new political and social institutions that in many ways remain unique, for good and ill, even as they have had global influence. Americans have also struggled mightily over their most massive violation of the Declaration, chattel slavery, making issues of race and region more central to the nation’s experience than is true in many other countries. All this enables Americans to see themselves as a people with a special historical project, achievements, and challenges as they seek to advance the Declaration’s goals. Many therefore can and do find meaning not only in being dedicated to rights and democracy, but also in being the heirs and the authors of the distinctive American story.

Though this Declaration of Independence narrative has strengths in combating MAGA views, it also has serious limitations. It can lead Americans to be obsessed with claiming individual rights instead of pursuing common goods. Americans may also rest satisfied with a formal equality of rights that leaves many living in conditions of crippling inequalities. Worst of all, privileged Americans may use claims to be protecting rights to impose their own conceptions of how others should live on diverse communities at home and abroad.

These concerns suggest that Americans who favor this Declaration story must expand upon the Civil War Republicans’ views of what securing rights for all entails. Policies and practices must help people acquire the economic, educational, and political resources and capabilities they need to exercise their rights. Today it is especially vital to address the needs and concerns of both the deeply disadvantaged, and those more traditionalist Americans who feel endangered by globalizing trends, even if the desires of neither group can be met fully.

What policies can do so? Economic measures should include national aid to communities and workers that lose jobs due to economic globalization or necessary environmental regulations. Since the benefits of immigration are often national while the costs may be locally concentrated, aid programs for regions facing demands for expanded social services to recent immigrants are equally appropriate. Trade agreements with better pay for workers in immigrant-sending regions can address both the economic and cultural concerns of older-stock Americans. As Biden has recognized, a still greater opportunity is massive public infrastructure spending on transportation, communications, climate-conserving energy production, water supply, and educational facilities, with environmental protections. These investments could generate profitable employment for displaced native workers and for immigrants, while spurring economic growth for decades.

In regards to political power, the goals of the Declaration call on Americans to continue to improve their democratic institutions, by removing instead of imposing barriers to participation, and by altering candidate selection processes to reduce the influence of wealth and of extremists. It is also vital to restructure Congress to help restore it to its past role as the centerpiece of representative governance, before heightened electoral preoccupations, polarization, and the decline of responsible parties led it to abandon authority to the other branches.Footnote 49

Moreover, powerful groups have in fact often prompted American governments to impose those groups’ preferred forms of life on minorities at home and on other societies abroad. These practices violate the Declaration of Independence project, for its rights include the pursuit of happiness, and people’s notions of happiness legitimately vary, as do the social, economic, and political barriers they face. To be effective, policies seeking to enable all to enjoy basic rights must be reticulated policies that do not treat differently situated persons in strictly uniform fashion. Americans must engage in continuing contextual judgments about what special accommodations will augment “the happiness and value of life” for all concerned – and what forms of differential treatment will instead foster divisions, inequalities, and injustices.

Americans can best make these policy judgments by adopting a new civic ethos.Footnote 50 It should encourage all to pursue, among the many forms of happiness they might seek individually and as communities, those that are most valuable to others as well as to themselves – in part because those choices can permit and assist others to pursue their distinctive forms of happiness. Today most people recognize themselves as complex beings with many affiliations, identities, and aspirations. That awareness can be disturbing, but it also can help people see that they can seek self-realization in many different but equally satisfying ways – ways that might have better or worse consequences for others. To show respect for those others, all must take those consequences seriously.

I have suggested that people might do so by adopting a modification of John Stuart Mill’s “harm principle” as both a personal and a civic ethos. This modified maxim is, “the best uses of their powers by communities and individuals are those that aid others, without doing harm to themselves.” Though governments must still combat harms, citizens can strive more consciously to exercise their rights, individually and as a nation, in ways that benefit others, not just themselves. Doing so means they should sometimes favor accommodations and exemptions in public policies for unconventional minorities, because doing so will enable those groups to pursue their forms of happiness in ways more equal to the majority. Instead of simply “live and let live,” Americans need a civic ethos of “live and help live.”

This ethos can guide reflections on appropriately reticulated policies and practices. Legislators and executives devising public policies, and courts adjudicating them, should apply it when responding to all claims for assistance, exemptions, and accommodations, including those of religious groups, linguistic, cultural, ethnic and racial minorities, the poor, the disabled, women, LGBTQ persons and groups, children, the elderly, and more. Rather than regarding all special treatment as suspect, lawmakers and courts should reverse the burden of proof. They should only reject claims to accommodations when those denials are necessary to achieve compelling governmental purposes – purposes that must involve more than hostility to the groups in question, or demands that they give the nation “total allegiance.”

Will this call for extensive accommodations only heighten fragmentation and inequality? One great safeguard should be borne in mind. If policies pursue equal, but not always uniform reticulated rights – if they aim at providing each group and individual with rights that have comparable value, but not greater value, than those granted to other groups and individuals – then frequent denials of demands for special rights and accommodations will be justified by compelling state interests. Once governments provide accommodations to any one group, they must provide them to all groups who claim them. An ethos of accommodations for all is also an ethos that rejects special privileges for some.

This means that both legislators and courts must ask what the consequences will be of granting, for example, exemptions from Affordable Care Act requirements not only to conservative religious groups and to corporations owned by religious believers, but also to all entities who make similar demands – a position the Trump administration endorsed.Footnote 51 If there are many other such bodies, then the accommodations will be too costly, both in dollars and in terms of their impacts on other public goals, to be acceptable. Similarly, if Congress ever repeals the 1954 Johnson Amendment to the tax code and permits religious groups to endorse political candidates, as Trump urged, it must allow all tax-exempt advocacy groups to endorse candidates. Tax exemptions and full political speech rights cannot be bestowed on religious traditionalists while one or the other are denied to environmental and animal rights advocacy groups.

If, however, requests for accommodations arise from only a few groups, while the interests of those adversely affected by those accommodations can be met through relatively costless alternative policies, then it is wise to support those accommodations. They may well contribute to civic peace and heighten the prospects for many to pursue happiness. Paradoxically but beneficially, America’s rich diversity makes it likely that many requests for special privileges will be advanced by so few groups that they can be granted. Through these policies, a wide range of communities – Midwestern farmers, public sector labor organizers, immigrant groups, fundamentalist Christians, deaf culture communities, persons of mixed race descent, families with transgender members, and more – may come to share one vital form of solidarity. They may feel that they all truly belong to the larger American political project of making the pursuit of happiness a right of all.


Despite these strengths of the Declaration narrative, its limitations may lead many American to prefer another account of their identities and purposes. It is both unrealistic and undesirable for all Americans to embrace any single story of who they are, for doing so would efface valuable differences. So, all who oppose ethnocentric, authoritarian populisms should advocate for the alternative stories of peoplehood they find compelling – while also building coalitions around areas of overlap among these stories, finding common ground to resist injustices, and common paths for progress. Those who reject “America First” must look for stories that resonate, that are respectful, and that are reticulated, stories that provide secure places for as many diverse groups as possible in American society and in larger regional and global networks. By so doing, Americans may find they can bring to life better stories of peoplehood and popular sovereignty than ever before.

16 Popular Sovereignty in the Trump Era A Case Study of Pedagogy and Practice

Nicole Mellow and Andrew J. Perrin

Ensure equal representation for all. Protect rights of individual and minority groups. Ensure majoritarian procedures of decision making. Ensure full voter participation. Ensure capacity for constitutional change. Establish an independent but also a democratic judiciary. Ensure a diversity of political parties. Proscribe lobbying. Ensure wealth redistribution. Ensure efficiency. Protect rights to safety, education, privacy, food security, speech, equality, medical care, the ability to support oneself, a decent life, religion, marijuana use, and cheap rehabilitation. Prohibit tobacco use. Set the voting and drinking age at 18. Ensure renewable energy, rehabilitative criminal justice, taxation by wealth, a minimum wage.

This is a partial list of required attributes of a new constitution. The list was generated by students during a final class exercise in a first-year seminar on popular sovereignty in the United States that we taught jointly at Williams College and the University of North Carolina, Chapel Hill, in the fall of 2018. For the exercise, students were asked to design a constitution for a country resembling the contemporary United States, knowing what we now know after two-plus centuries of American government. Self-contradictory and partial, and not supported in its entirety by all the students, the list nonetheless reveals key fault lines of teaching about democracy in the Trump era and encapsulates our experience with the class.

This exercise asked students to determine the core elements of a good constitution. They had spent the semester studying strains of democratic theory, as well as political science and sociology research on political behavior and governance, and following the hotly contested 2018 election campaigns. Here we outline the goals and approach of the course, paying particular attention to the challenges it raised and the successes and failures we experienced in addressing those challenges. We focus in particular on two assignments: first, a paper assignment in which students reflected on democracy in a cultural and social register and second, the constitutional design exercise referenced above. Each of these examples illustrates the crux of the class: the students’ concern for the survival and health of democracy in tension with their reticence to accept key demands of democracy – principally, accepting policy losses resulting from disagreements with fellow citizens. In what follows, we explore this tension through the lens of the class.

The Context

In the aftermath of the 2016 election, emails, blog posts, and articles about how to teach politics and society in the Trump-era undergraduate classroom ricocheted among social science faculty: How should one treat the president’s unfactual statements and claims? How best to characterize his assaults on democratic practices, norms, and institutions? Should Trump be described in the classroom as a populist, an oligarch, a proto-fascist, or simply the president? What about the American regime itself: a liberal democracy, a backsliding democracy, a decaying (or “rotting”) constitutional democracy? It seemed clear that the country was in new terrain, and that the new administration shared important elements with other right-wing authoritarians and populist parties around the globe. But what that meant for teaching the rules and regularities of American political life was less clear.

While these sorts of questions animate researchers too, they have a special urgency and complexity in the classroom for a number of reasons. First, many features of Trump’s candidacy and presidency are abnormal, even unprecedented, in American political history, so the lessons of “normal” social science that populate many syllabi may not always seem applicable. This includes the mundane: Should tweets be covered in the same way as traditional pronouncements by a president’s administration? Doubtful. But they also include the more ominous: Should Trump’s repeated attacks on the media as “traitors” and “public enemy number one” be treated as just another example of presidents’ fraught relations with the media? Surely not.

Secondly, even with American exceptionalism largely discredited in the academy, squaring the American experience under Trump with the rise of nationalism and populist politics elsewhere might require faculty to embrace new analytic and pedagogical tools. Many students, arriving on campus following high-school civics classes, start with the assumption that American traditions and institutions are uniquely effective and stable. There is a reason why some of the most sought after texts since 2016 include work by comparativists like Steven Levitsky and Daniel Ziblatt (How Democracies Die) and theorists like Jan-Werner Müller (What is Populism?). Instructors might find these texts at least as helpful for contextualizing Trump for students in their American politics classes as traditional texts like Neustadt’s Presidential Power.Footnote 1

Finally, in an era of highly polarized politics, describing Trump with terms usually reserved for other nations and leaders might appear exceedingly partisan and alarmist to students, leading them to discredit the information. We found that students had quickly assimilated the Trump phenomenon into a familiar Republican-versus-Democrat dichotomy, glossing over or failing to absorb the remarkable institutional challenges, disruptions of conventions, and ideological reconfigurations occurring before their eyes. Given conservative assaults on higher education and efforts to undermine faculty (“liberal elite”) expertise, instructors might be concerned that students will suspect a left-wing agenda behind genuine, objective questions about whether Trump’s actions are consistent with liberal democracy. To simply normalize President Trump’s actions seems pedagogically suspect and politically inadequate – part of the very phenomenon that needs to be better understood, a teaching version of “How was the play, Mrs. Lincoln?” What steps can instructors take to encourage open debate and expression in a context where previously accepted norms have been recast as partisan?

These dilemmas admit of no easy answers, and to be sure, they are not unique to the post-2016 classroom. Trump’s presidency has amplified and clarified longer-term issues about how best to teach American students the promises and pitfalls of democratic representation. But they pose new, urgent challenges for pedagogy on popular sovereignty during the Trump administration.

Perhaps most immediately driving these conversations among faculty about how to teach in the Trump era is an awareness that students are the citizens – United States or otherwise – that we reach most directly. With democracy tottering, it is imperative that instructors get it right so that students, many of them newly enfranchised as voters, have the tools to be effective agents in the world they are inheriting. How does one teach young people about popular sovereignty – and their role in it – in a moment and context in which its sustenance, in any real fashion, seems tenuous at best? Further, how does one teach to democratically empower students given the real power imbalances of the traditional academic classroom (e.g., the “rules” are established and maintained by the instructor, grades are given)?

Course Aim and Design

With these and related questions in mind, we set out in the fall of 2018 to teach a course on popular sovereignty in the United States to first-year college students. The course was unique in many dimensions. First, we aimed to merge normative theory with empirical evidence and investigation, enrolling students in the work, not just of evaluating, but also of ascertaining the practices and limits of popular sovereignty. We wanted students to experience democratic citizenry, not just learn about it. Second, the course linked first-year students from two very different institutions: one a small liberal arts college, the other a large public research university. The goal here was for students to negotiate the types of differences that are present in a diverse democracy like the United States. Finally, it did all of this with students in their first semesters of college, as they were learning the opportunities higher education provides along with those that democratic citizenship provides. As they arrive in college, students are presented with new intellectual opportunities for their own exploration, which also dovetail with expanding possibilities for being democratic agents. We sought to use academic expectations, on-the-ground research, and challenging interactions to reinforce the connection between intellectual and democratic development as the students began a new chapter in their lives.

Many students, especially in the United States, come to college with predispositions and assumptions about American democratic institutions and practices based in high-school civics. Because these classes often teach about American institutions alongside the ideals of popular sovereignty and liberal freedoms – with the institutions at most modestly imperfect vehicles for the gradual realization of those ideals – we aimed to challenge those taken-for-granted assumptions by triangulating democratic theory, empirical and comparative social scientific research, and the students’ own investigations. In separate sections on the people (“popular”) and governance (“sovereignty”), students probed questions such as does democracy require minority protections, or are the two at odds? Can the will of the people be reliably discerned? Can a deeply divided society govern itself?

At the same time, given popular and elite despair about the state of democratic politics in the United States and elsewhere, we additionally aimed to give students the tools to better appreciate the demands, opportunities, and perils of democratic politics. Our hope was that through the substance of the course as well as the pedagogical approach we adopted, we would provide students with a realistic appraisal of the essential nature of collective democratic life as well as the forces with which they must contend in order to preserve and enhance it.

As instructors, we wanted not only to better understand both the apprehensions and beliefs of this group of young people but also to see whether an intervention of this sort – a class on the prospects of popular sovereignty (the course was titled Power to the People?) – would affect their orientation to or appreciation of the demands of democracy. After all, these were first-year college students just beginning their democratic participatory lives in a moment of global populist and nationalist upheaval. We hoped to learn from them how they saw their civic task at the same time that we aimed to prepare them for their new responsibilities. We sought to balance examination of general questions of popular sovereignty with specific questions raised by the contemporary moment.

With two explicit aims of the course – to educate students about the idea and practice of popular sovereignty and to equip them with the intellectual and practical tools for democratic participation – the decision to include a substantial amount of hands-on research had a dual pedagogical aim. We wanted students to learn how to do basic research of the sort they would be expected to do throughout their college careers – in this case, how to find information about the democratic polity around them so that they could assess the scholarly materials they encountered in class. Additionally, we hoped that the students, armed with both their own observations and the scholarly insights of the class, would be better equipped to act as empowered democratic citizens, able to consider ideas and evidence with greater objectivity than their preexisting partisan dispositions might otherwise incline them. We wanted students to see that they could collect data about the world in which they live and subject it to thoughtful, critical analysis, guided by the insights of professional analysts.

We operationalized this decision about practical democratic investigation in two primary ways. First, we decided to teach the course, with the same syllabus, at our two institutions, at the same time to similar groups of students (nineteen first-year students at each), with frequent sessions combined via videoconferencing. One of us was teaching at a large public university in the South and the other at a small liberal arts college in the Northeast. While both institutions are known for being “liberal,” in fact the student populations are considerably different geographically, socially, and politically. Our hope was that the experience of bringing the students together across this difference would additionally expose students to the practice of learning about and negotiating differences as well as discovering commonality – both fundamental attributes of a thriving democratic politics in our estimation.

Second, we taught the course in an election year (2018) and asked students to investigate different aspects of the democratic practices that were unfolding. These included gathering evidence and conducting research on the voters and candidates on Election Day; the public conversation about issues through the media and social media; representative bodies such as Congress and nongovernmental advocacy groups representing societal interests; and federal and state constitutions. Here, too, our idea was to invest in students the power and ability to ask questions about the performance of various features of democratic functioning. The two classes compared notes about their investigations regularly, culminating in a joint trip to Washington, DC.

During that trip, students worked in teams that bridged the two institutions, meeting with legislative, nonprofit, journalistic, and other leaders to investigate core practices of governance. They also met as a full group with legislators of both parties, journalists, and others for discussions about the performance of government at that moment. Many students commented that the independent research and combined conversations were an important highlight of their first semesters.

Popular Sovereignty and Pedagogy Under Trump: Evidence From Two Assignments

A midsemester analytic essay assignment as well as the end-of-semester constitutional design exercise described earlier give some insight as to how students responded to the course. What we describe here with these examples is largely consistent with how students responded, in writing and discussion, to course materials throughout the semester, and thus are, we believe, usefully illustrative of our experience overall.

In general, we found students to be pessimistic, even cynical, about the state of democracy in the United States and concerned about the country’s capacity for change. This is not surprising: It is consistent with standard indicators of public opinion. During the course, students read scholarship that drew attention to the many deficiencies, inadequacies, and problematic features of contemporary democratic life in the United States. But while students expressed concern that democracy was in decline, they, at the same time, had difficulty reconsidering their own partial views of what American democracy should look like. This challenge – the tension between concern about democracy and reticence about accepting the demands of democracy – became a fundamental crux of the class.

Generous in the abstract but generally uncompromising when it came to concrete formulations, students’ vision of healthy democratic politics seemed at times to be actually antidemocratic. This was hinted at by a common theme in students’ midsemester papers about the necessary ingredients for democratic flourishing. Students spent the first part of the semester considering the challenges to creating a common public and an ascertainable public will, beginning with Federalist 10 and running through evidence about contemporary polarization. They were then asked to evaluate a claim made by theorist Melvin Rogers that “placing the fate of democracy in the domain of culture requires … that we see our present moment as a fight about what kind of people we want to be and what kind of society we long to create.”Footnote 2

Although students offered many thoughtful reflections about current social and political conflicts, most framed these conflicts, implicitly or explicitly, as problematic because they prevent consensus and action on what the students took to be common or “mutual goals” of liberal progress. Rather than seeing democracy as something to be fought for and preserved, or as a sociocultural achievement, they tended to define “what kind of people we want to be,” in terms of policy stances (e.g., “what kind of people ‘we’ want to be towards immigrants”).Footnote 3 Similarly, in a final evaluation comment, one student admonished, “Talk about race. American democracy was founded on white supremacy.”

But the generic need to collaborate in a diverse polity does not depend on the specific historical development of American government, even though the capacity to do so is affected by the specific history. In other words, although the country’s history of white supremacy continues to constrain the practice of true democratic deliberation and collaboration, it does not vitiate the importance of those features of democracy (if anything, it only underscores the urgency of the need). Students often struggled with the juxtaposition of the empirical reality of the country’s antidemocratic practices, historical and current, with the value and meaning of democratic negotiation in theory and aspiration. Feeling fury and despair at the former, they were reluctant to grant legitimacy to the latter even while they were unable to articulate an acceptable alternative. How might American democracy be redesigned to improve representation? They found it very challenging to address that question.

These discussions implied that students’ dissatisfaction with today’s democracy might actually have more to do with frustration that their preferred policies were not being adopted than with a systemic evaluation of democracy. In these papers, few of the students grasped that a culture of democracy, especially in a country as large and diverse as the United States, requires a commitment to negotiating differences and a willingness to lose some disputes – that a democratic culture involves sharing a polity with people who differ from them. The despair many of the papers expressed over current divisions was because the divisions were impediments to realizing the students’ own normatively desired ends (a problem of democratic outcomes), not because of the challenges those divisions pose to the collectivity (a problem of democratic process and culture). Their responses failed to take into account that insistence on those substantive ends, or a culture that would support those ends, might foreclose the very democratic politics they were reflexively celebrating.

This instinct to prioritize substantive policy ends over democracy showed up even more clearly in the constitutional design exercise, where students insisted on “rights” to so many things, often directly related to the politics of today, that they ended up removing many important areas of social and economic policy from democratic control. By creating a right to renewable energy, a living wage, and marijuana use (though prohibiting tobacco use), for example, they avoided subjecting these multifaceted issues to the scrutiny of democratic contestation.

This tendency to be superficially magnanimous about democracy but less charitable in discussing specifics had parallels to US citizens’ calls for lawmakers both to be more bipartisan or compromising and, simultaneously, to be unyielding on the partisan positions about which they care. Perhaps this is just another way of saying we live in polarized times. And given that the majority of the students had a vision of democracy that was, in actuality, liberal democracy, to be unrelenting in this particular moment of illiberal populist resurgence is perhaps a virtue – it might even be a necessity for students who find their communities to be under attack by Trump administration policies and rhetoric. It did suggest to us that were we to teach this course again, especially to students new to social science study as these students were, we should reinforce the distinction and relationship between democracy and liberalism. Students spoke, again, almost reflexively, certainly reverently, of the virtues of the former, but their comments in these two exercises and elsewhere suggested that they were perhaps more concerned with the latter, and in fact, with their present and partial definition of liberal rights, a definition that, as a gross generalization, could perhaps best be described as liberal (even libertarian) on social/cultural issues and statist on the economy.

This was the deeper challenge – students seemed largely unable to disentangle liberalism from democracy, or to see where tensions might exist between their commitment to democracy and their commitment to a particular set of liberal entailments. When these tensions did present themselves, students by and large stood firm on their interpretation of liberal commitments, at the expense of democracy. If – even in the artificial environment of the classroom setting – the perceived stakes are too high to relent, the prospects of negotiating democratic differences are disheartening.

This challenge was made more complex by the fact that many students struggled to distinguish, or prioritize, what might be vital to the preservation of democratic community (e.g., a right to equal representation) from what is more clearly about contemporary social problems (e.g., a right to marijuana use). Students struggled to distinguish core principles of the constitution from particular policy instantiations of core principles that might be considered subsidiary – to be worked out at some future date by some future polity given future conditions. For example, students disagreed about whether wealth redistribution or full employment were as fundamental to a democratic constitution as the assurance of political equality or whether these were better conceived of as preferred policy means for achieving political equality.

Another example comes from a debate over whether the constitution should secure life. A preference for women’s reproductive freedom and an unwillingness to step outside current political rhetorical frames made a large number of students uncomfortable agreeing to a requirement that their new constitution protect citizens’ lives. In fear that a future polity would interpret that in a manner similar to how today’s social conservatives have (right to life being a mandate to restrict access to abortion), students refused to allow language about life, in any variant, in the hypothetical constitution. The students – overwhelmingly pro-choice on the matter of abortion – could not view the more general question other than through the lens of contemporary abortion politics. They resisted what we, as instructors, took to be a fundamental requirement of any social contract, a general right to life, on the grounds of the narrower question of abortion rights.

These multiple examples show how students were unable to extricate themselves from today’s politics even after a semester of pulling back the lens to contextualize and historicize issues, institutions, and processes. Perhaps this was the result of a semester of investigating different perspectives on contemporary policy issues. During their earlier empirical research, students had spoken to voters, interest groups, and lawmakers on both sides of the aisle and had dived deep into internet subcultures to look at the different ideological framing of issues. Perhaps their increased awareness of deeply held issue positions in the United States only fortified them in their desire to see their own preferences enacted.

Regardless of the cause, the result was that students were stymied by today’s politics and unable to imagine a constitution that committed to general principles while preserving or creating space for negotiating political differences – out of fear that those future negotiations might lead to policy choices which they saw as contrary to, or undermining of, their definition of liberal protections.

This impasse presented us with a thorny pedagogical challenge. As we taught the class, we were unable to sufficiently liberate students’ imaginations such that they could conceive of a future polity – even if that required imagining one freed from the historical antecedents of the United States – that could be persuaded to make, or endorse, the value choices that the students preferred. More profoundly, this exercise revealed to us a need for new and different approaches to teach students that the practice of popular sovereignty requires processes by which to work through difference – different perspectives, different beliefs, different experiences. Instead of processes to elevate deliberation and persuasion, students’ current sense of political vulnerability led them to want to mandate and instruct an imaginary polity.

Learning About Democracy in the Age of Trump: Committed to Democracy but Unwilling to Accept the Associated Risks

With the title of the course a question (Power to the People?), our aim was to leave room for students to conclude that the idea of popular sovereignty is untenable and/or that the practice of popular sovereignty is failing/under threat for any one of various reasons that the course investigated. To aid us in this process, we administered pre- and post-course surveys of students’ attitudes about democracy and political life in the United States. While in their graded essays and class discussions they by and large concluded that democracy in the United States has degraded to an alarming level and that for it to be preserved we needed to restore agreement (on their substantive definition of liberal democracy), pre- and post-course surveys show that students maintained a high level of commitment to democratic precepts.

We surveyed the students at the beginning of the semester on a range of measures including support for democracy. At that time, nearly all students answered the question “How important is it for you to live in a country that is governed democratically” positively; only two answers were below 7 on a 1–10 index, with the modal response 10 and the mean 8.5. Students also expressed high levels of support for minority protections, freedom of speech, and the value of global democracy to American interests. Students were mixed on their judgment of American democratic performance at the beginning of the semester; eighteen of thirty-five rated it “very weak” or “weak,” while the other seventeen rated it “strong.” None rated it as “very strong.” These responses were virtually unchanged at the time of the exit survey, revealing stable and high support for democracy and stable and mixed assessments of current democratic performance.

The students’ generally high and sustained levels of commitment to democracy is noteworthy. Not only had the course materials and discussion exposed them to the real limits and deficiencies of democratic functioning in the moment, the political cultural environment in which they’ve been raised – from left, right, popular, and scholarly perspectives – is one of general despair about the state of democracy.

At the same time, should we be troubled that students remained committed to democratic precepts even when their midsemester essays about the ingredients for a healthy democracy and their end-of-semester foray into constitutional design showed a potentially problematic conception of democracy? Perhaps not. They too were struggling with the tension between formal democratic protections and the urgency of this moment when both democratic practices and liberal values appear under assault in new and more threatening ways.

The culminating class visit to Washington, DC, to meet with leaders and examine American governance firsthand, provided some clues to understand the tension that we perceived in their response to class discussions. Through full-class and small-group meetings with journalists, representatives, and other leaders in DC, students were able to interrogate not just what these actors did but why they did it. They asked leaders not only about their policy positions and the reasons for them but also about the political pressures and constraints under which they operated. Witnessing democracy in action in this way may have reinforced both their support for democratic principles and their skepticism about how those processes were actually working.

At the same time, the cross-class engagement throughout the semester, culminating in the DC trip, simultaneously underscored similarities between students’ experiences and highlighted the differences between the two institutions. Engaging directly with students from the other college, whose experiences were often considerably different from their own, students struggled to understand the different backgrounds from which they came. One wrote that they “loved the collaboration with the UNC students and being able to … interact with students outside of the Williams bubble was something I deeply appreciated about this course.” This student’s experience underscores how engaging with students from a different environment helped them clarify their own experiences and outlook. That lesson led back to a broader point of the course: connecting across differences to form a workable community (or polity).

Some students ended the course convinced of the problems but unclear about how to address them (“what am I supposed to do with this knowledge?”) while others found a passion for civic mobilization – including one who transferred to a different college in order to participate more directly in activism. Students also valued the opportunity to listen and be heard across differences; through modelling such thoughtful deliberation, one student wrote that “seminar discussion allowed virtually all class participants a say on the subject matter.”

Although as instructors we found the students’ lack of distinction between polity building and policy preferences concerning, students’ responses suggested that they experienced the class as an unusually broad, nuanced approach to these questions. They appreciated the opportunity to move beyond high-school civics and to consider the health of American democracy theoretically and empirically. In looking toward future iterations of the class, we plan to address these questions head-on, emphasizing the tensions and connections between democracy and liberalism and the tools students might develop to navigate related questions, whether as an academic exercise or as a practical political choice, thoughtfully. In particular, we plan to include more practical exercises in democracy in the class, giving students even more opportunities to see the challenges of working across differences up close and in person. If done well, we hope these additional exercises will allow students to appreciate the challenge of forging a collective life out of difference.

Coda, Summer 2021

In the fall of 2020, we once again taught Power to the People? In the midst of the COVID-19 pandemic, with students largely remote at both institutions (and masked and distanced when not), this was more of a sui generis experience than a replication of the prior course. Nonetheless, we took advantage of the new, technology-reliant mode of teaching to incorporate more hands-on investigations and collaborative work among students across the two institutions. Whether it was the practical, pedagogical shifts we made or simply coincidence, students this time seemed to better appreciate the challenges posed by working together and incorporating different perspectives – an understanding that was manifest both in their response to the projects as well as in their analyses of the challenges confronting US democracy.

As profound as the pandemic-induced alterations were, however, changes we made to the syllabus as a result of the dramatic shifts in the terrain of American politics were even more significant. Even while crafting the syllabus in the summer of 2020, it was evident that one plausible outcome of the November presidential election would be a refusal by President Trump to accept the results as legitimate – and concomitant legal challenges, procedural subversions, street protests, and violence by his supporters and allies. Anticipating this possibility and the need to address that sort of fundamental assault on democracy, we created a new final unit, titled, “The Popular Sovereignty Agenda and Challenges for the Next Administration,” and we noted explicitly that the section was subject to modification depending on the political circumstances of the fall.

Reflecting back on that decision, we thought we were hedging our bets given the fluid nature of American politics in 2020. We did not anticipate the events that would unfold on January 6th, 2021, when Trump’s supporters left the rally he was holding to storm the Capitol in an effort to force lawmakers to invalidate electoral college results and reinstate him as president. The alarming developments of 2020, while disturbing and unprecedented, were foreshadowed by the rhetoric and practices evident during the first iteration of our class in 2018.

The stakes for our students in 2018 were sufficiently high that they could not imagine prioritizing democratic politics over their policy commitments. They sought to write policy preferences into a hugely expanded bill of rights in order to prevent current or future majorities from changing those policies. The armed, militant extremists and their sympathizers on the right also rejected the right of current or future majorities to implement their policies.

The two groups’ approach to this mistrust of the populace was of course dramatically different; one was a thought exercise undertaken by young people for the purpose of imagining their ideal polity, the other a real-life, violent undertaking by those persuaded that the election had been stolen. One was the expression of a fulsome commitment to liberal rights, albeit a particular and time-bound conception of them; the other was an embrace of illiberal practices and ends. Yet, they share a cynicism about the value of practicing popular sovereignty in a meaningful way.

In the context of this growing skepticism, focusing higher education on democratic citizenship becomes all the more necessary. Based on our experience with these exercises, the 2018 class, and the 2020 reconsideration, we encourage educators to consider in-depth courses with hands-on exercises like these to help students fully conceptualize the opportunities and pitfalls of popular sovereignty in theory and in practice.

17 The Voices of the People

Adam Davis

I say the mission of government, henceforth, in civilized lands, is … to train communities through all their grades, beginning with individuals and ending there again, to rule themselves.

Walt Whitman, “Democratic Vistas”

And what would a new trust-generating citizenship look like?

Danielle Allen, Talking to Strangers

In some parts of Oregon – and other places throughout the United States – the word “wolf” is more dangerous than a real wolf. The word “gun” is almost as explosive as a real gun. The word “gentrification” is almost as disruptive as the phenomenon itself.

These words, and others I could list here, divide people, or they mark divides between people. When these words are spoken, people take sides. Differences of concern and perspective are inflamed; similarities and shared commitments get lost.

Where there might have been a people, a community, or a public – even if only implicit or thin – there suddenly appear to be groups set against one another. If you want to protect wolves, you’re not one of us. If you believe carrying a gun makes us safer, you make me unsafe. If you think the new coffee shop is a sign of progress rather than racism, you’re a racist yourself.

But, with some allowance for where you call home, wolves and guns and changing neighborhoods are a part of a shared conversation. The words stand for shared concerns, or shared challenges; our capacity to understand one another’s beliefs and feelings about these words and the issues they stand for is a big part of our capacity to constitute a community, a public, or a people together.

I learned that “wolf” is an explosive word when I led a community conversation at the Josephy Center in Enterprise, Oregon, and asked participants, at the beginning, to name something that they find difficult to talk about in their community. In Prineville, Oregon, my organization led a conversation about guns in America that revealed and may even have contributed to serious rifts in that community. And in Portland, my organization has been involved with too many contentious conversations about home ownership and race to count.

This essay is rooted in experiences like these.

Self-Rule and Self-Understanding

My two main goals in this essay are (1) to suggest that popular sovereignty or self-rule depends on self-understanding and (2) to point to a set of practices and activities that make this kind of popular self-understanding more likely, even or especially in a populace as vast, complex, and divided as that of the United States in 2020.

If we take seriously the idea that we, in aspirationally democratic communities, can rule ourselves, it would seem that we are also required to understand ourselves, or to try to – though the more diverse or complex a populace, the more challenging this endeavor to understand ourselves becomes. How can we, the people of the United States, at once complex and unified, understand ourselves? Even the word “we,” as I’m sloppily and presumptuously using it here, already points to and builds on this challenge, but I hope the slippery meaning of this word helps us focus on the question I’m most trying to explore: how can and should a complex and diverse populace express, hear, and come to understand itself?

Here at the outset, I want to suggest that self-rule and, along with it, self-understanding require us to express and listen to ourselves not only when we’re making decisions about representatives or policy but also in a wide variety of less formally political contexts. One rules oneself, as a community and as an individual, not only in moments of obvious and explicit decision-making but also in one’s habits and ongoing ways of being. Yet, few public or political communities create adequate conditions for self-understanding – for reflecting, with others, on their mutually constituted selves – and therefore for self-rule.

In a bit, I’ll point to some current efforts to do just this – to create conditions for people to reflect on their mutually constituted public selves. The efforts I’ll look at most closely are those I know through my own work as a facilitator of community discussions, trainer of discussion leaders, and director of two organizations that have worked to create and strengthen conditions for mutual understanding and, I believe, for self-governance. The on-the-ground efforts I’ll describe and argue for are a necessary and often overlooked complement to more formal civic education efforts like those that Andrew Perrin and Nicole Mellow experiment with and study, and to the kinds of useful top-down stories Rogers Smith propounds.Footnote 1 They also complement legal and institutional efforts such as those that Carol Nackenoff analyzes.Footnote 2 I argue in this essay that self-rule, or popular sovereignty, needs all of these efforts – and my particular focus is on largely unrecognized and underfunded, dispersed, bottom-up efforts to create conditions for people in and from a wide range of contexts to talk with and listen to one another in order to build a more robust and recognizable public.

The perspective from which I write this essay is chiefly that of a practitioner rather than a theoretician or a researcher. Before turning to the practice, however, I want briefly to sketch some general theoretical context within which these on-the-ground efforts take place.

We the People

When we – the United States of America – constituted ourselves as a nation, our first word was “we.” What we meant by “we” came next: “the People of the United States.” This is a superficial but significant indication that, from the start, the United States of America has been devoted in word and principle, if not in practice, to the idea that the people ought to rule themselves – and that we are sufficiently united by geography, belief, or other factors to assign ourselves the name “the people.”

Our most respected president during our most trying and precarious national moment elaborated on and further inscribed this ideal of self-rule with the closing words of his Gettysburg address: “that government of the people, by the people, for the people, shall not perish from this earth.”

Yet, there are a wide range and a good number of reasons to doubt that, in the United States, the populace has been, is, or should be sovereign, should rule itself. To name only one example of this sort of skepticism, Walter Lippmann, nearly a century ago, argued in The Phantom Public that we ought to “abandon the notion that the people govern.”Footnote 3 Lippmann looks at everything from invariably poor voting turnout to generally deficient civic knowledge to the real, insider-driven machinery of democratic governance and concludes, “There is not the least reason for thinking, as mystical democrats have thought, that the compounding of individual ignorances in masses of people can produce a continuous directing force in public affairs.”Footnote 4 Lippmann doesn’t believe the people do govern and he doesn’t think it would be desirable for the people to govern. The implication is that he likely doesn’t believe a unified, engaged, knowledgeable people exists, and he clearly doesn’t believe a self-governing people exists. At best, he suggests, the people should be interested and informed spectators rather than political actors themselves. There may come moments or crises when the people or the public should intervene, but only in the process or the selection of representatives and not, Lippmann emphasizes, to deal with the substance of the problem itself, whatever it may be. If we saw things more clearly, Lippmann suggests, we would see that the essence of popular government is to “support the Ins when things go well, the Outs when things go badly.”Footnote 5 It should be no surprise that the epigraph of The Phantom Public comes from Alexander Hamilton at the 1787 Federal Convention: “the voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact.”

Before continuing, I want to note the following two large and distinct questions implicit in Lippmann’s skepticism and Hamilton’s words. (1) Can there be a voice of the people? (2) Would it be possible or desirable for the people’s voice not only to express itself but also to rule or to govern the people – that is, itself? Another way to ask this second question is can and should the people be a “continuous directing force in public affairs”?

In what follows, I offer suggestions built on a combination of practical and theoretical efforts about what would be required in order to meet especially the first of these questions with an affirmative response.

The Public and Its Problems

In 1927, two years after the appearance of Lippmann’s The Phantom Public, John Dewey published a set of lectures called The Public and Its Problems. I want to look at Dewey’s argument here for two reasons. First, the challenges to self-rule and self-understanding that Dewey identified in 1927 have grown only more comprehensive and pressing over the ensuing decades. Second, Dewey’s arguments about how a populace might move from society to community – or, in brief, from people living among each other to people living together – provide useful theoretical background for the on-the-ground efforts that the latter part of this essay will describe.

Much of what Dewey takes pains to illuminate can be detected in one short sentence from his third lecture, entitled “The Democratic State”: “The democratic public is still largely inchoate and unorganized.”Footnote 6 Here Dewey reveals a few important parts of what he’s seeing, beginning with the idea that the “democratic public” is one kind of association among many. This particular public association – the democratic public – emerges not only in response to older associations such as the Church but also in response to a revolt against those associations – the idea or myth of the free individual. So the democratic public, in Dewey’s view, is nascent, competing, and unformed, but it is “still,” to use Dewey’s word, where we seem to – or could, with care – be headed.

In addition to the challenges to the democratic public posed by older associations such as the Church and newer myths such as that of the free and independent individual, there are also a host of new forces that shape communities and publics in mostly undetectable ways. Dewey doesn’t use the word “globalization,” but it’s clearly what he has in mind: “The invasion of the community by new and relatively impersonal and mechanical modes of combined human behavior is the outstanding fact of human life.” He goes further: “the machine age has so enormously expanded, multiplied, intensified and complicated the scope of the indirect consequences … that the resultant public cannot identify and distinguish itself […] There are too many publics and too much of public concern for our existing resources to cope with.”Footnote 7 Just as our individual lives are shaped by new, large, and complex forces we cannot see or control, even more do these forces shape our community and public lives. As a community, we cannot see clearly who we are or how we’re shaped and formed.

On top of these mechanical and economic challenges to a democratically organized public coming to understand itself, Dewey also points to related and serious demographic challenges: “The notion of maintaining a unified state, even nominally self-governing, over a country as extended as the US and consisting of a large and racially diversified population, would once have seemed the wildest of fancies … It seemed almost self-evident to Plato – as to Rousseau later – that a genuine state could hardly be larger than the number of persons capable of personal acquaintance with one another.”Footnote 8 Because we’re so large and diverse, it’s very difficult to know what we share, and difficult to understand distant and apparently different others as part of one coherent national “people.”

But here it’s important to stress that Dewey is not pointing to the absence of a public: “It is not that there is no public, no large body of persons having a common interest in the consequences of social transactions.” If, as Dewey says, a public is “a large body of persons having a common interest in the consequences of social transactions,” then it turns out that “[t]here is too much public, a public too diffused and scattered and too intricate in composition. And there are too many publics, for conjoint actions which have indirect, serious and enduring consequences are multitudinous beyond comparison ….”Footnote 9 The problem is not no public but competing publics – some of them recognized and some of them opaque but forceful. How then, according to Dewey, can the democratic public emerge? How can we understand ourselves and act as a political community, as the nominally coherent “people” that some of the Framers and Lincoln had in mind?

For starters, according to Dewey, we must recognize ourselves as a people: “the prime difficulty … is that of discovering a means by which a scattered, mobile and manifold public may so recognize itself as to define and express its interests.”Footnote 10 If this sounds “mystical,” as Lippmann would have it, Dewey is only getting started. “Communication alone can create a great community. Our Babel is not one of tongues but of the signs and symbols without which shared experience is impossible.”Footnote 11 If “the outstanding problem of the Public is discovery and identification of itself,” then, according to Dewey, “the essential need … is the improvement of the methods and conditions of debate, discussion, and persuasion.”Footnote 12 What Dewey is suggesting, it turns out, is neither mystical nor farfetched. He’s suggesting that we talk and listen to one another, especially about the lives we have in common.

If what we’re after is healthy democracy, Dewey suggests, the problem seems to be that we don’t see ourselves as a democratic public. Instead we see ourselves as members of all sorts of other associations, groups, or tribes – and, at the same time, as independent individuals. The solution, according to Dewey, seems to be that we talk to each other about what sort of public we are or could be. What we need to move toward, in Dewey’s words, is “a society in which the ever-expanding and intricately ramifying consequences of associated activities shall be known in the full sense of that word, so that an organized, articulate Public comes into being.” Or, to put the same point differently, “when free social inquiry is indissolubly wedded to the art of full and moving communication … democracy will have its consummation.”Footnote 13

I’m preparing to leave Dewey, Lippmann, and the 1920s behind, and to turn directly toward Oregon and the United States at the start of the 2020s. But before doing so, a few last words from Dewey – a bridge toward what some practitioners of democracy and dialogue call “bridging.”

Dewey argues that the best response to our scattered, mobile, and manifold situation is to revitalize the local, the nearby. “In its deepest and richest sense a community must always remain a matter of face-to-face intercourse … Vital and thorough attachments are bred only in the intimacy of an intercourse which is of necessity restricted in range.”Footnote 14 When we’re thinking about democracy – and, for the purposes of this essay and this volume, about popular sovereignty, or self-rule – Dewey insists that we go local: “Democracy must begin at home, and its home is the neighborly community.”Footnote 15 After identifying all the ways that the modern world complicates how we live together, Dewey offers this warning: “Unless local community life can be restored, the public cannot adequately resolve its most urgent problem: to find and identify itself.”Footnote 16 To build our national democratic “we,” we have to focus first and maybe always on the local “we.”

So Many Peoples

How, though, to restore community life? How to create conditions for mutual understanding and for the public to find and rule itself – given that all the contrary forces and tendencies Dewey and Lippmann enumerated just under a century ago have only intensified? From Bill Bishop’s The Big Sort to hundreds of other recent books, studies, articles, editorials, and polls, the dominant belief about “the people of the United States” seems to be that there is no self-consciously unified people to be found.Footnote 17 We are two peoples, three classes, seven tribes, or eleven regions. We are rural or urban, red or blue, Fox or MSNBC, white or black or brown, boomers or millennials or generation X, Y, or Z. We have college degrees or we don’t. We served in the military or we didn’t. We care about “justice” or we care about “freedom.” No matter who might say “We the People” today, many of us wouldn’t believe it – both because it (a coherent national people) doesn’t seem plausible and because we would distrust the person who says it, no matter what they’re saying. I don’t want to rehearse these ubiquitous analyses and lamentations here, but I do want to note that they bear on the question of self-rule in the following way: How can we talk about popular sovereignty in the absence of a unified people that would govern itself?

One first step – and a step that follows straight from Dewey’s diagnosis – is to name the problem and build off it. To restore or move toward a public, toward recognizing and governing ourselves, we would need to start by talking with neighbors about our community – and especially by listening to one another. In other words, we would need to embark on a project – or many projects – of mutual understanding and shared reflection.

That this sort of project may sound mystical, or crazy, attests to how oddly this particular experiment – the American experiment – in self-governance has gone. We seem not to believe that we can talk or listen to each other. We certainly don’t believe that we can govern ourselves for ourselves – at least not in any coherent, inclusive way.

Voices of the People

Here are the names of four programs that my organization – Oregon Humanities – runs: the Conversation Project, Bridging Oregon, Dear Stranger, and Reflective Discussion Facilitation Training. We run these programs in partnership with public libraries, social service organizations, houses of worship, law firms, schools, municipal bodies, and numerous other outfits around the state. In doing so, we engage tens of thousands of Oregonians per year (and in some years, over a hundred thousand). Much of our work in these and other programs consists of creating conditions for people to talk with one another, face-to-face, and across a range of differences, about matters of shared concern. We are a small nonprofit approaching our fiftieth year, and we are trying with increasing clarity and increasing reach to do what we believe to be the underlying work of democracy: to foster community-wide habits and practices of listening, reflecting, and understanding. We are trying to build a more connected and self-conscious public.

Our programs vary in format, content, and dosage, as well as in participants. Most programs are self-selecting, but some are obligatory (through the workplace). Some draw a majority of college-educated white people over the age of fifty, others draw people living at or near the poverty line who are more likely to come from a wider range of ethnic and racial backgrounds. The most difficult work is rarely what happens in the room; instead, it’s the prework of building partnerships with communities and community organizations in order to convene diverse groups – and diverse in a number of ways.

The Conversation Project includes a changing menu of topics that any organization or community group can request. From “Crime and Punishment in Oregon” to “What We Want from the Wild” to “Faith and Politics” to “Race and Place: Racism and Resilience in Oregon’s Past and Future,” these fifty rotating Conversation Projects are designed to help people all around the state think about their community lives together and in doing so, to strengthen those community lives – to think about and shore up their public. If the Four Rivers Cultural Center in Ontario (fifty miles west of Boise, Idaho, just over the border into Oregon) requests “The Space Between Us: Immigrants, Refugees and Oregon,” we send out a trained discussion leader (who some months or years earlier proposed some version of that topic to us) to get that community talking.

Conversation Projects are one-off discussions open to whoever shows up, and they last for ninety minutes to two hours. Some organizations host loads of them and see a high percentage of repeat participants. Others host only one or two events and don’t expect or see many repeat participants. What we hope for from these Conversation Projects is revealed by the evaluative questions we ask: Did you hear a new perspective? Did you talk with someone you hadn’t talked with previously? Did you think differently about the topic? Do you feel more likely to take action in your community? Did you continue this discussion with anyone outside the room? What other topics do you think your community wants to discuss? We don’t seek consensus or agreement with these programs; instead we’re after mutual understanding of different perspectives, which can lead to increased trust, sparked during any single ninety-minute conversation and built over time.

The people who lead these Conversation Projects are community members themselves. They propose the topics, and we help them shape the discussion plans and become more skilled and confident facilitators. Our belief is that we’re building civic infrastructure by elevating and training this growing corps of discussion leaders; they become important community resources, and they see their role in community differently than they had prior to their experience of traveling around to get various groups of people talking and listening to each other. They also come to see themselves as part of a larger cohort and perhaps even a larger public.

Bridging Oregon is a higher-dosage program than the Conversation Project. For Bridging Oregon, we spend a few months reaching out to people and organizations from multiple towns in designated regions of the state to prepare for the gatherings. We then assemble groups of thirty people who gather for four half-day sessions over a two-month period to explore the divides in their region and how participants might work across them.

At the time of this writing, we had just completed a Bridging Oregon series in the Rogue Valley (Southwestern Oregon) that included participants from Medford, Grants Pass, Ashland, Klamath Falls, Williams, and other towns. As we assembled the group, we kept a strong eye on potential participants’ access to power and worked to invite and include those who had been least likely to find themselves in rooms like this before.

Here are some of the comments about the program we heard from participants toward the end of the fourth half-day session:

  • It’s helpful to start something really small. It gives me hope because I see people’s hearts. It’s a mirror put up to my face and it’s different than me.

  • I understand and I’m part of the community. I have more ease in working with my group and how to move forward. I’m calmer about what I have to do.

  • I have more optimism about what we can do together.

  • It was refreshing to be with people who are not my age, color, or religion.

  • I’m appreciative that everyone has a way in.

  • It has been a humbling and I’m still curious.

  • I feel more able to see where potential for action exists.

  • The divisions in this region are rough. I see that if no one else is going to do it I have to do it, period.

  • I have a group that’s actually listening to me here.

  • This made me get a lot of power inside myself and I want to do something with a group of coworkers or whatever.

  • I have greater awareness because I’m hearing it from your mouths.

  • I have a little more hope for certain kinds of social change.

  • I appreciate being in a room with people who seem like they give a fuck.

  • I have more understanding of the value of time together. A change happens with time together.

  • I have a greater sense of accountability and responsibility.

  • This is helping me reconnect with my broader community.

  • I have more clarity around the complicated concept of diversity.

  • I have more readiness to start an uncertain project.

  • I am seeing this group and our valley differently.

  • I have been able to hear the voice of the North end of the Valley. Neil, Jesse, Fox – I hear you. I got you.

  • I am moving away from distrust of others as a first instinct.

  • We can afford ourselves the same courtesy we afford other people.

  • I feel able to really hear other people, to get a peek into people and to get more understanding.

  • This fanned the flame of curiosity about people and race.

  • I have the feeling of having more roots.

  • I am feeling courage and encouragement to build a community group.

  • Yes, pat yourself on the back, but keep working.

  • Please reach out to me.

These comments come from a man who works in a cannabis shop, a woman who works at McDonald’s, a man who works as an administrator at a college, a woman who retired with her husband to a senior facility in the region and then lost her husband, a high-school teacher, a former pastor, a photographer, a hospitality professional, a few people who are patching multiple part-time jobs together, and others. One of the discussion leaders is a priest. The other runs a start-up nonprofit and teaches.

Bridging Oregon, like the Conversation Project, is not principally geared toward information delivery or toward agreement or consensus. Both programs are designed to build connections, ensure that people hear perspectives other than their own, reconsider their own beliefs and commitments, and feel a stronger sense of agency in their communities.

Dear Stranger is a much lower-dosage program than either the Conversation Project or Bridging Oregon; it’s an invitation to write a letter to someone you don’t know. Our organization offers a prompt – for example, describe something about your community that people who don’t live there might find surprising – and then, when we receive letters, we swap them with letters from writers in other parts of the state. Sometimes people exchange only one letter each; sometimes they keep writing to each other and go on to visit and develop enduring relationships. In addition to the people who participate in this letter exchange, we’ve seen this program get a lot of attention from media outlets around the state. The idea that people might connect across regions and perspectives seems to strike a chord. This is an inexpensive, easily accessible step toward building a stronger public.

Here I should pause to note that with Dear Stranger, as with the Conversation Project and Bridging Oregon and all our programs, inviting people to share views across differences of background and belief sometimes leads to tension or outright conflict. In some instances, the moments of tension are the most important and productive parts of the experience. In other instances, the moments of tension break into outright conflict and do some damage to the trust we’re hoping to build. What we’ve tried to do in instances like these is keep an eye on the horizon for this work; one conflict-ridden ninety-minute conversation can turn out to be a good opportunity for a community to make an effort to address and work through underlying conflicts, which may take years.

The Prineville conversation about guns in America that I referred to at the start of this essay was an example of this. The conversation was full of conflict. Several people left partway through. Multiple people wrote letters to the local paper. The library that hosted the event was shaken by their role in all of it. But the library and many other local parties responded to this one incident by redoubling their commitment to talking about difficult community issues, and that library in Prineville chose, three years later, to host our first four-session Bridging Oregon series, which was, in many ways, a palpable success.

Oregon Humanities also trains groups of people to lead reflective discussions in their communities and workplaces. We provide this training around Oregon and around the country. The basic format of these trainings is fairly straightforward: Over a two-day period, we facilitate and model a discussion (about, say, difference and connection, or freedom and self-expression, or what we hope for when we intervene in others’ lives), talk together about what was valuable about that activity, and then move participants into planning and leading their own smaller group discussions with one another. We try to provide participants with tools that they can soon put to use in convening and leading conversations – and along the way, we get people talking and listening with one another and thinking more about the communities in which they live. We create conditions for participants to experience a public, and we prepare them to shape similar experiences for other people in their communities after the “training” ends.

Is this the kind of training Whitman had in mind when he wrote that “the mission of government” is “to train communities through all their grades, beginning with individuals and ending there again, to rule themselves”? Briefly, I would argue that this training, provided by a nongovernmental organization, provides part (and a small amount) of what self-rule requires. It provides opportunities for people to talk with and listen to each other, to ask shared questions and engage in shared reflection, and to develop skills and confidence in doing similar work going forward. This training and the other three programs I’ve mentioned pursue necessary but not yet fully sufficient conditions for a diverse people to recognize and understand and even rule itself. Without the sort of mutual recognition and understanding that programs like these deliberately pursue and contribute to, I believe the prospects for self-rule are dim.

Yet, it’s also worth saying that none of these four programs (or any others that we run) are partisan or political in the way the word is usually used. Instead the activities are political in an older sense of the word. They are the kinds of activities that, as Aristotle would have it, can only happen in the polis, where individuals have the opportunity to talk with each other about the advantages and the disadvantages, the good and the bad, the just and the unjust.Footnote 18 They are programs that encourage us to talk about the public we comprise together, and in doing so, to build – to constitute – that public.

These conversations and exchanges of stories are driven by open-ended questions that everyone can respond to. The shaping and scaffolding of these questions is one of the ways we try with all of our programs to ensure that everyone feels welcome. There is a public, we try to suggest, and you are part of it. When there are choices to be made – and there are always choices to be made – we try to tilt our outreach, facilitate recruitment, partner development, and program design toward those who haven’t always felt welcome or included in the past.

I believe this is necessary work – necessary because our communities need it and necessary because our democracy depends on it. It is thoroughly public work, though the questions often begin in personal experience and the conversations are not primarily intended to move people toward voting or to take the measure of their attitudes or beliefs. We assume that people are fluid rather than fixed, that they are thoughtful, that they want to listen and be listened to. We are more committed to engaging participants with one another than to extracting information from them or delivering information to them.

We know that this is slow work and that the horizon is far off: “the long haul,” as Myles Horton would have it. We are sometimes encouraged by people who know or hear about this work to do it with leaders, influencers, and officeholders, but thus far we have chosen not to focus specifically on those in power. Sometimes officeholders are involved in these conversations, but more often they are not. We’re more interested in the long work of self-rule than in the prospect of working with those who rule right now.

Understanding Ourselves

I’ve tried to suggest and begin to show that self-rule must begin before and extend beyond governing and voting, that it only makes sense for we the people to rule ourselves if (a) we recognize ourselves as a people and (b) we are able to engage in ongoing, inclusive efforts to understand who we are, who we would like to be, and what we share. To rule ourselves, we need to know ourselves. And to know ourselves, we must engage in ongoing efforts to understand one another and what we share.

If this particular people were not so diverse and spread out, or if there were more broadly shared experiences and activities, or if we put a large share of trust in certain national institutions or figures, then we might not need to find ways to foster habits and practices of understanding ourselves. But this populace is remarkably diverse in a number of ways and increasingly wary of large institutions. Without broadly shared history or belief, without shared sacrifice or service, without a shared sense of threat or opportunity, and without even a broadly shared story of identity, of who we are, the ideal of popular sovereignty, of people governing themselves, depends on practical, ground-level, long-term efforts to build connections and a shared sense of a democratic public.

In an essay written toward the end of his life, Dewey asserts that “we now have to re-create by deliberate and determined endeavor the kind of democracy which in its origin one hundred and fifty years ago was largely the product of a fortunate combination of men and circumstances.” Dewey in 1940 was responding to a smaller set of barriers to self-rule than those that have developed since, but his concluding exhortation still holds: “It is a challenge to do for the critical and complex conditions of today what the men of an earlier day did for simpler conditions.”Footnote 19

I have touched briefly on these four programs that Oregon Humanities runs because I believe they are examples of the “deliberate and determined endeavor” Dewey had in mind and because these are efforts that I know well from personal and professional experience. But there are many more initiatives and programs devoted to similar goals than I could possibly name here. There are, for example, state humanities councils in every state and territory. Most if not all of these councils are devoted to the kinds of goals Oregon Humanities pursues – to getting people talking, listening, connecting, and reflecting. There is also a Federation of State Humanities Councils – a network that makes it easier for councils to learn from one another and amplify the impact and visibility of their work. There are other national efforts such as the National Coalition for Dialogue and Deliberation and the National Campaign for Political and Civic Engagement (led by the Watts College of Public Service and Community Solutions). There are state-level efforts including, in my own Pacific Northwest state, those run by Healthy Democracy, Oregon’s Kitchen Table, and Oregon Community Foundation’s Latino Partnership Program. There are regional and local efforts such as City Clubs, The Hearth (in Southern Oregon), and the High Desert Partnership (based in Harney County, where High Desert Partnership collaborative efforts helped community members respond as the Bundy brothers instigated an armed standoff over management of public lands). There are municipal agencies such as the City of Portland’s recently renamed Office of Civic and Community Life and the conversation-minded City of Woodburn, which has hosted numerous Oregon Humanities Conversation Projects to help residents connect with one another across differences of background and belief. And there are foundations like the Whitman Institute, Meyer Memorial Trust (especially their Building Communities division), the Kettering Foundation, and the Kellogg Foundation as well as coalitions of funders like PACE (Philanthropy Active in Civic Engagement). Again, there are many more local, regional, and national efforts and organizations than I could possibly list or even know about.

But even with all these efforts across various levels and sectors, we fall a good bit short of a clearly identified field, and a good bit short of the impact that such a clearly constituted field might have. And aside from incipient efforts at participatory budgeting and well-advertised but far-from-conversational “town hall meetings,” the most obvious engine for this kind of activity – government itself – is rarely in the business of helping people talk with, listen to, and understand one another. Instead government tends to function more as decider than convener, and often the reasons for its decisions are deliberately oblique, somehow beyond the reach of dialogue. Government itself is not trusted, and its operations rarely demonstrate commitment to creating conditions for people – civilians – to understand and trust each other.

Trust and Self-Rule

If the government of the United States, for one, does not appear to be in the business of training communities to understand and rule themselves, then, I would argue, communities and community organizations have to be the engine of self-government. Their work must begin with and steadily point toward the goal of creating conditions in which diverse peoples can see one another and themselves as sufficiently unified and connected to recognize themselves as a coherent democratic public.

I started this essay with two short quotations. The first was Walt Whitman’s call for government to train communities to rule themselves. Whitman was a poet, not an officeholder or even a political philosopher. He was also a volunteer nurse in military hospitals during the war that elicited from President Lincoln the formulation of “government of the people, by the people, for the people.” And in the same book – Democratic Vistas – that includes Whitman’s call for government to train communities to rule themselves, he also asked the following question: “Did you, too, O friend, suppose democracy was only for elections, for politics, and for a party name?”Footnote 20 Whitman’s political imagining begins and ends not with government but with the people. He lays out a vision of individuals and communities ruling themselves, and he recognizes, with Dewey and against Lippman, that people of all origins and occupations ought to be and can be involved in the project of self-rule. “The purpose of democracy …” Whitman writes, is “to illustrate, at all hazards, this doctrine or theory that man, properly train’d in sanest, highest freedom, may and must become a law, and series of laws, unto himself.”Footnote 21 And Whitman recognizes that the best hope of getting there is not finally or fundamentally through institutions or electoral processes but through “comradeship” – without which democracy “will be incomplete, in vain, and incapable of perpetuating itself.”Footnote 22

Here Whitman prefigures Dewey, who writes I am inclined to believe that the heart and final guarantee of democracy is in free gatherings of neighbors on the street corner to discuss back and forth what is read in uncensored news of the day, and in gatherings of friends in the living rooms of houses and apartments to converse freely with one another.”Footnote 23 Dewey, like Whitman, understands that the prospect of self-rule depends on much more than our political framework. “Merely legal guarantees of the civil liberties of free belief, free expression, free assembly are of little avail if in daily life freedom of communication, the give and take of ideas, facts, experiences, is choked by mutual suspicion, by abuse, by fear and hatred.”Footnote 24 Where and how does this happen, this “give and take of ideas, facts, and experiences”? What are the barriers to it and how can we reduce those barriers?

If Whitman’s vision of comradeship and Dewey’s vision of friendship can sound strangely optimistic or even hallucinatory today for many of the reasons I’ve mentioned – chiefly the size and scale of the country and the divisions and differences it seems to contain – I want to stress that neither Whitman nor Dewey looked away from the “canker’d, crude, suspicious, and rotten” parts of the aspirationally democratic society that both had great hopes for.Footnote 25 Second, I want to turn to and conclude with a contemporary thinker, Danielle Allen, who makes simultaneously sober and hopeful arguments about how, in service to the ideals of democracy, we might relate to and understand one another and thereby rule ourselves.

The second quotation I started this essay with – “And what would a new trust-generating citizenship look like?” – comes from Danielle Allen’s 2004 book Talking to Strangers. In Talking to Strangers, Allen, like Whitman and Dewey, makes a case for what she describes as “forms of citizenship that, when coupled with liberal institutions, [can dissolve distrust].”Footnote 26 In other words, Allen believes that how we relate to one another is determinative for our capacity to rule ourselves, or that, as Dewey puts it, “the heart and guarantee of democracy” resides at least as much in how we the people are with each other as in our laws and institutions. And Allen locates trust – and distrust – at the center of this endeavor.

As I bring this paper toward its conclusion, I want to highlight what I take to be the central point of Allen’s argument: Self-rule is only possible under conditions in which the people that would rule itself develops certain “muscular” habits – specifically habits of “trust production.” Distrust, in other words, is the core challenge. And it “can be overcome only when citizens manage to find methods of generating mutual benefit despite differences of position, experience, and perspective.”Footnote 27 The habits and methods Allen has in mind exceed the merely legal or institutional though they depend on legal and institutional frameworks in order to develop and flourish. They are habits and methods of building what Allen, echoing Whitman and Dewey, calls “political friendship.” They are habits and methods of talking – and listening – to strangers.

There is nothing complicated about what Allen means by political friendship – or about what Whitman means by comradeship and Dewey means by friendship. All three of these thinkers recognize that for a people to rule itself, we must be able to understand and connect to one another across inevitable and often valuable if painful differences and divides. In Dewey’s words, “To cooperate by giving differences a chance to show themselves because of the belief that the expression of difference is not only a right of the other persons but is a means of enriching one’s own life-experience, is inherent in the democratic personal way of life.”Footnote 28

Allen goes further than Dewey in that she explicitly brings sacrifice and loss into the array of differences that must be reckoned with. “Citizenship is not, fundamentally, a matter of institutional duties but of how one learns to negotiate loss and reciprocity.”Footnote 29 When Allen talks about negotiating loss, she has in mind the most significant kinds of loss one can imagine: loss of safety, loss of the sense of self, loss of sovereignty. Democracy, Allen suggest, demands that its people aspire to be sovereign yet regularly undermines “each citizen’s experience” of sovereignty.Footnote 30 “As a result,” Allen writes, “democratic citizenship requires rituals to manage the psychological tension that arises from being a nearly powerless sovereign.”Footnote 31 It is precisely because loss, distrust, and the sense of powerlessness are inevitable parts of the attempt to rule ourselves that habits of trust production need to be cultivated.

A moment ago I asserted that there is nothing complicated about what Allen, Whitman, and Dewey mean by comradeship and friendship. Here I want to assert that what’s complicated – and difficult – and necessary – is to commit deeply to the habits and practices that produce and sustain comradeship and friendship and to continue to recognize the inextricable relationship between these habits and practices and the audacious project of self-rule.

As a last word, I want to bring back the three inflammatory words I mentioned at the start of the essay and then conclude with three voices from the 2019 Bridging Oregon series in the Rogue Valley:

Wolf. Guns. Gentrification.


I have more understanding of the value of time together. A change happens with time together.

I have been able to hear the voice of the North end of the Valley. Neil, Jesse, Fox – I hear you. I got you.

I am moving away from distrust of others as a first instinct.

Epilogue The Precipice of Hope: A Conversation with Hahrie Han

David Bateman: I’d like us to start the conversation by asking you to connect your work to the questions of popular sovereignty that we’ve been wrestling with in this volume. Do you find the concept of popular sovereignty useful in the work you do or for the types of questions in which you are interested?

Hahrie Han: I recognize that it might be synonymous to some people, but I probably use the term self-governance more than popular sovereignty.

A large part of what I’ve tried to do in my work is think about this question: If we really want to have a self-governing polity, what are the capacities that people need? How do they develop those? And then, what does self-governance mean beyond just elections?

Thomas Bartscherer: In the book, there is a lot of discussion about peoplehood, how it is defined, and how “peoples” are formed. There are discussions about tensions between popular majorities and individual or group rights; or between liberalism and democracy; and then there are discussions about interpersonal dynamics, how power is developed on a small scale within small-sized groups or organizations. For instance, the group dynamic in a classroom, or in a civic conversation as in Adam Davis’s work with Oregon Humanities.

One thing that’s missing is a discussion of how large-scale social and political movements build and exercise power, which is central to your work. How is that done? Is it scalable? What would it mean to scale it up to the level of a nation state?

Hahrie Han: I think there are a couple of ways to think about the answer to your question.

In much of my research, I work with students and colleagues to partner with grassroots organizations, mostly in the US (but not exclusively) to try to understand how we can put research and learning around what they do, to essentially make them more effective in doing what they’re trying to do: to build political power at scale.

If I was having this conversation with a group of practitioners, I think the way that I would start to tackle your question is to say, “Well, here’s what we’ve learned about what works.” Of course, there is not any kind of formula; there is no formulaic way to build a movement. But there are certain kinds of capacities that movements should be building.

Another way to tackle your question is to think about what is the thing we are trying to scale? I often start by thinking about some of Danielle Allen’s work. She asks what this idea of self-governance by a free, equal people actually means.Footnote 1 One of the things that she says, which I really love, is that the most fundamental way in which we are all equal is that we all move through our days trying to make a better tomorrow, even though we might disagree about what that means. The challenge in self-governance is essentially how this group of individuals, who each need their own sphere of influence to build their own vision of a better tomorrow, comes together to create a broader polity.

When I think about the work that we’re doing around movements, I start by taking seriously this idea that everyone should be able to be an architect of their own future: What does it mean to equip people to become architects of their own future within the context of a movement? And then, how does that movement scale people’s ability to be architects of their own futures to whatever the domain is relevant – local, state, national politics?

A structure that I’ve come to over time is this notion of a fractal. I think a lot of the concepts that we think about with respect to popular sovereignty have to do with things at some broad, macro level. But I don’t think you can think at that scale without thinking about how it patterns all the way down. Part of what I like about a fractal, as I understand it, is that the same pattern that we might see in something like a fern, for example, would be repeated to ever smaller and tinier scales if I was to put it under microscope.

The most effective movements I’ve seen create a pattern like a fractal. In starts at the individual level, where people all bring their individual capacities, interests, desires, blind spots, and contradictions right to the table. And the movement creates some sphere, within which each of those people really are putting their hands on the levers of change, in which they really are architects of their own future. And then that gets patterned to a slightly bigger scale, and a little bit bigger, and a little bit bigger. So, it can start at the level of an individual, then a team, and then it can grow to the level of some political arena, like a local municipality. To get to the national level, we have to have structural mechanisms through which those fractals are repeated in different ways.Footnote 2

And so to answer your question: self-governing movements have to somehow extend that pattern of a free and equal people learning how to exercise power from the micro level up to the macro level. I work with movements who have thought a lot about this question at a very micro level. What does it mean for me to draw someone off the sidelines, to equip them for public action, and then to help them realize their own agency in public life? If you’ve ever been part of a movement where you’ve seen that happen, it’s an amazing thing. As teachers, we see that in our students sometimes. It’s this incredible experience, when you see it. In the conversations that we’re having with organizers, we try to point out that there’s a structural component to this work that goes beyond just the individual or the relationship. The structure matters, because that’s how we begin to think about questions of scale.

Ewa Atanassow: I very much like the fractal metaphor and would like you to elaborate on it.

It seems to me that the fractal is a metaphor for thinking about how we can reconcile individual or group autonomy with popular sovereignty, about the actual structure that would allow this reconciliation. Yet, the fractal analogy also hints that this structure, whatever it may be, might have to be analogous across different scales; that each component has to have the same pattern; and in that sense, though different in scale, all parts need to be homologous or uniform.

In other words, the fractal suggests a limitation on how much diversity in structure and orientation such a system can accommodate. It would seem that certain basic patterns or commitments need to be in place across society for something like the fractal structure to be possible.

Hahrie Han: I think the central question that we’re facing as a society right now (at least in the US) is the question of whether multiracial democracy can work. Part of that big question is your question: What are the boundaries of diversity that we can accommodate? And how do we define these boundaries? Of course I can’t fully answer these questions, but there are a couple of things that I can say in terms of how I think about the question you’re asking.

If I want to start as an organizer, I have to start small. I can’t go to scale from the beginning. I start by organizing the people around me, and then those people organize other people and then it begins to grow. As I’m doing that, I don’t know at time-one (T1) what kind of challenges we’re going to face at time-two (T2). Those challenges might be political challenges from the outside. They could also be challenges within the group. I don’t know at T1 how some of the differences amongst us might create fissures and limit our ability to create a coherent movement.

One of the questions we – my collaborators and I, and the people I’m in conversation with – think a lot about is uncertainty. If we take seriously this idea of uncertainty – that there’s no formulaic way of building popular sovereignty – then what are the choices that I can make at time-one (right now), that make it more likely that at time-two (in the future) we’ll be equipped to deal with whatever challenges might come our way? One of those challenges might be challenges of diversity within the group.

A lot of our research focuses on the idea that there are a set of capacities movements can invest in at T1 that help them negotiate these uncertain futures in T2. Some of those capacities can help equip people and movements to negotiate boundaries of “peoplehood,” to use a term invoked in the volume, within the movement itself. The question of who’s in and who’s out is not just one that gets enacted at the polity, or at the level of the nation. It arises at the level of every movement that I’ve seen. Movements constantly ask: What is the community of belonging that we’re really constructing? What is the extent to which belonging comes before belief?

These are questions that every movement that I’ve seen has to grapple with. And, there are a certain set of capacities regarding the nature of the relationships that are constructed amongst constituents that make movements more or less likely that they can navigate these questions. For instance, what is the extent to which they have systems of learning built into their work? What is the nature of the commitments that they create with each other? All of these things are ex ante decisions that movement leaders can make that don’t necessarily ensure that they’re going to be able to negotiate the differences that come up, but that create the conditions that make it possible or more likely.

Let me add two more things. First, in the kind of work I do, we think a lot about how people negotiate their interests with each other. I don’t mean diplomats, but ordinary people in everyday lives. What does it look like for us to be negotiating our overlapping and distinct interests and negotiating boundaries of belonging, to be negotiating disagreement? Those are fundamental skills of negotiation. Yet, I wish we had more research on it. That’s a place where sometimes, when I’m talking to organizers, I feel like I come up against the limits of what I know about how to negotiate those differences, based on the research that I’ve seen.

The second thing is this: In thinking about negotiating our relationships, and thinking about relationships as the building block of power or sovereignty or self-governance we have to think about how power gets negotiated in those relationships. Here, I borrow from Marshall Ganz’s work, who says power is an exchange of interest and resources.Footnote 3 This is not a full definition of power, but it is an aspect of it: I have power over you if I have resources that act on your interests, and you have power over me if you have resources that act on my interest. We agree to share power if we mutually agree to use our resources to act on each other’s interests. And that mutuality is ultimately what a movement needs to be able to do.

But to create that kind of mutuality (or solidarity), we have to be able to say, “I’m different from you. We have a different set of resources and different set of interests. But we have realized that we’re stronger together than if we act alone, and so we have to figure out how to use each other’s resources to act on each other’s interests.” That’s the kind of negotiation that has to happen to figure out the boundaries of difference that we can accommodate or not. Obviously, as we scale that to bigger levels, the structures through which that happens become more and more formal. If I’m doing this with my neighbors, it’s basically a torturous homeowners’ association meeting. And then maybe in the city council, it’s kind of the same thing. But by the time you get to the state, or the nation, it becomes a much more formalized system.

So I think there’s a constant interaction between the individual and collective capacities that people have as they come to the table, and then the structures that we create to shape the table itself.

Thomas Bartscherer: I want to underscore two things in what you just said. The first is the distinction between belonging and belief, and the question of which comes first. It’s a really eloquent way of articulating a central tension for us.

The second goes back to your invocation of Danielle Allen’s work, and the futurity question. In the volume, we haven’t talked much about the temporal axis in different conceptions of peoplehood.Footnote 4 There is a lot of drawing on the past in conceiving peoplehood. But this is different: You are directing the idea of peoplehood toward the future.

We all know that we want a better future; that at least holds us together. But who is this “we” that you’re conceiving? That’s one way to think about the question of scalability. Can the “we” entail something as large as a nation?

Hahrie Han: So maybe I’ll ask a question in return: It seems very obvious to me that “we” includes everybody. Why would it not? Why would everyone not want a better future, even knowing that we may all disagree about what this means, and that what a better future means for each person can be different?

Thomas Bartscherer: There are two ways, I think, that one can imagine this. One can say that the “we” includes everyone in the nation, and so therefore necessarily excludes other nations. Or one can ask whether a given nation, say the United States, holds together as a “we.” Our differences are so great, that some would argue that California should secede, or that “red states” should secede. So, how do we think about the “we” in the particular example of this nation.

Hahrie Han: I was thinking about the question in a different way. I didn’t mean it as a definition of the nation, of a boundary. Instead, I understood it as a universal. It’s part of the human condition. As Allen once put it, we all go through our days thinking about how we can make tomorrow better than today. That’s just a human thing, not a question of boundaries.

The reason it is important is that this question of self-governance, or popular sovereignty, begins with the idea of figuring out how we equip people to exercise their own agency in public life. That, to me, is the value of the temporal dimension, and of wanting to think about a better tomorrow. In a way, I start in the same way economists start with the assumption that all people are rational. I start with the assumption that all people want to exercise agency. That’s the way in which I meant it.

Then, if everyone wants to exercise their agency, how do we think about the boundaries of our commitments to each other – that we either have or should have – and what is the basis on which that commitment is built? When do we exit and when do we exercise voice? I struggle with these questions. I grew up in Texas. Texans talk about seceding all the time. But almost every movement that I’ve seen that has gotten to any kind of scale has struggled with that question of who’s in and who’s out – especially movements that are fighting for rights for people who have been traditionally excluded. What is the extent to which we are willing to accommodate people who are ignorant of or actively challenge the dignity of our people? Who will we bring into our movement to help us get to scale? Put another way, how do we think about the boundaries of how far we’re willing to go to create that community of belonging?

I would love to see some kind of framework for that. I don’t know that there’s ever going to be a clear line. Instead, for me the question is how do we create the processes, the spaces, and the capacities for people to constantly negotiate those blurry boundaries. Engaging in that negotiation, and doing the work, is an end in and of itself.

One of the big projects that I’ve been working on recently examines a movement of people who are fighting for racial justice within evangelical megachurches in America. As you might know, in the United States, there’s a big battle going on within evangelicalism right now about who gets to define the faith. A big portion of it is defined by people who have an image of faith grounded in a white Christian nationalist worldview. But there are people who are fighting for racial justice within that context. This is not a domain that I myself come out of. It’s different from a lot of other movements I’ve studied. But I’ve learned so much about how they think about negotiating these questions.

This phrase, “belonging comes before belief,” actually comes from this big megachurch I have been studying in Ohio. They say explicitly, as one of their mottos, “belonging comes before belief”: we are all about trying to bring Jesus and the Kingdom of God to earth, but you can come to our church whether or not you believe in God, whether or not you believe in our God, etcetera. You are still a part of our community. They have this ethos of radical hospitality, of bringing people who may disagree with fundamental tenets of the church into that community. That is something I’ve learned a lot from. I don’t see it as explicitly stated in other movements, but I think there are ways in which lots of other movements that I’ve studied have a similar ethos of creating belonging, and not assuming that only people who agree are the ones that are drawn in.

David Bateman: Something I find very useful in this discussion is that what “building belonging” means is different when you start from the bottom up, where there’s not necessarily a reason to circumscribe it right away. I think a lot of us who think about democracy or popular sovereignty start from the premise that there is already a state, there is already a nation, or that this is what is being explained. The questions then become: What common thing binds everyone within this state together, or how can we justify these boundaries rather than something else? Starting from the bottom up, not as a post-hoc rationalization but as an ex ante practice, means we don’t need to start from that premise. We can start by asking, how do I relate to the specific persons next to me, and how do they relate to the next, and how do we negotiate the differences between us.

Earlier you suggested that you were interested in participation and self-governance beyond just elections. Could you say a bit more about this? One thing about your work that is so inspiring is that it is oriented around belief that participation is good, and that we want more of it. But what are the limits to that? Polarization can drive participation, but this might not be worth the cost. The increase in participation of people might not be worth the cost of fraying civic bonds.

Hahrie Han: Sometimes I think that when I die, if there’s one thing that I hope I convinced my colleagues of, it will be the idea that not all forms of participation are the same. In my world of empirical American politics, the tendency is to just count participation. It’s like 30 thousand votes is equal to 30 thousand people showing up at a meeting, to 30 thousand people coming to a protest, or something like that. As an empiricist, I understand why we do things like that. But by reducing participation to numbers of participants or numbers of actions, we have lost sight of the extent to which participation can have prodemocratic effects or not.

Let me reframe the question: What are the conditions under which participation is a carrier of democracy versus a carrier of authoritarianism? From historical and cross-national studies, we know that there are lots of cases where a really thick civil society produces really authoritarian outcomes. It’s clear that civil society can be a carrier of either. So what are the conditions under which it actually promotes democracy?

In a recent paper with Andrea Campbell and Elizabeth McKenna, we develop this notion of what we call civic feedbacks.Footnote 5 How do you differentiate between forms of participation that enrich the ability of vehicles of collective action to translate the actions of people into popular sovereignty versus those that impoverish it? We draw on the policy feedbacks literature to say that in the same way that policy design can have feedback effects that shape mass publics, so too can the ways in which we construct participation have differential downstream consequences.Footnote 6

We start from the premise that any model of popular sovereignty has to take seriously collective action. It has to take seriously the ways in which people come together, and the vehicles or scaffolding through which they’re able to channel their participation into some kind of voice or power over the outcomes they care about. Certain kinds of participation are going to have feedback effects that enrich the ability for that collective action to happen, and certain kinds will not. That helps us get at something that I’ve always struggled with: A lot of times when people think about the difference between things like thick versus thin participation, it ultimately comes down to a measure of time. But I can put a lot of time into something and still get very little out of it. Conversely, with the right organizer, and with the right context around it, a relatively time-limited kind of action can actually be quite meaningful. The concept of civic feedbacks tries to provide us with a conceptual tool to examine not just the act of participating, but also the downstream consequences of each action.

So is participation always good? First, I would differentiate between participation as an outcome and the forces that drive participation. I absolutely think that there are forces that drive participation that are “bad.” White nationalist politics is antidemocratic and unjust and yet it drives participation. But does this mean that participation itself is “bad”?

I know this is disputed, but I generally start with this idea that we want more people to feel like they have their hands on the levers of change. We want more people to feel they have voice. When we see people participating and it leads to more authoritarian or polarized outcomes, the question I ask is whether it’s a problem with the actual act of someone participating or a problem with the kind of participatory opportunity they were offered, or the thinness of the participation that is so common nowadays. One of the really destructive things about neoliberalism, or whatever the term is that you want to use to define that regime, is that it’s reduced us to thinking about participation in individualistic, market-based terms. This ignores civic feedbacks and other aspects of any participatory act that turn any individual act into something that can be richer and more collective.

David Bateman: So what would be an example of participation that generates positive feedback versus participations that do not?

Hahrie Han: In the paper, we develop a case study around a fifteen-year campaign for universal preschool in Cincinnati.Footnote 7 There were two phases to the campaign. In phase one, they were essentially trying to get lots of petition signatures to show the breadth of public support for preschool. Organizers tabled outside grocery stores, they went to community marches and festivals, and so on. And they got something like twice the number of signatures that they thought that they were going to get. When they brought those signatures in, the city council said, “Great you showed us some breadth of public support, just like we asked you to, but you know what, we have no money. Sorry we can’t do it.” What could they do then? Unfortunately, they hadn’t generated those signatures in a way that built any kind of relationships or a sense of commitment among those people. All they had were names on a piece of paper. They couldn’t go back to those people and say, “Hey, the city council just pushed back on the thing that you said you support. What’s our next move?” They were assuming that the petition would be enough to bring the city council around. But it didn’t unfold the way they were expecting, and they didn’t have the tools to be able to respond.

And then, in the second phase of the campaign, a grassroots organization comes along and builds a real constituency by engaging people in house parties and other actions that help develop people’s consciousness around preschool, racial justice, and economic justice issues. They reach the constituencies in Cincinnati who are likely to benefit most from a universal preschool program. So then later, when they have a similar moment of being challenged, their response is very different. Instead of having to walk away, they say, “All right. If you are going to challenge us, we’re going to take this back to the people, and see how the people are going to respond.” And the people are already equipped and ready for action in a way that enables them to hold people in positions of power to account. So, those choices they made earlier in the second phase about how to cultivate that constituency created feedback effects that enabled a thicker form of accountability, which I think is another dimension that we could talk about here. To be clear, the feedbacks did not come from the fact that a house party takes more time than signing a petition. Instead, it’s more about the kind of capacities that were built, the sort of relationships that were built, and how these had downstream consequences that were able to feed into the campaign.

My hope is that our paper can agitate a conversation around this idea of the downstream consequences. What are the conditions under which you could imagine civic feedbacks that feed into authoritarian versus prodemocratic outcomes? This gets us to questions that the volume also engages with – questions about negotiating across difference and thinking about how we construct peoplehood. You can imagine that there are ways to address those questions that have positive downstream consequences, and ways that actually shut down future prodemocratic outcomes that you might want.Footnote 8

David Bateman: I think there is a notion that going to a city council meeting and yelling at each other is the essence of participation. And what you are saying is: no, showing up, and even speaking, is not the same thing as building relationships.

Hahrie Han: I hear all the time from organizers that we don’t have models of representation or co-governance. So when government doesn’t do something that we want, people say, “All right, we’re going to go sit in on Nancy Pelosi’s office!” or something like that. And you know, there are times when that is exactly the right thing to do, but movements need to have repertoires of action that go beyond that. And one of the things that we, as a community of scholars, can do is help articulate models of representation that go beyond just voting, or just using bodies as a cudgel. I think there’s a lot of work to be done there to expand that repertoire and deepen our understanding of how that relationship of accountability can work.

Ewa Atanassow: I’d like to connect this to the discussion about the conditions that make participation produce desirable effects. Obviously, “desirable” needs to be defined, and distinguishing between democratic versus authoritarian outcomes is one way to do so. But just as there hardly is anybody who doesn’t want to improve their tomorrow, I wonder if there are many people today who don’t want democracy. One of Tocqueville’s original insights I’ve been mulling over is that we live in a world where democracy is the only game in town, it is seen as the only legitimate basis for political power. The question then is not whether to have a democracy, but what kind of democracy, and how do we put content into that concept. So the radical hospitality model, which seems very attractive, sooner or later is going to hit against the question that you say is central to any movement: Who is in and who is out? Unless we have some kind of shared understanding, however broad and negotiable, about the meaning of democracy and the criteria of belonging, common action would be difficult to mobilize. This at least is what I imagine constituency means: shared understanding of and commitment to what we’re after.

Hahrie Han: So, a couple of reactions. I agree with everything you said, except for one point: Does everyone want democracy? There’s increasing data showing that people’s commitment to democracy is lower than we might think. This is true in the US, it’s true among young people, and comparatively. That, of course, then raises the question of what people are thinking about when they think about democracy. I don’t know the answer to that question. But whether people want democracy is, in my mind, a question.

Part of what makes democracy unique as a form of government is that it asks people to accept uncertainty over outcomes in order to have certainty over process. I first heard this from Valerie Bunce.Footnote 9 Lots of other forms of government will give you certainty over outcomes, but uncertainty over process. I think this is such a clear encapsulation of one of the problems that we’re confronting right now: Namely, what are the conditions under which people are willing to accept uncertainty over outcomes?

Well, if the possible set of outcomes that you’re asking me to accept is too broad, then yes, I am much less willing to accept that. I am much less supportive of democracy, as a result. If you’re asking me to accept an outcome where I may not be able to feed my family, where my children may be impoverished, where they may not have a sustainable world to live, etc., I become a lot less supportive of the democratic processes that could lead to those outcomes.

That’s why I worry when our conversation about threats to democracy and inequality does not include this question of voice and power. To me, a key question we must ask is, “Will people be more willing to accept the uncertainty democracy demands if they feel that they have legitimate voice in the process?” My hypothesis (though I don’t have the data) is yes. If I feel that I’m going to be able to have some say over the range of outcomes I’m being asked to accept, and that they’re within bounds of what I view to be acceptable, then will I be more willing to accept that process, overall? I think part of where we’re at right now is that the range of outcomes we’re asking people to accept is broader than what many people find acceptable, so people are undermining the system itself.Footnote 10

Ewa Atanassow: What you just said touches on the issue of legitimacy. If I participate in the democratic process, it is likelier that I’ll recognize its outcome as legitimate. And yet, while having a voice is a source of legitimacy, it’s not the only one. For instance, if in my opinion, the other party is the enemy and authoritarianism incarnate, even or especially if I have participated and was actively engaged in the process, I could still view the outcome as illegitimate, as happened after the 2020 US elections.

Hahrie Han: I agree, but my one caveat is that I didn’t say that mere participation will lead people to view the outcome with legitimacy. It’s whether I experienced voice, which to me is different from participation. I can vote and not experience a feeling of voice. The hypothesis I have is that if I experienced an authentic feeling that I was able to help shape the process, I might view the outcome as more legitimate, or be more willing to accept it.

One other thing: accepting the outcome as legitimate is an ex post evaluation. I look at the outcome, and I think retroactively about whether it was legitimate or not. I was trying to ask: is there an ex ante evaluation that I might make? I hypothesize that people would be more willing to ex ante engage in a process without knowing what the outcome is, to accept the uncertainty, if they feel like they have authentic voice in it.

Thomas Bartscherer: That’s very useful, to identify the link between civic participation, accountability, and legitimacy. We’ve been thinking about the connection between legitimacy and accountability. But to make clear the connection between thick participation, building relationships rather than merely voting, and feeling that your voice is heard, that you have a voice in the process – to put those three together is very helpful.

And to return to the idea that uncertainty about outcome is characteristic of democracy, one might say that in a functioning democracy at least one outcome is certain: self-governance. In other words, there may be a distinction between outcome in terms of particular policy choices, and outcome understood as the practice self-governance, and that seems worth thinking about.

David Bateman: We started this volume with the crises of liberal democracy. We would like to hear your take on this: Is there a crisis and what is it?

Hahrie Han: I talk to a lot of people, both scholars and practitioners, who seem to have very worked out analyses of the crisis of liberal democracy. It’s as if they can say, “This is the crisis. These are the dimensions of it. And these are the things that we need to do to fix it. It’s just a matter of building public will for it.”

My analysis, by contrast, is still somewhat inchoate. Obviously, there’s a lot of truth in many of the common explanations people provide: the changing information sphere, the rise of disinformation, the increase in affective polarization, and the ways in which that diminishes our ability to build the sense of peoplehood that you’re talking about.Footnote 11 I don’t disagree with any of that. But it always strikes me as being somewhat incomplete. I’m not quite sure that I have an alternative answer. Part of what I found useful about the work you all are doing is putting this into historical context and giving us a broader way of thinking about the contemporary “crisis” as being a part of the democratic process itself, and part of democracy-building itself.

Whether or not we think “crisis of liberal democracy” is the right term, I do think that we are in a moment of tremendous upheaval. The structure of the economy is changing; the structure of nation state and the relationships between nation states are changing; there’s increasing diversity in populations across the world; there are all these ways in which the social, political, economic trends are creating a lot of uncertainty. And so, regardless of whether or not we think about it as a crisis, I do think we’re at a choice point, as a country, as a people, however we define that.

Sometimes when I’m in conversations about this “crisis” or this moment, the choices for how to act are being defined at the level of institutions or individuals. At the level of institutions, people ask how we fix our institutions to allow for better decision-making processes, from election reform to congressional procedures. These are all very important. Alternately, it’s very much at the level of individuals: Why are human brains wired to dislike other people, to be so parochial, etc.

But I worry that we’re not thinking about how to strengthen the scaffolding at the meso-level. How do we create the scaffolding that gives people the opportunity to overcome those parochial instincts, or to take advantage of the institutions that are created at the macro level? But that’s not all. That scaffolding should also give people the opportunity to actually experience those fractals, to experience effective collective action – which, in turn can then strengthen the ability of either the institutions or the individual capacities.

Thomas Bartscherer: A starting point for the conversations that generated our volume was Edmund Morgan’s book Inventing the People, especially his notion that “the success of government requires the acceptance of fictions.” His idea of fiction has been central to a lot of our discussions.

With regard to popular sovereignty, the idea that there is a people in a substantive sense, and that the people can and should govern itself, is an example of what Morgan means by a fiction. And Morgan argues that when the gap between fact and fiction grows too great, the efficacy of that fiction can collapse. Can we think of self-governance, as you put it, or popular sovereignty, as a constructive fiction? And what is its status in contemporary liberal democracies?

Hahrie Han: This question about fiction is essentially tied to the question about hope. Part of the reason why we need this fiction of self-governance, or this fiction of a “people,” is because we need hope that we can reach that goal which we haven’t yet. I think that matters at a macro and a micro level.

In the movement work that I do, one of the questions we ask is about how you motivate people to take action. One thing I always tell organizers is that people are not dumb. People know when you’re asking them to do something useless, and people know when you’re asking them to do something meaningful. If you really want to draw people into action and do so in a way that is going to help build a movement, then draw them into actions that are tied to this sense of hope. In the context of a movement, hope is often tied to some kind of strategy, or a story about how those actions are going to add to the kind of influence or change that people might care about. I think the same is true for this fight that we’re having about democracy as well. We need the fiction in order to generate the hope.

There’s a quote that I use a lot from the Jewish theologian Maimonides who says, “Hope is belief in the plausibility of the possible as opposed to the necessity of the probable.” In Prisms of the People, part of what we’re trying to do is to think about how we make the possible more plausible.Footnote 12 Doing research this way sort of flies in the face of the intellectual infrastructure of quantitative social science, which is built on probability theory. If X, then what is the most likely outcome Y? But we know that most movements fail. Yet we’re nonetheless doing all this work, and trying to think about how we strengthen the ability of people to exercise their self-governing capabilities; we’re trying to think about how we make more plausible this fiction of self-governance, of popular sovereignty.

I didn’t become an academic because I wanted to be better at predicting all the negative outcomes out in the world. For sure, it’s really important to understand how the world works. But I got into this work because I want to try to strengthen our ability to reach for these hopeful fictions that we have. I remember in grad school my advisor used to say, “The difference between you and me, Hahrie, is that I just want to understand how the world works and you want to make the world work better.” And I was like, “Why wouldn’t you want to make the world better?” It always just seemed so self-evident to me that this is what we should want.

But there is one thing about the word “fiction” that I would maybe nuance, which gets me to the second part of your question. I think there’s a difference between the stories that we tell ourselves and the experience that people have of those stories. One of the fights that we’re having right now in America is who gets to tell those stories. And part of what’s been happening is that for so long, the stories that we’ve told ourselves about America have been told by a certain group and many people felt left out of that story. And so now, you see all these other voices coming and saying, “Hey, here’s the story properly reinterpreted and understood.”

And so, when I think about fiction, I think it’s important to see it as a useful framework in tying us to the kind of hope and ideals that we’re reaching toward. But it’s not just the stories that we tell ourselves, but also the experiences that we construct for people. Part of why I’m so focused on this meso-level infrastructure is because that’s where these experiences are constructed for and by people. They are sometimes constructed for people in places like the family, which reformers don’t have any influence over. But we do have influence over how we construct our political system and civil society, and can create experiences in those places that make real – or don’t make real – the stories that we’re trying to tell.

Ewa Atanassow: I’d like to tie this notion of fiction and hope to the discussion about crisis and process. It seems to me that the pandemic we are witnessing is not only of Coronavirus but also of loss of meaning. There seems to be a loss or at least some kind of deficit of the stories that make political systems effective and credible and legitimate. It is interesting to try to understand where this deficit is coming from. But what you are putting on the table is that for self-government to work, we need the kind of stories that sustain hope on all levels of political life. This calls to mind Rogers Smith’s chapter in this volume, and his claim that, while populism is problematic on many levels, it often succeeds in cultivating the capacity to produce such stories. These might not be the most attractive or inclusive or admirable stories, but they work in some ways and we should learn from them how to tell better ones.

Hahrie Han: Part of the reason why I think the fractal metaphor is important is because, as with movement organizing, there’s no shortcut to justice or inclusion. I’ve learned a lot from my work with social movements and evangelical megachurches that have grappled with questions about multiracial solidarity. Justice and inclusion have to emanate from the ways in which we interact with each other, up to the movements that we create, up to the thing that we’re trying to agitate for.

Impoverished notions of participation try to create shortcuts. The logic goes something like this: “Well, if we only got this outcome, if only we got this institutional reform, if only we got this anti-poverty policy in place, then, everything else will take care of itself.” Yet part of what we’ve learned throughout history is that it does not take care of itself. Yes, there are things to do from the top down and from the bottom up. But why I like that image of the fractal is that it creates a structure through which people have the experience of grappling with these thorny questions all the way through, even if there aren’t clear answers that we come to at the end.

Ewa Atanassow: I’m still thinking about your teacher, who said that what he strove for was to understand while you wanted to improve things. This calls to mind Marx’s eleventh thesis on Feuerbach which declares that, while the philosophers only interpret the world, the point is to change it. Coming from the Eastern European experience, I’m a bit skeptical of the changes Marx’s interpretations managed to bring about. But I’m wondering if one way to sustain salutary hope is to stay on that edge between understanding and improvement and beware of separating them.

Hahrie Han: I love the idea of sitting on that edge and it just reminds me: I was talking to a colleague yesterday, who said something like: “I feel like I’m on the precipice of hope.” And my response was: I don’t think you can ask for more than that right now.


14 The Place of Constitutional Courts in Regimes Embracing Popular Sovereignty Recent Problems in American Self-Governance

1 Thanks to Swarthmore College students Angus Lam ’20, Natasha Markov-Riss ’20, and Abigail Diebold ’20 for research assistance. A note about the epigraph: Hamilton wrote the Federalist Papers 78–83 concerning the judicial branch, and yet he was not present in Philadelphia during most of the time when the delegates were discussing the role of the judiciary. It is probable that Hamilton conferred with Madison, who took the most extensive notes at the Constitutional Convention.

2 Wood, Creation of the American Republic, 262, 274–75; Hall, Magic Mirror, 15, 54–55, 62.

3 Farrand, Records of the Federal Convention; Hutson and Rappaport, Supplement to Max Farrand’s Records of the Federal Convention, 84.

4 E.g., Jensen, “The Articles of Confederation.”

5 Jefferson, “Letter to James Madison,” postscript.

6 Akhil Reed Amar argues that rights were originally majoritarian, meant to protect the people collectively and/or the states, against the federal government. After the Civil War Amendments, a number of rights (though not all) became properly understood as individual rights. Amar, The Bill of Rights.

7 See Constitution Act, 1981, § 33 (Can.). Stephanopoulos, “Case for the Legislative Override,” 260.

8 Quoted in Brosseau and Roy, “Notwithstanding Clause,” 4.

9 That chapter now states that “A provision of a law that violates freedom of occupation shall be of effect… if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law.” Overrides can last four years. The Knesset had rarely used this power. See “Israel: Basic Law of 1994, Freedom of Occupation, 10 March 1994,” available at: [accessed 15 October 2022]. Stephanopoulos, “Case for the Legislative Override,” 260.

10 Tushnet points to the Irish constitution of 1937 and the Indian constitution of 1950, modeled on the Irish one. Tushnet, Taking the Constitution Away from the Courts, 321, 331n2.

11 Some amendments do so. The Sixteenth Amendment (1913) authorizing a federal income tax was a direct response to the Supreme Court’s 1895 ruling in Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429; the Nineteenth Amendment (1920) overturned Minor v. Happersett, 88 U.S. 162 (1875). The Eleventh Amendment (1795) was passed in response to Chisholm v. Georgia, 2 U.S. 419 (1793); Dred Scott v. Sandford’s 1857 holding (60 U.S. 393) that blacks could not be citizens was reversed by the Fourteenth Amendment (1868); the Twenty-fourth Amendment (1964), abolishing poll taxes, overruled Breedlove v. Suttles (302 U.S. 277 [1937]); and the Twenty-sixth Amendment, reducing the voting age from 21 to 18, overturned Oregon v. Mitchell (400 U.S. 112 [1970]), which had prevented Congress from setting the voting age for state and local elections under the Voting Rights Act Amendments of 1970.

12 Yet, federal courts did not cease to hear habeas appeals from Chinese on the west coast despite repeated congressional efforts to limit their jurisdiction and to lodge final decision-making power in the executive branch. Nackenoff and Novkov, “Building the Administrative State.” See also Boumediene v. Bush (2008), where the Supreme Court found that power to grant habeas relief to prisoners deemed enemy combatants and held outside the United States could not be removed by passage of the 2006 Military Commissions Act.

13 Arato, “Populism, Constitutional Courts, and Civil Society,” 331.

14 Atanassow, Chapter 5, this volume.

15 Arato, “Populism, Constitutional Courts, and Civil Society,” 330.

16 Arato, “Populism, Constitutional Courts, and Civil Society,” 318.

17 Galston, “The 2016 U.S. Election,” 23; Galston, “Populist Challenge to Liberal Democracy.”

18 Hailbronner and Landau, “Introduction”; see comments by Rogers Smith in Chapter 15, this volume.

19 Hirschl examines older democracies and Ginsburg finds newly democratizing nations in Asia exhibiting similar patterns. Recently in Great Britain, the Supreme Court has, rather surprisingly, behaved like the US Supreme Court, declaring the prorogation of parliament in advance of the no-deal Brexit deadline unconstitutional. Hirschl, Towards Juristocracy; Ginsburg, Judicial Review in New Democracies; see also Smith, “Judicial Power and Democracy.”

20 Whittington, Political Foundations of Judicial Supremacy, 262; Kotkin and Kramer, “A Layman’s Document, Not a Lawyer’s Contract,” 222.

22 The 2022 Gallup Poll indicates 25 percent of respondents have a great deal or quite a lot of confidence in the Supreme Court (with Democrats and independents expressing 18 and 15 point losses in confidence respectively from 2021 and Republicans showing a three point gain). Those expressing a great deal or quite a lot of confidence in Congress was 7 percent (there were small differences between those identifying as Republicans, Democrats, or independents, and greater drops in confidence among Democrats from 2021 levels). Respondents expressing a great deal or quite a lot of confidence in the presidency in 2022 constituted 23 percent of all respondents, with a drop of about 10 points since 2021 in each party; the gap between Republicans and Democrats expressing such confidence in 2022 was forty-nine points. Jeffrey M. Jones, “Confidence in U.S. Institutions Down; Average at New Low,” Gallup, July 5, 2022;

23 Robert Lowry Clinton argues that Marbury was practically neglected during its first century, being first invoked by the Court in connection with the principle of judicial review in the 1880s. Clinton, Marbury v. Madison and Judicial Review. See also Whittington and Rinderle, “Making a Mountain Out of a Molehill?” Ross, A Muted Fury.

24 Whittington, Repugnant Laws, 9.

26 Segal, “Why We Have the Most Polarized Supreme Court in History.”

27 See below for further discussion of the political questions doctrine in light of Rucho v. Common Cause. Keck, The Most Activist Supreme Court in History; Skinner, “Misunderstood, Misconstrued, and Now Clearly Dead.”

28 Sunstein, One Case at a Time; Tushnet, Taking the Constitution Away from the Courts.

29 Tushnet, Taking the Constitution Away from the Courts; Tushnet, Weak Courts, Strong Rights.

30 Tushnet, “New Forms of Judicial Review and the Persistence of Rights,” 818.

31 Tushnet, “New Forms of Judicial Review and the Persistence of Rights,” 823.

32 Tushnet, “The Rise of Weak-Form Judicial Review,” 322.

33 Tushnet, Weak Courts, Strong Rights, 24–25.

34 On the notion of popular sovereignty as useful fiction, see Morgan, Inventing the People.

35 Atanassow, Bartscherer, and Bateman, “Introduction,” in this volume.

36 Azari and Nemecek, Chapter 13, in this volume.

37 Bickel, The Least Dangerous Branch.

38 Robert Dahl argued that judicial replacement keeps the Court reasonably closely linked to the dominant political coalition, but the average tenure of justices has now risen to more than twenty-five years, undercutting some of the claim’s merit. Dahl, “Decision-Making in a Democracy.” Scholars exploring the Court’s relationship with dominant political coalitions and/or minimizing the countermajoritarian difficulty include Whittington, “Interpose Your Friendly Hand” and Political Foundations, Graber, “The Non-Majoritarian Difficulty”; Klarman, “Rethinking the Civil Rights and Civil Liberties Revolutions”; Friedman, “The Birth of an Academic Obsession.”

39 Lone Wolf v. Hitchcock (1903), 565.

40 Thayer, “A People Without Law”; Nackenoff, “Constitutionalizing Terms of Inclusion and Citizenship for Native Americans.”

41 On less formal means of disenfranchisement, see Schroedel, Voting in Indian Country; Keyssar, The Right to Vote, 253–55.

42 McGirt, 2020; Nackenoff and Markov-Riss, McGirt v. Oklahoma on Native Rights.

43 That argument, that Article III courts would support the accretion of national power was famously made by Robert Yates, writing as Brutus in the constitutional ratification debates. Yates, “Brutus #11.”

44 Rostow, “The Democratic Character of Judicial Review.”

45 Whittington, Constitutional Construction.

46 Ackerman, “Discovering the Constitution,” 1028.

47 Woodward-Burns, Hidden Laws, Ch. 1.

48 Whittington, Repugnant Laws, 12–13.

49 Arguably, the Court had warned Congress to rethink its coverage formula in Northwest Austin Municipal Utility District No. 1 v. Holder (2009); the Shelby County decision spoke about the aged formula’s offense to the dignity to which the states were entitled.

50 Ely made clear that democracy did not entail substantive outcomes. Ely, Democracy and Distrust.

51 Strauss, “Modernization and Representation Reinforcement,” 761.

52 Amar, America’s Unwritten Constitution, 279–83.

53 Madison, Federalist #10, 2003 [1787–1788].

54 Dixon, “Electoral College Procedure,” 215; South Carolina, Constitution of the Commonwealth of South Carolina, 1883.

55 Dahl, How Democratic Is the American Constitution?, 17–18, 144–45; Levinson, Our Undemocratic Constitution, 49–62.

56 Frankfurter, J., dissent in Baker (1962), 269–70.

57 See John Marshall’s remark in Marbury v. Madison, 5 U.S. 137 (1803) at 170 that “Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.” The prudential strand of the political questions doctrine was most fully articulated in Justice Brennan’s majority opinion in Baker v. Carr (1962).

58 The quote is from Nackenoff and Diebold, “Rucho v. Common Cause,” 113. The point is made in Fallon, “Judicially Manageable Standards.” See also Marietta, “Roberts Rules.”

59 Davis v. Bandemer, 1986, 111, 127, 130.

60 Justice Anthony Kennedy in Schuette (2014) at 314.

61 The Michigan ballot initiative process and requirements are outlined at Once the initiative clears ballot hurdles, it needs only garner a majority of votes cast. (The amendment was known as Proposition 2, as was the Colorado measure.)

62 If the entity itself was found at law to have discriminated, the case may be different.

63 Compare Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003); see also Fisher v. University of Texas II, 579 U.S. (2016).

64 The process for passing a constitutional amendment by initiative in Colorado is detailed at; after 2016, a supermajority of 55 percent was required for passage of such an amendment.

65 Romer, 1996, 626, 633.

66 Pollvogt, “Thought Experiment,” 1.

67 In some states, different routes to state constitutional amendments have different vote thresholds for passage, as is the case in Michigan. See

68 Pollvogt, “Thought Experiment,” 2; Tesler, Post-Racial or Most Racial?

69 Graber, Dred Scott.

70 E.g., Arendt, Origins of Totalitarianism.

71 Zeisberg, War Powers, 6, 26.

72 Zeisberg, War Powers, 13, 18–19.

73 Zeisberg, War Powers, 32.

15 Popular Sovereignty, Populism, and Stories of Peoplehood

1 Seminal works on the processes of creating conceptions of “the people” include Anderson, Imagined Community; Morgan, Inventing the People; Colley, Britons. The analysis here extends these works by advancing general criteria for better and worse stories of peoplehood, focusing on how the best stories respond effectively to current conditions, confer legitimacy, and express contextually appropriate themes.

2 These include Carol Nackenoff’s reflections on the role of constitutional courts in checking authoritarianism, Andrew Perrin and Nicole Mellow’s explorations of modes of democratic civic education, and Adam Davis’ analysis of the potential of grassroots community engagement to foster democratic skills and norms that may check populist excesses.

3 Hawkins, Read, and Pauwels, “Populism and Its Causes.” See Kaltwasser et al., Oxford Handbook of Populism.

4 Smith, Stories of Peoplehood, 38–42.

5 Smith, That Is Not Who We Are!, 19.

6 Harari, Sapiens, 111–12. Cf. Smith, Stories of Peoplehood, 43–44.

7 Smith, Stories of Peoplehood, 56–60.

8 Smith, Political Peoplehood, 2; cf. Smith, Stories of Peoplehood, 19–20.

9 Smith, Political Peoplehood, 50–53.

10 For examples, see Mounk, The People v. Democracy, 197, 207–10; Galston, Anti-Pluralism, 4, 66–71, 96, 117–19; Fukuyama, Identity, 7–11, 142, 162, 166, 170–74, 178.

11 See, e.g., Walzer, Interpretation and Social Criticism.

12 In his oral presentation, Trump added, and emphasized, the “only” and the repetition of “America first” to his official written text. Compare Trump, “The Inaugural Address” with “Donald Trump’s Inauguration Speech – Full Speech,”

13 Trump, “Inauguration Speech.”

14 Trump, “Inauguration Speech.”

15 Bender, “Trump Strikes Nationalistic.”

16 Leonhardt and Philbrick, “Donald Trump’s Racism.”

17 Leonhardt and Philbrick, “Donald Trump’s Racism”; Rogers and Fandos, “Fanning Flames, Trump Unleashes a Taunt.” See generally Sides, Tesler, and Vavreck, Identity Crisis, 201–20.

18 Savage, “Affirmative Action in College Admissions,” A1.

19 Arpey, “Business Implications of Disparate Impact’s Uncertain Future.”

20 Raymond, “Trump Administration Eliminates Funding.”

21 Ingraham, “Here Are the First 10 Members of Trump’s Voting Commission.”

22 Bazelon, “Department of Justification.”

23 Baker, “Trump Supports Plan,” A1.

24 See, e.g., Madison, “Federalist No. 10,” 50–52.

25 Bateman, Disenfranchising Democracy, 43–200; Keyssar, The Right to Vote.

26 See, e.g., Dewey, Reconstruction in Philosophy, 186, 200–209.

27 Mouffe, For a Left Populism, 62.

28 Mouffe, For a Left Populism, 76.

29 Mouffe, For a Left Populism, 76.

30 Mouffe, For a Left Populism, 71.

31 Mouffe, For a Left Populism, 6, 45.

32 Rosenbluth and Shapiro, Responsible Parties; Madison, Federalist No. 10, 53.

33 Foa and Mounk, “Are Americans Losing Faith in Democracy”; Diamond, “Are People Losing Faith in Democracy.”

34 Weyl, The New Democracy, 249–54; Kelley, “Aims and Principles of the Consumers’ League.”

35 Roosevelt, “Commonwealth Club Address,” 510.

36 Cohen, A Consumers’ Republic.

37 Obama, “Obama 2004 Democratic National Convention Keynote Address.”

38 Obama, “Obama 2004 Democratic National Convention Keynote Address.”

39 Cosgrove, “The Declaration of Independence in Constitutional Interpretation”; Wills, Lincoln at Gettysburg, 261.

40 For a brief overview, see Smith, Political Peoplehood, 133–44.

41 See, e.g., Wiecek, The Sources of Antislavery Constitutionalism; Tushnet, Taking the Constitution Away from the Courts, 182–93.

42 Spooner, The Unconstitutionality of Slavery.

43 Douglass, “The Constitution of the United States.”

44 Cosgrove, “The Declaration of Independence in Constitutional Interpretation,” 107, 112–13, 117–26.

45 E.g., Johannsen, ed., op cit., 304; cf. Smith, Political Peoplehood, 137–38, 160–62.

46 For discussion of Lincoln’s thought in comparison to Obama’s, see Smith, “Lincoln and Obama,” 17–51.

47 Lincoln, “Letter to Joshua Speed.”

48 See, e.g., Armitage, The Declaration of Independence.

49 For valuable analysis and recommendations, see Chafetz, Congress’s Constitution.

50 For elaboration, see Smith, Political Peoplehood, 197–99, 202–205.

51 Internal Revenue Service et al., “Moral Exemptions and Accommodations.”

16 Popular Sovereignty in the Trump Era A Case Study of Pedagogy and Practice

1 Levitsky and Ziblatt, How Democracies Die; Müller, What Is Populism?; and Neustadt, Presidential Power.

2 Rogers, “Democracy Is a Habit.”

3 Unless otherwise noted, all quotes are from papers students wrote for the class, and are offered without identification of the specific student.

17 The Voices of the People

1 Smith, Chapter 15, in this volume.

2 Nackenoff, Chapter 14, in this volume.

3 Lippmann, Phantom Public, 61

4 Lippmann, Phantom Public, 39.

5 Lippmann, Phantom Public, 199, 126.

6 Dewey, The Public and Its Problems, 109.

7 Dewey, The Public and Its Problems, 126.

8 Dewey, The Public and Its Problems, 114.

9 Dewey, The Public and Its Problems, 137.

10 Dewey, The Public and Its Problems, 146.

11 Dewey, The Public and Its Problems, 142.

12 Dewey, The Public and Its Problems, 185, 208.

13 Dewey, The Public and Its Problems, 184.

14 Dewey, The Public and Its Problems, 211.

15 Dewey, The Public and Its Problems, 213.

16 Dewey, The Public and Its Problems, 216.

17 Bishop, The Big Sort.

18 Aristotle, Politics, 1253a7.

19 Dewey, “Creative Democracy,” 225.

20 Whitman, “Democratic Vistas,” 956.

21 Whitman, “Democratic Vistas,” 942.

22 Whitman, “Democratic Vistas,” 982.

23 Dewey, “Creative Democracy,” 227.

24 Dewey, “Creative Democracy,” 228.

25 Whitman, “Democratic Vistas,” 937.

26 Allen, Talking to Strangers, xx.

27 Allen, Talking to Strangers, xix.

28 Dewey, “Creative Democracy,” 228.

29 Allen, Talking to Strangers, 165.

30 Allen, Talking to Strangers, 27.

31 Allen, Talking to Strangers, 41.

Epilogue The Precipice of Hope: A Conversation with Hahrie Han

1 Allen, Our Declaration.

2 One way to think about the federated structure identified by Theda Skocpol and others to early US social movements is that not only does it replicate the structure of power within the United States, but it repeats a pattern of social movements’ exercising power from the local to national level. See, for example, Skocpol, Diminished Democracy; Skocpol, Protecting Soldiers and Mothers; Skocpol, Liazos, and Ganz, What a Mighty Power We Can Be; and Skocpol, Ganz, and Munson, “A Nation of Organizers.”

3 Ganz, “Leading Change,” 531; Blau, Exchange and Power in Social Life.

4 See also Espejo, The Time of Popular Sovereignty.

5 Hahrie, Campbell, and McKenna, “Civic Feedbacks.”

6 For a discussion of how policy design can shape the boundaries of inclusion and exclusion, see Erler’s chapter in this volume.

7 See note 5 above.

8 Consider, e.g., work by Maya Tudor and Dan Slater on the importance of inclusive narratives in social movement organizing for democratic outcomes. Tudor and Slater, “The Content of Democracy.”

9 “To put it simply,” writes Valerie Bunce, “liberal democracy features certain political procedures, but uncertain political results. State socialism, by contrast, reverses this combination by featuring uncertain political procedures but certain political results.” Bunce, “The Struggle for Liberal Democracy,” 400.

10 Peter Levine has been grappling with many of these questions, developing a theory of civic life that integrates questions of deliberation and voice. Levine, What Should We Do?

11 For a recent set of analyses, see Lieberman, Mettler, and Roberts, Democratic Resilience.

12 Han, McKenna, and Oyakawa, Prisms of the People.

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Available formats