Or to the People: Popular Sovereignty and the Power to Choose a Government

61 Pages Posted:  

Elizabeth Reese

U.S. Court of Appeals for the Seventh Circuit

Abstract

To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers — particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty — as it protects state sovereignty — by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked government-driven erosion of democracy in America.

Keywords: tenth amendment, voting, populism, popular sovereignty, textualism, separation of powers, sovereignty, popular constitutionalism, political question doctrine,

Suggested Citation

Reese, Elizabeth, Or to the People: Popular Sovereignty and the Power to Choose a Government. 39 Cardozo L. Rev. 2051 (2018).. Available at SSRN: https://ssrn.com/abstract=3198398

Elizabeth Reese (Contact Author)

U.S. Court of Appeals for the Seventh Circuit ( email )

Everett McKinley Dirksen, US Courthouse
219 S. Dearborn Street, RM 2722
Chicago, IL 60604
United States

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