1776 against 1787: constituent power and the forgotten meaning of American democracy

To many Americans, this was precisely what the Revolution had promised. To many of its leaders, it appeared dangerously unstable. The shock of Shays' Rebellion in western Massachusetts only intensified these anxieties, convincing many among the political elite that the democratic energies released in 1776 threatened not only public order but property itself. Nothing illustrates this anxiety more clearly than the debates surrounding the Constitutional Convention of 1787. The Constitution was certainly intended to create a stronger union after the evident weaknesses of the Articles of Confederation. But it also pursued another objective that is discussed far less often: the disciplining of democratic power.

This is not a cynical interpretation imposed upon the Constitution from the outside. It emerges from the arguments of the framers themselves. No figure better embodies this tension than James Madison. Madison remains one of the greatest constitutional thinkers in history precisely because he understood the paradox of democracy. He believed political authority originated in the people. Yet he also believed that the immediate exercise of popular power posed a continual danger to liberty itself.

His concern appears most famously in Federalist No. 10. The danger he feared was not the return of monarchy but the unmediated exercise of popular sovereignty itself. Madison's solution was not to reject democracy. It was to mediate it. Representation, he argued, would "refine and enlarge the public views" by passing them through a body of elected representatives presumed to possess greater wisdom, deliberation, and independence than the people acting directly. The Senate, the Electoral College, the independent judiciary, indirect election, federalism, and the separation of powers all served the same philosophical purpose: to interpose institutions between constituent power and political decision. The people remained sovereign, but they no longer ruled directly. Their sovereignty became mediated, filtered, refined.

Madison's own writings repeatedly identify the unequal distribution of property as the most enduring source of political conflict, making clear that the Constitution was designed as much to manage democracy as to secure it. Because unequal property inevitably becomes unequal political influence, constituent equality can never be secured through constitutional form alone. The constitutional architecture Madison designed could regulate political conflict, but it could not eliminate the material inequalities that continually threaten to transform equal citizenship into unequal power.

The Constitution did not abolish constituent power but institutionalized it – and in institutionalizing it, it necessarily limited it. Seen through Negri's lens, the Constitutional Convention appears in a strikingly different light. Rather than reading the Declaration as an introduction to the Constitution, we begin to read the Constitution as a response to the Declaration.

Every constitution performs an indispensable act of closure. Constituent power opens history; constituted power seeks to stabilize it. No society can remain permanently in the revolutionary moment, and freedom requires durable institutions. Yet institutions always exact a price: they preserve constituent power only by containing it, translating the infinite creativity of democratic founding into finite constitutional forms.

The Revolution becomes government. The constituent people become citizens. Political creation becomes administration. Negri's great insight is that this transformation is never complete. The constituent power does not disappear once the Constitution has been ratified. It survives beneath every constitutional order as the inexhaustible capacity of the people to found political life anew.

This insight casts the entire history of American democracy in a new light. The Constitution did not conclude the Revolution. It inaugurated a permanent tension between constituent and constituted power-a tension that has defined the American experiment ever since. Every great democratic struggle in American history can be understood as the return of constituent power against the limitations of the constitutional order. The history of American democracy is therefore not the gradual perfection of a finished constitutional order. It is the recurring reappearance of constituent power whenever existing institutions cease to embody the equality from which they first derived their legitimacy.

When abolitionists denounced slavery, they appealed less to constitutional procedure than to the self-evident truth that all are created equal. When Frederick Douglass asked, "What, to the slave, is the Fourth of July?" he was not rejecting the Declaration. He was insisting that the nation had betrayed it. When Abraham Lincoln returned repeatedly to the Declaration rather than the Constitution, he understood that equality, not constitutional compromise, expressed the moral center of the American experiment. The Constitution organized the republic. The Declaration explained why it deserved to exist.

Speaking at Independence Hall in Philadelphia on February 22, 1861, only days before assuming the presidency, Lincoln declared: "I have never had a feeling, politically, that did not spring from the sentiments embodied in the Declaration of Independence." This was no rhetorical flourish. Lincoln understood that the Constitution, indispensable though it was, rested upon a prior moral and political principle. The Declaration articulated the constituent truth from which the Constitution derived its legitimacy: that political authority originates in the equal freedom of the people. It was this principle-not the constitutional compromises that accommodated slavery-that Lincoln believed the nation had been called to realize. The Civil War thus became not merely a struggle to preserve the Union but a struggle over whether the constituent promise announced in 1776 would finally become a constitutional reality.

When the suffrage movement demanded political equality for women, when workers organized for the right to unionize, when the civil rights movement challenged segregation, they did not stand outside the American tradition. They stood within the constituent tradition inaugurated in 1776. Martin Luther King Jr. returned, like Lincoln before him, to the Declaration's promise of equality, while describing the nation's founding commitments-embodied in both the Declaration and the Constitution-as a promissory note that remained unpaid. Each of these movements asserted, in its own way, that the existing constitutional order had failed to embody the democratic principle from which it first derived its legitimacy. Each represented not a rejection of the American founding but a renewed eruption of the constituent power the Declaration first proclaimed.

If Negri is right, then the Declaration does not belong only to the past. It belongs equally to the future. Its significance lies not simply in what it accomplished in 1776 but in what it continues to demand of every generation that claims fidelity to it. This is precisely why the Declaration remains more radical than the republic it inaugurated.