Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with other actors (including the Court) revolving around us.

What are the elements uniting (or distinguishing) entities that in different jurisdictions and historical periods, have been officially called General Congresses, Constituent Parliaments, Constituent Congresses, National Constituent Assemblies, Constitutional Assemblies, Assemblies of Revision, Parallel Constituent Assembles, or Conventions, but at the same time are generically labelled by political actors and academics as ‘constituent assemblies’? In attempting to answer that question, the objective of this chapter is threefold. First, to describe the main features of the type of institution that can be accurately identified as a constituent assembly. This requires a conception that is broad enough to cover most constitution-making bodies that would be normally labelled as ‘constituent assemblies’, but specific enough as to discriminate against entities that lack certain features. I propose that, while constituent assemblies may be understood in terms of their form or function, it is the nature of their power what distinguishes them from other constitution-drafting mechanisms. My second objective is to enquire into the limits of the power of -a properly understood- constituent assembly. Third, and relatedly, to consider the effects that the attempt to constitutionally regulate such an entity has on its ‘constituent’ nature.

The concept of constituent power emerges alongside that of the modern documentary constitution. It expresses the conviction that the authority of the constitution rests on its having been drafted in the name of ‘the people’ who, through an exercise of their constitution-making power, are the authors of that constitution. Conceiving the constitution as an expression of collective self-government, constituent power is therefore closely associated with the concept of popular sovereignty. This chapter examines how constituent power emerged in modern thought, explains its original meaning, sketches its subsequent evolution in thought, and evaluates the role it continues to play in contemporary constitutional discourse.

In democracies based on elections, representation brings a novel kind of freedom to the fore, one that does not need to be associated with the citizen’s direct action or presence in the place where decisions are made, as is the case in direct democracy. It enlarges the space and meaning of politics in ways that cannot easily be reduced to electoral authorization and consent, and it invariably connects with both the lawmaking institution and the citizens’ voluntary participation, their equal right to define the political direction of their country but also claim, vindicate, and monitor their representatives. This chapter analyzes “political representation” in its actors, components and processes and compared it to other forms (as statistical sample and embodiment) and finally discusses the implications of the mixture of representation and democracy in contemporary politics.

This chapter describes the connection between state constitutions and the essential aims of regulatory governance in the American states, providing an overview of state constitutionalism and of the elements of state constitutional history as it relates to governmental structure and purpose. The basic theme of the chapter is that to understand the police power requires a fundamental understanding of the objectives of state constitutionalism. At a high level, state constitutions look to distribute effectively political power and balance democracy with the protection of individual rights. Even as fundamentally political documents, they are designed to succeed (although they occasionally fail). Likewise, the powers assigned to institutions of government are intended to facilitate constitutional success.

How has discrimination changed over time? What does discrimination look like today? This chapter begins by highlighting severe and systematic acts of discrimination throughout American history. It then assesses contemporary discrimination through a range of audit studies and other methods and then delves into individual perceptions of discrimination.

Chapter 3 provides a review of democratic theory, moving from the “minimal conception” of democratic politics to democracy in its representative, constitutional, participatory, deliberative, and epistemic forms. The chapter offers a comparison of where America stands today among the world’s democracies and introduces the question of whether democracy carries the assumption of equality; it also reviews data on inequality throughout American history and on the more recent increase in inequality. We propose the idea that inequality is not extraneous to our democratic politics, but a direct result of it.

The Introduction presents the main questions and aims of the book. I argue that Roman thinkers used the metaphor of the body politic to articulate competing visions of the res publica between the Catilinarian Conspiracy and Year of the Four Emperors. I frame my discussion in relation to the Cambridge School of intellectual history, which has catalyzed the revival of interest in classical republicanism. In contrast to its focus on questions of liberty and popular sovereignty, my book turns towards problems of statesmanship and constitutional transformation. It asks how a foundational metaphor of civic organization evolved in response to the establishment of autocracy. It foregrounds the importance of metaphor as an avenue of political thought.

Chapter 4 focuses on democracy, specifically the creation of a violent American political process. By the 1840s, the right to vote expanded to include nearly all White men in the United States. The establishment of this racialized and gendered space put the nation at the global forefront of White male political participation. These voters elected militant candidates, used violence to set boundaries around the electorate, and physically intimidated political opponents. They demonstrated the import of Whiteness and violence to democratic development. The chapter covers Tocqueville’s Democracy in America, the election of 1828, the Compromise of 1850, the Fugitive Slave Act, and Bleeding Kansas.

Around the world today, right-wing authoritarian movements labeled populist claim to be vehicles of popular sovereignty. Analysts have debated the definition of populism and the economic and cultural sources of these movements. Few have closely analyzed the “stories of peoplehood” advanced by authoritarian populist movements, or explored how they can be countered by more inclusive and egalitarian stories of peoplehood. This chapter suggests criteria for developing better stories of peoplehood, using the example of American stories that might compete effectively with the Trump movement’s narrative of “making America great again.”