‘The people’ isn’t a thing

Americans love their rights. Progressives, conservatives, libertarians and people who fall anywhere in between all have their favorite liberties enshrined in the Constitution. Yet Americans also love “the people.”

See, we don’t all love the same rights. And if someone opposes a particular right, they often claim that that area of governance should be left to “the people” to decide for themselves through the political process — regardless of what the Constitution says.

The most recent example happened on Dec. 1 during oral arguments before the U.S. Supreme Court in Dobbs v. Jackson Women’s Health Organization, a case testing Mississippi’s abortion ban after 15 weeks of pregnancy.

Mississippi Solicitor General Scott Stewart, in his arguments for the state, said overturning Roe v. Wade would return the matter to “the people” to decide. “This is a hot, difficult issue for everyone,” he said. “That’s why it belongs to the people.”

Policymakers used the same argument during debates over same-sex marriage a few years ago. Former New Jersey Gov. Chris Christie said courts should “let the people decide,” rather than interfering in political debate. Meanwhile, gun control advocates want “the people,” not the Constitution, to decide what firearms the average person can own.

The current Supreme Court term provides a smorgasbord of rights to love and hate, which will highlight the tension. Over the next few months, the justices will issue decisions on abortion, guns, free speech, criminal procedure, religious liberty, equal protection and other divisive issues. In each case, those who trust politicians more than the Constitution will fall back on the popular slogan: “Let the people decide.”

But when you hear the argument, beware. Right or wrong, “the people” rhetoric reveals a common misunderstanding that leads to some dangerous tendencies. Yes, some issues are better left for elected officials to sort out. But not that many. And that’s because the government is not “the people.”

The Constitution opens with the phrase: “We the People.” But the concept is legal fiction. “The People” isn’t a thing. It does not have a will. It’s just millions of individuals. Delegates who ratified the Constitution in 1787 could not possibly have represented all of the different perspectives and interests.

The delegates did not even try. Voters who sent them to Philadelphia mostly included only adult white males — often only those with property. This was wildly democratic for the time, but the process still excluded large portions of the population.

Even today, when more people have access to the polls, no vote can capture the heart and mind of everyone. Even a landslide victory in a perfect election with perfectly informed citizens would leave millions of people unsatisfied.

The imperfection in the process is not an argument for anarchy. Legitimate governments can exist without unanimous consent of the governed. But appealing to “the people” denies the actual diversity of the population and overlooks the limits of Congress or any other elected body.

“We the people” have different ideas about what we should do with our property, how we should rear our children and how we should worship God. The genius of our non-unanimously adopted Constitution is to separate rights from politics.

Democratic majorities — often ruled by emotion in times of crisis — can throw out the wisdom of the ages while ignoring minority voices. But the Constitution provides a safeguard. It protects “the people” as individuals, not as a collective, by ensuring many kinds of rights without the need for slogans, campaigns and elections.

Lawmakers remain important. Otherwise, why have legislatures at all? But when citizens trust the political process, it’s not because they want to leave decisions to “the people.” It’s because they want to leave decisions to politicians, period.

Just like the Constitution itself, elected officials are not “the people.” They simply represent a good way to address certain issues. For everything else we have our frequently loved, and frequently hated, rights.

So, as the Supreme Court goes about its work, and you hear claims that some rights should be left to “the people,” recognize what is being said and ask the critical question: “Should we protect the underlying right, or should we let lawmakers tinker?”

Sometimes, but not often, elected officials should get the nod. But when we invite them to act, we should recognize them for who they are. They are politicians with agendas. They are not the romantic, but nonexistent, “We the People.”

Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice, a non-profit public interest law firm in Arlington, Va.