The concept of popular sovereignty has been on my mind a lot lately. I hate to admit it, but I don’t remember learning about it until recently, when I began reading Jon Meacham’s 2022 Pulitzer Prize-winning volume, And There Was Light: Abraham Lincoln and the American Struggle.
Meacham’s book examines the political climate in the United States in the years leading up to and through the Civil War. As the national tension over how, when, and whether to end slavery ramped up, politicians like Lincoln’s main rival, Stephen A. Douglas, sought to avoid taking action on this existential crisis under the cover of popular sovereignty—similar to how Donald Trump continues to use popular sovereignty as a cover for his role in curtailing personal freedoms, including reproductive rights.
Popular sovereignty is enshrined in the U.S. Constitution as a protection against federal overreach. Douglas’s plan to evade the question of slavery in the United States involved pushing it off as a state-by-state issue in which the federal government had no say. If the people—or rather, their elected officials—in any given state voted to authorize human bondage, then so be it.
Lincoln, while certainly a flawed leader, articulated a different argument, insisting that a house divided against itself cannot stand. Either every state would allow slavery or none would. A patchwork of decisions made under the guise of popular sovereignty was unsustainable and a diversion from the real question of whether or not the United States would continue to allow enslavement.
I have been thoroughly immersed in nineteenth-century American politics, perhaps as my own diversion from today’s fraught election cycle. Imagine my surprise, then, when I picked up the October/November print issue of The Progressive magazine. There on page fifty is an article by writer and former lawyer Bill Blum, comparing the Supreme Court’s 1857 Dred Scott ruling with this year’s Trump v. United States decision.
Blum’s piece equates the heinous Dred Scott decision, which ruled that African Americans could not be citizens of the United States, with the current Supreme Court’s ruling on presidential immunity. Dred Scott was decided by Chief Justice Roger Taney, whose ruling, Blum argues, went far above and beyond the guardrails provided by popular sovereignty.
The decision instead impugned this very concept by declaring that even Black people living in free states were not protected by the Constitution. Were the citizens of those states not allowed, then, to establish laws they deemed worthwhile?
Blum ably paints Taney as a “zealous political advocate” and links him to today’s Supreme Court Chief Justice, John Roberts. Both men rose to the Supreme Court after spending years fighting highly partisan battles on behalf of conservative, often racist movements. For Taney, his affiliations with President Andrew Jackson, enforcer of the Indian Removal Act, culminated in the Dred Scott decision. For Roberts, his advocacy against the Voting Rights Act and for other Republican causes cut a path to the Trump v. United States ruling, which Blum and others have labeled the Supreme Court’s worst decision since Taney’s Dred Scott disaster.
In both cases, Taney and Roberts abandoned any pretense of nonpartisanship or adherence to key principles embedded in the Constitution in favor of winning a battle for their side. Neither judge worked alone, of course. Taney oversaw a court packed with current and past slaveholders while the Roberts court has been stacked with appointees vetted by the ultraconservative Federalist Society.
Fallout from the Taney court’s decision contributed to the Civil War, which was a conflict wrapped in white Christian nationalism and the notion that states’ rights should insulate Americans from one another, rather than bring us together in order to form that ever-elusive more perfect union.
Here we are again, enmeshed in the same struggles. The recent ruling on presidential immunity threatens to protect the President at the expense of the people and highlights the slipperiness of not only popular sovereignty, but of all the democratic constructs that supposedly protect U.S. citizens from their government.
We know these constructs, from the right to vote to the right to privacy, are myths rather than inalienable rights. The idea of popular sovereignty came to the United States from wealthy seventeenth-century English intellectuals like John Locke, who were not all that interested in a broad democracy. The will of the people, or the fury of the people, has long been feared and controlled rather than encouraged.
This remains true today, as Blum argues. The Roberts Court has overseen many upsetting decisions, including the 2022 Dobbs ruling that ended federal protections for abortion, giving states free reign to limit or ban the procedure. That puts state-level popular sovereignty in the driver’s seat, right? Not exactly.
Low voter participation rates, gerrymandering (which the current Supreme Court has enabled), and flaws embedded in the Constitution itself—including the Electoral College—deeply limit the public’s access to political power. While access to abortion remains widely popular, many people lack the ability to vote on it directly.
This is another reason why we should be skeptical when Trump attempts to hide behind popular sovereignty when it comes to abortion rights. After bragging about his role in ending Roe v. Wade, Trump has claimed the decision is now back in the hands of state legislatures, “where everyone wanted it to be.” That is factually inaccurate and serves as a stark reminder of an important truth in the United States: The will of the people is easily suppressed.