Of course, Paine was drawing from earlier instances of English history as Danielle refers to, and which were commented on during an earlier era by John Locke. While he is most cited in support of the natural liberties of man unrestrained by government, his entire argument rested upon man leaving the state of nature by agreeing to a common framework of government and laws that everyone would be judged by--paraphrasing--that everyone would in this transition delegate their own individual freedoms to a common magistrate who would render justice under these laws, as they retained their individual natural rights in case of tyranny. If, on the other hand, a people ceded that “absolute arbitrary power and will of a legislator” to an individual ruler, they would inevitably find “they have disarmed themselves, and armed him to make prey of them when he pleases.” Therefore, under a commonwealth or republican form of government, “the ruling power ought to govern by declared and received laws, and not by extemporary dictates.” Otherwise, “they shall have armed one or a few men” to govern them via their “sudden thoughts” or “unknown wills without having any measures set down which may guide and justify their actions.”
Let me just second all of this. What they were after is very clear: a balanced constitution led by the legislative branch. In our government the executive has overwhelmed the legislature. 😩
Charles, great points! Some of the most insightful writing about what the People accomplished in 1787-1791 (writing and ratifying our original Constitution with our Bill of Rights) was written by James Madison, including in Federalist Nos. 47, 48 and 51.
It is crucial to see (but is almost always overlooked) that in Federalist No. 48, Madison's negative statements and warnings about legislative powers were made in Madison's observations about "most of the American constitutions," i.e., about most state constitutions that existed in 1787. For example, Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. Even so, some of Madison's most important statements about state constitutions in Federalist 48 offer crucial insights about how and why the U.S. Constitution was framed:
"It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." "In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter." Of course, the People must not underestimate "the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations."
Even so, "[t]he legislative department derives a superiority in our governments from [ i]ts constitutional powers [which are] at once more extensive, and less susceptible of precise limits" than those of the executive or judicial departments. "[T]he executive power" is 'restrained within a narrower compass, and [is] more simple in its nature."
"[In our] representative republic, [ ] the executive magistracy is carefully limited; both in the extent and the duration of its power; and [] the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes."
Federalist No. 51:
The first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
"A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . [So] in all the subordinate distributions of power [ ] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."
Additional self-evident truths that are crucial to comprehending the text, structure and purpose of our Constitution include that "it is not [even] possible to give to each department [legislative, executive, and judicial] equal power;" moreover, [i]n republican government, the legislative authority necessarily predominates." The foregoing are emphasized by the Vesting Clause (the first sentence) and the Necessary and Proper Clause of Article I and the Supremacy Clause of Article VI (the People declared and established that federal "Laws" that were "made in Pursuance" of our Constitution are part of "the supreme Law of the Land").
The principle that permeates the provisions of our Constitution is that "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
Federalist No. 47:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
This is the kind of structural analysis I've been hoping to see. The "one person decides" framing cuts straight to the problem.
But here's what I keep running into when I think about this: Congress could stop executive overreach. They have the constitutional tools. They're choosing not to use them.
Your piece diagnoses the shift from legislative to executive power, but there's something deeper happening—it's not just systematic erosion, it was deliberate consolidation (https://statecraftblueprint.org/p/the-architecture-of-executive-power). And now individual members of Congress benefit personally or politically from not doing their institutional job.
When Trump uses some Justice Department interpretation to bypass Congress on Venezuela, Congress could just... change the law. Strip that interpretation. Reassert their authority. They won't, because:
Members who support Trump don't want to limit "their guy"
Members who oppose Trump would rather campaign on outrage than actually govern
Everyone's optimizing for their next election, not for institutional integrity
This is what I keep circling back to: What happens when people aren't doing what they're supposed to do? Not because of capture by external forces, but because personal/party incentives override institutional role?
The reforms you're proposing—fixing primaries, expanding Congress, cabinet secretaries in legislature—these attack the incentive problem. Which is right. But I think there's a missing piece: we don't have any institution whose job is to maintain the constitutional architecture itself.
We professionalized monetary policy with the Fed because we learned you can't leave it to whoever's in power. Maybe governance architecture needs the same treatment—professional staff whose job is designing and maintaining the system, insulated from the very incentives that are currently breaking it.
I don't know if that's the right answer. But the question keeps nagging at me: if Congress won't do its job because the incentives are wrong, how do we fix the incentives?
I think we're closer than it might seem. You're absolutely right that you can't insulate the design of democratic institutions from politics. But I don't think the GDA would do that - and I don't think the Fed actually does what you're describing either.
The Fed doesn't insulate monetary policy FROM politics. It separates the professional design/maintenance function from the political decision-making process - while keeping both democratically accountable.
Congress still sets the Fed's mandate (maximum employment, stable prices). Presidents appoint the Chair. The Fed reports to Congress. The institutional design itself is subject to democratic control.
What the Fed insulates is the day-to-day technical implementation from electoral cycles. Not "should we have monetary policy?" but "given our democratically-determined goals, what's the professional way to achieve them?"
Look at the all-party primary initiatives you're working on in Oregon, Oklahoma, and Massachusetts. These are governance architecture reforms - changing how elections work. And they're absolutely political - they affect who has power.
But someone had to actually DESIGN those systems. Who figured out the ranked choice mechanics? The ballot structure? The vote-counting procedures? The runoff rules? Professional designers did that work - political scientists, voting system experts, people who understand mechanism design. Then democratic processes decided whether to adopt it.
That's exactly what I'm talking about with the GDA: formalizing and professionalizing the work that's already being done.
Right now, governance design happens ad hoc - through think tanks, academic research, advocacy groups. No institutional continuity. No formal authority. No implementation pathway. The expertise gets lost every election cycle.
Democratic will sets the goals ("we want more representative elections," "we want legislative supremacy restored"). Professional expertise designs systems to achieve those goals. Democracy decides which designs to adopt.
Now scale that to federal governance architecture. Who designs a budget process that prevents shutdowns? Who redesigns congressional ethics enforcement? Who figures out how to structure committee assignments to reduce gridlock?
States can't do it - these are internal federal structures. Citizens can demand it - and should, that's what Partners in Democracy does! But who has the professional capacity to actually design the fixes and the institutional continuity to maintain them?
Your model and mine aren't either/or - they're complementary:
You build the civic capacity to demand better governance
The GDA builds the professional capacity to design it
Democracy decides which designs to adopt
Without civic engagement, the GDA would be technocratic capture. Without professional design capacity, civic engagement stays stuck at "something must change!" without knowing how to actually change it.
The work you're doing is essential. I just think it needs an institutional partner that can translate democratic will into functional governance architecture.
We are close. Question is whether civil society can develop and maintain the expertise or whether public sector is necessary. Partners In Democracy merges the expertise you're describing with civic engagement; it's not just the engagement side. Importantly, it's outside the party system. Your design would live inside the party system. I think the caretakers need to flow from "constituent power", rather than from "constituted power." So for me the question is how a durable network of civil society stewards can be built. It's achievable. Network of higher ed institutions have historically served as a steward of national intellectual culture. We have a private-public blend of that stewardship network. It would be very dangerous if we had only the public aspect.
You’ve put your finger on the exact tension I’ve been wrestling with. And I think you’re right that we need civil society stewardship - Partners in Democracy is doing essential work that shouldn’t be replaced.
But I want to push back on “your design would live inside the party system.”
The GDA wouldn’t be a cabinet department or congressional committee. It would be structured like the Fed - independent agency with professional staff, insulated from partisan control while remaining democratically accountable.
∙ Multi-year terms, staggered, can’t all be replaced at once (continuity across administrations)
∙ Bipartisan/nonpartisan board structure (not controlled by whichever party is in power)
∙ Professional deliberation with delayed public release of transcripts (allows honest discussion without political pressure, but maintains transparency)
∙ Independent funding (can’t be threatened with budget cuts for politically unpopular recommendations)
∙ Congress retains ultimate control over recommendations (more on this below)
This is constituted power serving constituent power - the people (through their representatives) create an institution to maintain what they’ve constituted.
On the higher ed model:
You’re right that networks of universities have served as stewards of intellectual culture. And I think civil society organizations like Partners in Democracy are essential for the same reason - they generate ideas, build expertise, create democratic demand.
But here’s what they can’t do: implement.
Universities can research voting systems. Nonprofits can design primary reforms. Think tanks can propose congressional rule changes. But as it stands, civil society has to educate enough of the population to develop demand and pressure Congress into implementing reforms. That’s a massive sustained effort for EACH reform - and even then, Congress can just… not do it.
And the audience for discussing congressional ethics is already quite small (as you’ve probably experienced). Multiply that difficulty across every governance architecture issue - budget process reform, committee assignment rules, ethics enforcement, etc. - and you see the problem. Civil society can build the demand, but Congress has every incentive to ignore it.
The GDA would be the entity that can take research from the private sector - universities, think tanks, organizations like Partners in Democracy - and actually implement it.
Right now we need Congress to do this. But given how Congress is functioning today and the incentives legislators face, that’s not happening. I don’t think we can rely on Congress to faithfully apply governance research to themselves and their own operations. The fox guarding the henhouse problem is too severe.
The question isn’t either/or - it’s both/and:
∙ Civil society generates innovative designs and builds democratic will (Partners in Democracy, think tanks, universities)
∙ Independent professional institutions provide implementation authority and continuity (the GDA)
∙ Democracy decides which designs to adopt and maintains ultimate control
Think about economic policy: We have BOTH the Brookings Institution AND the Federal Reserve. We have BOTH university economics departments AND professional Treasury staff. The civil society side generates ideas and critique. The government side implements and maintains.
On the implementation mechanism:
The GDA wouldn’t have power to auto-implement. That would be too technocratic.
What I’m envisioning:
∙ GDA publicly proposes specific design with full justification
∙ Congress has a window (say, 2 years) to either:
∙ Accept the recommendation (pass it into law)
∙ Propose alternative design (through normal legislative process)
∙ Explicitly reject it (active vote against)
The key difference from current state:
∙ Now: Congress debates in vacuum, no professional baseline, “do nothing” is easiest path
∙ With GDA: Professional recommendation exists publicly, Congress chooses between “adopt this,” “propose better alternative,” or “reject and explain why”
The transparency creates pressure. Congress isn’t just choosing whether to act - they’re choosing whether to accept professional guidance, propose their own design, or reject reform entirely. All three positions are visible and must be defended.
What checks the GDA in a system of checks and balances?
The GDA would separate policy from architecture, but what checks the architects?
∙ Congressional check: Window to accept, propose alternatives, or reject recommendations (democratic veto preserved)
∙ Transparency check: Methodology public, transcripts eventually released, all recommendations publicly justified
∙ Judicial check: Constitutional challenges possible
∙ Scope check: Limited to governance architecture, can’t touch policy
∙ Funding independence: Can’t be threatened with budget cuts, but also can’t expand mission without democratic approval
The GDA can’t force implementation - it can only design and recommend. Congress retains full power to accept, modify, or reject. But the default shifts from “nothing changes unless Congress acts” to “professional recommendation exists, now Congress must respond to it.”
Here’s what I think we both want:
∙ Professional expertise in governance design (you’re building this, I want to formalize it)
∙ Independence from partisan capture (not serving whichever party is in power)
∙ Sustained capacity across electoral cycles (not starting from scratch every administration)
The question is whether civil society can provide all four, or whether some need formal institutionalization.
I think civil society excels at generating innovation, building democratic demand, and maintaining independence from government. But it struggles with sustained implementation authority across time - and it fundamentally lacks the power to actually change government structures.
What am I missing about how civil society could achieve implementation authority and sustained continuity?
The stewards are the people. Us. We can change state law to change the federal system. That’s the important thing to remember. The fifty states are the caretakers of the institutions. We don’t need a new agency. I think that’s the missing piece you’re looking for.
You're right that ultimate authority rests with the people acting through the states. But I think there's a feedback loop problem - and a crucial distinction we need to make explicit.
States can influence federal policy. They can't maintain federal governance architecture.
States absolutely can and do affect federal policy - model legislation, demonstration projects, coalition building. But we're not talking about policy. We're talking about how the federal government itself operates structurally.
If the states are the caretakers of federal governance architecture, what's preventing them from maintaining it right now?
States can't change how Congress operates internally. They can't redesign the budget process. They can't fix the structural relationship between branches. They can't create professional continuity across administrations. The only mechanism they have is Article V constitutional amendment - which requires 2/3 agreement and is limited to what fits in constitutional text, not the detailed governance architecture that actually makes systems work.
Beyond the constitutional limits, states face a coordination problem (50 different perspectives on what reform means), a collective action problem (why should any single state bear the cost?), and an expertise problem (who in state legislatures has professional governance architecture training?).
More fundamentally, there's no feedback mechanism to detect drift, diagnose causes, design fixes, coordinate implementation, and evaluate results. Without these loops, "the people as stewards" becomes "the people notice problems, complain, nothing changes." Which is exactly what we're seeing right now.
The Fed analogy applies here: Congress had constitutional authority over monetary policy. But direct democratic/legislative control produced chaos because complex systems need professional maintenance. The Fed didn't replace congressional authority - it created institutional capacity to make that authority effective.
I think we need the same for governance architecture. Not to replace the states as caretakers, but to give them professional institutional support for actually maintaining the system.
Think of it this way: shareholders are the ultimate caretakers of a corporation. But they can't maintain the company without a board, executives, and professional management to close the feedback loops between detection and action.
What institutional structure do the states have right now for coordinating constitutional maintenance? What professional expertise? What continuity across electoral cycles? What mechanism to detect drift, diagnose causes, and implement fixes?
That's the missing feedback loop the GDA would close - not replacing popular sovereignty, but enabling it to actually function at the institutional level.
[Edit: After posting, I realized I hadn't made explicit the most important distinction: states CAN influence federal policy through various means, but they can't maintain federal governance architecture. Added that clarification above because it's the core of why professional governance design needs to be separated from policymaking.]
The freedoms of expression, communication and association that are secured by the First Amendment include litigation. As SCOTUS emphasized in 2023 in 303 Creative LLC v. Elenis:
“The First Amendment” means “all persons are free to think and speak as they wish, not as the government demands.” It secures the “freedom to think as you will” and “speak as you think.” Such freedom “extends to all persons engaged in expressive conduct, including those who seek profit.” Its “protections belong to all, including” attorneys “whose motives” judges consider “misinformed or offensive.” It “protects” a lawyer's or litigant's “right to speak his mind regardless of whether the government considers his speech sensible” or “misguided,” even if it causes judges “anguish” or “incalculable grief.”
“All manner of speech” (including litigation) enjoys “First Amendment’s protections.” “A commitment to speech for only some messages and some persons is no commitment at all.”
“The freedom of thought and speech” is “indispensable to the discovery and spread of political truth.” “[A]llowing all views to flourish” is necessary to “test and improve our own thinking” as “individuals and as a Nation,” so it is a “fixed star in our constitutional constellation” that “government may not interfere” with the “marketplace of ideas” about whether the conduct of public servants is constitutional or criminal.
Even in 1774, the First Continental Congress (comprising many attorneys, including John Adams) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
Jason, state and federal judges and lawyers admitted to practice before state and federal courts could be and should be a big part of the solution. But too few know enough and care enough about how our Constitution actually works (is designed to work) to make enough of a difference. Far too many lawyers, law professors and judges simply don't see violations of our Constitution.
Far too often, those who do see the violations dismiss or acquiesce in them by saying things like "that's how our Constitution should work, but it's not how it works in practice." Too many too often act as if our Constitution (the paramount law in the supreme law of the land) is largely irrelevant. Too many pretend or presume that what mere judges say about our Constitution matters far more than what our Constitution actually says and means. Far too often, judges ignore or knowingly violate our Constitution. In far too many instances, we do not enjoy the rule of law; we are subject to the rule by outlaws.
The legal culture in this country (lawyers, law professors and judges) needs to change with better education about what our Constitution says and means and why that matters. That's the reason I write.
Danielle, I beg to differ regarding a crucial point. The reason I wrote about James Wilson was to show that he was correct. Of course, you're also correct that many of us (like you and your organization) serve as stewards. Even so, the People, generally, are not stewards. As Wilson emphasized, our Constitution established and emphasized that the We the People are sovereigns.
As a unanimous SCOTUS emphasized in New York Times Co. v. Sullivan (often quoting James Madison) (and a different SCOTUS in Citizens United), our status as sovereigns necessarily implies that we have duties as sovereigns. As SCOTUS emphasized in Sullivan:
"Madison [emphasized vital principles that permeated every part of our system of national government, i.e.,] that the [original] Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government [prescribed by our Constitution] dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown [or Parliament] was sovereign and the people were [mere] subjects."
"It is as much" the "duty" of "the citizen-critic of government" to "criticize as it is the official’s duty to administer." All “public officials” are “public servants” and “public men” are “public property,” so “discussion cannot be denied and the right” and “the duty” of “criticism must not be stifled.”
SCOTUS in Sullivan re-emphasized the duty we owe to ourselves, our predecessors and our posterity as Justice Brandeis emphasized in his concurring opinion in Whitney v. California: "Those who [sacrificed their own lives, liberty and property to secure] our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government."
You highlighted well the extreme but subtle tension between the thoughts and words of Paine and Jack Goldsmith, between the truth by people who write for the People (Paine) and the distortion of truth by people too accustomed to writing for people in power (Goldsmith).
Paine spoke the truth about our Constitution. Goldsmith, perhaps with the best of intentions, bore false witness against our Constitution. Paine spoke for the People, our Constitution, and the American conception of the rule the law, and he spoke the truth about all the foregoing and about our public servants. Goldsmith may have meant to speak for the same, but he actually and emphatically spoke against them all to misrepresent that our public servants somehow were "given" the power to usurp powers that the People, our Constitution, and the American conception of the rule the law expressly denied to all our public servants.
As you highlighted, Paine highlighted that “The People could form a charter for themselves and then [merely] delegate [limited] authority to officials,” all of whom are our public servants. Like Paine, you highlighted the truth about the People, our public servants, our Constitution, and the American conception of the rule the law:
“the American story gave birth to self-determination. A People forms itself, sets boundaries [for our public servants], pools resources, and structures law to govern how its deputies [our public servants] deploy those resources. As Paine put it, ‘in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.’ ”
Goldsmith said essentially that all the foregoing meant exactly the opposite of what it truly meant:
“our country has — through [mere] presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence — [as if by magic somehow] given one person, the president, a sprawling military and enormous discretion. … That is our system: One person decides.”
Paine was a true prophet of the truth and a true prophet for the People and our Constitution. Goldsmith, for all his good intentions, is a false prophet. He undermines the People and our Constitution by presuming that the People and our Constitution somehow have “given” our public servants the power to violate our Constitution to do exactly what the People and our Constitution emphatically and explicitly say that our public servants have no power to do.
Paine's pamphlet was phenomenally powerful and important. You're right that Americans should study it. Then Americans should study two additional "pamphlets" that are at least as phenomenally powerful and important. Americans should read particular parts of our Constitution, starting with the Preamble and Article VI, then Amendment X (expressly emphasizing that the People merely "delegated" limited power to national government and "reserved" powers "to the people"), and then the Vesting Clause and the Necessary and Proper Clause of Article I and then the Vesting Clauses of Articles II and III.
Then Americans should read the pamphlet written by Chief Justice John Marshal in 1803 as the official opinion of the U.S. Supreme Court and SCOTUS justices in Marbury v. Madison about the meaning of the foregoing parts of our Constitution. The SCOTUS justices published their pamphlet/opinion in 1803, when multitudes who risked and sacrificed tremendously for the American Revolution that culminated in our Constitution with our Bill of Rights were still alive to judge the truth of the justices' writing. SCOTUS justices repeatedly emphasized the opposite of Goldsmith, above.
“The government of the United States has been emphatically termed a government of laws, and not of men.” "The constitution is" necessarily the "superior, paramount law, unchangeable by ordinary means," i.e., by our public servants. So "the constitution is to be considered, in court, as a paramount law," and "courts" cannot "close their eyes on the constitution, and see only [some other purported] law." The same is true of the People and all our public servants.
"[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States [enacted by our public servants, so those laws] only which shall be made in pursuance of the constitution, have that rank [of being part of the supreme law of the land]. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle [that is] essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as [all] other departments [and judges and all other public servants], are bound by that instrument," i.e., our Constitution.
"Certainly all those who have framed written constitutions" (especially constitutions that were ratified by the People) "contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
Any "act of the legislature" (any purported law purportedly granting the President unconstitutional powers) "repugnant to the constitution, is void." So any "act of" any other purported public servant "repugnant to the constitution, is void." Any purported doctrine (e.g., the invocation of the so-called Monroe Doctrine to support Trump's Venezuela invasion) by which the President usurps powers "repugnant to the constitution, is void." Any other purported theory or "doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory."
"[T]he language of the constitution is addressed especially to the courts. It prescribes, directly for them, [rules] not to be departed from." "From these, and many other [provisions of our Constitution], it is apparent, that the framers of the constitution contemplated that instrument [our Constitution], as a rule for the government of courts, as well as of the legislature," as well as of the President and all other executive and judicial officers (including all attorneys).
"Why otherwise does it direct the judges" (all our most powerful or influential public servants and even all lawyers) "to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character." All "judge[s]" (all our most powerful or influential public servants and even all lawyers) "swear to discharge [their] duties agreeably to the constitution of the United States" so "that constitution forms" the "rule for [the] government" for all our public servants--each and every one in every position of any real power--and even all lawyers.
But please consider that the words of SCOTUS in Marbury v. Madison aren't arguments. They are clarifications of the meaning of the words that We the People included in our Constitution. In 1803, Chief Justice John Marshall and SCOTUS devoted their opinion to showing the people of that time, as well as their posterity, how and why the Preamble and Article VI (the Supremacy Clause and the Oath Clause) and the Vesting Clauses of Articles I, II and III, the Necessary and Proper Clause of Article I and the Oath Clause of Article II established that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.”
Many lawyers and judges use many tricks and schemes (including so-called judicial doctrines and purported precedent) to undermine our Constitution and turn courts into instruments of the opposite--a government of mere men (judges) and not of laws. SCOTUS justices highlight that problem constantly with the shadow docket, the process of granting or denying cert., and even how they write their opinions these days to include flagrant falsehoods about our Constitution and our history in virtually, if not actually, every case pertaining to Trump or partisan gerrymandering.
Too many lawyers and judges violate their oaths to fulfill their first and constant duty, which is to support our Constitution. Too many lawyers and judges have worked too long to use courts to subvert the primary founding principle of our Constitution and our nation. They pretend that what judges say and do is more important than the actual supreme law of the land.
Danielle, thank you for highlighting how Trump is egregiously abusing and misrepresenting the concept of sovereignty to attack and undermine our Constitution! Thanks in part to your prior writing about "Our Declaration" and about James Wilson, we can see the truth about sovereignty and sovereign power under our Constitution.
As you highlighted previously, Wilson signed our Declaration and our Constitution and then served as a SCOTUS justice. Wilson was the only person who participated in authoring our Declaration of Independence and our Constitution and also authored U.S. Supreme Court opinions. Wilson's speeches and writings also were instrumental in securing the ratification of our original Constitution. In his speeches and writings, Wilson provided some of the most insightful and most accurate statements about sovereignty and sovereign power available today.
After our Constitution was written but before it was ratified, Wilson emphasized crucial truths about sovereignty and sovereign power and about how those concepts always have been abused and misrepresented by people in power. He did so, for example, at the Pennsylvania ratifying convention to explain to people why they should ratify our Constitution (securing the sovereignty of the people) and how they had the power to ratify our Constitution (because of the sovereignty of the people) despite provisions of state constitutions (and even the Articles of Confederation) to the contrary.
Wilson accepted the common definition of “sovereign power” as “a supreme, absolute and uncontrollable authority.” He recognized that, before the American Revolution, Americans believed, as “Blackstone will tell you, that in Britain” (including colonial America), sovereign power “is lodged in the British parliament.” He also acknowledged that after the Revolutionary War, too many “politician[s], who had not considered the subject with sufficient accuracy,” said “the supreme power resided in our governments” according to “State constitutions.”
“[T]he truth,” Wilson emphasized, “is, that the supreme, absolute and uncontrollable authority, remains with the people” despite anything to the contrary in any state constitution or even in the Articles of Confederation. “The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.” But “the practical recognition of this truth was reserved for the honor of this country.”
Our Constitution emphasizes that “the supreme power” necessarily “resides in the PEOPLE, as the fountain of government” and “the people have not--that the people mean not--and that the people ought not, to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.”
It is important to see that Wilson said and wrote such assertions to explain to people why they should ratify our Constitution and how they had the power to ratify our Constitution despite provisions of state constitutions and even the Articles of Confederation to the contrary. After our Constitution was ratified and as a SCOTUS Justice, Wilson continued to write about the sovereignty and the supremacy of the people, but his writing was radically different in a crucial respect. Wison did not contend that the people continued to have any “absolute” or “uncontrollable” power—because such power was “despotic” and no one had such power under our Constitution.
Justice Wilson’s 1793 opinion in Chisholm v. Georgia remains some of the most important and insightful writing about our Constitution today. His writing about the sovereignty of the people was echoed by Chief Justice John Jay (who helped write the Federalist Papers and the New York Constitution) in Jay’s separate opinion in Chisholm, as well as by Justice James Iredell in 1795 in a dissenting opinion in Penhallow v. Doane’s Administrators.
The sovereignty of the people and Justice Wilson’s opinion in Chisholm also were addressed in considerable detail in 1999 in Alden v. Maine, in both the majority and the dissenting opinions. The Alden dissenters also emphasized a crucial aspect of popular sovereignty and our Constitution that is relevant regarding public servants who violate our Constitution. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.” They were quoting SCOTUS precedent in Poindexter v. Greenhow (1885).
Alexander Hamilton emphasized something similar in The Federalist No. 83: “Wilful abuses of a public authority, to the oppression of” the people “are offenses against the government” (not actions of the government) “for which the persons who commit them may be indicted and punished” (criminally) “according to the circumstances of the case.”
In Poindexter, SCOTUS was even more emphatic:
“The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that” SCOTUS already had decided very important cases.
“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] ‘L’Etat c’est moi.’ ”
In Chisholm, Justice Wilson said much that is well worth studying about the sovereignty of the people. Some of his most important statements were about abuses, misrepresentations or misconceptions about sovereignty and the “many of the volumes of confusion concerning sovereignty.” “The perverted use of genus and Species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and [so-called] Sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those, who wished and meant to be free.”
In our Constitution, the “authority” of the “State” “is declared,” while “the authority” of the “sovereign” “is implied only.” Only “those, who ordained and established [our] Constitution” could “have announced themselves 'SOVEREIGN' people of the United States.”
The primary problem with the sovereignty of the people is that our public servants are continuously trying to usurp our sovereignty so that they can impose “despotic government.” “Even in almost every nation, which has been denominated free, the State has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of State independence, State Sovereignty and State Supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the State and the people: Hence all arbitrary doctrines and pretentions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the State as well as the man is degraded.”
“[A]s described by Sir William Blackstone . . . the British is a despotic Government. It is a Government without a people. In that Government, as so described, the Sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere” (except under our Constitution). “In the United States, and in the several States, which compose the Union, we go not so far.” Nobody has absolute, uncontrollable, despotic power under our Constitution.
Thanks for another great essay on the philosophical foundations of U.S. democracy. Wilson was one of the best articulators of the popular basis of our government.
Of course, Paine was drawing from earlier instances of English history as Danielle refers to, and which were commented on during an earlier era by John Locke. While he is most cited in support of the natural liberties of man unrestrained by government, his entire argument rested upon man leaving the state of nature by agreeing to a common framework of government and laws that everyone would be judged by--paraphrasing--that everyone would in this transition delegate their own individual freedoms to a common magistrate who would render justice under these laws, as they retained their individual natural rights in case of tyranny. If, on the other hand, a people ceded that “absolute arbitrary power and will of a legislator” to an individual ruler, they would inevitably find “they have disarmed themselves, and armed him to make prey of them when he pleases.” Therefore, under a commonwealth or republican form of government, “the ruling power ought to govern by declared and received laws, and not by extemporary dictates.” Otherwise, “they shall have armed one or a few men” to govern them via their “sudden thoughts” or “unknown wills without having any measures set down which may guide and justify their actions.”
Let me just second all of this. What they were after is very clear: a balanced constitution led by the legislative branch. In our government the executive has overwhelmed the legislature. 😩
Charles, great points! Some of the most insightful writing about what the People accomplished in 1787-1791 (writing and ratifying our original Constitution with our Bill of Rights) was written by James Madison, including in Federalist Nos. 47, 48 and 51.
It is crucial to see (but is almost always overlooked) that in Federalist No. 48, Madison's negative statements and warnings about legislative powers were made in Madison's observations about "most of the American constitutions," i.e., about most state constitutions that existed in 1787. For example, Madison quoted Thomas Jefferson in Jefferson's "Notes on the State of Virginia" (which were written before the Virginia Constitution, but which continued to apply to the Virginia Constitution because of its defects):
"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands, is precisely the definition of despotic government. It will be no alleviation, that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. . . . An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
Remedying the dangerous defects in state constitutions was the primary reason for the push for a national constitution. Even so, some of Madison's most important statements about state constitutions in Federalist 48 offer crucial insights about how and why the U.S. Constitution was framed:
"It will not be denied, that [all] power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it." "In a democracy, where a multitude of people exercise in person the legislative functions, and are continually exposed, by their incapacity for regular deliberation and concerted measures, to the ambitious intrigues of their executive magistrates, tyranny may well be apprehended, on some favorable emergency, to start up in the same quarter." Of course, the People must not underestimate "the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations."
Even so, "[t]he legislative department derives a superiority in our governments from [ i]ts constitutional powers [which are] at once more extensive, and less susceptible of precise limits" than those of the executive or judicial departments. "[T]he executive power" is 'restrained within a narrower compass, and [is] more simple in its nature."
"[In our] representative republic, [ ] the executive magistracy is carefully limited; both in the extent and the duration of its power; and [] the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes."
Federalist No. 51:
The first and most fundamental truth about the "separate and distinct exercise of the different powers of government" is that it was implemented in our Constitution because it is "essential to the preservation of liberty." Of course, "each department should have a will of its own" but we must never forget that all "executive, legislative, and judiciary" authority is "drawn from the same fountain of authority, the people."
"A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. . . . [So] in all the subordinate distributions of power [ ] the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights."
Additional self-evident truths that are crucial to comprehending the text, structure and purpose of our Constitution include that "it is not [even] possible to give to each department [legislative, executive, and judicial] equal power;" moreover, [i]n republican government, the legislative authority necessarily predominates." The foregoing are emphasized by the Vesting Clause (the first sentence) and the Necessary and Proper Clause of Article I and the Supremacy Clause of Article VI (the People declared and established that federal "Laws" that were "made in Pursuance" of our Constitution are part of "the supreme Law of the Land").
The principle that permeates the provisions of our Constitution is that "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."
Federalist No. 47:
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" (no matter how they are given or usurp such power) "may justly be pronounced the very definition of tyranny." "[T]he preservation of liberty requires that the three great departments of power should be separate and distinct. The oracle who is always consulted and cited on this subject is the celebrated Montesquieu."
"Montesquieu" was famous for emphasizing the following. "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers." "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR."
This is the kind of structural analysis I've been hoping to see. The "one person decides" framing cuts straight to the problem.
But here's what I keep running into when I think about this: Congress could stop executive overreach. They have the constitutional tools. They're choosing not to use them.
Your piece diagnoses the shift from legislative to executive power, but there's something deeper happening—it's not just systematic erosion, it was deliberate consolidation (https://statecraftblueprint.org/p/the-architecture-of-executive-power). And now individual members of Congress benefit personally or politically from not doing their institutional job.
When Trump uses some Justice Department interpretation to bypass Congress on Venezuela, Congress could just... change the law. Strip that interpretation. Reassert their authority. They won't, because:
Members who support Trump don't want to limit "their guy"
Members who oppose Trump would rather campaign on outrage than actually govern
Everyone's optimizing for their next election, not for institutional integrity
This is what I keep circling back to: What happens when people aren't doing what they're supposed to do? Not because of capture by external forces, but because personal/party incentives override institutional role?
The reforms you're proposing—fixing primaries, expanding Congress, cabinet secretaries in legislature—these attack the incentive problem. Which is right. But I think there's a missing piece: we don't have any institution whose job is to maintain the constitutional architecture itself.
We professionalized monetary policy with the Fed because we learned you can't leave it to whoever's in power. Maybe governance architecture needs the same treatment—professional staff whose job is designing and maintaining the system, insulated from the very incentives that are currently breaking it.
I don't know if that's the right answer. But the question keeps nagging at me: if Congress won't do its job because the incentives are wrong, how do we fix the incentives?
I founded this non profit to be this kind of steward: https://partnersindemocracy.us/
So I agree with you about the need to produce institutional capacity.
But I think the metaphor to the Fed breaks down. The Fed is also supposed to insulate monetary policy from politics.
I think it is impossible to insulate design of democratic institutions from politics and therefore no way to shortcircuit this work AS politics.
My mission is to help people embrace this work as being as important to their civic role as working on/pitching in for candidates.
I think we're closer than it might seem. You're absolutely right that you can't insulate the design of democratic institutions from politics. But I don't think the GDA would do that - and I don't think the Fed actually does what you're describing either.
The Fed doesn't insulate monetary policy FROM politics. It separates the professional design/maintenance function from the political decision-making process - while keeping both democratically accountable.
Congress still sets the Fed's mandate (maximum employment, stable prices). Presidents appoint the Chair. The Fed reports to Congress. The institutional design itself is subject to democratic control.
What the Fed insulates is the day-to-day technical implementation from electoral cycles. Not "should we have monetary policy?" but "given our democratically-determined goals, what's the professional way to achieve them?"
Look at the all-party primary initiatives you're working on in Oregon, Oklahoma, and Massachusetts. These are governance architecture reforms - changing how elections work. And they're absolutely political - they affect who has power.
But someone had to actually DESIGN those systems. Who figured out the ranked choice mechanics? The ballot structure? The vote-counting procedures? The runoff rules? Professional designers did that work - political scientists, voting system experts, people who understand mechanism design. Then democratic processes decided whether to adopt it.
That's exactly what I'm talking about with the GDA: formalizing and professionalizing the work that's already being done.
Right now, governance design happens ad hoc - through think tanks, academic research, advocacy groups. No institutional continuity. No formal authority. No implementation pathway. The expertise gets lost every election cycle.
Democratic will sets the goals ("we want more representative elections," "we want legislative supremacy restored"). Professional expertise designs systems to achieve those goals. Democracy decides which designs to adopt.
Now scale that to federal governance architecture. Who designs a budget process that prevents shutdowns? Who redesigns congressional ethics enforcement? Who figures out how to structure committee assignments to reduce gridlock?
States can't do it - these are internal federal structures. Citizens can demand it - and should, that's what Partners in Democracy does! But who has the professional capacity to actually design the fixes and the institutional continuity to maintain them?
Your model and mine aren't either/or - they're complementary:
You build the civic capacity to demand better governance
The GDA builds the professional capacity to design it
Democracy decides which designs to adopt
Without civic engagement, the GDA would be technocratic capture. Without professional design capacity, civic engagement stays stuck at "something must change!" without knowing how to actually change it.
The work you're doing is essential. I just think it needs an institutional partner that can translate democratic will into functional governance architecture.
What am I missing?
We are close. Question is whether civil society can develop and maintain the expertise or whether public sector is necessary. Partners In Democracy merges the expertise you're describing with civic engagement; it's not just the engagement side. Importantly, it's outside the party system. Your design would live inside the party system. I think the caretakers need to flow from "constituent power", rather than from "constituted power." So for me the question is how a durable network of civil society stewards can be built. It's achievable. Network of higher ed institutions have historically served as a steward of national intellectual culture. We have a private-public blend of that stewardship network. It would be very dangerous if we had only the public aspect.
You’ve put your finger on the exact tension I’ve been wrestling with. And I think you’re right that we need civil society stewardship - Partners in Democracy is doing essential work that shouldn’t be replaced.
But I want to push back on “your design would live inside the party system.”
The GDA wouldn’t be a cabinet department or congressional committee. It would be structured like the Fed - independent agency with professional staff, insulated from partisan control while remaining democratically accountable.
Here’s how that works:
∙ Presidential appointments, Senate confirmation (democratic legitimacy)
∙ Multi-year terms, staggered, can’t all be replaced at once (continuity across administrations)
∙ Bipartisan/nonpartisan board structure (not controlled by whichever party is in power)
∙ Professional deliberation with delayed public release of transcripts (allows honest discussion without political pressure, but maintains transparency)
∙ Independent funding (can’t be threatened with budget cuts for politically unpopular recommendations)
∙ Congress retains ultimate control over recommendations (more on this below)
This is constituted power serving constituent power - the people (through their representatives) create an institution to maintain what they’ve constituted.
On the higher ed model:
You’re right that networks of universities have served as stewards of intellectual culture. And I think civil society organizations like Partners in Democracy are essential for the same reason - they generate ideas, build expertise, create democratic demand.
But here’s what they can’t do: implement.
Universities can research voting systems. Nonprofits can design primary reforms. Think tanks can propose congressional rule changes. But as it stands, civil society has to educate enough of the population to develop demand and pressure Congress into implementing reforms. That’s a massive sustained effort for EACH reform - and even then, Congress can just… not do it.
And the audience for discussing congressional ethics is already quite small (as you’ve probably experienced). Multiply that difficulty across every governance architecture issue - budget process reform, committee assignment rules, ethics enforcement, etc. - and you see the problem. Civil society can build the demand, but Congress has every incentive to ignore it.
The GDA would be the entity that can take research from the private sector - universities, think tanks, organizations like Partners in Democracy - and actually implement it.
Right now we need Congress to do this. But given how Congress is functioning today and the incentives legislators face, that’s not happening. I don’t think we can rely on Congress to faithfully apply governance research to themselves and their own operations. The fox guarding the henhouse problem is too severe.
The question isn’t either/or - it’s both/and:
∙ Civil society generates innovative designs and builds democratic will (Partners in Democracy, think tanks, universities)
∙ Independent professional institutions provide implementation authority and continuity (the GDA)
∙ Democracy decides which designs to adopt and maintains ultimate control
Think about economic policy: We have BOTH the Brookings Institution AND the Federal Reserve. We have BOTH university economics departments AND professional Treasury staff. The civil society side generates ideas and critique. The government side implements and maintains.
On the implementation mechanism:
The GDA wouldn’t have power to auto-implement. That would be too technocratic.
What I’m envisioning:
∙ GDA publicly proposes specific design with full justification
∙ Congress has a window (say, 2 years) to either:
∙ Accept the recommendation (pass it into law)
∙ Propose alternative design (through normal legislative process)
∙ Explicitly reject it (active vote against)
The key difference from current state:
∙ Now: Congress debates in vacuum, no professional baseline, “do nothing” is easiest path
∙ With GDA: Professional recommendation exists publicly, Congress chooses between “adopt this,” “propose better alternative,” or “reject and explain why”
The transparency creates pressure. Congress isn’t just choosing whether to act - they’re choosing whether to accept professional guidance, propose their own design, or reject reform entirely. All three positions are visible and must be defended.
What checks the GDA in a system of checks and balances?
The GDA would separate policy from architecture, but what checks the architects?
∙ Appointment check: Presidential nomination, Senate confirmation
∙ Congressional check: Window to accept, propose alternatives, or reject recommendations (democratic veto preserved)
∙ Transparency check: Methodology public, transcripts eventually released, all recommendations publicly justified
∙ Judicial check: Constitutional challenges possible
∙ Scope check: Limited to governance architecture, can’t touch policy
∙ Funding independence: Can’t be threatened with budget cuts, but also can’t expand mission without democratic approval
The GDA can’t force implementation - it can only design and recommend. Congress retains full power to accept, modify, or reject. But the default shifts from “nothing changes unless Congress acts” to “professional recommendation exists, now Congress must respond to it.”
Here’s what I think we both want:
∙ Professional expertise in governance design (you’re building this, I want to formalize it)
∙ Democratic accountability (not technocratic control)
∙ Independence from partisan capture (not serving whichever party is in power)
∙ Sustained capacity across electoral cycles (not starting from scratch every administration)
The question is whether civil society can provide all four, or whether some need formal institutionalization.
I think civil society excels at generating innovation, building democratic demand, and maintaining independence from government. But it struggles with sustained implementation authority across time - and it fundamentally lacks the power to actually change government structures.
What am I missing about how civil society could achieve implementation authority and sustained continuity?
The stewards are the people. Us. We can change state law to change the federal system. That’s the important thing to remember. The fifty states are the caretakers of the institutions. We don’t need a new agency. I think that’s the missing piece you’re looking for.
You're right that ultimate authority rests with the people acting through the states. But I think there's a feedback loop problem - and a crucial distinction we need to make explicit.
States can influence federal policy. They can't maintain federal governance architecture.
States absolutely can and do affect federal policy - model legislation, demonstration projects, coalition building. But we're not talking about policy. We're talking about how the federal government itself operates structurally.
If the states are the caretakers of federal governance architecture, what's preventing them from maintaining it right now?
States can't change how Congress operates internally. They can't redesign the budget process. They can't fix the structural relationship between branches. They can't create professional continuity across administrations. The only mechanism they have is Article V constitutional amendment - which requires 2/3 agreement and is limited to what fits in constitutional text, not the detailed governance architecture that actually makes systems work.
Beyond the constitutional limits, states face a coordination problem (50 different perspectives on what reform means), a collective action problem (why should any single state bear the cost?), and an expertise problem (who in state legislatures has professional governance architecture training?).
More fundamentally, there's no feedback mechanism to detect drift, diagnose causes, design fixes, coordinate implementation, and evaluate results. Without these loops, "the people as stewards" becomes "the people notice problems, complain, nothing changes." Which is exactly what we're seeing right now.
The Fed analogy applies here: Congress had constitutional authority over monetary policy. But direct democratic/legislative control produced chaos because complex systems need professional maintenance. The Fed didn't replace congressional authority - it created institutional capacity to make that authority effective.
I think we need the same for governance architecture. Not to replace the states as caretakers, but to give them professional institutional support for actually maintaining the system.
Think of it this way: shareholders are the ultimate caretakers of a corporation. But they can't maintain the company without a board, executives, and professional management to close the feedback loops between detection and action.
What institutional structure do the states have right now for coordinating constitutional maintenance? What professional expertise? What continuity across electoral cycles? What mechanism to detect drift, diagnose causes, and implement fixes?
That's the missing feedback loop the GDA would close - not replacing popular sovereignty, but enabling it to actually function at the institutional level.
[Edit: After posting, I realized I hadn't made explicit the most important distinction: states CAN influence federal policy through various means, but they can't maintain federal governance architecture. Added that clarification above because it's the core of why professional governance design needs to be separated from policymaking.]
The freedoms of expression, communication and association that are secured by the First Amendment include litigation. As SCOTUS emphasized in 2023 in 303 Creative LLC v. Elenis:
“The First Amendment” means “all persons are free to think and speak as they wish, not as the government demands.” It secures the “freedom to think as you will” and “speak as you think.” Such freedom “extends to all persons engaged in expressive conduct, including those who seek profit.” Its “protections belong to all, including” attorneys “whose motives” judges consider “misinformed or offensive.” It “protects” a lawyer's or litigant's “right to speak his mind regardless of whether the government considers his speech sensible” or “misguided,” even if it causes judges “anguish” or “incalculable grief.”
“All manner of speech” (including litigation) enjoys “First Amendment’s protections.” “A commitment to speech for only some messages and some persons is no commitment at all.”
“The freedom of thought and speech” is “indispensable to the discovery and spread of political truth.” “[A]llowing all views to flourish” is necessary to “test and improve our own thinking” as “individuals and as a Nation,” so it is a “fixed star in our constitutional constellation” that “government may not interfere” with the “marketplace of ideas” about whether the conduct of public servants is constitutional or criminal.
Even in 1774, the First Continental Congress (comprising many attorneys, including John Adams) emphasized that “freedom of the press” was among Americans’ “great rights” because it served the “advancement of truth” and “diffusion of liberal sentiments on the administration of Government,” including so that “oppressive officers” can be “shamed or intimidated, into more honourable and just modes of conducting [public] affairs.” Roth v. United States, 354 U.S. 476, 484 (1957).
Jason, state and federal judges and lawyers admitted to practice before state and federal courts could be and should be a big part of the solution. But too few know enough and care enough about how our Constitution actually works (is designed to work) to make enough of a difference. Far too many lawyers, law professors and judges simply don't see violations of our Constitution.
Far too often, those who do see the violations dismiss or acquiesce in them by saying things like "that's how our Constitution should work, but it's not how it works in practice." Too many too often act as if our Constitution (the paramount law in the supreme law of the land) is largely irrelevant. Too many pretend or presume that what mere judges say about our Constitution matters far more than what our Constitution actually says and means. Far too often, judges ignore or knowingly violate our Constitution. In far too many instances, we do not enjoy the rule of law; we are subject to the rule by outlaws.
The legal culture in this country (lawyers, law professors and judges) needs to change with better education about what our Constitution says and means and why that matters. That's the reason I write.
Jason, state Attorneys General coordinate to do some of what you inquired about. See, e.g., https://www.morganlewis.com/pubs/2025/04/staying-ahead-of-state-attorneys-general-enforcement-trends
Regarding the allusion to Citizens United in my previous reply, please consider "We the People Should Use Citizens United" https://blackcollarcrime.substack.com/p/we-the-people-should-use-citizens?r=30ufvh
Danielle, I beg to differ regarding a crucial point. The reason I wrote about James Wilson was to show that he was correct. Of course, you're also correct that many of us (like you and your organization) serve as stewards. Even so, the People, generally, are not stewards. As Wilson emphasized, our Constitution established and emphasized that the We the People are sovereigns.
As a unanimous SCOTUS emphasized in New York Times Co. v. Sullivan (often quoting James Madison) (and a different SCOTUS in Citizens United), our status as sovereigns necessarily implies that we have duties as sovereigns. As SCOTUS emphasized in Sullivan:
"Madison [emphasized vital principles that permeated every part of our system of national government, i.e.,] that the [original] Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government [prescribed by our Constitution] dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels. This form of government was ‘altogether different’ from the British form, under which the Crown [or Parliament] was sovereign and the people were [mere] subjects."
"It is as much" the "duty" of "the citizen-critic of government" to "criticize as it is the official’s duty to administer." All “public officials” are “public servants” and “public men” are “public property,” so “discussion cannot be denied and the right” and “the duty” of “criticism must not be stifled.”
SCOTUS in Sullivan re-emphasized the duty we owe to ourselves, our predecessors and our posterity as Justice Brandeis emphasized in his concurring opinion in Whitney v. California: "Those who [sacrificed their own lives, liberty and property to secure] our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government."
Sorry, meant no way to short cut this.
Well done and well said!
You highlighted well the extreme but subtle tension between the thoughts and words of Paine and Jack Goldsmith, between the truth by people who write for the People (Paine) and the distortion of truth by people too accustomed to writing for people in power (Goldsmith).
Paine spoke the truth about our Constitution. Goldsmith, perhaps with the best of intentions, bore false witness against our Constitution. Paine spoke for the People, our Constitution, and the American conception of the rule the law, and he spoke the truth about all the foregoing and about our public servants. Goldsmith may have meant to speak for the same, but he actually and emphatically spoke against them all to misrepresent that our public servants somehow were "given" the power to usurp powers that the People, our Constitution, and the American conception of the rule the law expressly denied to all our public servants.
As you highlighted, Paine highlighted that “The People could form a charter for themselves and then [merely] delegate [limited] authority to officials,” all of whom are our public servants. Like Paine, you highlighted the truth about the People, our public servants, our Constitution, and the American conception of the rule the law:
“the American story gave birth to self-determination. A People forms itself, sets boundaries [for our public servants], pools resources, and structures law to govern how its deputies [our public servants] deploy those resources. As Paine put it, ‘in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.’ ”
Goldsmith said essentially that all the foregoing meant exactly the opposite of what it truly meant:
“our country has — through [mere] presidential aggrandizement accompanied by congressional authorization, delegation, and acquiescence — [as if by magic somehow] given one person, the president, a sprawling military and enormous discretion. … That is our system: One person decides.”
Paine was a true prophet of the truth and a true prophet for the People and our Constitution. Goldsmith, for all his good intentions, is a false prophet. He undermines the People and our Constitution by presuming that the People and our Constitution somehow have “given” our public servants the power to violate our Constitution to do exactly what the People and our Constitution emphatically and explicitly say that our public servants have no power to do.
Paine's pamphlet was phenomenally powerful and important. You're right that Americans should study it. Then Americans should study two additional "pamphlets" that are at least as phenomenally powerful and important. Americans should read particular parts of our Constitution, starting with the Preamble and Article VI, then Amendment X (expressly emphasizing that the People merely "delegated" limited power to national government and "reserved" powers "to the people"), and then the Vesting Clause and the Necessary and Proper Clause of Article I and then the Vesting Clauses of Articles II and III.
Then Americans should read the pamphlet written by Chief Justice John Marshal in 1803 as the official opinion of the U.S. Supreme Court and SCOTUS justices in Marbury v. Madison about the meaning of the foregoing parts of our Constitution. The SCOTUS justices published their pamphlet/opinion in 1803, when multitudes who risked and sacrificed tremendously for the American Revolution that culminated in our Constitution with our Bill of Rights were still alive to judge the truth of the justices' writing. SCOTUS justices repeatedly emphasized the opposite of Goldsmith, above.
“The government of the United States has been emphatically termed a government of laws, and not of men.” "The constitution is" necessarily the "superior, paramount law, unchangeable by ordinary means," i.e., by our public servants. So "the constitution is to be considered, in court, as a paramount law," and "courts" cannot "close their eyes on the constitution, and see only [some other purported] law." The same is true of the People and all our public servants.
"[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States [enacted by our public servants, so those laws] only which shall be made in pursuance of the constitution, have that rank [of being part of the supreme law of the land]. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle [that is] essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as [all] other departments [and judges and all other public servants], are bound by that instrument," i.e., our Constitution.
"Certainly all those who have framed written constitutions" (especially constitutions that were ratified by the People) "contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."
Any "act of the legislature" (any purported law purportedly granting the President unconstitutional powers) "repugnant to the constitution, is void." So any "act of" any other purported public servant "repugnant to the constitution, is void." Any purported doctrine (e.g., the invocation of the so-called Monroe Doctrine to support Trump's Venezuela invasion) by which the President usurps powers "repugnant to the constitution, is void." Any other purported theory or "doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory."
"[T]he language of the constitution is addressed especially to the courts. It prescribes, directly for them, [rules] not to be departed from." "From these, and many other [provisions of our Constitution], it is apparent, that the framers of the constitution contemplated that instrument [our Constitution], as a rule for the government of courts, as well as of the legislature," as well as of the President and all other executive and judicial officers (including all attorneys).
"Why otherwise does it direct the judges" (all our most powerful or influential public servants and even all lawyers) "to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character." All "judge[s]" (all our most powerful or influential public servants and even all lawyers) "swear to discharge [their] duties agreeably to the constitution of the United States" so "that constitution forms" the "rule for [the] government" for all our public servants--each and every one in every position of any real power--and even all lawyers.
Thanks for reminding us of the important arguments in Marbury v Madison!
You're most welcome.
But please consider that the words of SCOTUS in Marbury v. Madison aren't arguments. They are clarifications of the meaning of the words that We the People included in our Constitution. In 1803, Chief Justice John Marshall and SCOTUS devoted their opinion to showing the people of that time, as well as their posterity, how and why the Preamble and Article VI (the Supremacy Clause and the Oath Clause) and the Vesting Clauses of Articles I, II and III, the Necessary and Proper Clause of Article I and the Oath Clause of Article II established that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.”
Many lawyers and judges use many tricks and schemes (including so-called judicial doctrines and purported precedent) to undermine our Constitution and turn courts into instruments of the opposite--a government of mere men (judges) and not of laws. SCOTUS justices highlight that problem constantly with the shadow docket, the process of granting or denying cert., and even how they write their opinions these days to include flagrant falsehoods about our Constitution and our history in virtually, if not actually, every case pertaining to Trump or partisan gerrymandering.
Too many lawyers and judges violate their oaths to fulfill their first and constant duty, which is to support our Constitution. Too many lawyers and judges have worked too long to use courts to subvert the primary founding principle of our Constitution and our nation. They pretend that what judges say and do is more important than the actual supreme law of the land.
Please consider an illustration: "The President and the Madman: Death by Lightning" https://open.substack.com/pub/blackcollarcrime/p/the-president-and-the-madman-death?utm_campaign=post-expanded-share&utm_medium=web
Danielle, thank you for highlighting how Trump is egregiously abusing and misrepresenting the concept of sovereignty to attack and undermine our Constitution! Thanks in part to your prior writing about "Our Declaration" and about James Wilson, we can see the truth about sovereignty and sovereign power under our Constitution.
As you highlighted previously, Wilson signed our Declaration and our Constitution and then served as a SCOTUS justice. Wilson was the only person who participated in authoring our Declaration of Independence and our Constitution and also authored U.S. Supreme Court opinions. Wilson's speeches and writings also were instrumental in securing the ratification of our original Constitution. In his speeches and writings, Wilson provided some of the most insightful and most accurate statements about sovereignty and sovereign power available today.
After our Constitution was written but before it was ratified, Wilson emphasized crucial truths about sovereignty and sovereign power and about how those concepts always have been abused and misrepresented by people in power. He did so, for example, at the Pennsylvania ratifying convention to explain to people why they should ratify our Constitution (securing the sovereignty of the people) and how they had the power to ratify our Constitution (because of the sovereignty of the people) despite provisions of state constitutions (and even the Articles of Confederation) to the contrary.
Wilson accepted the common definition of “sovereign power” as “a supreme, absolute and uncontrollable authority.” He recognized that, before the American Revolution, Americans believed, as “Blackstone will tell you, that in Britain” (including colonial America), sovereign power “is lodged in the British parliament.” He also acknowledged that after the Revolutionary War, too many “politician[s], who had not considered the subject with sufficient accuracy,” said “the supreme power resided in our governments” according to “State constitutions.”
“[T]he truth,” Wilson emphasized, “is, that the supreme, absolute and uncontrollable authority, remains with the people” despite anything to the contrary in any state constitution or even in the Articles of Confederation. “The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.” But “the practical recognition of this truth was reserved for the honor of this country.”
Our Constitution emphasizes that “the supreme power” necessarily “resides in the PEOPLE, as the fountain of government” and “the people have not--that the people mean not--and that the people ought not, to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper.”
It is important to see that Wilson said and wrote such assertions to explain to people why they should ratify our Constitution and how they had the power to ratify our Constitution despite provisions of state constitutions and even the Articles of Confederation to the contrary. After our Constitution was ratified and as a SCOTUS Justice, Wilson continued to write about the sovereignty and the supremacy of the people, but his writing was radically different in a crucial respect. Wison did not contend that the people continued to have any “absolute” or “uncontrollable” power—because such power was “despotic” and no one had such power under our Constitution.
Justice Wilson’s 1793 opinion in Chisholm v. Georgia remains some of the most important and insightful writing about our Constitution today. His writing about the sovereignty of the people was echoed by Chief Justice John Jay (who helped write the Federalist Papers and the New York Constitution) in Jay’s separate opinion in Chisholm, as well as by Justice James Iredell in 1795 in a dissenting opinion in Penhallow v. Doane’s Administrators.
The sovereignty of the people and Justice Wilson’s opinion in Chisholm also were addressed in considerable detail in 1999 in Alden v. Maine, in both the majority and the dissenting opinions. The Alden dissenters also emphasized a crucial aspect of popular sovereignty and our Constitution that is relevant regarding public servants who violate our Constitution. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.” They were quoting SCOTUS precedent in Poindexter v. Greenhow (1885).
Alexander Hamilton emphasized something similar in The Federalist No. 83: “Wilful abuses of a public authority, to the oppression of” the people “are offenses against the government” (not actions of the government) “for which the persons who commit them may be indicted and punished” (criminally) “according to the circumstances of the case.”
In Poindexter, SCOTUS was even more emphatic:
“The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that” SCOTUS already had decided very important cases.
“This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] ‘L’Etat c’est moi.’ ”
In Chisholm, Justice Wilson said much that is well worth studying about the sovereignty of the people. Some of his most important statements were about abuses, misrepresentations or misconceptions about sovereignty and the “many of the volumes of confusion concerning sovereignty.” “The perverted use of genus and Species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and [so-called] Sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those, who wished and meant to be free.”
In our Constitution, the “authority” of the “State” “is declared,” while “the authority” of the “sovereign” “is implied only.” Only “those, who ordained and established [our] Constitution” could “have announced themselves 'SOVEREIGN' people of the United States.”
The primary problem with the sovereignty of the people is that our public servants are continuously trying to usurp our sovereignty so that they can impose “despotic government.” “Even in almost every nation, which has been denominated free, the State has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of State independence, State Sovereignty and State Supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the State and the people: Hence all arbitrary doctrines and pretentions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the State as well as the man is degraded.”
“[A]s described by Sir William Blackstone . . . the British is a despotic Government. It is a Government without a people. In that Government, as so described, the Sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere” (except under our Constitution). “In the United States, and in the several States, which compose the Union, we go not so far.” Nobody has absolute, uncontrollable, despotic power under our Constitution.
Thanks for another great essay on the philosophical foundations of U.S. democracy. Wilson was one of the best articulators of the popular basis of our government.
I would send you something but I'd need an e-mail address. I'm at
gideonse@midmaine.com