ON THE LIMITS OF POPULAR SOVEREIGNTY
Benjamin Constant (1767—1830), a leading French liberal theorist, feared the danger posed to liberty by democratic revolutionaries like Robespierre and his fellow Jacobins, who would exercise unlimited authority to establish liberty. Constant embraced the principle of popular sovereignty (that government derives its legitimacy and authority from the people), but warned against the danger of unlimited popular sovereignty. Neither the people as a whole nor their delegate representatives, said Constant possess total authority over the lives of individuals. The following passage is taken from his book On the Sovereignty of the People, published in 1815.
When you establish that the sovereignty of the people is unlimited, you create and toss at random into human society a degree of power which is too large in itself and which is bound to constitute an evil, in whatever hands it is placed. Entrust it to one man, to several, to all, you will still find that it is equally an evil…. There are weights too heavy for the hand of man....
In a society founded upon the sovereignty of the people, it is certain that no individual, no class, are entitled to subject the rest to their particular will. But it is not true that society as a whole has unlimited authority over its members.
The universality of the citizens is sovereign in the sense that no individual, no faction, no partial association can arrogate sovereignty to itself, unless it has been delegated to it. But it does not follow from this that the universality of the citizens, or those who are invested with the sovereignty by them, can dispose sovereignly of the existence of individuals. There is, on the contrary, a part of human existence which by necessity remains individual and independent, and which is, by right, outside any social competence. Sovereignty has only a limited and relative existence. At the point where independence and individual existence begin, the jurisdiction of sovereignty ends. If society oversteps this line, it is as guilty as the despot who has, as his only title, his exterminating sword.... The assent of the majority is not enough, in any case, to legitimate its acts: there are acts that nothing could possibly sanction. Whenever some authority commits any such acts, it hardly matters from which source it emanates. It is irrelevant whether it calls itself an individual or a nation. Were it the whole of the nation, save the citizen whom it oppresses, it would be none the more legitimate….
When sovereignty is unlimited, there is no means of sheltering individuals from governments. . . . No political organization can escape from this danger. You may divide powers as much as you like: if the total of those powers is unlimited, those divided powers need only form a coalition, and there will be no remedy for despotism. What matters to us is not that our rights should not be violated by one power without the approval of another, but rather that any violation should be equally forbidden to all powers alike. . . . [T]here are objects on which the legislator has no right to make a law, or, in other words, that sovereignty is limited, the nor its delegates, have the tight to have.
This is what we must declare; this is the important truth, the eternal principle which we must establish.
No authority upon earth is unlimited, neither that of the people, nor that of the men who declare themselves their representatives, nor that of the kings, by whatever title they reign, nor, finally, that of the law, which, being merely the expression of the will of the people or of the prince, according to the form of government, must be circumscribed within the same limits as the authority from which it emanates….
Let us now sum up the consequences of our principles. The sovereignty of the people is not unlimited: it is, on the contrary, circumscribed within the limits traced by justice and by the rights of individuals. The will of an entire people cannot make just what is unjust. The representatives of the nation have no right to do what the nation itself has no right to do….
The assent of the people cannot legitimate what is illegitimate, because the people cannot delegate to anyone authority which they do not themselves possess.