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This chapter begins with a discussion of theories of representation in pre-revolutionary France. It shows how the absolute monarchy figured as a mechanism designed to enhance, rather than diminish, the security and liberty of the individual. It further shows how demands for constitutional reform were at the heart of popular demands in 1789. At first this envisaged only a reformed monarchy, often following English constitutional practice. Quickly a new theory of representation emerged focused upon the supremacy of the legislative assembly and the direct expression of the will of the people: the Republic. The remainder of this chapter examines the continuing constitutional debate through the nineteenth century, especially with regard to the constitutions of the Second and Third Republics. It ends with a reflection on the personalization of presidential power in the Third Republic.

Law's purely predictive character is starkly exposed in revolutionary moments, when people in community together stop paying attention to existing law and government. When words cease describing life in the group accurately, those words cease to be law. “Sovereignty of the people” is a truism or an oxymoron—a truism if it just acknowledges that leadership depends on others' choice to follow, an oxymoron if it translates as leadership of the followers. Power sharing is the path to confidence that our community's moral understandings will make their way into our law and government. Power sharing can help homogenize the degree of predictive effectiveness that lawgivers enjoy, reducing the risk that any one among them will subvert the system. Democratic selection may help morally justify lawgiving, but does not imply that lawgivers ever have a preemptive moral right to be obeyed. Once we see that law and government are not about obeying lawgivers, consent theories of authority lose their point. But that does not diminish the enthusiasm we deserve to have for ways of choosing lawgivers that involve our widespread agreement. The systemic nature of law fulfills our need to trace the legal pedigree of words back to custom—the significance of ultimate constitutive documents clearly comes from custom and nothing else. Central and marginal instances of legal systems correspond to central and marginal instances of human community—we are less community the less we understand each other.

This chapter discusses how the doctrine of parliamentary sovereignty had come to be taken for granted by British lawyers and political theorists in the early 19th century. The principal justification for the doctrine of parliamentary sovereignty was Parliament's democratic function of expressing the will of the people. But other justifications, also perpetuating older themes, were advanced.

Democracy requires some connection to the “will of the people.” But there are impediments to how that will is formed and how it is connected to public decisions. Efforts to manipulate public opinion, the competitive pressures of campaigns, discussions among the like-minded on social media, distortions of campaign finance all make it difficult for a mostly inattentive mass public to come to considered judgments. “Deliberative democracy” offers a useful method of supplementing our current political practices. There is a need for research and experimentation into entry points for a thoughtful and representative public voice. Such efforts provide a solution to a recurring dilemma—do we listen to the people and get the angry voices of populism or rely on widely distrusted elites and get policies that seem out of touch with the public’s concerns. Populism or technocracy? Deliberative democracy can provide a thoughtful and representative public voice.