That maxim, for those who do not know what it means, means, "The voice of the People is the voice of God." It is false, of course; any person can make mistakes. More than a few of us do things that we wish that we hadn't done, and there are some who have committed crimes -- who have not only done a few things that happened to be prohibited by some legislature (or a City-County Council, passing "ordinances" about whether people can smoke in a place owned by someone who would allow it, or about the number of cars that people can park in their own yards) -- but who have done things that are actually worth incurring come sort of penalty over, due to the fact that the act was actually wrongful. Some of them are in legislatures. Some of the things that they have done, contrary to the laws of the "several States" and to the Supreme Law of the Land, have been in those legislatures, or in Congress (which is a legislature, to some extent).
As a part of my notes on Francis Lieber, author of the Lieber Code (among other works), I present the following, which concerns the idea that whatever the people are alleged to have declared is legitimate, advantageous, and just:
“Mr. Say informs us that when the first cotton manufactures were introduced into France, petitions from all the incorporated large towns, from merchants and silk-weavers, were sent to Paris, clamoring in vehement terms against the ‘ungodly-calico prints.’ Rouen, now the busiest of all the French cotton manufacturing places, was among the foremost, and the petition of the united three corporations of Amiens ended thus: ‘To conclude, it is enough for the eternal prohibition of the use of printed calicoes, that the whole kingdom is chilled with horror at the news of their proposed toleration. Vox populi vox Dei.’ This might well be considered as sufficient to prevent every reflecting man from using the maxim. We now know that the cotton tissue has become one of the greatest blessings of our race, giving comfort, health, and respectability to entire masses of men formerly doomed to tatters, filth, and its fearful concomitants, typhus and vice, and we know too that cotton manufacture is one of the most lucrative branches of French industry.”
“Unanimity of itself proves nothing worth being proved for our purpose. In considering unanimity, the first subject that presents itself to us is that remarkable phenomenon called Fashion—a phenomenon well-nigh calculated to baffle the most searching mind, and which has never received the attention it deserves at the hands of the philosopher, in every point of view, whether psychological, moral, economical, or political. Unassisted by any public power, by the leading minds of the age, by religion, literature, or any concerted action, it nevertheless rules with unbending authority, often in spite of health, comfort, and taste, and it exacts tributes such as no sultan or legislature can levy. While it often spreads ruin among producers and consumers, it is always sure to reach the most absolute czar and subject his taste. Though the head may wear a crown, Fashion puts her shears to its hair, if she has a mind to do so. Far more powerful than international law, which only rules between nations, she brings innumerable nations into one fold, and that frequently the fold of acknowledged folly. How can we explain this stupendous phenomenon? It is not necessary to do so here. The fact, however, must be acknowledged. It is the most remarkable instance of unanimity, but will any one say that Fashion is a vox Dei? The very question would be irreverent were it not candidly made in a philosophical spirit.”
“What fearful fanaticisms have not swept over whole countries with deplorable unanimity! The Romans were unanimous-enough when they slaughtered the worshippers of that God whose authority is invoked to dignify the voice of men in the fallacious maxim. If the voice of the people were the voice of God, the voice of the people ought not only to be unchangeable, but there ought to be one people only. Two nations frequently clamor for war, and both, under the motto Vox populi vox Dei, draw the sword against each other.”
“If we carefully view the subject of unanimity, we shall find that in the cases in which vast action takes place by impelled masses—and it is in these cases that the maxim is invoked—error is as frequently the basis as truth. It is panic, fanaticism, revenge, lust of gain, and hatred of races that produce most of the sudden and comprehensive impulses. Truth travels slowly. Indeed, all essential progress is typified in the twelve humble men that fallowed Christ. The voice of God was not then the voice of the people. What the ancients said of the avenging gods, that they are shod with wool, is true of great ideas in history. They approach softly. Great truths always dwell a long time with small minorities, and the real voice of God is often that which rises above the masses, not that which follows them.”
“But the difficulty of fixing the meaning of this saying is not restricted to that of ascertaining what is the voice of God. It is equally difficult to find out what is the voice of the people. If by the voice of the people be meant, as was stated before, the organically evolved opinion of a people, we do not stand in need of the saying. We know we ought to obey the laws of the land. If by the voice of the people be meant the result of universal suffrage without institutions, and especially in a large country with a powerful executive, not permitting even preparatory discussion, it is an empty phrase; it is deception, or it may be the effect of vehement yet transitory excitement, or of a political fashion. The same is true when the clamoring expression of many is taken for the voice of the whole people.”
“Another instance, showing that no dependence can be placed upon the maxim, is that of proverbs. They are doubtless the voice of the people, and many of them contain much wisdom, but there are also many in favor of our worst passions and meanest dispositions …. A very large class of proverbs is directed against peasants and the laboring classes; against women, lawyers, physicians—indeed, against all the staple topics of former satire.”
“Sometimes the maxim is doubtless used in good faith, as the French at times use, without reserve, that favorite expression of theirs: The instinct of the masses; but generally, I think, Vox populi vox Dei is used either hypocritically or when people have misgivings that all may not be right, pretty much in the same manner as persons say that an argument is unanswerable, when they have a strong foreboding that it may be found very answerable.”
“Vox populi vox Dei has never been used in France so frequently as after the second of December, yet there are unquestionably thousands in that country who would find their religious convictions much bewildered, if they were obliged to believe that it was the voice of God which spoke through ballot boxes under the management of the most centralized executive in existence; and that the voice of the Deity requires a thousand intrigues among men for its utterance.”
“The doctrine Vox populi vox Dei is essentially unrepublican, as the doctrine that the people may do what they list under the constitution, above the constitution, and against the constitution, is an open avowal of disbelief in self-government.”
“The true friend of freedom does not wish to be insulted by the supposition that he believes each human individual an erring man, and that nevertheless the united clamor of erring men has a character of divinity about it; nor does he desire to be told that the voice of the people, though legitimately and institutionally proclaimed and justly commanding respect and obedience, is divine on that account. He knows that the majority may err, and that he has the right and often the duty to use his whole energy to convince them of their error, and lawfully to bring about a different set of laws. The true and stanch republican wants liberty, but no deification either of himself or others; he wants a firmly built self-government and noble institutions, but no absolutism of any sort—none to practise on others, and none to be practised on himself. He is too proud for the Vox populi vox Dei. He wants no divine right of the people, for he knows very well that it means nothing but the despotic power of insinuating leaders. He wants the real rule of the people, that is, the institutionally organized country, which distinguishes it from the mere mob. For a mob is an unorganic multitude, with a general impulse of action. Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor. The consequences are fearful, and invariably unfitting for liberty.”
“Whatever meaning men may choose, then, to give to Vox populi vox Dei, in other spheres, or, if applied to the long tenor of the history of a people, in active politics and in the province of practical liberty, it either implies political levity, which is one of the most mordant corrosives of liberty, or else it is a political heresy, as much so as Vox regis vox Dei would be. If it be meant to convey the idea that the people can do no wrong, it is as grievous an untruth as would be conveyed by the maxim, the king can do no wrong, if it really were meant to be taken literally.”
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