Politics & Policy

Let’s Not Throw Out the Constitution

Detail of Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940 (Wikimedia)
It’s not the Ten Commandments, but the Framers were right to fear direct majority rule. Majorities can become mobs.

Writing for The Week, Ryan Cooper recently offered a provocative denunciation of the Constitution. “The American Constitution is an outdated, malfunctioning piece of junk,” he said, “and it’s only getting worse.” The basic problem, he argued, is that “elections generally do not produce functioning governments,” and he proposes a series of reforms — some modest, some radical — to increase democratic accountability within the government.

Cooper’s essay is of a piece with many I see nowadays, especially from progressives. Of late, the specific target of liberal ire is the Senate and its favoritism toward small, sparsely populated states. It is generally a very old critique. Woodrow Wilson once bemoaned our government’s rigorous separation of powers for how it denied the ability of the people to rule. Complaints such as those offered by Cooper and others come, more or less, from the same genre, even if the particular grievances have varied.

I am not entirely unsympathetic to their frustration: The Constitution is not like the Ten Commandments, handed down from God almighty. It is a document written by flawed humans that can, and often should, be critiqued. The Framers themselves acknowledged their own fallibility by including an amendment process.

Nevertheless, I think polemical calls to action such as this tend to dismiss out of hand the unique democratic theory underlying our system of government. In its place, they rely upon an undue confidence in the wisdom and virtue of numerical majorities.

There is admittedly a deep irony embedded in our constitutional order. By calling for public ratification of the Constitution, the Framers created a pristinely republican moment — one when the people alone would endorse the means by which they would be ruled. But in so doing, they erected a structure that has proven exceedingly difficult for subsequent generations to alter, let along tear down, leading to a “dead hand” of control that is not terribly republican. If our nation is a republic, it is one where the generation of 1787–88 continues to exercise significant authority over us.

Of the Founders, Thomas Jefferson was the most sensitive of this, which is why he promoted the radical notion of periodic constitutional conventions. No deceased generation, he believed, should bind the living. And so, he deduced, public debts could never be permanent, and the Constitution itself should be up for debate periodically. James Madison, on the other hand, was a skeptic of this notion. As he wrote in Federalist No. 49:

Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied.

This is not merely Burkean prudence — don’t go unnecessarily upending existing forms of government — though it is certainly that. It also reflects a skepticism about the capacity of the public to rule, Madison’s compliment about their “virtue and intelligence” notwithstanding. There is, Madison reckoned, a lot to fear from majoritarian government. A numerical majority, after all, possesses no inherently normative authority. It is, rather, a gauge that is often useful for determining what the public interest is. But it is not necessarily useful. Majorities can be factional — out for their own good rather than the good of the whole nation. Majority factions are the fatal disease of democratic government.

Our system of government, then, is best understood as one of mediated majority rule. Yes, the people at large are the only source of sovereignty, but that sovereignty is tempered in multiple ways. Checks and balances within the government, as Madison outlined in Federalist No. 51, are perhaps the most obvious form of mediation. The idea of the extended republic, introduced in Federalist No. 10, is another such instrument. There are other, more subtle ones as well.

There is a temporal mediation, which is to say that the people never get to remove all the officers from government at once. So if they want something to happen, they have to vote for it again and again — for the House, the president, and the Senate. Fleeting majorities, animated by temper or whimsy, can therefore dissipate before a full change in government is made.

There is also a geographical mediation, which has of late come to vex progressives. This is embodied in the Senate, where apportionment is equal among the states, regardless of population. It also exists in the House, where districts are geographically bound. This means that simple numbers are not enough to rule. Majorities must be broadly distributed across the country and by implication include a correspondingly large number of factions.

The filibuster in the Senate is an extraconstitutional form of mediation. At first blush, it seems like an anti-democratic instrument, but in practice it merely raises the threshold for majoritarian action. The logic behind it is that a majority in the Senate need not speak for the national interest, and so the minority, if it is sufficiently large, should be able to block certain actions. The courts serve a similar function, impeding majoritarian action insofar as it violates the common law that has been built up around the Constitution.

Democracy contains within itself the seeds of its own destruction. Namely, the masses are prone to being overwhelmed by fractious and even violent passions.

What these mediating elements do, in sum, is empower the majority to rule only in certain conditions. This is consistent with a view that goes back to ancient Greece, that democracy — like all pure forms of government — contains within itself the seeds of its own destruction. Namely, the masses are prone to being overwhelmed by fractious and even violent passions, and can repurpose the tools of democratic government for unjust ends. The classical solution was to check majority rule with some kind of hereditary estate, but the Framers rejected this, and instead used constitutional instruments to mediate public opinion.

In my judgment, this suggests that real question lurking behind any discussion of constitutional overhaul: Were the Framers too skeptical of the capacity of the mass public to rule in accordance with the dictates of justice and virtue? It is not just enough to complain that the Constitution impedes righteous actions from happening. One must go on to claim that, absent such restrictions, the people would govern righteously.

Do advocates of soup-to-nuts constitutional reform really believe that? Because I surely don’t.

Wilson once spoke of a national interest that had come to be formed within the nation, which had not existed at the time of the Founding. America had finally become one people, he said, capable of expressing a public sentiment that should govern politics. But I think he was fooling himself. The best description of the nation was and still is Federalist No. 10, where Madison delineated a number of factions that compete against themselves, often confusing their own self-interest for the public interest.

When I look at America in 2018, I see a country where a wide swath of people are uninterested and poorly informed, unaware of even the basics of civics to know how our government works, and unwilling to dedicate the time necessary to learn. I see the special interests that finance politics, employing campaign contributions, lobbying, and other subtle crafts to take advantage of public indolence for their own purposes. I look at the ideological poles, where citizens are more engaged. That is good, but it is also at the extremes where I see intense hatred of their ideological opponents. If granted total power, would one side criminalize the other? Would the broad middle, in its laziness and ignorance, actually let them do it?

If, granted total power, would one side would criminalize the other? Would the broad middle, in its laziness and ignorance, actually let them do it?

Where is the “virtue and intelligence” of which Madison spoke in Federalist No. 49? I do not see it. And the thought of reducing constitutional impediments to democratic rule gives me chills. As frustrated as I am sometimes by the glacial speed at which our government operates, I do not believe that making it easier for majorities to act would increase the likelihood of good government in the United States. Quite the opposite, I fear.

That’s not to say I oppose reforms. There are a lot of changes I advocate. For instance, I favor a redesign of the filibuster. I favor strengthening party organizations, which are essential to the democratic accountability that Cooper is striving for. I could get behind an increase in the number of representatives in the House. And I support certain types of gerrymandering reform.

But these reforms are relatively modest; they would tweak the way public opinion is mediated, rather than do away with it altogether. I still think we require ways to temper and control the rule of the majority, which remains the most fearful power in a republic such as ours.

READ MORE:

America’s Radical Founders

The Constitution Takes Precedence over Obamacare

How to Interpret the Constitution

 

Jay Cost — Jay Cost is the author of The Price of Greatness: James Madison, Alexander Hamilton, and the Creation of American Oligarchy.

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