On this date 236 years ago — September 17, 1787 — the U.S. Constitution was signed by its authors, and began its challenging journey toward ratification. Constitution Day is a good day to recognize the extraordinary gift that is our Constitution, and to reflect on its simultaneously humble and ambitious vision of just how a political order can endure.
The peculiar ambitious humility of the framers regarding their creation was captured by Benjamin Franklin on that first Constitution Day, the final day of the Philadelphia convention, when (according to James Madison’s notes) Franklin stood up and said that, although there were some elements of the Constitution that he didn’t think they’d gotten quite right, he was very much in favor of the final product. “I doubt too whether any other Convention we can obtain, may be able to make a better Constitution,” Franklin told his fellow delegates.
For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded like those of the Builders of Babel; and that our States are on the point of separation, only to meet hereafter for the purpose of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure that it is not the best.
Nearly a year later, in the 85th and final Federalist Paper, Alexander Hamilton expressed a similar sentiment in a way that pointed toward a deeper reason for the Constitution’s durability:
I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?
With his reference to amity, Hamilton seemed implicitly to gesture toward the brief letter that George Washington included with the copy of the Constitution that the delegates in Philadelphia formally submitted to the Confederation Congress that had called the convention. “The Constitution, which we now present,” Washington wrote in that letter,
is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable. That it will meet the full and entire approbation of every state is not perhaps to be expected. But each will doubtless consider, that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.
This brief argument is subtle and profound. And it points not only to the convention’s methods of resolving disputes but to the ways in which the resulting Constitution structured the institutions it created and arranged them in relation to each other. The Constitution was not only the product of a complicated web of compromises, it established a system of government that works by weaving such webs in an ongoing way, and so by compelling accommodation, negotiation, and constructive tension rather than simply empowering majorities. Its goal is not to leave anyone completely satisfied but to prevent anyone from being left completely dissatisfied.
What emerges from the records of the constitutional convention, and from the writings its delegates left behind, is a deep sense that American government needed to strike multiple complex balances simultaneously in order to enable a free, diverse, and divided society to hang together and govern itself. This particularly required striking a balance between majority rule and minority rights, and doing so in a way that might broaden governing majorities and forge some meaningful solidarity even amid deep differences.
The Constitution’s contemporary critics tend to elide this challenge, and to hold the Constitution to the standard of a far thinner and more shallow understanding of democracy. Political scientists Steven Levitsky and Daniel Ziblatt offered an example of that kind of critique in the Atlantic earlier this month. The American Constitution was a pioneering example of democratization when it was first adopted, they note, but “the United States no longer seems like a good model today.” It doesn’t measure up to other democracies because it is not democratic enough. “Electoral majorities often cannot win power, and when they win, they often cannot govern.” For this, Levitsky and Ziblatt blame the Electoral College, the Senate, and the Supreme Court (which they worry has “has grown more and more divorced from majority public opinion”).
Implicit in their argument is the notion that the core purpose of our Constitution should be simply to maximize representation, by empowering electoral majorities to govern unimpeded. They never state this premise, or defend it. They never contend with the fact that electoral majorities are themselves functions of the structures of political institutions — that the answers voters offer on Election Day are framed by the questions they are asked, in parliamentary democracies with proportional representation no less than in our system. They never consider what a more proportional or more simply majoritarian structure would entail in our democracy, and so for instance whether a direct election for the presidency (not mediated by the Electoral College, which compels candidates to focus on states that are competitive and therefore on populations of voters that are less fully sorted than most) might not aggravate and exacerbate our divisions. They ignore how most parliamentary democracies actually choose their chief executives (the British, for instance, last had a general election about three prime ministers ago).
But most important, they never confront the fact that majority rule can be a principle of despotism, as well as of legitimation. No democracy can ignore this undeniable truth. Certainly the United States, given our history, could never ignore it. Yet we also could never deny that only majority rule can provide the legitimate basis for governing power in a democratic republic.
Abraham Lincoln nicely articulated this dilemma in his first inaugural address. “Unanimity is impossible,” he said. “The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.” But precisely for that reason — because only majorities can rule legitimately and yet majorities can easily rule unjustly — it is crucial that we try to expand and complicate majorities before empowering them. Not simply a majority, Lincoln insisted, but “a majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.”
Broadening, restraining, and reshaping majorities in that way is the work of the Madisonian system. It structures a national politics that is an ongoing negotiating process. That doesn’t mean that it lets minorities rule, but that it requires majorities to make themselves both broad and durable before they can wield significant power. When we insist that elections should render such negotiation unnecessary because simple, narrow majorities are all that is required for legitimacy, we remove the incentive to broaden coalitions and accommodate competing views. When we explode all restraints on simple majority power and insist that even courts must answer to majority public opinion at any given time and not to the Constitution and the laws as they are written, we neglect a key and pressing challenge of any modern democratic republic. To cover such arguments with the all-atoning name of democracy is only to obscure the challenge, not to address it.
I do not for a moment doubt the decent motives or intentions of such critics of our Constitution. They are frustrated when narrow majorities that they support are restrained and kept from exercising power on their own. We’ve all been there. But frustrating narrow majorities is very much a feature of the Constitution, not a bug, because the Constitution understands its purpose to extend well beyond just maximizing representation. Here is how the document itself describes its purpose:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
That is one grand run-on sentence, and achieving anything like what it describes would take much more than counting heads now and then. The purpose of our Constitution is something like finding a balance between majority rule and minority rights while addressing national problems and facilitating national cohesion. The critics of our system accuse it of lacking sophistication about the challenges of modern life, but it is actually much more sophisticated than they are about what may well be the preeminent challenge confronting every modern democracy: the challenge of diversity and division. That’s one major reason why our system of government has lasted longer than that of any other modern nation, and has facilitated the public life of a society that has combined dynamism and durability — freedom and order — to a degree that no society in human history has ever matched.
Our Constitution is certainly not perfect, as its framers understood. But like them, I am not sure that it is not the best. It is designed to make us all quite frustrated with it at one time or another. But it is also designed to force us to build coalitions, seek accommodations, broaden majorities, and find ways to live together. There are plenty of opportunities to voice our frustrations these days. But on its birthday, let’s be sure to also voice our gratitude for our Constitution, and let’s try to let it shape us toward the spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation renders indispensable.