The disease most incident to popular government, which militates against democracy’s resulting in good government, is what Madison called majority faction. When a minority of the population is “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community,” normal democratic processes — popular elections — will suffice to prevent that minority from carrying out its dangerous plans. When a majority is united and actuated in this way, however, the workings of democracy won’t constrain it. Worse still, democratic processes will, as a practical matter, facilitate a majority faction’s blunders and depredations, while validating them as moral ones.
The classical mixed regime sought a monarchical and aristocratic remedy for the diseases incident to republican government. Such components were unobtainable in late-18th-century America, given the facts on the ground. The Lockean imperatives woven into the Declaration and the Revolution made the idea of checking majority faction with homegrown kings and dukes repugnant and absurd.
An important part of the Constitution’s republican remedy was to keep the form of the classical mixture of rule by the one, the few, and the many, but make the content of American government democratic throughout. It would resist majority faction by establishing what Mansfield calls a “constitutional space” between the people and the government. Ultimately, the people would always be in charge. As Abraham Lincoln said in his first debate with Stephen Douglas in 1858, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed.”
The premise that public sentiment should be finally decisive does not, however, mandate the conclusion that it must be immediately dispositive. A constitutional space renders good government more likely and majority faction less by guaranteeing that some time and trouble will be necessary to turn brainstorms into laws, giving the considered judgment of the people opportunities to prevail against invidious or half-baked proposals. Checks and balances, no matter how numerous or intricate, cannot indefinitely resist a majority united in the determination to do something wicked or stupid. The best that can be hoped for is that such constitutional obstacles will spare the country from policies that are wrongly but not deeply popular.
In Federalist 63, Madison argued that an institution like the Senate, at some constitutional distance from the people, “may be sometimes necessary as a defense to the people against their own temporary errors and delusions.” The goal, always, is for “the cool and deliberate sense of the community” to “ultimately prevail.” The cure for the ailments of democracy, according to the Founders’ diagnosis, is not necessarily more but better democracy — a more far-sighted, judicious democracy that incorporates the widest possible range of perspectives into its decision-making.
The danger that the cool and deliberate sense of the community won’t prevail, Madison concluded, “will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.” Students in courses on American government still learn about the ways in which the House and Senate are dissimilar. Representatives serve two-year terms and are voted on all at once; theoretically, if the voters were angry enough they could cashier all 435 members and replace them with different ones. Senators serve six-year terms, and only one third of Senate seats are voted on in any given congressional election. If the voters wanted to replace all 100 senators, the success of that project would require them to stay angry through three election cycles.