Introduction

Last week, on December 15, we celebrated the 225th anniversary of the ratification of the Bill of Rights. While many Americans find good reason to celebrate the first ten amendments to the Constitution, not as many pause to appreciate that it is the amendments’ anti-democratic character that makes them so effective. Democracy, after all, is a dangerous thing.

Consider this thought experiment:

Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger….Will two thousand in a like situation be less likely to encroach on the rights of one thousand?

This hypothetical was posed by James Madison on the eve of the Constitutional Convention as he pondered the dangers of unconstrained democracy in his working paper, “Vices of the Political System of the United States.” As Madison sat tucked away at his Virginia home studying the rise and fall of governments throughout history, he came to appreciate that democracy is, at bottom, a mechanism for majorities to impose their will on minorities.

If the oppression of minorities is an evil, then pure and unchecked democracy – which facilitates just such behavior – is surely also an evil. Nevertheless, democracy is inescapable if governmental processes are to embody the belief that sovereignty lies in the individual and that the body politic, as a group of sovereign individuals, ought to decide for itself what government may and may not do.

The notion of self-rule, of course, motivated the American Revolution. But self-rule and democracy are not equivalent and co-terminous concepts. Our founders were well aware of this, and they were attuned to the dangers of democracy.

Think about it. Why was Madison cramming for a convention in the first place? By spring 1787, the United States was four years into its independence from Great Britain and had been operating under a national government since the Articles of Confederation were ratified in 1781. If independence had been won and a national government created, why was a convention necessary?

I. The Nature of Majoritarianism

The answer lies, in part, in democracy itself.

Democracy is appealing because it is designed to give voice and power to the citizens. Indeed, democracy derives from the Greek word demos, which means “the common people.” But because pure and unchecked democracy in a large body politic requires the agreement of a diffuse and variegated set of individuals, it is difficult to find consensus on a great number of issues. Consequently, opportunistic individuals form fleeting coalitions – i.e., majorities – by preying on people’s ignorance and prejudices in order to achieve self-serving ends without regard for, or intentionally detrimental to, the interests of others.

Today, we call such coalitions “special interests,” but this is not a new concept. It is human nature.

Our cultural mindset has become “majority rules.” That is generally true, and focusing on that facet of our political system is an understandable celebration of self-governance, but it ignores self-interest. And the combination of individuals’ competing interests, on the one hand, and the human nature of acting out of self-interest, on the other, is what makes unchecked democracy dangerous.

That is why, in Federalist 10, Madison warned of democracy:

[T]here is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.

This suspicion of democracy, however, did not originate with Madison or his founding-era contemporaries. Rather, the concern has roots in some of the earliest political thinkers.

Building on the teachings of his mentor and teacher, Plato, Aristotle wrote some 2,300 years ago, in the 4th century B.C.:

[C]onstitutions which aim at the common advantage are correct and just without qualification, whereas those which aim only at the advantage of the rulers are deviant and unjust, because they involve despotic rule which is inappropriate for a community of free persons.

Aristotle then went on to place democracies in the column of “deviant and unjust” rather than “correct and just.” The idea that democracy is deviant and unjust flies in the face of the received wisdom and sensibilities of the present age.

Today, Americans largely tend to believe that democracy is a virtuous end unto itself, rather than a means of actualizing virtuous ends. Hence the Bush Doctrine, part and parcel of which was the notion that if we just establish democracy in previously autocratic nations, then liberty and western values will follow. But that gets it exactly backwards, and we ought to once again internalize as a culture why that is.

It is quite simple, and most Americans – indeed, most humans – understand intuitively that which our Constitution presupposes. But in the hustle-and-bustle of every day life, in the age of information overload and 140-character civic discourse, we have generally lost touch with – and perhaps lost the interest in understanding – the animating worldview that undergirds and explains the structure and content of our Constitution. It is a worldview that is taken for granted today, but at the time of the framing of the Constitution it was an exceptional idea.

What is that exceptional idea? And, returning to Aristotle’s comments, from what perspective could democracy be seriously categorized as “deviant and unjust”?

As to the first question, the exceptional idea is that sovereignty lies in the individual, not a Queen or a King or even a President. We the People enlist the government to serve us, just as individuals hire agents to do their bidding under explicit instructions and constraints. Under our Constitution, power is borrowed by the government from the citizens. And the very fact that individual citizens begin with the power to rule themselves, and that they may choose to delegate it to government, reflects the more fundamental belief that our rights precede government rather than come from it. Coming full circle, this is the very worldview that democracy was chosen to facilitate – since power comes from the people, there must be a mechanism for them to wield it.

This leads to the second question: if democracy is the chosen mechanism for allowing sovereign citizens to make policy decisions, how could it be deviant – does democracy not operationalize the exceptional idea that We the People are sovereign with inherent human rights and the authority to govern ourselves?

Madison answered this question in Vices, by explaining that polities

are divided into different interests and factions, as they happen to be creditors or debtors – rich or poor – husbandmen, merchants or manufacturers – members of different religious sects – followers of different political leaders – inhabitants of different districts – owners of different kinds of property . . . [the] majority, however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unties a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?

The bottom line is, while democracy is a process that allows sovereign individuals to make decisions about the laws under which they will live, when left untamed it can also empower a majority of sovereign citizens to infringe on the rights of a minority of equal sovereign individuals. In other words, democracy not only empowers individuals to rule themselves, it empowers one segment of a population to impose its will on other segments of the population. Thus, democracy is not inherently a good thing, and not all policies are “just” simply by virtue of having survived the democratic process.

Slavery, for example, was made possible by democratically enacted laws. But slavery, even if implemented via the democratic process, is neither legitimate nor just, because it tramples on the natural rights of those enslaved. Democracy, then, can clearly come into tension with the concept of individual sovereignty and the inherent human rights sovereign individuals enjoy. As Madison warned in Federalist 10, “pure democracies” throughout history had “ever been found incompatible with personal security.”

That is in large part why Madison was cramming for a Constitutional Convention.

II. Limiting “The Excess of Democracy”

As Professor Randy Barnett details in Our Republican Constitution:

Were the founders really against democracy? You bet. They blamed the problems in the states under the Articles of Confederation on an excess of democracy. For example, Edmund Randolph, the first attorney general of the United States, under George Washington, observed that “the general object was to provide a cure for the evils under which the U.S. laboured.” And that “in tracing these evils to their origin every man had found it in the turbulence and follies of democracy.”

At the Constitutional Convention in 1787, Randolph’s sentiment was dominant. Roger Sherman, for example, stated that “[t]he people . . . immediately should have as little to do as may be about the Government. They [lack] information and are constantly liable to be misled.” Elbridge Gerry lamented that “[t]he evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots.”

In light of the dangers pure and unchecked democracy poses to the rights of minority groups, a phenomenon that had already begun to manifest itself under the Articles of Confederation, our Constitution was decidedly not about democracy. To the contrary, many limits on the democratic process were intentionally baked into our founding document.

For example, rather than a pure, or direct, democracy, where the citizens themselves vote on laws directly, we live in a representative republic, where geographic groups of citizens elect a few among them to represent the groups at regular government business meetings and in forming laws. The founders made representatives to be intermediaries between the citizenry as a whole and the levers of policymaking in order to tackle head-on the dangers of self-serving, fleeting majorities. As John Adams explained in “Defence of the Constitutions of Government of the United States,” civilizations throughout history demonstrate that when

in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state, but, as a record of their victory, will form one which inclines to their own principles, either a democracy or an oligarchy. It is, indeed, an established custom of cities, not to desire an equality, but either to aspire to govern, or, when they are conquered, to submit.

Adams identified the key danger described above: pure democracy, like oligarchy, is a form of government that enables a dominant group to oppress all others. Adams then went on to suggest that a “representative assembly, elected by” the citizens, whose interests and preferences will always diverge, “is the only way in which they can act in concert.”

Why might that be true? Go back to Madison’s thought experiment where the three individuals must arrive at some decision agreed to by at least two of them. In a direct democracy, the three individuals will make the decision by themselves, each incentivized only to favor his or her own interests. As Madison pointed out, if two of those individuals have a common interest opposed to the interests of the third, the two are sure to join together in favor of their common interest and to the detriment of the outsider. Majority rules, right?

But consider now there are ten groups of three such individuals, and each group elects one individual to represent them. Those ten representatives have a meeting and must arrive at a decision, agreed to by a majority of them, that will affect the groups of individuals they represent. Each representative is incentivized to consider the interests of all three individuals they represent because – but only as long as – all three individuals have a say in whether the representative will continue serving in that capacity.

Make no mistake, this is not a perfect solution. But it was a coordinated effort by those at the Constitutional Convention to quell the dangers of self-interested factions. It is an example, in other words, of how pure democracy is limited under our Constitution to protect, not oppress, the rights and interests of those in the minority.

III. Our Undemocratic Bill of Rights

The project of limiting democracy to secure liberty continued well after the Constitutional Convention, producing the Bill of Rights we celebrated just last week and depend on regularly even today.

In proffering his objections to the Constitution, Virginia’s George Mason got right to the point: “There is no declaration of rights.” Whether the Constitution truly needed a Bill of Rights became a huge topic of discussion during the ratification debates, but most important here is that the Bill of Rights does its job by limiting democracy. It protects inherent human rights (or, natural rights), like the freedom to practice the religion of one’s choosing, speak one’s mind, and be free from arbitrary detention by the government, by removing those subjects from the democratic process. As Chief Justice Roberts recognized recently, the Bill of Rights reflects preemptive policy choices by the American people “that the benefits of its restrictions on the Government outweigh the costs.” United States v. Stevens, 559 U.S. 460, 470 (2010).

Again, this was done to protect, not oppress, the rights and interests of those who may find themselves in the minority on a given issue. No matter how great the majority in favor of doing so, a group that feels ignored by the political system cannot be forbidden from assembling and speaking out. No matter how great the majority in favor of doing so, no law can be passed to implement a system of stopping, searching, interrogating, and detaining individuals arbitrarily. And no matter how great the majority in favor of doing so, no individual can be deprived of a fair trial.

These are not random protections. These constraints are the direct result of the founders’ deep understanding of, and often personal experience with, the means by which groups of citizens are oppressed over time, by autocratic regimes and their fellow citizens alike. For that reason, such anti-democratic constraints are thoroughly built in to the American system, whether we are discussing the Bill of Rights, the Electoral College, representative republicanism generally, or the so-called “countermajoritarian difficulty” of the Supreme Court.

That is why it is misleading and misinformed when someone says something like “[k]nee-jerk contempt for democracy…has a long and ugly history in this country, where the Founding Fathers were nearly as democracy-averse as Plato, and certainly more hostile to the prospect of redistributing wealth.” Such an attack, which seems to be the flavor-of-the-week in the wake of Donald Trump’s electoral victory, suggests our Constitution’s thoughtful approach to limiting democracy – a project motivated by a world history littered with lessons regarding the dangers of democracy – is something that it is not.

Conclusion

Limiting democracy is about protecting equal sovereign citizens who may find themselves in the minority at any given moment on any given issue. It is not about oppressing those individuals. So as we celebrate the 225th anniversary of our very anti-democratic Bill of Rights, while wading through surface-level condemnations of institutions like the Electoral College and the Supreme Court, let us remember that the Constitution’s structure and content are designed to reduce excesses of democracy – in other words, these anti-democratic constraints are features, and not bugs, of our constitutional system.

As Texas Supreme Court Justice Don Willett so trenchantly reminded while discussing the federal and Texas constitutions:

[O]ur federal and state charters are not, contrary to popular belief, about “democracy” – a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th- and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy).

Tweet on, Justice. Tweet on.

 

Co-authored by Christopher Cooke and Joel Nolette