A Constitution, if you can keep it
Jay Cost
The Constitution is the oldest written instrument of government still in effect in the world today. As with so much else in our country, it is polarizing. Conservatives celebrate the Constitution’s longevity as a sign of its excellence and encourage Americans to adhere to its basic principles. But lately progressives have grown loud in their critique of the nation’s founding charter. Over the past few years, a growing number of writers on the American Left has criticized virtually every nook and cranny of our nation’s founding charter.
In a December 2020 article for Salon, Greg Coleridge and Jessica Munger asserted that the Constitution is “hopelessly outdated,” citing among other maladies “declining public trust,” “the electoral crisis,” and the COVID-19 pandemic. In a sprawling Harvard Law Review essay from November 2020, Michael Klarman lamented the “degradation of democracy” and called for a number of sweeping reforms, including eliminating equal apportionment in the Senate and implementing nationwide multimember districts determined by ranked choice voting.
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In an October 2019 Atlantic article, Sanford Levinson warned readers that the “Constitution is the crisis” of our government. (Emphasis in original.) Writing on his Substack page in June 2022, James Fallows bemoaned that “practically no other modern nation still runs on rules set up long before the use of electricity, or knowledge of the germ theory.” (Emphasis in original.) Appearing on MSNBC’s The ReidOut, Georgetown Law professor Rosa Brooks said that Americans “are essentially slaves” to the Constitution, which “was written more than 230 years ago by a tiny group of white slave-owning men.”
These criticisms usually boil down to the idea that, far from being a democratic system of government, the Constitution employs a clunky system of checks and balances to prevent the people from ruling. The framers of the Constitution were men of a different era, fearful of popular sovereignty and committed to aristocratic privilege, as embodied by the institution of slavery. But times have changed, opinions have evolved, and the demands of the moment are different. Now, a system of government that leverages the power of the people is needed to institute long-overdue policy changes.
There is something deeply American about calls to reform our system of government. After all, the revolutionary generation did exactly that — twice — first by overthrowing King George III’s rule and then by replacing the Articles of Confederation with the Constitution. Some framers can certainly be cited as advocates of periodic, sweeping changes. Thomas Jefferson, for instance, once wrote to James Madison “that the earth belongs in usufruct to the living: that the dead have neither powers nor rights over it.” From that, it follows that no generation should be bound by a faulty instrument of government written so long ago.
Too often, the conservative response to the progressive critique can be boiled down to tough luck. The founders created a republic, not a democracy. This is hardly a compelling retort. It smacks of the old saw about conservatives liking old things simply because they are old. Progressive columnist Paul Waldman, writing in the Washington Post in July 2022, was not entirely wrong when he noted conservatives’ tendency to deify the founders, or perhaps their interpretation of the founders: “This is the conceit of today’s right: The Founders were essentially perfect, and only we conservatives are capable of interpreting their will.”
What is missing from this debate is an understanding of the theory of government embodied by the Constitution. What was the founders’ agenda? What was the logic they had in mind? And does that logic suggest a democracy or a republic? What are the differences between these, anyway? All these questions hang in the background of the arguments over the Constitution, but they are rarely addressed directly.
“Democracy” derives from the Greek and means rule by the people. For all intents and purposes, nobody favors an absolute democracy. Most of us think there must be limits. For instance, we generally agree that nobody can have their life, liberty, or property seized without due process of law. Likewise, we generally believe that people have a right to worship God as they please or speak their mind. The existence of these civil rights implies that a democratic government is not allowed to do whatever it wishes and therefore that the rule of the people is not always wise and good.
A republic is not exactly the same as a democracy. The word comes from the Latin res publica, or the public affair. It speaks to the idea that the government belongs to the citizenry and must work on its behalf. The Roman Republic was the first great republic in world history, but the Roman experience illustrates that a republic need not be democratic, strictly speaking. Rome is better understood as an oligarchic republic — in which authority was vested in the citizenry (itself an exclusive subcategory of the population) but tilted toward the wealthy, well-born, and older.
The United States, on the other hand, was the first democratic republic in the modern world. Citizenship was defined more broadly than any Western nation at the time of the American founding, and distinctions of wealth among citizens were much less significant factors in the distribution of political power. Perhaps Abraham Lincoln offered the best definition of a democratic republic in the Gettysburg Address — “government of the people, by the people, for the people.”
Lincoln’s statement brings into focus the core tension between republicanism and democracy. What happens when government of the people and by the people is not actually for the people? In a simple democracy, the people, or at least a majority of the people, possess supreme power. If they wield that power for the good of themselves at the expense of the community or the rights of others, it is no longer a democratic republic. It is a democratic tyranny. A democratic republic implies that there must be limits to the majority’s power, lest it mistreat the rest of the community.
The Constitution offers a unique theory of democratic republicanism to answer this question. It empowers the people to govern while attempting to redirect the democratic spirit away from dangerous ends. Thus, the progressive critics of the Constitution are correct, in some respects. It is “antidemocratic” in some ways. But the ultimate purpose is to prevent democracy from destroying republicanism.
The central argument of this book is that the Constitution reconciles the occasionally competing values of democracy and republicanism by promoting consensus in the lawmaking process. The framers of the Constitution believed that the larger, broader, and more considered a majority is in support of an initiative, the more likely the initiative promotes justice and the general welfare. Such a consensus is not guaranteed to be wise or fair, but the chances are higher than those of a small, narrow, or fleeting majority. The Constitution will usually thwart these in what today we know as “gridlock.” This is a feature, not a bug, of our system. Such democratic majorities are potentially dangerous to the republican character of the nation, and thus the Constitution makes it so they struggle to get anything done.
While democracy is a necessary condition for a republic, it is not sufficient. It would be nice if the people would always rule with an eye toward justice and the common good, but all the evidence from the history of our nature demonstrates otherwise. The framers were well aware of the collapse of democratic Athens in the golden age of Greece. They also could look closer to home, at the way the states under the Articles of Confederation ignored the good of the nation and trampled on the rights of political minorities. And as Polybius advised, every system of government is liable to be corrupted; a democratic republic will collapse into a democratic tyranny.
The Americans sought to escape this fate through the Constitution. It relies on the principle of democracy as the foundation of the regime, but it structures popular sovereignty to prevent the republic from being corrupted into democratic tyranny. The people ultimately write the law in this country, but they do so under the constraints of consensus. Democratic majorities need to be large, broad, and considered to enact meaningful changes in our polity, for such coalitions are more likely to reflect the true interests of the community.
We see this at every step along the way in the Constitution’s lawmaking process — which structures both popular sovereignty and the political combat among elites. Democratic representation helps refine public opinion, by hopefully elevating those individuals who can divine the true interests of their constituents. Bicameralism creates two distinct versions of the public mind, which must agree with one another for any law to be enacted — reducing the chances that an intemperate majority enacts bad laws or a clique of elites hijacks the lawmaking process. The House, by reflecting the United States in all its diversity, includes a multitude of factions, therefore reducing the chances that any one group dominates. The Senate, by representing the interests of the states, gives special voice to geographically distinct minorities. The president, as an officer elected by the whole people, has a final check on the legislative process to ensure that Congress keeps its eye on the big picture.
Admittedly, the sum total is a complicated system of government that often seems ramshackle and haphazard. But the pieces of the puzzle fit together meaningfully. The Constitution seeks to defend, as Madison put it at the Constitutional Convention, “[against] the inconveniencies of democracy” while remaining “consistent with the democratic form of [government].” The people rule in our system, but by forcing them to achieve consensus, the Constitution increases the chances that their rule benefits society.
The system is not perfect. No system is. There are costs to consensus. It is inefficient, as bringing in a multitude of factions to the governing coalition can make the task of necessary legislation more costly and time-consuming than with simple majoritarianism. It is often slow to address problems before they become crises. It can perpetuate injustice, especially when those who are mistreated do not enjoy the rights of citizenship. While the parties can enhance the prospects of consensus by improving public judgments, they too often encourage extreme factionalism. While the Supreme Court can serve as a wise and neutral arbiter in disputes, it has also used the power of judicial review to act as a hegemonic faction, dividing the country and inhibiting the chances of consensus. And a system founded on consensus works best when the people embody a spirit of mutual respect and an earnest desire for true accommodation to one another — a virtue that is decidedly lacking nowadays.
Nevertheless, a country as large and diverse as ours, without any clear ethnic, religious, economic, or cultural signifier of “we the people,” must be founded on the principle of consensus. That is what makes us so different from the democracies of Europe, many of which rely on more majoritarian mechanisms. America is not Sweden. Ours is a continent-spanning republic whose people defy any uniform classification. Loyalty to our regime can only be produced in one way — a broad-based conviction that meaningfully reflects each faction’s own unique preferences and beliefs. That requires consensus. And while we might often find ourselves frustrated by the gridlock of day-to-day politics, our Constitution has created a framework by which an ever-growing number of people can peacefully live together.
In the final analysis of the Constitution, perhaps the inestimable Benjamin Franklin offered the best argument in its favor. There are many ways to criticize our system of government, just as anyone can find fault with anything if they look hard enough. But realistically, the Constitution, as Franklin put it, is a stunning achievement.
I doubt … whether any other convention we can obtain, may be able to make a better Constitution. 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. … It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does … Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.
Judged against an ideal system that has never been and will never be, our system may seem a bit of a letdown. But in the real world, it remains a true marvel, a historic achievement, and a continued blessing for generations of citizens of the United States, a nation on the verge of its 250th year as a democratic republic.
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Jay Cost is a visiting fellow at the American Enterprise Institute and a visiting scholar at Grove City College. This piece is adapted from the Introduction and Conclusion to his recent book, Democracy or Republic: The People and the Constitution.