Leave the Constitution Alone

Writing in the New York Times, Meagan Day and Bhaskar Sunkara condemn America’s Constitution as designedly “anti-democratic.” The “subversion of democracy,” they say, “was the explicit intention of the Constitution’s framers.” The truth is both more complex and more edifying.

In support of their claim, Day and Sunkara quote James Madison’s complaint, made in Federalist 10, that “democracies have ever been spectacles of turbulence and contention.” Anyone who bothers to look up the context of this remark can see that the “Father of the Constitution” was here employing the term “democracy” in the narrow, strict sense of direct democracy—“a society consisting of a small number of citizens, who assemble and administer the government in person”—and not in the modern, looser sense of government by the people through their elected representatives. Since Day and Sunkara themselves advocate representative government, calling for an “elected unicameral legislature,” they actually follow Madison in rejecting the kind of democracy he found unsatisfactory.

According to Day and Sunkara, Madison and his colleagues deliberately devised an anti-democratic Constitution with a view to the narrowly partisan end of protecting “the rights of property owners” from efforts to “redistribute wealth.” This is not, however, how the founders understood what they were doing. They did not think of themselves as subverting the rule of the people but as restraining and moderating it, so as to make it compatible with other desirable things—such as stable government, religious liberty, the rights of minorities, and, yes, the rights of private property.

As Alexander Hamilton observed in Federalist 71, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse” of the majority. Trusting the people’s “deliberate sense,” but distrusting their momentary desires, the founders created a complex system—including arrangements such as separation of powers—that permits the people to rule, but makes it difficult for them to rule on impulse or on the basis of their passing whims. The founders did this because they were aware that rule by the people was a good thing but not the only good thing, and that the people’s momentary passions can sometimes be hostile to the other good things that make for a decent and just community.

Consider the issue with which Day and Bhaskar are so concerned: the redistribution of wealth. One can accept that the governmental redistribution of wealth is sometimes a necessary and legitimate step, and at the same time see that it is a dangerous process that should not be made too easy for any form of government. This is uncontroversial to anyone who believes in the right to private property, as most Americans do, and to anyone who has learned from the twentieth century’s disastrous experiments with socialism. There are many counties in the world in which a lot of misery would have been avoided had their governments been placed under constitutions that made the expropriation of private property more difficult.

Day and Sunkara are similarly tendentious in their criticism of the Constitution’s scheme of federalism. For them, it is a sign of the founders’ anti-democratic impulses that the Senate they created affords as much power to the half a million Americans living in Wyoming as the nearly forty million living in California. Once again, however, the founders were not being anti-democratic so much as they were seeking to combine democracy with other political goods—in this case, defending the political identity of the states as constituent communities of the nation.

As Madison explains in The Federalist, the Constitution establishes a “compound republic.” Its national legislature represents both the people (through the House of Representatives, in which states are represented according to their population) and the states (through the Senate, in which all states are treated as sovereign equals, each having two senators). The national executive is based upon both principles through the workings of the Electoral College, which awards each state a minimum of three electoral votes, and then adds more on the basis of population.

There is no question that the founders were justified in creating such a compound republic. There is no way that Americans of the founding generation, so jealous of local rights and protective of local self-government, would have consented to the creation of a fully nationalized government in which the states were completely obliterated as independent political entities.

To state the matter more positively, the Constitution’s federalism was intended not merely as a concession to political necessity, but as a respectful recognition of the kind of country America was: a people who thought of themselves as a single nation in some ways, but as a community of independent states in other ways, and who accordingly created a national government that had power to rule them for some but not all purposes, and that was designed to represent both the people of America and the states as independent communities.

Here, as often happens, left-wing critics of America take its existence for granted while denouncing the institutions that have made its existence possible. America’s government was instituted on the basis of the consent of the governed. The members of the founding generation were free to choose: either to create a national government or not. Nobody at the time of the founding had an obligation to agree to a new constitution. Concessions were made to the power of the states as states in order to induce a sufficient number of Americans to consent. The Constitution would not have been ratified otherwise.

Moreover, America is still the kind of country that requires federalism, or a constitutional recognition of the status of the states. Even today there is almost no likelihood that the citizens of the smaller states of the Union would consent to a reconfiguration of our system of government that diminishes their own political power—say, by abolishing the Senate or the Electoral College.

Even today, federalism is not only a political necessity—required by the small states’ natural protectiveness of their own constitutional prerogatives—but also a political good, a benefit for the whole country. May and Sunkara overlook the fact that the purer (and more left-leaning) democracies that they admire are all smaller, older, and more homogeneous societies than the United States. America is a large-scale, regionally diverse, and relatively young nation. Such communities are not easy to hold together. They require a spirit of compromise and moderation that keeps all members willing to see the community continue.

Federalism may make America less democratic in one sense. It makes its political institutions less purely democratic than May and Sunkara would like. But federalism makes America more democratic in another sense. It makes it a more enduring, more stable democracy. The country was not only founded on consent; it can only continue to exist on the basis of consent—the consent not just of a bare majority but of the overwhelming body of the people. May and Sunkara pine for a political system in which bare numerical majorities concentrated on the coasts and in the nation’s urban centers can impose their vision of justice on the whole country. They overlook the possibility that were such an experiment tried, it might well result in large portions of the interior of the country deciding that they no longer want to remain part of the United States.

No doubt the left wing partisans of pure democracy would claim that considerations of high principle should induce red state Americans to sacrifice the constitutional power they currently enjoy by helping to create and then remaining in a new, non-federal democracy. They must do so in the name of equality—of one person, one vote. This is mere pretense—a moralistic justification for what is in reality a desire for political power. There is nothing consistent or principled in wanting to junk the Constitution, on the one hand, while at the same time demanding that we keep the county that the Constitution has made possible, on the other. You can’t change the rules and, at the same time, tell the other players that they are obliged to stay in the game.

But perhaps the whole country is somehow suffering from its supposedly outdated Constitution. Certainly May and Sunkara think so. They blame the Constitution for America’s relative lack of generous social welfare policies, such as universal health care and paid maternity leave, that have been adopted in other developed nations.

Here May and Sunkara judge our Constitution by a standard that is both partisan and utopian. It is partisan because it ignores the fact that a great many Americans don’t want a more extensive welfare state. The judgment is utopian because it fails to note that countries with a purer form of democracy, and with a more generous welfare state, are not simply superior to America. We may have problems that they don’t have, but they have problems that we don’t have. They may offer more economic security for individuals, but their national economies are relatively less dynamic than America’s. Contrary to what May and Sunkara suggest, in politics, as in all of human life, all choices involve both costs and benefits.

This brings us to the key point. Judged by rational and practical standards, America’s Constitution has been a remarkable success. America is a very free, very secure, very prosperous country. It does not have universal health care, but its people are, by and large, healthy and have access to medical care when they need it. It does not have nationally mandated paid maternity leave, but it has a dynamic economy in which many people manage to have children and provide them with a decent standard of living.

Nor is America a country in which such necessities are just barely obtained, while higher things are neglected. America has all the things that make for a civilized nation. Its people are highly educated. The arts and sciences flourish.

The celebrated economist Thomas Sowell once observed that much of the history of the Western world during the contemporary period of liberal dominance “has involved replacing what worked with what sounded good.” We have had more than enough of this tampering with institutions that have served us so well. Leave the Constitution alone.

Reader Discussion

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on August 29, 2018 at 10:11:53 am

It's such a facile criticism, that "it's not democratic enough." At the very same time, there are all sorts of other liberals despairing of democracy because it's not getting the people they ("the elites") think ought to be elected. None of this is new, of course; it's the old Progressive playbook

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CJ Wolfe
on August 29, 2018 at 12:00:41 pm

Great piece, except I think you did need to mention the fact that Madison, Wilson, and Morris, generally the wisest men at the Convention, were all staunchly against the equal representation of the States in the Senate.

After the fact, one could seem to embrace it in one's rhetoric as helping to enforce the compound and federal nature of the American system, as Madison did in Fed 39 and elsewhere. The responsible thing to do. One could also mention its strengthening the rationale for Article I's bicameralism.

However, the equal rep of the states in the Senate is unjust. And it is the kind of injustice that could also rightly be labelled anti-democratic.

If one disagrees with that, one disagrees with Madison. Nowhere did he repudiate his stance at the Convention--he simply declined to revisit that argument, and during the ratification contest put the best face on the outcome, which did have pro-Federalism benefits, that he could.

In my judgment, there is no strong reason to think that what equal Senate rep. gained us in terms of Federalism outweighed this injustice, which is an ongoing one. The strongest supports to Federalism lie elsewhere, in the enumeration of legislative powers, in the police powers doctrine, in the present pushback against unlimited use of the commerce clause, etc. I say this as one who would likely support a repeal of the 17th, while nonetheless not expected huge Federalism gains from such a repeal.

But what our leftists won't let themselves understand, is that the compromise that enshrined equal Senate representation was almost certainly necessary to make in 1787. And the simple fact that most of them don't know, and typically refuse to bow to it once informed of it, is that this is the one and only unamendable part of the Constitution. (Read Article V) Either you are resigned to its continuance as an unjust feature of our regime, or you are for open--and defacto revolutionary--defiance of the Constitution.

Sunkara and Day have an awful lot to learn. I'd recommend to them a thorough study of the How Democratic Is the Constitution? volume edited by William Schambra. There they would see how poorly the one scholar who supports their position looks compared to the others, and they would encounter Joseph Bessette's seminal essay on "Deliberative Democracy." That essay would give them a fuller sense of one of Holloway's best arguments above. And they would also see they way real constitutional scholars, in contrast to the likes of Matthew Yglesias (see my website link), discuss our fundamental law.

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Carl Eric Scott
on August 29, 2018 at 12:20:31 pm

There is no doubt,to any honest observer,that the original Constitution has been so amended,miss-interpreted ,ignored and or changed that it has little baring on what the Founders envisioned as to the creation of a republic. If one is an observer of history,especially political and economic history,there is no doubt that over the past 100 plus years that,albeit in modified form, all 10 Planks to the Communist Manifesto has been woven into the American fabric. The Income Tax,Inheritance Tax,Federal Reserve central bank,Public Education and so forth plus the centralization of power in Washington DC with the 17th Amendment,has all sprung from the fountain of collectivism. Today we live not in a nation of law and property rights,but instead, in a land of powerful men where we have privileges instead of rights. This situation evolved incrementally over a period of many years. Most of us are numbered with government files on every aspect of our lives. In fact we have to ask permission to do many things that were once taken for granted. This is not the free republic as was defined by our founders. That dream ended decades ago.

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libertarian jerry
on August 29, 2018 at 15:26:41 pm

Dr. Holloway presents a thoughtful restatement of principled and wise deliberations of the Founders on the matter of democracy and a federal system of government. There were compelling reasons why the Founders of necessity abjured creating a structure that afforded even more representative democracy and why fundamentally altering that course would be destructive of the blessings of liberty which the constitution has afforded.

Just as Beard's debunked ideological history of the economic origins of the constitution was used to justify the anti-constitutional politics of Democrats from Woodrow Wilson to FDR, so it is with Day and Sunkara's anti-democratic constitutional critique (although their argument, unlike Beard's, is all rhetoric and no history.) They have simply substituted for Beard's property interests the Obama mantra of social justice and democratic redistribution ("you didn't build that") as the latest in a long-line of unworthy ideological diatribes against the Founding.

Holloway ends on a word of warning, quoting Thomas Sowell that much recent political history “has involved replacing what worked with what sounded good.” Yet, there's no persuading the likes of Day and Sunkara and thousands of similar folks in the group-think academies of law and government. And to grasp why this is so, why it's literally a waste of time to debate, why it's literally impossible to convince, these ideological legions of anti-constitutional rhetoricians one must double down on the wisdom of Sowell by drawing from his "Conflict of Visions" and add to that the wisdom of Eric Hoffer's "True Believer," two of the most important books of the 20th century (along with Freud's "Group Psychology and the Analysis of the Ego," which also bears on why it's a waste of time to attempt reason with those who will not see what they cannot accept.)

Those possessed of Sowell's "unconstrained vision" are tantamount to Hoffer's "true believers." Both groups see the constitution as structurally-grounded and the culture's institutions as morally constructed so as to suppress, to exploit and to deny opportunity to racial and sexual minorities on whose backs was built the prosperity of the nation and its ruling white class. The fight to defend the constitution's structure, to resist its democratization in the name of social justice, to defend rather than upend these repressive societal institutions is but aggression in furtherance of white privilege and continued racial and sexual inequality, a war of aggression against decency motivated by the evil of bigotry, armed by the power of greed and fueled by the fervor of white oppression.

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Pukka Luftmensch
on August 29, 2018 at 16:15:57 pm

"And the simple fact that most of them don’t know, and typically refuse to bow to it once informed of it,..."

In an age where mathematics is said to be a self-evident manifestation of white hegemony, privilege and patriarchy, WHY, Dear Soul, would we expect anyone of these "maleducated" zealots to accept historical / constitutional fact.
(And I hate this version of Spell-CHUCKER).

But Carl, I think you need do more than simply assert that value of Federalism consequent to the Equal Representation of States in the US Senate is more than outweighed by the costs to representative government.
Yes, it was a compromise BUT one, to my thinking at least, was both necessary and integral to the notion of a Federated Republic as opposed to a democracy. While specific clauses / text of COTUS delineate Federal vs State Power, it must be remembered that in the thinking of the Crafters of COTUS, and this would include Madison, Senators were intended to be State's Diplomats and were to be charged with the responsibility of assuring that the Federal Government did not exceed its boundaries. Not only did Madison not believe that men were angels, he most assuredly understood that politicians were not angels. Thus, the weapon of a State's Diplomat.

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on August 29, 2018 at 17:13:08 pm

Yes, true dat (as my brilliant lawyer daughter would say,) but furthermore, to paraphrase the Great Chief 32 years after the Founding, "We must never forget that it (was a confederation of sovereign states the Founders were destroying.") The constitutional substitute for the former voluntary alliance of thirteen separate, equal and independent countries was never conceived as limiting (certainly not abolishing) the sovereign power of any one of them except insofar as they all conceded specified powers to the national authority and acknowledged the supremacy of that central authority as to those enumerated powers and agreed that the republican governance of each sovereign state was to be preserved and defended. Nor was it ever acceptable, if contemplated, that the prior equality of 13 state sovereigns would be altered except insofar as would be accomplished by the compromise reached in the method of Congressional and Electoral College selection.

Power came from the people, yes, but the power of the people in one state was to be no greater than the power of the people in any other state except insofar as those states agreed in setting out the method of electing Congressmen and selecting Electors.

Furthermore, applying "fairness" today as a standard to contradict that 18h century political conception and settlement raises issues as to normative criteria the determination of which would invite the macro-aggressive intrusion of a Justice Kennedy-like being of superior wisdom, a Platonic philosopher king with the political power of Caesar Augustus, from which the country has suffered enough, although of which the Left is overly-abundant.

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Pukka Luftmensch
on August 29, 2018 at 19:42:16 pm

Yeah BUT "fairness", as Mr Sowell recognizes SOUNDS GOOD!
And, if anything Leftists need to sound (and appear) good, now don;t they!
(BTW: Carl is no leftist).

BTW2: current CRB has a nice review by Voegeli on sowell's works.

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Image of gabe
on August 29, 2018 at 20:35:20 pm

Yep, already read the terrific Sowell article by Voegli, political brilliance writing about economic genius.

I agreed with most of what CES had to say in his comment. Just take hard issue with his assertion that the Senate set-up was/is "unjust" and that it gained us little by way of federalism. I said "unfair" inadvertently misquoting him, but that does not change my opinion that he's wrong in saying that political reality rather than political philosophy and structural intelligence led the Founders to accept two Senators per state despite the opinions of Wilson, Morris and Madison.

I don't have the resources at hand or the time necessary to dispute that assertion, but am highly dubious of it and, indeed, think one could generate the research to disprove it.

Further, the two Senators per state was not a nod to federalism, as CES said, but deference to the political and economic divisions between the large and small states, which was at the heart of the anti-Federalists' fear of adopting nationalizing elements.

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Pukka Luftmensch
on August 29, 2018 at 22:09:36 pm

"but deference to the political and economic divisions between the large and small states, which was at the heart of the anti-Federalists’ fear of adopting nationalizing elements."

At times one wishes the antis- were more successful but......

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on August 31, 2018 at 15:08:42 pm

The NYT has discovered that the constitution has elements that are non-Democratic. Brilliant! Anyone with even an elementary understanding of the constitution understands that. Pure democracy was anathema to many of the founders, and for reasons that were not always selfish (I.e. preservation of their own wealth). Pure democracy, though it sounds like the ultimate in fairness, is not necessarily better than our current system, and in fact probably isn’t. Thomas Sowell’s quote could not be more tailor-made for this situation.

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