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.