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If we consider the Founders’ arguments for the Constitution, we find not only that they intended it to be undemocratic, but that they would defend even its most undemocratic elements on “popular” grounds. What might appear to the partisans of democracy today as outdated roadblocks to efficient government are for the Founders politically salutary forms intended to delay rash action.

Amid the outrages surrounding the confirmation hearings for Brett Kavanaugh, progressive commentator Chris Hayes noted the growing tension between our popular notions about democracy and the undemocratic character of our Constitution. “The logic of popular democracy,” he wrote—our “core principles” of “universal suffrage and majority rule”—when paired with the “actual constitutional structure of the country” make for a “combustible mix.”[1] Whether one has more sympathy for our current democratic ideology or for the rationale that underlies our formal, constitutional structure, Mr. Hayes’ observation is undeniable. The contradiction between them is real, is ever-widening, and seems to contribute to the rage, discontent, and political dysfunction of the nation.

Of course, criticisms of our Constitution for being insufficiently democratic are not new. Some of these criticisms were voiced at the Founding; others first surfaced in the Progressive era. But egregiously undemocratic institutions such as the Senate and Electoral College have come under special and frequent criticism in recent years. And as regard for our least democratic branch fluctuates wildly as the federal judiciary hands down victories to one side or another in the culture wars, it seems that it is only the power of the Supreme Court in our social and political debates that has prevented it from suffering sustained and principled criticism as undemocratic.

But if we consider the Founders’ arguments for the Constitution, we find not only that they intended it to be undemocratic, but that they would defend even its most undemocratic elements on “popular” grounds. The following examination will take us beyond the clichéd conservative talking point that the Constitution establishes a “democratic republic,” not a “democracy,” to a more accurate understanding of the original character of our regime, and a clearer vision of the contrast between it and our present political order.

Our Wholly Popular, Republican Government

The key to understanding the popular defense of an undemocratic regime is to realize that the Founders, while entrusting our government to “the people,” knew that popular government was desirable only under certain conditions. Good government depends in large part on the character of the people, and thus belongs to the realm of civil society, the family, religious institutions, and what Alexis de Tocqueville called voluntary associations. But the Constitution shapes our political life and so has a crucial role to play. As first John Adams and then Alexander Hamilton observed, to hope for the good administration of political affairs while neglecting the form of government is a grave error.[2] Political regimes are both shaped by and shape the character of their peoples. While designing and defending the Constitution, the Founders distinguished between what we might call the whim of the people as recorded by, say, a Gallup poll, or even a national election, and the genuinely-expressed will of the people, the result of long and well-considered deliberation. They provided institutional measures for discerning what should count as the genuine will of people, and entrusted the fate of the nation above all to this genuine popular will.

A clarification of terms is in order. Hamilton, Madison, and John Jay, writing the Federalist papers under the collective pseudonym Publius, defined “popular government” as a government whose powers derive from and depend on “the people.” They distinguished two forms of popular government: a democracy, in which the people rule directly, making political decisions en masse and in person; and a republic, in which the people ruled through their representatives.[3] A democracy in this sense was both undesirable and impractical: undesirable, as political history and especially the incredible instability of “the histories of the petty republics of Greece and Italy” demonstrated, and impractical for a nation the size of the United States, whose people cannot gather to exercise political power directly.[4] They further noted that a truly republican regime must be “popular” insofar as it is ruled by “the great body of the people”: not so narrow a citizen-body as to be in truth a factious oligarchy or permanent ruling class, but not necessarily requiring universal suffrage, as would become the case during the 19th and 20th centuries.[5]

The Constitution establishes a “wholly popular,” and specifically republican, form of government. In other words, every legitimate power of the federal government originates in the consent of “the great body of the people” and may be checked by the people. Under the Constitution, no official has the right to rule except through the people. In some cases, namely members of the House of Representatives, politicians are elected by the people directly. In other cases, such as Senators (who, until the 17th Amendment, were elected by state legislatures) and the President (elected by the Electoral College, whose members are elected by the citizens of the various states), politicians are elected popularly but indirectly. Even unelected officials, such as federal judges, are appointed and confirmed by officials who have themselves been (indirectly) elected by the people. Consider the federal judiciary, whose mode of appointment is meant to stand at the greatest remove from the passions of the people. A qualified judge should be well-educated and experienced in practicing law—but neither a degree from a prestigious law school, nor distinguished years in a courtroom, nor the approval of the American Bar Association, entitles any individual to be a judge. Nor does being qualified for any other office in itself entitle anyone to assume and exercise the powers of that office. Under the Constitution, the ultimate and exclusive “title to rule” is the consent of the governed.

But Madison went further, pointing out that the Constitution establishes not only a wholly popular, republican form of government, but one that is entirely undemocratic. “The people” never directly exercise political power as the people in national politics. The closest we come to doing so is by voting in our biennial federal elections. Not only do we vote as members of a specific state in such elections—participating as citizens of a federal republic rather than citizens of a consolidated nation; more fundamentally, we always cast our ballot for a candidate. Unlike some state constitutions today, the U.S. Constitution does not allow for popular referenda. No matter how motivated we are by principles or issues or party—even if we vote “straight ticket”—at the end of the day, we can only ever vote for persons, not policies. Our duty as citizens active in federal politics is to choose those persons we deem trustworthy to make the actual political decisions as they serve in their respective offices.

Popular Whim and Popular Will

All this, however, belongs to the category of popular desire or popular whim. Publius was explicit about this in the case of the House of Representatives, which he likened to the “passions” of the people rather than their judgment, and which accordingly is elected every two years so that it might act as an accurate barometer of popular content and discontent. But even the Senate and Presidency and federal judiciary, offices that require greater prudence and deliberation, and whose mode of election or appointment were intended to elevate wiser and more experienced individuals, cannot be assumed to embody the will of the people in the deepest or most genuine sense.

Hamilton explained this while arguing why the Constitution should be the standard against which laws of Congress are judged.[6] Why should Congress, or any other branch of government, be bound to the Constitution and limited by its provisions? Why should the Supreme Court have the power to strike down laws as unconstitutional, rather than strike down the Constitution as inconsistent with the latest laws of Congress?

Today, when this question is raised, it is usually answered by the common sense and legal observation that Congress is created by the Constitution; because the legislature’s authority derives from the Constitution, the former is subordinate to the latter. Or, it is answered through a consequentialist argument, that accepting a single, long-lasting, and difficult-to-alter written document as a standard will provide a salutary check on government and encourage better results.

Hamilton deployed both of these arguments, but ultimately he rested his case on a deeper foundation. The Constitution is the act not only of a “prior” but also a “superior” authority to that of Congress: It is an act of the people, while the laws of Congress are acts of the representatives of the people. According to Hamilton, the Constitution is the genuine expression of the will of the people. The document itself was the product of a long, careful, and thorough process of deliberation by the Framers who were the people’s representatives at the Philadelphia Convention, and the Constitution was debated publicly and at length by the people themselves as they voted, state by state, to ratify it. To say the least, the same cannot be presumed in the case of any given law passed by any given Congress. Madison even went out of his way early in the Federalist papers to concede that every legislative act is partial or partisan with regard to the classes of society it favors.[7] The Constitution is a more genuinely “popular” expression of authority than the laws of Congress, even though the legislature is the branch of the federal government most responsive to the people, and its lower house is the government’s most democratic body.

The argument that the Constitution better expresses the will of the people than Congress is counterintuitive, but it helps clarify the common sense and consequentialist arguments, and it reveals the true meaning of popular government as the Founders understood it. We have already heard Publius’ contrast between the sagacity of the Convention and the leisure with which the American people debated and ratified the Constitution, as opposed to the normal rough-and-tumble of politics, parties, and special interests jockeying for influence over legislative bodies. We may grasp the argument more fully with the help of an analogy.

Consider the difference between an individual’s whim and will. Our whims or momentary passions may be strongly felt, but they are fleeting. We hold ourselves accountable for what we do on a whim, or in a fit of passion, but in so doing, we recognize the difference between ourselves and our passions, and we recognize the superiority of the “self” over what it feels or experiences. This basic truth about the human person has been articulated in various ways throughout Western history going back to the division of the soul by Plato’s Socrates and the distinction between the law of the limbs and law of the mind by St. Paul. It is recognized by our legal tradition in distinguishing manslaughter from murder, crimes of passion from premeditated crimes. Our proper selves are better expressed in what we will or intend than what we incline toward under the impulse of a passing passion. Rightly understood, the will is the product of reason and judgment as well as desire, and it manifests our intention and purpose.

What then is the will or intention of “the great body of the people” who are the source of sovereign authority in our regime? As individuals, we might reason and deliberate about whom to vote for in a given election, and at the end of a long process of thinking and reading and speaking with our fellow citizens, we might have a genuine will in favor of one candidate or another. But even if every citizen deliberated carefully before voting, Publius would not think that the results necessarily qualify as the will of the people. Not only are elected officials agents of the people rather than the people themselves. The result of any given national election itself resembles the fleeting passion of an individual.

On this understanding, the American people have truly exercised their will, or truly performed an intentional act, very rarely. These acts include the initial ratification of the Constitution and the subsequent adoption of the various amendments—a cumbersome process, requiring debate and deliberation in Congress and throughout the state legislatures over a long period of time. To be sure, this process of deliberation is not all calm and coolness. As Brutus puts it in Shakespeare’s Julius Caesar: 

Between the acting of a dreadful thing
And the first motion, all the interim is
Like a phantasma, or a hideous dream:
The Genius and the mortal instruments
Are then in council; and the state of man,
Like to a little kingdom, suffers then
The nature of an insurrection.[8]

What might appear to the partisans of democracy today as outdated roadblocks to efficient government, responsive to the needs and wants of the people, are for the Founders politically salutary forms intended to delay rash action. Such forms and constraints—all of which are entirely undemocratic, but popular, and thoroughly republican—are meant to ensure that our great, “dreadful” decisions are genuine or deliberate acts of the people: acts, rather than manifestations of mere whim or passion, and of the people, rather than of their representatives.

All of which is to say: The deepest root of the problem—our democratic discontent with our undemocratic constitution—is not the fact of universal suffrage or the principle of majority rule as such, but a moral or philosophical issue, namely, our failure to distinguish between whim and will, between passion and deliberation. It might be argued that the problem itself arises, albeit indirectly and after great delay, from the broadness of our electorate. As Tocqueville showed in Democracy in America, political and social equality slowly engenders intellectual and spiritual egalitarianism, ultimately sapping a people’s ability to govern themselves. But as Publius knew, a republic presupposes the existence of mankind’s estimable qualities “in a higher degree than any other form” of government.[9] For a genuinely popular government to endure in America, perhaps it must remain republican rather than democratic, and perhaps we must recover the undemocratic distinction between the passions that beset us and the true acts of our will.

This essay was first published here in October 2018.

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Notes:

[1] See here and here.

[2] Both make this observation in response to a couplet from Alexander Pope’s Essay on Man: “For forms of government let fools contest / That which is best administered is best.” Adams says Pope “flattered tyrants too much” and asserts that “the history of nations and the nature of man” establish with certainty that “some forms of government are better fitted for being well administered than others.” John Adams, “Thoughts On Government: Applicable to the Present States of the American Colonies” (1776), in The Revolutionary Writings of John Adams, edited by C. Bradley Thompson (Indianapolis, IN: Liberty Fund, 2000), 287. Hamilton admits that “the true test of a good government is its aptitude and tendency to produce a good administration,” but brands Pope’s couplet a “political heresy” (Federalist No. 68).

[3] Madison, Federalist No. 10.

[4] Hamilton, Federalist No. 9.

[5] Madison, Federalist No. 38.

[6] Hamilton, Federalist No. 78.

[7] Madison, Federalist No. 10.

[8] Shakespeare, The Tragedy of Julius Caesar, II.i.63–69.

[9] Madison, Federalist No. 55.

The featured image is a photograph of the mural, “The Constitution,” by Barry Faulkner, 10/27/1936, and has no known copyright restrictions, courtesy of Wikimedia Commons.

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