how democratic is the american constitution? democratic is the american constitution? ... new york...

How Democratic Is the

AmericanConstitution?

Robert A. Dahl

Yale University Press / New Haven & London

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Contents

Acknowledgments ix

CHAPTER 1. Introduction: Fundamental Questions 1

CHAPTER 2. What the Framers Couldn’t Know 7

CHAPTER 3. The Constitution as a Model: An American Illusion 41

CHAPTER 4. Electing the President 73

CHAPTER 5. How Well Does the Constitutional System Perform? 91

CHAPTER 6. Why Not a More Democratic Constitution? 121

CHAPTER 7. Some Reflections on the Prospects for a More Democratic Constitution 141

Appendix A: On the Terms “Democracy” and “Republic” 159

Appendix B: Tables and Figures 163

Notes 173

Index 191

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chapter 2

What the Framers Couldn’t Know

W ISE AS THE FRAMERS WERE, THEY WERE

necessarily limited by their profound igno-rance.

I say this with no disrespect, for like many others Ibelieve that among the Framers were many men of ex-ceptional talent and public virtue. Indeed, I regardJames Madison as our greatest political scientist andhis generation of political leaders as perhaps our mostrichly endowed with wisdom, public virtue, and devo-tion to lives of public service. In the months and weeksbefore the Constitutional Convention assembled “onMonday the 14th of May, A.D. 1787. [sic] and in theeleventh year of the independence of the United Statesof America, at the State-House in the city of Philadel-

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phia,”1 Madison studied the best sources as carefullyas a top student preparing for a major exam.2 But evenJames Madison could not foresee the future of theAmerican republic, nor could he draw on knowledgethat might be gained from later experiences with de-mocracy in America and elsewhere.

It is no detraction from the genius of Leonardoda Vinci to say that given the knowledge available inhis time he could not possibly have designed a work-able airplane—much less the spacecraft that nowbears his name. Nor, given the knowledge available in1903, could the Wright brothers have built the Boeing707. Although like many others I greatly admire Ben-jamin Franklin, I recognize that his knowledge of elec-tricity was infinitesimal compared with that of a first-year student in electrical engineering—or, for thatmatter, the electrician who takes care of my occasionalwiring problems. In fact, on that famous first experi-ment with the kite, Franklin was lucky to have escapedalive. None of us, I expect, would hire an electricianequipped only with Franklin’s knowledge to do ourwiring, nor would we propose to make a trip fromNew York to London in the Wright brothers’ aircraft.Leonardo, Franklin, the Wright brothers were greatinnovators in their time, but they could not draw onknowledge that was still to be accumulated in theyears and centuries to come.

The knowledge of the Framers—some of them,certainly—may well have been the best available in

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1787. But reliable knowledge about constitutions appropriate to a large representative republic was, atbest, meager. History had produced no truly relevantmodels of representative government on the scale the United States had already attained, not to mentionthe scale it would reach in the years to come. As much as many of the delegates admired the Britishconstitution, it was far from a suitable model. Norcould the Roman Republic provide much of a guide.The famous Venetian Republic, illustrious though ithad been, was governed by a hereditary aristocracy offewer than two thousand men and was already totter-ing: a decade after the Convention an upstart Corsicanwould knock it over in a featherweight military attack.Whatever knowledge the delegates could gain fromhistorical experience was, then, only marginally rele-vant at best.

Leaping into the Unknown

Among the important aspects of an unforeseeable fu-ture, four broad historical developments would yieldsome potential knowledge that the Framers necessar-ily lacked and that, had they possessed it, might wellhave led them to a different constitutional design.

First, a peaceful democratic revolution was soon toalter fundamentally the conditions under which theirconstitutional system would function.

w h at t h e f r a m e r s co u l d n ’ t k n ow 9

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Second, partly in response to that continuing revo-lution, new democratic political institutions would fun-damentally alter and reconstruct the framework theyhad so carefully designed.

Third, when democratization unfolded in Europeand in other English-speaking countries during the twocenturies to come, constitutional arrangements wouldarise that were radically different from the Americansystem. Within a generation or two, even the Britishconstitution would bear little resemblance to the onethe Framers knew—or thought they knew—and inmany respects admired and hoped to imitate.

Fourth, ideas and beliefs about what democracy re-quires, and thus what a democratic republic requires,would continue to evolve down to the present day andprobably beyond. Both in the way we understand themeaning of “democracy” and in the practices and insti-tutions we regard as necessary to it, democracy is not a static system. Democratic ideas and institutions asthey unfolded in the two centuries after the AmericanConstitutional Convention would go far beyond theconceptions of the Framers and would even transcendthe views of such early democrats as Jefferson andMadison, who helped to initiate moves toward a moredemocratic republic.

I shall consider each of these developments inlater chapters. But first I want to indicate some of thepractical limitations on what the Framers could rea-sonably achieve.


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What the Framers Couldn’t Do

The Framers were not only limited by, so to speak,their inevitable ignorance. They were also cruciallylimited by the opportunities available to them.

We can be profoundly grateful for one crucial re-striction: the Framers were limited to considering onlya republican form of government. They were con-strained not only by their own belief in the superiorityof a republican government over all others but also bytheir conviction that the high value they placed on re-publicanism was overwhelmingly shared by Americancitizens in all the states. Whatever else the Framersmight be free to do, they well knew that they could notpossibly propose a monarchy or a government ruled byan aristocracy. As the Massachusetts delegate ElbridgeGerry put it, “There was not a one-thousand part of ourfellow citizens who were not against every approach to-ward monarchy.”3 The only delegate who was recordedby Madison4 as looking with favor on monarchy wasAlexander Hamilton, whose injudicious expression ofsupport for that heartily unpopular institution may havegreatly reduced his influence at the Convention, as itwas to haunt him later.5 Hardly more acceptable was anadaptation of aristocratic ideas to an American constitu-tion. During the deliberations about the Senate, Gou-verneur Morris of Pennsylvania explored the possibilityof drawing its members from an American equivalentof the British aristocracy.6 But it soon became obvious

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that the delegates could not agree on just who theseAmerican aristocrats might be, and in any case theywell knew that the overwhelming bulk of American cit-izens would simply not tolerate such a government.

A second immovable limit was the existence of thethirteen states, with still more states to come. A consti-tutional solution that would be available in most of thecountries that were to develop into mature and stabledemocracies—a unitary system with exclusive sover-eignty lodged in the central government, as in Britainand Sweden, for example—was simply out of the ques-tion. The need for a federal rather than a unitary re-public was therefore not justified by a principle ad-duced from general historical experience, much lessfrom political theory. It was just a self-evident fact. IfAmericans were to be united in a single country, it wasobvious to all that a federal or confederal system wasinescapable. Whether the states would remain as fun-damental constituents was therefore never a seriousissue at the Convention; the only contested questionwas just how much autonomy, if any, they would yieldto the central government.7

The delegates had to confront still another stub-born limit: the need to engage in fundamental com-promises in order to secure agreement on any consti-tution at all. The necessity for compromise and theopportunities this gave for coalitions and logrollingmeant that the Constitution could not possibly reflecta coherent, unified theory of government. Compro-mises were necessary because, like the country at large,


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members of the convention held different views onsome very basic issues.

Slavery. One, of course, was the future of slav-ery. Most of the delegates from the five southern stateswere adamantly opposed to any constitutional provi-sion that might endanger the institution. Although thedelegates from the other seven states were hardly ofone mind about slavery, it was perfectly obvious to themthat the only condition on which coexistence would beacceptable to the delegates from the southern stateswould be the preservation of slavery. Consequently, ifthese delegates wanted a federal constitution theywould have to yield, no matter what their beliefs aboutslavery. And so they did. Although some delegates whosigned the final document abhorred slavery, they nev-ertheless accepted its continuation as the price of astronger federal government.

Representation in the Senate. Another conflict ofviews that could not be settled without a one-sidedcompromise resulted from the adamant refusal of thedelegates from the small states to accept any constitu-tion that did not provide for equal representation inthe Senate. The opponents of equal representation in-cluded two of the most illustrious members of theConvention, James Madison and James Wilson, whowere also among the chief architects of the Constitu-tion. Both men bitterly opposed what seemed to theman arbitrary, unnecessary, and unjustifiable limit onnational majorities. As Alexander Hamilton remarkedabout this conflict: “As states are a collection of indi-


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vidual men which ought we to respect most, the rightsof the people composing them, or the artificial beingsresulting from the composition. Nothing could be morepreposterous or absurd than to sacrifice the former tothe latter. It has been sd. that if the smaller States re-nounce their equality, they renounce at the same timetheir liberty. The truth is it is a contest for power, notfor liberty. Will the men composing the small States beless free than those composing the larger.”8

Let me give you a flavor of the elevated discussionthat preceded the victory of the small states. Here isGunning Bedford of Delaware on June 30:

The large states dare not dissolve the Confederation. Ifthey do the small ones will find some foreign ally ofmore honor and good faith, who will take them by thehand and do them justice.

To which Rufus King of Massachusetts replied:

I cannot sit down, without taking some notice of the lan-guage of the honorable gentleman from Delaware. . . .It was not I who with a vehemence unprecedented inthis House, declared himself ready to turn his hopesfrom our common Country, and court the protection ofsome foreign hand. . . . I am grieved that such a thoughthas entered into his heart. . . . For myself whatevermight be my distress, I would never court relief from aforeign power.9

Faced with the refusal of the small states to ac-cept anything less, Madison, Wilson, Hamilton, andthe other opponents of equal representation finally ac-


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cepted compromise of principle as the price of a con-stitution. The solution of equal representation was not,then, a product of constitutional theory, high prin-ciple, or grand design. It was nothing more than apractical outcome of a hard bargain that its opponentsfinally agreed to in order to achieve a constitution.10

Incidentally, this conflict illustrates some of thecomplexities of voting coalitions at the ConstitutionalConvention, for the faction opposed to equal repre-sentation in the Senate included four strange bed-fellows: Madison, Wilson, Hamilton, and GouverneurMorris. Although all four generally supported movesto strengthen the federal government, Madison andWilson usually endorsed proposals that leaned towarda more democratic republic, while Hamilton and Mor-ris tended to support a more aristocratic republic.

Undemocratic Elements in the Framers’ Constitution

It was within these limits, then, that the Framers con-structed the Constitution. Not surprisingly, it fell farshort of the requirements that later generations wouldfind necessary and desirable in a democratic republic.Judged from later, more democratic perspectives, theConstitution of the Framers contained at least sevenimportant shortcomings.

Slavery. First, it neither forbade slavery nor em-powered Congress to do so. In fact, the compromise


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on slavery not only denied Congress the effectivepower to prohibit the importation of slaves before180811 but it gave constitutional sanction to one of themost morally objectionable byproducts of a morally re-pulsive institution: the Fugitive Slave laws, accordingto which a slave who managed to escape to a free statehad to be returned to the slaveholder, whose propertythe slave remained.12 That it took three-quarters of acentury and a sanguinary civil war before slavery wasabolished should at the least make us doubt whetherthe document of the Framers ought to be regarded asholy writ.

Suffrage. Second, the constitution failed to guar-antee the right of suffrage, leaving the qualifications of suffrage to the states.13 It implicitly left in place the exclusion of half the population—women—as wellas African Americans and Native Americans.14 As weknow, it took a century and a half before women wereconstitutionally guaranteed the right to vote, and nearlytwo centuries before a president and Congress couldovercome the effective veto of a minority of states inorder to pass legislation intended to guarantee the vot-ing rights of African Americans.

Election of the president. Third, the executivepower was vested in a president whose selection, ac-cording to the intentions and design of the Framers,was to be insulated from both popular majorities andcongressional control. As we’ll see, the Framers’ maindesign for achieving that purpose—a body of presi-dential electors composed of men of exceptional wis-


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dom and virtue who would choose the chief executiveunswayed by popular opinion—was almost immedi-ately cast into the dustbin of history by leaders sympa-thetic with the growing democratic impulses of theAmerican people, among them James Madison him-self. Probably nothing the Framers did illustrates moresharply their inability to foresee the shape that politicswould assume in a democratic republic. (I shall saymore about the electoral college in a later chapter.)

Choosing senators. Fourth, senators were to bechosen not by the people but by the state legislatures,for a term of six years.15 Although this arrangementfell short of the ambitions of delegates like Gouver-neur Morris who wanted to construct an aristocraticupper house, it would help to ensure that senatorswould be less responsive to popular majorities andperhaps more sensitive to the needs of property hold-ers. Members of the Senate would thus serve as acheck on the Representatives, who were all subject topopular elections every two years.16

Equal representation in the Senate. The attemptto create a Senate that would be a republican versionof the aristocratic House of Lords was derailed, as wehave seen, by a prolonged and bitter dispute over anentirely different question: Should the states be equallyrepresented in Congress or should members of bothhouses be allocated according to population? This ques-tion not only gave rise to one of the most disruptive is-sues of the Convention, but it resulted in a fifth unde-mocratic feature of the constitution. As a consequence


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of the famous—or from a democratic point of view, in-famous—“Connecticut Compromise” each state was,as we have seen, awarded the same number of sena-tors, without respect to population. Although thisarrangement failed to protect the fundamental rightsand interests of the most deprived minorities, somestrategically placed and highly privileged minorities—slaveholders, for example—gained disproportionatepower over government polices at the expense of lessprivileged minorities. (I shall come back to this ele-ment in the constitution in a later chapter.)

Judicial power. Sixth, the constitution of theFramers failed to limit the powers of the judiciary todeclare as unconstitutional laws that had been prop-erly passed by Congress and signed by the president.What the delegates intended in the way of judicial re-view will remain forever unclear; probably many dele-gates were unclear in their own minds, and to the ex-tent that they discussed the question at all, they werenot in full agreement. But probably a majority ac-cepted the view that the federal courts should rule onthe constitutionality of state and federal laws in casesbrought before them. Nevertheless, it is likely that a substantial majority intended that federal judgesshould not participate in making government laws andpolicies, a responsibility that clearly belonged not tothe judiciary but to the legislative branch. Their oppo-sition to any policy-making role for the judiciary isstrongly indicated by their response to a proposal inthe Virginia Plan that “the Executive and a convenient


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number of the National Judiciary, ought to compose acouncil of revision” empowered to veto acts of the Na-tional Legislature. Though this provision was vigor-ously defended by Madison and Mason, it was voteddown, 6 states to 3.17

A judicial veto is one thing; judicial legislation isquite another. Whatever some of the delegates mayhave thought about the advisability of justices sharingwith the executive the authority to veto laws passed byCongress, I am fairly certain that none would havegiven the slightest support to a proposal that judgesshould themselves have the power to legislate, tomake national policy. However, the upshot of theirwork was that in the guise of reviewing the constitu-tionality of state and congressional actions or inac-tions, the federal judiciary would later engage in whatin some instances could only be called judicial policy-making—or, if you like, judicial legislation.18

Congressional power. Finally, the powers of Con-gress were limited in ways that could, and at times did,prevent the federal government from regulating orcontrolling the economy by means that all moderndemocratic governments have adopted. Without thepower to tax incomes, for example, fiscal policy, not tosay measures like Social Security, would be impos-sible. And regulatory actions—over railroad rates, airsafety, food and drugs, banking, minimum wages, andmany other policies—had no clear constitutional au-thorization. Although it would be anachronistic tocharge the Framers with lack of foresight in these


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matters,19 unless the constitution could be altered byamendment or by heroic reinterpretation of its provi-sions—presumably by what I have just called judiciallegislation—it would prevent representatives of latermajorities from adopting the policies they believedwere necessary to achieve efficiency, fairness, and se-curity in a complex post-agrarian society.

Enlightened as the Framers’ constitution may havebeen by the standards of the eighteenth century, fu-ture generations with more democratic aspirationswould find some of its undemocratic features objec-tionable—and even unacceptable. The public expres-sion of these growing democratic aspirations was notlong in coming.

Even Madison did not, and probably could not,predict the peaceful democratic revolution that wasabout to begin. For the American revolution was soonto enter into a new and unforeseen phase.

The Framers’ Constitution Meets Emergent Democratic Beliefs

We may tend to think of the American republic and itsconstitution as solely the product of leaders inspiredby extraordinary wisdom and virtue. Yet without a citi-zenry committed to republican principles of govern-ment and capable of governing themselves in accor-dance with those principles, the constitution wouldsoon have been little more than a piece of paper. As


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historical experience would reveal, in countries wheredemocratic beliefs were fragile or absent, constitutionsdid indeed become little more than pieces of paper—soon violated, soon forgotten.

The American democratic republic was not cre-ated nor could it have been long maintained by lead-ers alone, gifted as they may have been. It was they, tobe sure, who designed a framework suitable, as theythought, for a republic. But it was the American people,and the leaders responsive to them, who ensured thatthe new republic would rapidly become a democraticrepublic.

The proto-republican phase. The ideas, practices,and political culture necessary to sustain a republicangovernment were by no means unfamiliar to Ameri-cans. Unlike some countries that have moved almostovernight from dictatorship to democratic forms, andoften soon thereafter to chaos and back to dictator-ship, by 1787 the Americans had already accumulateda century and a half of experience in the arts of gov-ernment.

The long colonial period had provided opportuni-ties to both leaders and many men of ordinary rank to become acquainted with the requirements of self-government, both in the direct form of a town meetingand through electing representatives to the coloniallegislatures.20 We easily forget that although in its twofamous opening paragraphs the Declaration of Inde-pendence laid down some new and audacious claims,in the rest of that document—the part few people


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bother to read today—the authors mainly protestedagainst the British king for violating rights that, withsome exaggeration, they had previously enjoyed asEnglishmen.

The republican phase. The next phase, creating apopular republic, had begun with the astounding dec-laration on July 4, 1776, “that all Men are createdequal.” The Declaration marks the beginning of a se-ries of events that went much further than simplygaining independence from Britain. In what the histo-rian Gordon Wood has called the “greatest Utopianmovement in American history,”21 the Declaration alsotriggered a democratic revolution in beliefs, practices,and institutions—or better, an evolution—that has con-tinued ever since. The two decades since independ-ence had provided still more, and deeper, experiencein the practices of self-government. Nor was this expe-rience limited to a tiny minority. In some of the thir-teen states, a fairly high proportion of adult males hadacquired the franchise.22

Toward a democratic republic. The lengthy colo-nial and post-independence experience provided asturdy foundation for the efforts that Americans nowundertook in the next phase of the revolution, whenthe new republic was transformed into a more demo-cratic republic. To be sure, at the end of the eigh-teenth century few Americans were ready to concedethat the principles of the Declaration, much less dem-ocratic citizenship, applied to everyone.23 It would taketwo more centuries of evolution in democratic beliefs


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before most Americans would be inclined to agreethat the famous claim in the Declaration might be re-phrased: not just “all men,” but “all persons are cre-ated equal.”

Yet always keeping in mind the huge and persistentexceptions, by the standards prevailing elsewhere inthe world the extent of equality among Americans wasextraordinary. Alexis de Tocqueville, who observedAmericans during his year’s visit in 1831–32, openedhis famous work with these words:

Among the novel objects that attracted my attentionduring my stay in the United States, nothing struck memore forcibly than the general equality of conditions. Ireadily discovered the prodigious influence which thisprimary fact exercises on the whole course of society, bygiving a certain direction to public opinion, and a cer-tain tenor to the laws; by imparting new maxims to thegoverning powers, and peculiar habits to the governed.

I speedily perceived that the influence of this factextends far beyond the political character and the lawsof the country, and that it has no less empire over civilsociety than over the Government. . . .

The more I advanced in the study of American so-ciety, the more I perceived that the equality of condi-tion is the fundamental fact from which all others seemto be derived, and the central point at which all my ob-servations constantly terminated.24

During the three decades before Tocqueville ar-rived, under the leadership of Jefferson, Madison, andothers, supporters of a more democratic republic hadalready made some changes. The seismic shift from


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the views of the Framers and the Federalists is sym-bolized by the changing name of the party that wonboth the presidency and Congress in the election thatJefferson called—as have later historians—the Revo-lution of 1800. To defeat the Federalists, win the elec-tion, and gain control of the new government, Jeffer-son and Madison had created a political party thatthey appropriately named the Democratic-RepublicanParty. By 1832, with Andrew Jackson as its winningcandidate, the Democratic-Republican party becamethe Democratic Party, plain and simple.25 The namehas stuck ever since.

Conservative delegates among the Framers—laterthe core of the Federalist Party—had feared that if or-dinary people were given ready access to power theywould bring about policies contrary to the views and in-terests of the more privileged classes, which, as theconservative delegates viewed their interests, were alsothe best interests of the country. These conservativefears were soon confirmed. Within a decade the emi-nent Federalist leaders were pushed aside and the Fed-eral Party became a minority party. A generation laterhad seen the demise of both the party and its leaders.

If these changes justified some of the pessimismabout popular majorities of many of the Framers, theirpessimism proved unjustified in another important re-spect. A substantial number of the Framers believedthat they must erect constitutional barriers to popularrule because the people would prove to be an unrulymob, a standing danger to law, to orderly government,


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and to property rights. Contrary to these pessimisticappraisals, when American citizens were endowed withthe rights and opportunities to support demagoguesand rabble rousers, they chose instead to support law,orderly government, and property rights. White maleAmericans were, after all, mainly farmers who ownedtheir own land; or, where farm land was not easilyavailable because most of it had already been occu-pied, they could count on the ready availability of goodfarm land farther west—often obtained, to be sure, at the expense of its earlier inhabitants, the NativeAmericans.

White Americans in vast numbers bought westernland and settled down on their own farms. “Two-thirdsof the landless white men of Virginia moved West inthe 1790s. . . . Between 1800 and 1820, the trans-Appalachian population grew from a third of a millionto more than two million.”26 In foreseeing a democraticrepublic based on a citizen body consisting predomi-nantly of independent farmers, mainly property ownerscultivating their own lands, Jefferson reflected the re-ality of his time.27 Outside the South, and even in thesouthern piedmont, a predominant number of Ameri-can citizens were free farmers who stood to benefitfrom an orderly government dependent on their votes.

Ordinary citizens also revealed strong beliefs indemocratic values and procedures. Presented with theopportunity to do so, they would choose leaders whocultivated democratic values and procedures. Just suchan opportunity was soon presented by four acts passed


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in 1798 by the Federalists, who were alarmed not onlyby the seemingly subversive activities of France butalso by the rapidly growing influence of boisterous, ir-reverent, and sometimes libelous opponents in thenew Republican party. In particular, the Federalistsemployed one of these new laws, the Sedition Act, inan effort to silence Republican critics. Notable amongthe fourteen who were prosecuted was a bombastic andsomewhat unsavory Republican congressman, the Irishimmigrant Mathew Lyon, whose only memorable con-tribution to American history was his conviction forsedition, which carried a fine of a thousand dollars—ahuge amount in those days—and four months in jail.28

To the Republicans, the Sedition Act was a flagrant vio-lation of the newly adopted First Amendment. Afterthey gained the presidency and control of Congress inthe election of 1800, the Sedition Act was allowed tolapse, despite the vigorous efforts of the Federalists.

Democratic Changes to the Framers’ Constitution: Amendments

The fate of the Alien and Sedition Acts symbolizes alarger change at work in the country. The democraticrevolution, fitful and uncertain though it would for-ever remain, not only helped to democratize the for-mal constitution itself by amendments, it generatednew democratic political institutions and practiceswithin which the constitutional system would operate.


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The constitutional system that has emerged is nolonger that of the Framers, nor is it one they had in-tended to create.

The Bill of Rights. To be sure, the first ten amend-ments to the Constitution—the Bill of Rights—cannotbe attributed to the democratic revolution that fol-lowed the Convention. They resulted instead from de-mands within the Convention itself by delegates whogenerally favored a more democratic system than theircolleagues could then accept. Among the most influen-tial of these was George Mason, who wrote the Virginiaconstitution and its Declaration of Rights. Respondingto the insistent demands of Mason and several others,as well as to similar voices outside the Convention,Mason’s fellow Virginian, James Madison, drafted tenamendments that were ratified in 1789–90 by elevenstates, more than a sufficient number for their adop-tion. (Incidentally, the two laggards, Georgia and Con-necticut, finally did come around—but not until 1939!)Thus, for all practical purposes the Bill of Rights was a part of the original constitution. In any case, theamendments have proved to be a veritable cornucopiaof expanding rights necessary to a democratic order.29

Other Amendments

As I have mentioned, the most profound violation ofhuman rights permitted by the original constitution,slavery, was not corrected until the adoption of the


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Thirteenth, Fourteenth, and Fifteenth Amendmentsbetween 1865 and 1870. In 1909 the Sixteenth Amend-ment in 1913 gave Congress the power to enact in-come taxes. The election of U.S. senators by state legis-latures finally gave way to direct election with theadoption of the Seventeenth Amendment in 1913.Women were finally guaranteed the right of suffrage infederal and state elections with the passage of theNineteenth Amendment in 1919. Although the effortto add an Equal Rights Amendment failed, the Four-teenth Amendment was later interpreted to provide a constitutional basis for eliminating discriminationagainst women as well as certain minorities whosemembers suffered from discriminatory practices. Theiniquitous poll tax that had continued to bar AfricanAmericans from voting in some southern states was fi-nally forbidden in 1964 by the Twenty-Fourth Amend-ment. Finally, in a move toward a more inclusive elec-torate, in 1971 the Twenty-Sixth Amendment reducedthe voting age to eighteen.

In this halting fashion, the democratic revolutionbelatedly worked its way through the Constitution toovercome the veto power of long-entrenched minoritiesand to eliminate some of the most flagrantly undemo-cratic features of the constitution. As Alan Grimes ob-served some years ago, of the twenty-six (now twenty-seven) amendments to the constitution, “Twenty-oneamendments may be said to affirm either the principleof democratic rights or that of democratic processes.”30


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Democratic Changes in Political Practices and Institutions

The constitution of the Framers was changed not onlyby formal amendments. It was also fundamentally al-tered by political practices and institutions that theFramers did not foresee, even though they were un-avoidable—indeed, highly desirable—in a democraticrepublic.

Political parties. Perhaps the most important ofthese was the political party. The Framers feared anddetested factions, a view famously expressed by Madisonin Federalist No. 10.31 Probably no statement has beenso often cited to explain and justify the checks againstpopular majorities that the Framers attempted to buildinto the constitution. It is supremely ironic, therefore,that more than anyone except Jefferson, it was Madisonwho helped to create the Republican Party in order todefeat the Federalists. Although the system would notsettle down for some years, Jefferson and Madisonhelped to inaugurate the competitive two-party systemthat has pretty much remained in place ever since.

Which suggests other questions. Despite the claimof every political party everywhere in the world that ittruly represents the general interest, aren’t politicalparties really “factions” in Madison’s sense? So did theFramers fail after all to prevent government by fac-tions? And did they succeed only in making it moredifficult for a majority faction to prevail—that is, aparty reflecting the interests of a majority coalition?

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Whatever the best answers to these hard ques-tions, it cannot be denied that partisan politics trans-formed the constitution. Despite their familiarity withthe role of the Tories and Whigs in Britain and nascentparties in their own legislatures, the Framers did notfully foresee that in a democratic republic politicalparties are not only possible, they are also inevitableand desirable. As Jefferson and Madison soon came torealize, without an organized political party to mobi-lize their voters in the states and their fellow support-ers in the Congress, they could not possibly overcomethe entrenched political domination of their politicaladversaries, the Federalists. The democratic rights in-corporated in the Bill of Rights made parties possible;the need to compete effectively made them inevitable;the ability to represent citizens who would otherwisenot be adequately represented made them desirable.

Today we take for granted that political parties andparty competition are essential to representative de-mocracy: we can be pretty sure that a country whollywithout competitive parties is a country without democ-racy. If the Framers had been aware of the central im-portance of political parties to a democratic republic,would they have designed their constitution differently?They might well have. At the very least they would nothave created the absurdity of an electoral college.

The electoral college. In an outcome the Framershad made possible by their defective design of theelectoral college, the election of 1800 produced a tiebetween Jefferson and his running mate, Aaron Burr.


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From the time the final results were known in lateDecember 1800, the deadlock in the electoral collegepersisted, despite many attempts at persuasion andcompromise, until February 17, 1801, when shifts andabstentions by a number of state delegations gave Jef-ferson the presidency.32 Ironically, the very institutionthat the Framers hoped would insulate the election ofthe president from partisan politics was its first victim.Although a similar fiasco was prevented in the futureby the Twelfth Amendment in 1804, even with theamendment the electoral college was converted by par-tisan politics into nothing more than a rather peculiarand ritualized way of allocating the votes of the statesfor president and vice president. Yet the electoral col-lege still preserved features that openly violated basicdemocratic principles: citizens of different states wouldbe unequally represented, and a candidate with thelargest number of popular votes might lose the presi-dency because of a failure to win a majority in the elec-toral college. That this outcome was more than a theo-retical possibility had already occurred three timesbefore it was displayed for all the world to see in theelection of 2000. I’ll come back to the democraticshortcomings of the electoral college in a later chapter.

The Democratic Revolution: What Madison Learned—and Taught

James Madison arrived in Philadelphia in 1787, a fewmonths past his thirty-sixth birthday. He was already


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far from a political neophyte, having been elected atthe age of twenty-five to the Virginia constitutionalconvention where, with George Mason, he helped todraft the Virginia Declaration of Rights and the newstate constitution. He then became successively a mem-ber of the Virginia legislature (though he failed to bereelected because, it was said, he refused to treat thevoters to the customary rum punch), a delegate to theContinental Congress, and again a member of the Vir-ginia legislature. In the months before the Constitu-tional Convention opened, he drafted the outline ofthe proposal that would be presented in the openingdays of the Convention and that would come to beknown as the Virginia Plan. (We shall see something ofits contents in the next chapter.)

Yet, experienced as he was, like his fellow delegatesMadison brought to the Convention limited knowl-edge of the institutions and practices that a more fullydemocratized republic would require. Before his deathin 1836 at the age of eighty-five, nearly half a centuryafter the Convention, Madison could have looked backon a rich body of experience that would have shapedhis constitutional views in many ways.

Following the Convention, he was elected to theU.S. House of Representatives where he drafted andintroduced the first ten amendments to the Constitu-tion—the Bill of Rights. With Jefferson he soon be-came a leader of the opposition to Federalist policiesand ideas. As we have seen, they formed and led the


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opposition party, the Democratic Republicans. AfterJefferson’s election, Madison became secretary ofstate. He then succeeded Jefferson in the presidency.By the time he left that office in 1817, his views aboutdemocratic political institutions were probably as wellinformed as those of any person then alive.

However that may be, the Madison of seventy in1821 was no longer the Madison of thirty-six in 1787.Among other changes, the Madison of 1821 wouldhave trusted popular majorities—American popularmajorities, anyway—far more than the Madison of1787. The mature and experienced Madison of 1821might therefore have done less to check majority ruleand more to facilitate it. Let me offer several pieces ofevidence, one from a time early in his awakening tothe requirements of a democratic republic, the othersfrom his reflections in old age.

I have already alluded to the first: the basic alter-ation in his views about “factions,” or what the two distinguished historians of Federalism describe as“Madison Revises The Federalist.”33 Madison’s views inFederalist No. 10, influenced by his reading of DavidHume, are cited endlessly: the dangers of factions, thethreat from majorities united on principles contrary tothe general interest, political parties as at best a neces-sary evil. But these were not his more mature views.

In January 1792, less than five years after the closeof the Convention, Madison begins to publish a seriesof essays in The Gazette, an opposition newspaper


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published by Philip Freneau. The first is entitled “OnParties.” In “every political society,” he writes, “partiesare unavoidable.” To combat their dangers, Madisonoffers five proposals that might well serve us better inour own time than the anti-majoritarian biases dis-played in Federalist No. 10. Whatever dangers politi-cal parties may pose can be overcome

“By establishing political equality among all.”

“By withholding unnecessary opportunities from a few,to increase the inequality of property by an immoder-ate, and especially unmerited, accumulation of riches.”

“By the silent operation of the laws, which, without vio-lating the rights of property, reduce extreme wealth to-wards a state of mediocrity, and raise extreme indigencetoward a state of comfort.”

“By abstaining from measures which operate differentlyon different interests, and particularly favor one inter-est, at the expense of another.”

“By making one party a check on the other, so far as theexistence of parties cannot be prevented, nor theirviews accommodated.”34

“If this is not the language of reason,” he went on tosay, “it is that of republicanism.”

Nearly thirty years later (around 1821), when he ispreparing his notes on the constitutional debates forpublication, he records some of his later reflections.As to the right of suffrage, he remarks that his obser-vations at the Convention “do not convey the speaker’s[Madison’s] more full and matured view of the sub-


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ject.” “The right of suffrage,” he now insists, “is a fun-damental Article in Republican Constitutions.” Healso makes explicit his view of political parties: “Nofree Country,” he says, “has ever been without parties,which are a natural offspring of Freedom.” But politi-cal parties and a broad suffrage may create a conflictover property. “An obvious and permanent division ofevery people is into the owners of the Soil, and theother inhabitants.” Consequently, if the suffrage is ex-tended to citizens who are not freeholders, a majoritymight threaten the property rights of the freeholders.

Madison then considers a number of possible solu-tions to this problem, of which the first would be to re-strict the suffrage to “freeholders, and to such as holdan equivalent property.” He rejects this solution withan observation that might well have been a centralprinciple of the Second Phase of the American Revo-lution. “The objection to this regulation,” he writes, “isobvious. It violates the vital principle of free Govt. thatthose who are to be bound by laws, ought to have avoice in making them. And the violation wd. be morestrikingly unjust as the lawmakers became the minor-ity.” A second option is “confining the right of suffragefor one branch to the holders of property, and for theother Branch to those without property.” But to do so“wd. not in fact be either equal or fair.” Nor prudent:“The division of the State into the two Classes . . .might lead to contests & antipathies not dissimilar tothose between the Patricians and Plebeians at Rome.”

After examining other possibilities, he concludes:


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Under every view of the subject, it seems indispensablethat the Mass of Citizens not be without a voice, inmaking the laws which they are to obey, & in chusingthe Magistrates, who are to administer them, and if theonly alternative be between an equal & universal rightof suffrage for each branch of the Govt. and a confine-ment of the entire right to a part of the Citizens, it isbetter that those having the greater interest at stakenamely that of property & persons both, should be de-prived of half their share in the Govt. than, that thosehaving the lesser interest, that of personal rights only,should be deprived of the whole.35

The older Madison is also more favorable to ma-jority rule. Like most of his contemporaries, Madisonbelieves that “all power in human hands is liable to beabused.” But taking that assumption as axiomatic to-gether with the need for government, the relevantquestion becomes: what kind of government is best?His answer remains unchanged:

In Governments independent of the people, the rightsand views of the whole may be sacrificed to the views ofthe Government. In Republics, where the people gov-ern themselves, and where, of course, the majority gov-ern, a danger to the minority arises from opportunitiestempting a sacrifice of their rights to the interest, realor supposed, of a majority. No form of government,therefore, can be a perfect guard against the abuse ofpower. The recommendation of the republican form is,that the danger of abuse is less than any other.36

What has changed is his greater confidence in ma-jority rule. Compared with its alternatives at least, the


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mature Madison is confident that majority rule, in thewords of Marvin Meyers, promises the “least imper-fect government.”37

“[E]very friend to Republican Government,” hewrites in 1833, “ought to raise his voice against thesweeping denunciation of majority Governments as themost tyrannical and intolerable of all Governments.”

It has been said that all Government is an evil. It wouldbe more proper to say that the necessity of any govern-ment is a misfortune. This necessity however exists; andthe problem to be solved is, not what form of govern-ment is perfect, but which of the forms is least imper-fect; and here the general question must be between arepublican Government in which the majority rule theminority, and a government in which a lesser number orthe least number rule the majority.

The result . . . is, that we must refer to the moni-tory reflection that no government of human deviceand human administration can be perfect; that thatwhich is the least imperfect is therefore the best gov-ernment; that the abused of all other governments haveled to the preference of republican government as thebest of all governments, because the least imperfect;that the vital principle of republican government is thelex majoris parties, the will of the majority.38

� � �

I HAVE LITTLE DOUBT THAT IF THE AMERICAN CONSTI-tutional Convention had been held in 1820, a very dif-ferent constitution would have emerged from the de-liberations—although, I hasten to add, we can never


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know what shape that constitution might have taken.We can be reasonably sure, however, that the dele-gates would have attempted to provide more supportfor, and fewer barriers to, a democratic republic.

As to the undemocratic features of the constitutioncreated in 1787, let me suggest four conclusions.

First, the aspects of the constitution that are mostdefective from a democratic point of view do not nec-essarily all reflect the intentions of the Framers, inso-far as we may surmise them. Though the flaws aretraceable to their handiwork, they are in some casesflaws resulting from the inability of these superbly tal-ented craftsmen to foresee how their carefully craftedinstrument of government would work under the chang-ing conditions that were to follow—and most of all,under the impact of the democratic revolution in whichAmericans were, and I hope still are, engaged.

Second, some of the undemocratic aspects of theoriginal design also resulted from the logrolling andcompromises that were necessary to achieve agree-ment. The Framers were not philosophers searchingfor a description of an ideal system. Nor—and we maybe forever grateful to them for this—were theyphilosopher kings entrusted with the power to rule.They were practical men, eager to achieve a strongernational government, and as practical men they madecompromises. Would the country have been better offif they had refused to do so? I doubt it. But in anycase, they did compromise, and even today the consti-tution bears the results of some of their concessions.


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I’ll have more to say on that point in my next chapter.Third, undemocratic aspects that were more or

less deliberately built into the constitution overesti-mated the dangers of popular majorities—Americanpopular majorities, at any rate—and underestimatedthe strength of the developing democratic commit-ment among Americans. As a result, in order to adaptthe original framework more closely to the require-ments of the emerging democratic republic, with thepassage of time some of these aspects of the originalconstitution were changed, sometimes by amendment,sometimes, as with political parties, by new institu-tions and practices.

Finally, though the defects seem to me serious andmay grow even more serious with time, Americans arenot much predisposed to consider another constitu-tion, nor is it clear what alternative arrangementswould serve them better.

As a result, the beliefs of Americans in the legiti-macy of their constitution will remain, I think, in con-stant tension with their beliefs in the legitimacy ofdemocracy.

For my part, I believe that the legitimacy of theconstitution ought to derive solely from its utility as aninstrument of democratic government—nothing more,nothing less. In my last chapter, I’ll reflect further onthe meaning of that judgment.


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