In questions of power, let no more be heard of confidence in man but bind him down from mischief by the chains of the constitution.
    -Thomas Jefferson

Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their death."
    -James Madison (1751-1836)

The merit of our Constitution was, not that it promotes democracy, but checks it.
    -Horatio Seymour (1810-86)

From the time of Herodotus democracy has meant, first and foremost, the rule of the people. This view of democracy as a process of selecting governments, articulated by scholars ranging from Alexis de Tocqueville to Joseph Schumpeter to Robert Dahl, is now widely used by social scientists. In The Third Wave, Samuel P. Huntington explains why:

Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non. Governments produced by elections may be inefficient, corrupt, shortsighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good. These qualities make such governments undesirable but they do not make them undemocratic. Democracy is one public virtue, not the only one, and the relation of democracy to other public virtues and vices can only be understood if democracy is clearly distinguished from the other characteristics of political systems.

This definition also accords with the commonsense view of the term. If a country holds competitive, multiparty elections, we call it democratic. When public participation in politics is increased, for example through the enfranchisement of women, it is seen as more democratic. Of course elections must be open and fair, and this requires some protections for freedom of speech and assembly. But to go beyond this minimalist definition and label a country democratic only if it guarantees a comprehensive catalog of social, political, economic, and religious rights turns the word democracy into a badge of honor rather than a descriptive category. After all, Sweden has an economic system that many argue curtails individual property rights, France until recently had a state monopoly on television, and England has an established religion. But they are all clearly and identifiably democracies. To have democracy mean, subjectively, "a good government" renders it analytically useless.

Constitutional liberalism, on the other hand, is not about the procedures for selecting government, but rather government's goals. It refers to the tradition, deep in Western history, that seeks to protect an individual's autonomy and dignity against coercion, whatever the source -- state, church, or society. The term marries two closely connected ideas. It is liberal because it draws on the philosophical strain, beginning with the Greeks, that emphasizes individual liberty. It is constitutional because it rests on the tradition, beginning with the Romans, of the rule of law. Constitutional liberalism developed in Western Europe and the United States as a defense of the individual's right to life and property, and freedom of religion and speech. To secure these rights, it emphasized checks on the power of each branch of government, equality under the law, impartial courts and tribunals, and separation of church and state. Its canonical figures include the poet John Milton, the jurist William Blackstone, statesmen such as Thomas Jefferson and James Madison, and philosophers such as Thomas Hobbes, John Locke, Adam Smith, Baron de Montesquieu, John Stuart Mill, and Isaiah Berlin. In almost all of its variants, constitutional liberalism argues that human beings have certain natural (or "inalienable") rights and that governments must accept a basic law, limiting its own powers, that secures them. Thus in 1215 at Runnymede, England's barons forced the king to abide by the settled and customary law of the land. In the American colonies these laws were made explicit, and in 1638 the town of Hartford adopted the first written constitution in modern history. In the 1970s, Western nations codified standards of behavior for regimes across the globe. The Magna Carta, the Fundamental Orders of Connecticut, the American Constitution, and the Helsinki Final Act are all expressions of constitutional liberalism.

Since 1945 Western governments have, for the most part, embodied both democracy and constitutional liberalism. Thus it is difficult to imagine the two apart, in the form of either illiberal democracy or liberal autocracy. In fact both have existed in the past and persist in the present. Until the twentieth century, most countries in Western Europe were liberal autocracies or, at best, semi-democracies. The franchise was tightly restricted, and elected legislatures had little power. In 1830 Great Britain, in some ways the most democratic European nation, allowed barely 2 percent of its population to vote for one house of Parliament; that figure rose to 7 percent after 1867 and reached around 40 percent in the 1880s. Only in the late 1940s did most Western countries become full-fledged democracies, with universal adult suffrage. But one hundred years earlier, by the late 1840s, most of them had adopted important aspects of constitutional liberalism -- the rule of law, private property rights, and increasingly, separated powers and free speech and assembly. For much of modern history, what characterized governments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The "Western model" is best symbolized not by the mass plebiscite but the impartial judge. [...]

The tension between constitutional liberalism and democracy centers on the scope of governmental authority. Constitutional liberalism is about the limitation of power, democracy about its accumulation and use. For this reason, many eighteenth- and nineteenth-century liberals saw in democracy a force that could undermine liberty. James Madison explained in The Federalist that "the danger of oppression" in a democracy came from "the majority of the community." Tocqueville warned of the "tyranny of the majority," writing, "The very essence of democratic government consists in the absolute sovereignty of the majority."

The tendency for a democratic government to believe it has absolute sovereignty (that is, power) can result in the centralization of authority, often by extraconstitutional means and with grim results.

It is odd that the United States is so often the advocate of unrestrained democracy abroad. What is distinctive about the American system is not how democratic it is but rather how undemocratic it is, placing as it does multiple constraints on electoral majorities. The Bill of Rights, after all, is a list of things that the government may not do, regardless of the wishes of the majority. Of America's three branches of government, The Supreme Court -- arguably the paramount branch -- is headed by nine unelected men and women with life tenure. The U.S. Senate is the most unrepresentative upper house in the world, with the lone exception of the House of Lords, which is powerless and in any event on the verge of transformation. Each state sends two senators to Washington, D.C. regardless of its population. Thus, California's 30 million people have as many votes in the Senate as Arizona's 3.7 million -- hardly one man, one vote. In state legislatures all over the United States, what is striking is not the power of the majority party but the protections accorded to the minority party, often to an individual legislator. Private businesses and other nongovernmental groups -- what Alexis de Tocqueville called "intermediate associations" -- make up yet another crucial stratum within society. This rich fabric of civil society has been instrumental in shaping the character of American democracy.

The Arab world today is trapped between autocratic states and illiberal societies, neither of them fertile ground for liberal democracy. The dangerous dynamic between these two forces has produced a political climate filled with religious extremism and violence. As the state becomes more repressive, opposition within society grows more pernicious, goading the state into further repression. It is the reverse of the historical process in the Western world, where liberalism produced democracy and democracy fueled liberalism.

A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largess from the public treasury. From that time on the majority always votes for the candidates promising the most benefits from the public treasury, with the results that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.

(1) Rerestrict the franchise, to those who generally have a vested interest in freedom (rather than in their own financial security with a resulting dependence on the State): adults (age 25 and up), net taxpayers (those who give the government more money than they get back every year--with an exception for the military), people of property, married women only, etc.

(2) Do away with all campaign reform laws: in particular there should be no limits placed on how the parties choose their nominees.

(3) Repeal the 17th Amendment: let state legislatures select their senators.

(4) Term limit all congressmen (12 years total in each house). Limit the president to one six year term.

(5) Close congressional hearings and stop recording committee votes.

(6) Require sunset provisions in every federal law and regulation so that they lapse and have to be reauthorized periodically.

(7) Amend the Constitution to require a balanced budget and to permit a line item veto.

There are probably more than a few other ideas kicking around, equally good or better. What matters is to begin to come to terms with the way in which giving the great mass of people the power to satisfy their whims is perverting our government and our society and threatening the liberties the Founders sought to guarantee. In the end we've a choice to make between the kind of grotesquely egalitarian path we're now on or the more difficult but more free path our nation started out on. The latter is more difficult and requires a hardier people, folks unafraid of the occasional failure and willing to depend on each other instead of on the State, but it seems more likely to produce a vibrant and robust society in the long run.

(Reviewed:29-Sep-03)

Grade: (A) Orrin C. Judd

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