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Think the U.S. Constitution 'Subverts Democracy'? Think Again
 
COMMENTARY
 

For roughly the past fifty years, higher education reformers have been warning about the decline in civic education in this country. National polling consistently shows that Americans, even college graduates, are growing increasingly civically illiterate. A recent survey found that only 36% of respondents can identify the three branches of American government. A mere 27% know that it takes a two-thirds majority of the House and Senate to override a presidential veto.

This civic illiteracy is not to be blamed on our students. Far from it. They study what they are tested on. Unfortunately, U.S. Department of Education statistics testify that, today, only one in three college students graduates having taken even one course in American Government. Why? Because a growing number of universities no longer require them to do so. Hence, our civic-knowledge deficit.

This deficit may help somewhat to explain the take of a recent New York Times op-ed titled, “Think the Constitution Will Save Us? Think Again,” by Meagan Day and Bhaskar Sunkara, who write for the website, Jacobin. Their sub-head conveys their thesis: “The subversion of democracy was the explicit intent of the framers” (emphasis supplied).

As evidence for their contention, Day and Sunkara cite the federal character of the Electoral College and the U.S. Senate, both of which are based in part on statehood itself. These constitutional elements convince the writers that, “The American government is structured by an 18th-century text that is almost impossible to change.”

To these charges, one can respond that the Constitution also provides for its own amendment—if and when a sufficient number of Americans comes to believe, with Day and Sunkara, that fundamental change is needed.

But the amendment provisions won’t save us either, they counter. Why? America’s structure is “almost impossible to change” because the Constitution intentionally prevents it. For proof of this, they cite a fellow Jacobin contributor, Seth Ackerman, who argues that, unlike, “most countries,” securing “an amendment to the U.S. Constitution requires the consent of no less than thirty-nine [sic]different legislatures. . . .”

Thus, Day and Sunkara assert, “As long as we think of our Constitution as a sacred document, instead of an outdated relic, we’ll have to deal with its anti-democratic consequences.”

As evidence that the Constitution pans democracy, they point to the most famous of the 85 Federalist essays, Number 10, written by none other than James Madison. There, Madison wrote: “[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property. . . .” To “subvert democracy,” Madison, write Day and Sunkara, “helped . . . create a system of government that rules over people, rather than an evolving tool of popular self-government” (emphasis supplied).

Unfortunately, Day and Sunkara miss entirely the true meaning of Madison’s critique of “democracy.” But they are far from alone in this failure: Such distortion of the Founders’ intentions has a long pedigree, going back at least to the historian Charles Beard’s 1913 broadside against the Constitution, titled, An Economic Interpretation of the Constitution. A number of Beard’s findings have been largely taken down by subsequent scholars, though his economic-determinist views largely dominate among college historians and other academics to this day.

In 1959, political scientist Martin Diamond offered the most exhaustive critique of the view that The Federalist is anti-democratic. In “Democracy and The Federalist,” Diamond demonstrates that when Madison critiques “democracy,” he is referring to a “pure” democracy, where all the citizens deliberate and vote on all matters, as was practiced in the small democracies of ancient Greece.

How does Diamond know this? Because, unlike Day and Sunkara, he read and reported to the reader what Day and Sunkara left out. Their half-quote promotes a half-truth by ignoring what precedes it in the very paragraph from which they cite: Here’s the whole quote: “From this view of the subject, it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.

It is only then that Day and Sunkara’s half-quote appears: “Hence it is that such [pure] democracies have ever been spectacles of turbulence and contention. . . . (emphasis supplied). Madison is not rejecting “democracy” as such, but only “pure democracy.” He embraces instead the other species of popular government, a “republic.” A republic, for Madison, differs from a “democracy,” writes Diamond, “in that the people rule through representatives.” A republic is a democracy—a representative democracy.

With the true meaning of Madison’s “critique of democracy” now restored, I suspect that Day and Sunkara—on reviewing the atrocities committed under the pure democracies of antiquity (anyone remember Socrates’ execution by democratic Athens?)—would wholeheartedly concur with Madison’s observation that these ancient, pure democracies “have ever been spectacles of turbulence and contention.”

Even so, one might still ask, “What of Day and Sunkara’s contention the amendment process makes American government ‘almost impossible to change”?

The first response to this charge is simple: The Constitution has in fact been amended 27 times, most recently in 1992. This record hardly justifies the description, “almost impossible to change”—unless you think fundamental transformation of the country should come much sooner and easier than at present.

Madison didn’t think so. Here’s why: Under Article V of the Constitution, any proposed amendment must be ratified by three-quarters of the states. The Jacobin’s Ackerman writes that this translates into 39 states. By my arithmetic, three-quarters of 50 is 37.5. Thus, it is 38 states, not 39, that are needed to ratify an amendment, by my numbers. No matter, be it 38 or 39, what counts for the Constitution’s critics is that either number empowers a small minority of states (13) to kill any proposed amendment. For Day, Sunkara, and Ackerman, this barrier confirms their view that the Constitution is anti-democratic.

To this, Diamond rejoins that the amendment process “was not at all to give power to minorities, but to ensure that passage of an amendment would require a nationally distributed majority, though one that legally could consist of a bare numerical majority”; that is, bare majorities in 38 states can defeat supermajorities in the other 12 states.

Ensuring passage of all amendments by nationally distributed majorities was deemed by the Founders to be indispensable to guaranteeing that “no amendment could be passed simply with the support of the few states or sections sufficiently numerous to provide a bare majority.” The Founders hoped and believed that it “would be difficult for such a national majority to form or become effective save for the decent purposes that could command national agreement.”

Therefore, the difficulty in ratifying amendments was “was surely deemed a great virtue of the amending process.”

This is why those who deem the Constitution “anti-democratic” would do well to take seriously Madison’s appraisal of the amending process in Federalist 43: “It guards equally against that extreme facility [ease], which would render the Constitution too mutable, and that extreme difficulty, which might perpetuate its discovered faults.” Diamond summarizes Madison’s reasoning thus: “The actual method adopted, with respect to the numerical size of majorities is meant to leave all legal power in the hands of ordinary [simple, not super-] majorities so long as they are national majorities” (emphasis supplied).

Even this thumbnail sketch of The Federalist is sufficient to suggest that perhaps the Constitution may not be the “outdated relic” Day and Sunkara believe it to be. At the least, our closer reading of The Federalist demonstrates that the Constitution is decidedly pro-democracy, while anti-“pure democracy”—as history shows we should all be.

The power quickly to alter our country’s fundamental governing document should not be wished for. Making the amendment process “easier” promises only to transmogrify the “Supreme Law of the Land” into a partisan football. –Each time one side wins national elections, the Constitution would come to mean something new, which would then only be reversed or reoriented when the other side wins the next election. Sounds like “turbulence and contention” to me!

After a few election cycles had produced a few more “constitutions,” what would be the effect of this new dynamic on American citizens? Lincoln told us in 1856: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

Lincoln also foresaw the disastrous effects that would follow our failure to provide a serious civic education to succeeding generations. At the age of 29, in his speech to the Young Men’s Lyceum, he argued that the only antidote to democratic degeneration was to teach “reverence for the Constitution” in “schools, in seminaries, and in colleges; let it be written in primers, spelling-books, and in almanacs; let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.”

If we fail to teach our young the Constitution, warned Lincoln, in time, the country will be vanquished by the growth of a lawless “mobocratic” spirit. To this we must add that, the mob rule feared by Lincoln is, sadly, the likely consequence of following Day and Sunkara’s mistaken reading of the Founders’ intentions regarding democracy.

This commentary was originally featured in Forbes on August 28, 2018.