Today, September 17 is celebrated as Constitution Day, commemorating the signing and publication of the United States Constitution in 1787. It went into effect when the ninth state, New Hampshire, ratified it on June 21, 1788. Although there have been twenty-seven amendments (the first 10, usually referred to as the Bill of Rights, were proposed by the First Congress and ratified in1792) for the 234 years of existence it remains the basic structure of our government.
Currently we hear quite a bit about threats to “our democracy” mostly from the political left. That is mostly overblown rhetoric. The Constitution does limit majoritarian governance — rule by 51% — but does so to produce an enlightened democracy that prevents the tyranny of the majority and the abridgment of minority rights.
The Constitution has not been without controversy. Two that have periodically appeared in recent years are: (1) the existence of the membership of the Senate where each State, regardless of population has two Senators; and (2) the Electoral College that actually casts the vote electing the President that can result in the election of a President by a candidate who receives fewer popular votes nationwide than an opponent. A third criticism, not discussed in this essay, is the Supreme Court that can void a law enacted by elected representatives as contrary to the Constitution. Those that oppose such measures argue that they stifle democracy. There are even more criticisms that are not addressed in this essay.
Senate Membership. We must recall that the states of the federal Union are just that: states, not provinces or mere subdivisions of the nation. The sovereignty of the people of each state is preserved thereby. The national government established by the Constitution has enumerated powers; the states retain such powers as are inherent in sovereignty. The people of less populous states have a bulwark against a national popular majority that could impose legislation that would not address state and local concerns or be detrimental to those concerns.
Electoral College. A similar argument exists as to why Electoral College is necessary. Should not the President be elected directly by the people? The concern the Founders had with a national referendum was a bare majority of voters nationwide electing the President would have no reference to how each state votes. As stated above, the states are not provinces. Each is sovereign in its own realm, exercising the powers not delegated to Congress and the President. Those branches of the government could then feel free to ignore state concerns. As few as six small states could show a majority for one candidate and be outvoted by one large industrial state. Also, the Constitution provides that the states choose the means by which electors are chosen and, if an at-large election would be imposed, ballot contests would have to be administered by the federal executive, and would be lengthy and cumbersome. Furthermore, a national popular election would encourage multiple candidates where a plurality could elect a candidate with only minority support. The means of remedying such a situation would have to be a national run-off. That could result in a President that only a minority voted for. It is true that the Electoral College system has elected candidates that did not receive popular majorities, but those elections have been close.
This essay will conclude with an observation about separation of governmental powers. Countries that have what is known as parliamentary democracy have the executive chosen by a majority of the legislature and dependent upon its confidence, whether that body is called a House of Commons, National Assembly or Bundestag. The judiciary in such system is likewise beholden to the legislature. In most European nations that has generally worked, at least since World War II. That is most likely because of those nations demographic homogeneity. That appears to be changing, and the result is uncertain. What is certain is that the USA was founded on the theory of government based on factions that were tamed by written principles and consensus, as well as strict separation of powers, not by the whims or ephemeral majorities. This was described in the Federalist Papers written by Alexander Hamilton, James Madison, and John Jay, especially Madison’s Federalist #10. The late former Vice-President and Minnesota Senator Hubert Humphrey, no conservative or otherwise of the political right, once remarked that a government that can do more for you is one that can do more to you.
Happy Constitution Day!
References:
Catherine Drinker Bowen, Miracle at Philadelphia (1966)
Clinton Rossiter (Ed.) The Federalist PapersTara Ross, Enlightened Democracy: The Case for the Electoral College (2004).
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985)
Forrest McDonald, We the People: The Economic Origins of the Constitution (1958 (Third printing 2003)
Garry Wills, Explaining America: The Federalist (1981, 2993)
Numerous resources at the non-partisan National Constitution Center in Philadelphia, PA See https://constitutioncenter.org/
and
The Federalist Society
https://fedsoc.org/
The National Constitution Center has sponsored debates here in Dallas on several occasions.
Here is from a letter to the Washington Post: . It has: prevented the formation of a fragile multiparty system; demanded that parties develop wide national reaches in policy and geography; precluded small minority parties from acquiring power beyond their measure; and eliminated the risk of small factions from becoming kingmakers.
