Was the U.S. Constitution an impediment or a stimulus to democracy?

by foldog (student)

Was the Constitution an impediment or a stimulus to democracy?

The U.S constitution has always been the bedrock of the U.S political system through its provision of a codified framework for self-determination through representative government; a design which has been replicated all over the world. The document was born out of the American War of Independence and sought to set up a republic that was free from the tyrannical rule of the British. It is from this context that we should view the Constitution as it enables us to understand the intentions of the Founding Fathers and their views towards democracy. It cannot be denied that the Founding Fathers did fear the majoritarian implications fostered by democracy, which was later coined, ‘tyranny of the majority’ (De Tocqueville, 1863, p.183) and implied that minority rights and interests would be subdued by the majority interest. However, they feared authoritarian rule to a greater extent perhaps due to the fact they had just achieved independence from arbitrary British rule. As a result, they whole heartedly endorsed a form of ‘Liberalised’ democracy to which they attached various conditions in order for the rights and freedoms of individuals to be fully protected. For the Founding Fathers, these conditions were effective enough to prevent authoritarian rule. This essay will argue that although the founding fathers may have sought to promote a representative democracy in the constitution, in reality the constitution hindered core democratic values. However, it cannot be denied that in the last two hundred years the USA has become more democratic as various amendments have been made to the constitution in order for it become a stimulus for democracy. This idea also espouses the thesis that the amendments process was purposefully fashioned by the Founding Fathers because there was a common awareness of the need for the US political system to adapt to a rapidly changing world.

First, the fundament of a democratic society is the fact that it holds free and fair elections in order to promote the ideal of representative government. Indeed, Karl Popper’s insight that elections were pivotal for making sure the ruled could ‘get rid of a government without bloodshed’ was key to a peaceful democratic society that would be ruled by a fairly elected representative government. However, the proposed electoral/appointment processes of the three branches outlined in the Constitution can be seen to hinder democracy, or at least direct democracy which, according to the ancient Greeks, was the purest form of democracy. The Electoral College system proposed by the framers can be seen to be undemocratic because the President was elected by around fifty Electoral College electors who had no duty to vote on behalf of the people. Indeed, only the House of Representatives was elected directly by the people, with the judiciary being appointed by a non-democratically appointed President and then ratified by a quasi-democratically appointed Senate, which in itself appears very undemocratic. Moreover, as the House of Representatives only made up half of Congress (which formed merely 1/3 of the federal branch of government), it appears as if there was a severe democratic deficit. However, the argument can be qualified by the fact that the Framers were not interested in fostering a direct democracy; in fact they feared the majoritarian implications of this type of rule and therefore promoted a representative democracy. This idea was best exemplified by Alexander Hamilton who stated that a ‘pure democracy, if it were practicable, would be the most perfect government. Experience has proved that no position is more false than this.’ (Zagarri, 2010, p.97) It is therefore clear that although the electoral/ appointment processes may appear to impede democracy, it was in fact the aim of the framers to impede the direct nature of democracy due to its majoritarian implications.

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Further, the Bill of Rights has become the most celebrated part of the Constitution as it is primarily concerned with the protection of individual rights and freedoms and therefore can be seen as a stimulus to democracy. For example, the First Amendment states that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof freedom of speech, or of the press; or the right of the people peaceably to assemble.’(Jefferson, 2007, p.412) The notion of free speech has become the fundament of a democratic society and many free-speech advocates have argued that democracy requires the notion of free speech. For example, Meiklejohn argued that for democracy to be ‘true’ the electorate must be informed which cannot occur without freedom of speech. (Meikeljohn, 2004) However, although the Constitution appears a stimulus to democracy through its protection of individual rights, only in the last half a century have the rights of all citizens been honored which can be said to be undemocratic. For example, during the 19th and early 20th century, neither women nor blacks had the right to vote as they were deemed ‘inferior’ to white men. Indeed, if democracy does seek to promote self-government, it seems inherently undemocratic that women and blacks did not receive the vote. However, this argument can be qualified by the fact that female suffrage, through the 19th amendment in 1920, and the black vote, through the 15th amendment, was introduced and exemplifies how the USA has modified the constitution through the years in order for it to become a more effective stimulus of democracy.

It is clear that the framers of the constitution feared the tyrannical nature of federal government and thus the effects a strong government would have on individual rights and freedoms. As a result, they laid out various conditions to prevent arbitrary rule. The first of these was the idea of the separation of powers which promoted ‘limited government,’ which would protect the individual rights entrenched in the constitution. The notion of a separation of powers is best exemplified by the 18th century political thinker Montesquieu who asserted that ‘when legislative and executive powers are united in the same person.. there can be no liberty.’(Montesquieu, 1978, p.17) This idea laid the basis for a separate legislature, executive and judiciary outlined in the constitution, which aimed to carry out various checks and balances. The idea of a separation of powers is thus underpinned by a number of checks and balances between institutions which consequently prevents arbitrary power, thus protecting the people’s right to self-government. However, due to the electoral and appointment processes’ of these institutions, as outlined earlier, there is debate to whether these checks and balances have ever been fully democratic. For example, the executive arm is able to veto bills passed by Congress, which can be seen to hinder democracy as the original constitution stated that the president was appointed indirectly by an electoral college in contrast to the House of Representatives, which was directly elected by the people. However, this argument can be qualified by the fact that over time, the Electoral College votes have become based upon the result of the popular vote within a state instead of just the preference of the individual Electoral College member. Indeed, it is also clear that Congress can override a presidential veto with a 2/3 majority, which at a time when half of congress was democratically elected, is an important power in pursuing the will of the people and therefore stimulating democracy.

Further, the judiciary could be said to hinder democracy through its power of ‘judicial review’ which can prevent any law from being passed if it is not deemed ‘constitutional.’ Indeed, due to the briefness of the Constitution and in addition to the constantly changing meaning of the rhetoric over the last two centuries, the constitution can be interpreted in many ways which therefore arms nine unelected justices with a huge amount of power. This is not just a fervent centralisation of power, but is inherently undemocratic. However, this argument can be qualified by the notion of ‘judicial self-restraint,’ which although may be described as ‘political common sense’ (McKay, 2009, p. 346) rather than anything justifiable on philosophical grounds, it has proved effective in the fact that judicial review is barely inflicted which has thus allowed the Judiciary to act as a check and balancer and therefore become a stimulus to democracy rather than an arbitrary institution.

In sum, although the original Constitution is an impediment to democracy, especially to direct democracy, the nature of the context of which it was born is vital to understanding that the framers’ intention was to construct a new republic based on representative, and not direct democracy. However, it is also clear that they did fear arbitrary rule through too much representation and as a result they outlined a number conditions in the Constitution to protect individual rights. Indeed, there is a general consensus among political scientists that the Constitution is outdated, however, it seems to me that its strength is that it has developed over time and has been amended in order that it can stimulate democracy, especially in the 20th century with the rise of the Liberal democratic nation-state.

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Bibliography

De Tocqueville,Alexis, 1863, Democracy in America (translated by Francis Bowen), (Cambridge: Sever and Francis), P. 183

Zagarri, Rosemarie (2010), The Politics of Size: Representation in the United States, 1776-1850, (New York: Cornell University Press, p. 97

Jefferson, Thomas, 2007, Foundations of Freedom: Common Sense, the Declaration of Independence, The Articles of Confederation, The Federalist Papers, The U.S Constitution (Virginia: Wilder Publications), p.412

Meikeljohn,Alexander, 2004, Free Speech And its relation to Self-Government, (New Jersey: The Lawbook exchange Ltd)

de Secondat, Charles, Baron de Montesquieu, 1978, The Spirit of Laws: A compendium of the first English edition,( Los Angeles: University of California Press), P.17

Mckay, David, 2009, American Politics and Society, (Oxford: Wiley Blackwell), P.350-368

Bennett, Anthony, 2005, US Government and Politics, (Oxford: Phillip Allan Updates), p. 1-32

Keller, M, ‘Powers and Rights: Two Centuries of American Constitutionlism,’ Journal of American History, Vol. 74, no.3 (1987)