The Constitution ensures no one rules America
(Editor’s Note: This piece first appeared in the Washington Examiner on October 28, 2020.)
The nation's political class is at a fever pitch with less than one week to go until Election Day. Its denizens are convinced that American self-government's fate hinges on whether President Trump defeats Joe Biden to win a second term as president. They disagree only on whether a Trump victory is good or bad for the United States.
Anticipation is especially acute among Trump’s critics in the Democratic Party and America’s educated elite, many of whom believe that the president and his Republican allies in Congress pose an existential threat to individual equality and rights. And they think that a Trump-Republican victory next week will inevitably undermine these central pillars of self-government by installing an undemocratic minority-rule regime.
Steven Levitsky and Daniel Ziblatt succinctly stated the philosophy underlying these criticisms in the New York Times recently. Levitsky and Ziblatt (professors of government at Harvard University) assert unambiguously, “The Trump presidency has brought American democracy to the breaking point.” This is because of the president’s unrelenting effort to impose minority rule on the nation.
Trump's effort worries Levitsky and Ziblatt because, in their words, "democracy is supposed to be a game of numbers." That is, "the party with the most votes wins." And while the professors concede that the animating principle of the Constitution that established America's government is a bit more complicated, they nevertheless contend that the venerable old charter has been corrupted by "recent political geographic trends." The consequence, they conclude, is to supplant majority rule with minority rule.
Yet such thinking is deeply flawed. It assumes, incorrectly, that the Constitution established majority-rule government in the U.S. and that the majority's present inability to rule America means that a minority is ruling instead.
The problem with these two assumptions should be obvious: America doesn’t have rulers.
Beginning 255 years ago, colonists clustered along the Atlantic seaboard revolted against Great Britain and the presumption of its crown and parliament that they had a right to rule their colonies in the New World. After gaining their independence, Americans consecrated their triumph over their former rulers by adopting a Constitution that aimed at preventing any ruler from reigning over the new nation in the future.
The Constitution secured the fruits of the American Revolution by creating a space where all those deemed free citizens of the Republic (or their representatives) could govern themselves. It is complicated by design. That complexity prevents would-be rulers from controlling that space and destroying self-government.
This insight suggests that Levitsky and Ziblatt have it backward. Trump and the GOP are not the threats to American self-government that they claim. The actual danger is ignorance of how the Constitution makes it possible for people in the U.S. to govern themselves in the first place.
The consequences of the professors’ initial error distort the argument that Levitsky and Ziblatt make — namely that preventing minority rule necessitates "reforms that empower majorities" such as "eliminating the Senate filibuster," granting statehood to the District of Columbia and Puerto Rico, and abolishing the Electoral College. Whatever the merits of each proposal, the stated intention behind them is to exchange one set of rulers (the minority) for a different set (the majority). The professors assure all of those who are not rulers (the subjects) that their rights will be safer with the majority in charge because those rulers will respect the Bill of Rights and judicial review.
Levitsky and Ziblatt do not explain why America's subject class can trust majority rulers to respect the limitations on their power imposed by the Bill of Rights and judicial review when they can't trust minority rulers to do so. The two professors of government make a distinction between majority and minority rule that the architects of America's government did not believe to be true when they designed the Constitution. Its leading architect, James Madison, sums up in Federalist 47 how he and his fellow draftsmen understood the rule concept. “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective,” Madison observed, “may justly be pronounced the very definition of tyranny.”
And Madison goes on to dismiss the faith that Levitsky and Ziblatt place in parchment barriers such as the Bill of Rights and judicial review to check majority rulers and prevent them from infringing on individual equality. He concludes in Federalist 48 that “a mere demarcation on parchment of the constitutional limits” of the federal government “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” Parchment barriers are no match for the concentrated power of rulers determined to get their way.
But Madison and his fellow architects of liberty figured out how to protect individual equality and rights from the rapacious grasp of would-be rulers. Their answer was simple: Make it impossible for anyone to rule America.
Experience informed their thinking. The Constitution’s architects drafted the document in reaction to the so-called Critical Period that began with the end of the Revolutionary War in 1783 and lasted until Americans established their new government in 1788 and inaugurated George Washington its first president in 1789. During that period, majority rulers in several of the new states repeatedly violated the rights of minorities. At the time, bills of rights and state courts were powerless to stop them.
Madison believed that the Critical Period events were a sign that America was falling into the destructive cycle that befell all previous experiments in self-government. The Greek historian, Polybius, called this phenomenon "the cycle of constitutions" in the second century B.C. In it, people would overthrow their rulers to govern themselves as equals. But they would eventually succumb to new rulers.
Fortunately, for present-day people in America, Madison and his fellow architects saved the nation from that fate by cracking the code of freedom. That is, they understood that self-government required a space where citizens could govern themselves. The Constitution's genius is that it alone of all the founding charters in human history created a space that cannot be destroyed by rulers.
The obsession with the perceived threat posed by minority rule implies that Levitsky and Ziblatt do not realize that the Constitution's intricate institutional design — separation of powers, bicameralism, federalism — makes it impossible for the minority to rule America in the first place.
If that were not the case, it would be appropriate for all Americans to recall Madison’s contention in Federalist 47. “Were the federal Constitution, therefore, really chargeable with the accumulation of power,” in the hands of rulers constituting a minority or majority of Americans, “no further arguments would be necessary to inspire a universal reprobation of the system.”