Wednesday, April 1, 2009

Was Our Nation Founded On Democracy?

Jeff, our ever-present provocateur, made the following statement in the comments section of my InTrade post:

"The simple fact of the matter is that this country was founded on the principle of democracy...If you want to live in a big brother society where the people at the top decide everything, then move to Venuezula or Iran. Here, the people get to decide..."

Not only is that utterly false-- it is also hilariously ironic. Both Venezuela and Iran utilize democracy. For all their faults, both nations follow the democratic pattern advocated by Jeff. And, the end result for both nations has been tyranny.

The following are just some of the evidence CONTRARY TO the proposition that our country was founded on democracy or that democracy was it's central purpose:

Length of term limits
Term-limits (for the President)
Requirements for A1 & A2
Life-time tenure for A3 Judges
Electoral College
The Entire Bill of Rights (1-10)
Article 5 (Amendment Process)
Reconstruction Amendments (13-15)

Liberty (which should NEVER be considered synonymous with democracy) was this nation's "central purpose" or "foundational idea." The Framers believed in natural rights and wanted to create a national bulwark to thwart the tyranny of the majority where necessary.

[Ed. Note: The picture is from StateNet, a site I found while looking for a picture of a ballot box with a gun barrel sticking out of it.]


  1. should see my prior post.

  2. Good post, Fred. I think Jeff has fallen into a common misconception most U.S. citizens I have met have fallen into. Democracy, in fact, scared the daylights out of the founding fathers--Madison, in particular. They were concerned with precisely using democracy as a check (albeit a limited one) on abuse of central power, while at the same time mitigating the possibility for the very check to become a tool for a radical dictator to take over--i.e., Hitler was popularly elected, Jeff. This is why the founders were concerned, not enthralled, with democracy.

  3. I don't think Hitler was popularly elected, 12:34, but the point's well tkaen though I doubt Jeff will care.

  4. What's popularly elected mean? Is POTUS popularly elected? Weimar Germany was a parliamentary democracy. Hitler's Nazi party won a large plurality of the vote in the 1932 election, gaining 37.8%. Considering there were 14 parties competing and gaining seats, that's about as good as you can get.

  5. Fred --

    While you're undoubtably right that the Founders were concerned about democracy, your argument overlooks what I would say are two important points that problematize your claim:

    First, you're clearly a deep believer in the power and self-evidence of liberalism and liberty. Clearly, many of the Founders were as well. However, to say that it was its founding ideal may overstate the case -- while certain liberal principles were offered in the Declaration as the philosophical reason for a right to rebel against Crown and Parliament, the practical reason for the revolution was "no taxation without representation." So even at the very beginning, what was radical about the American Revolution was its call for democracy.

    This is further supported by the fact that England at this time was a very liberal country by the standards of the day -- the King had been a limited monarch since the Glorious Revolution, there was a large body of unwritten constitutional law (which by fact of being unwritten more closely approximates the natural rights you talk about), and there was a fairly robust liberal society.

    So ... if Britain was a liberal society, or had the makings of one, why did the Founders feel the need to revolt? Frankly, when compared to the French or Russian Revolutions, the American colonists had relatively little cause (so far as I know; I haven't read anything about the actual economic effects of the Intolerable Acts, though I would like to).

    I would put forth that the answer was democracy, of some form or another.

    Which leads into my second point:

    The Founders were all white male landowners, and therefore their concern about democracy might have been particular instead of universal.

    I don't think they were wrong, as wealthy landowners, to fear democracy. The problem(?) of stealing from the rich to give to the poor is uniquely difficult to solve by majority vote when the poor outnumber the rich, though the privileged classes nevertheless done a pretty good protecting their privileges over the past two and a half centuries.

    Therefore, I believe that the restraints on democracy in our constitutional structure should not be read to unseat the centrality of democracy, but rather to solve what is an effect the equivalent of a market failure: the problem of overappropriation of wealth.

    Restraints on majority rule are good; though designed to protect privilege, they have been used to protect rights. Furthermore, it is appropriate from a utilitarian view and a Rawlsian one to allow the wealthy to keep most of their wealth.

    However, the question of how much wealth they are allowed to keep is one that inevitably falls to the expressed will of our democratic representatives.

    Realizing this inescable feature of our democratic system, the wealthy have done two things, one admirable, one less so. First, they have favored policies that make it easy for individuals to raise their socioeconomic position -- cf. Reagan's "we believe people can still get rich in America." Second, they've convinced many individuals in lower socioeconomic classes to support their view of tax and transfers -- through advocacy of conservative cultural idealogies and through perpetuation of this idea of America as a Wild West where Individualism and Liberty are its cardinal values.

  6. Interesting, Josh, but I don't htink your position is really taking exception to the conclusion Fred reaches. I guess that's the point-you're saying how he got there is not necessarily correct. Is my understanding correct?

    I'm intrigued by your point about rights being for perpetuating class, but have to question it given the rich judicail history of using said rights to protecting individual liberties. I guess this doesn't refute the point, but it at least brings question to it.

  7. I suppose I was taking exception to Fred's point about democracy not being central. Not to speak for Fred, there's an argument that could be advanced that democracy was chosen because it was the least bad way to achieve liberty. I believe that democracy was absolutely central.

    To your point about the judicial history of protecting individual rights, I as an initial matter say that rights are separate from privileges, and the wealthy class has primarily perpetuated their privileges without being able to raise those privileges to the status of rights.

    I don't dispute that American jurisprudence has also done a very good job protecting the rights of minorities. My main point was that the minority the Founders were concerned about when designing this system was the minority of wealthy.

    Therefore, instead of looking on democratic restraints as an absolute and unalloyed good, I would argue that these restraints need to be examined under the old Roman canon of constrution, cui bono, who benefits?

    As a preliminary answer, I would argue that if a democratic restraint serves disadvantaged minorities, it should stand as a restraint of paramount importance -- since disadvantaged minorities will have the least ability to participate in the democratic process. If a democratic restraint serves everybody equally, it should apply as long as it is economically efficient. If a restraint predominantly serves the wealthy, but it is either an appropriate or necessary restraint, it should be left undisturbed. But if the restraint has no purpose other than to protect undeserved privileges of the wealthy, it should be given little respect as we continue the process of constituting our society. A clear example is the appointment of U.S. Senators by state legislators, which was duly amended out of the Constitution as being undemocratic.

  8. Josh & 6:18
    Thank you for the thoughtful commentary. I will try to address any and all points as thoroughly and concisely as possible.

    (1) Re: Liberty as an overstatement and democracy as a comparably important idea. Josh, I refer you to Federalist #10 ( Our own Founders' understood that we were not to be a democracy in practice, and that in order to secure our collective and individual liberty, we must avoid "faction". Seems like a thorough refutation of the idea of democracy being central.

    Moreover, I don't think there is any one particular 'practical reason' for the Revolution. It seems, in retrospect, to have been a "perfect storm" where the interests of the great and small, northern and southern aligned at a particular time.

    (2) Re: Founders using representation to secure their own safety/property. Perhaps there is something to the Game Theory-esque idea that the Founders either latently or patently realized that giving a bit of representation may be a good investment for their well-being. Then again, maybe not. Given the totality of the circumstances (especially the dominant philosophies of the time), I would err on the side of thinking that representational government was more of an intellectual concern for the Founders than it was a practical concern. All the philosophers followed by Jefferson, Madison, Hamilton, et. al. advocated participation in government not as a release valve, but rather as a logical extension of the concept that the government derives its legitimacy from the individual who trades in a bit of his liberty for a promise of security.

    (3) Re: Treating the wealthy as a homogeneous class. The wealthy do not act with any sort of coordination, and haven't since the concept of wealth broke free from the concept of aristocracy. While it may appear that the wealthy act homogeneously in retrospect (much like the sun appears to streak across the sky during the day), the reality is that each individual is...well, an individual who operates according to his best perception. Treating the wealthy as a homogeneous group is, at worst, self-delusional, and it opens up the door to the painting of people with far too broad a brush. I don't buy the idea that the "Rich are pulling the strings."

    (4) Re: Wealth as a privilege/minority. Again, I think this comes down to a personal view of how the individual Founders viewed themselves and their creation. You seem to be of the school that they were operating predominantly in their self-interest (cui bono); while I concede that may be true, I think it is only true to a point (and a minor one at that). Rather, as I stated above, I believe that the Founders' beliefs were the logical and philosophical conclusions of their studies.

    (5) Re: Examination of restraints. Someone is a little bit of a Posnerian pragmatist, now ain't he? ;-) I think your assertions here are unimpeachable as a matter of logic. However, here, I must submit that to me, there seems as though there will always be an insurmountable knowledge problem: Who knows if a restraint (or lack thereof) will work more efficiently than the alternative? According to what time line? How do we know that we have anything approaching "perfect information" or "perfect feedback?" We don't and we can't.

    (6) Re: Direct election of senators. I must disagree again: I think we'd be better off with senatorial elections as they were originally designed. Call me crazy, but the whole reason for the Senatorial house was to curb the populist House. With direct elections of both, such a brake is much more ineffectual.

  9. Fred:


    (1) Re: Liberty as an overstatement and democracy as a comparably important idea.

    Federalist 10 doesn’t say we were not to be a democracy in practice, but rather distinguishes between ‘pure democracy’ (direct) and ‘republican’ (representative). My reading of Fed 10 indicates that Madison was deeply committed to democracy (referring to the himself as one of the “friends of popular government”) and his stated motive in addressing the problem of faction was to quiet those critics who claimed that democracy was impossible.

    Madison then argues that faction will be best accomplished not by structural constraints such as the electoral college but rather by a large republic that encompasses within it many different viewpoints.

    Basically, these enemies of democracy had said “look, you can’t do it, it doesn’t work, factions will destroy your Democracy – look at Athens and Rome.” Madison responds that Rome had simply not been a large enough republic – or in other words, it hadn’t been democratic enough.

    While there may be other Federalist papers that specifically address some of the countermajoritarian innovations in the Constitution, Federalist 10 speaks of the possibility that the violence of faction may be restrained by a wide enough plurality of interests.

    (2) 'Practical reason' for the Revolution.

    While you're right that it was a perfect storm (what revolution isn't, those things are difficult to get off the ground) my point was that the Revolution was primarily motivated by a lack of democracy in the political system. The parties to the Revolution were a group of factions who found that they were unable to advance their interests because of an absence of democracy. The lesson of the Revolution then, for me, is the paramount virtue of democracy and the possibility of popular legislative change.

    (3) Re: Founders using representation to secure their own safety/property.

    I wasn’t referring to the Founders acceptance of democracy but rather their fear of it. This fear is clearly reflected in Fed. #10, where one of the principal factions they’re worried about are those who would rewrite property laws. I don’t think the Founders offered democracy as a safety valve, though it has undoubtably proved to be so. Rather, the Founders, victims of the specific tyranny of an unremovable government, had become convinced that democracy was the only way to protect their interests.

    Many were also no doubt motivated by the sense of equality they genuinely shared with others of their class in America. Compared to Europe, America began as a less socially stratified society, especially when you consider the contours of the initial voting class.

    However, cognizant of the dangers, the Founders imposed sufficient restraints in the system in order to limit the ‘downside risk’ of democracy.

    (3) Re: Treating the wealthy as a homogeneous class.

    If people are driven by their interests, and their interests, as owners of the same type of property, significantly align, they will probably act in concert. In 2000, Ralph Nader argued that the difference between the Democrats and Republicans was cosmetic. Eight years later that argument is harder to make, but I believe he is right in that most Americans have been co-opted to varying degrees by a pro-wealth and anti-poverty mindset. Those varying degrees might track nicely to Democrat-Republican-Libertarian. However, this co-option is not an accident. Right now, since the Big Banks have failed so visibly and obviously, there is a populist backlash. Nevertheless, look at how the mainstream media is covering the backlash. They don't get it, because they all get nice paychecks and get to drive the same kinds of cars as rich people do, and think they're a member of the club. They're not, but because they think they are, they advance the agenda.

    (4) Re: Wealth as a privilege/minority.

    While I do think the Founders were honestly motivated by a desire for equal political rights among members of their class, let’s remember how limited the franchise was at the Founding. Though they were only men of their time, let’s not give them too much credit. In favoring the rights they fought for, they were acting in their own interests: the interest in an equality of property-owners. This is not a small point; it is good for property-owners to be treated equally, and the poor want their property rights protected as well as the wealthy.

    But I don’t think the Founders were too concerned about the rights and privileges of slaves, women, native Americans, indentured servants, or day laborers. I’m not so sure how concerned we are today either. The flight to the suburbs and the broadening of the meritocracy has lessened inefficient discrimination but it may have made us complacent to the persistence of poverty.

    (5) Re: Examination of restraints.

    Yes, I’ll concede the knowledge problem, but throw it back to you: given the limited knowledge, who decides? The people? Or specialists? If specialists, who appoints them?

    (6) Re: Direct election of senators.

    Under Fed 10, the Senate maintains its ability to curb the House because the franchise in Senatorial elections is broader. As a practical matter this has been born out – Senate maintains a useful place to check the democratic impulses of the country, even without Senatorial appointment. Given that state legislatures are democratically elected, I’m not sure what the Amendment actually accomplishes – other than to make Roland Burrises more likely.
    However, let’s talk about the real issue: the antidemocratic nature of the Senate. Now, to the extent that the a second house makes legislation more difficult to pass, I am generally ok with. Clearly, such a design will have the effect of entrenching the status quo to some degree. That said, the law of unintended consequences suggests caution when changing the rules, and there may be benefits to making change require a bit more than a simple majority.
    In terms of the filibuster, I also think there is something to be said for it: requirements of supermajorities transfer some of the influence from the majority to the minority. I think this is acceptable if the use of supermajorities is small, limited, and narrowly tailored. Even the fact that the filibuster is extraconstitutional is ok by me – I believe that if Americans were opposed to the filibuster (or the minority veto) they would find a way to end it.
    However, modifications of pure democracy are only legitimate if they reflect the will of the people. Direct elections of Senators ensures that the Senate is accountable to the people, not the states. The fact that the Senate has a different electorate than the House means that different types of political leaders are elected to it. Nevertheless, these leaders cannot find authority to govern if they haven’t been chosen and aren’t recallable by the electorate.
    For me, it’s a no brainer.

  10. @ Fred & Josh-

    A lot has been said, and I want to add some of my thoughts to the discussion. However, I need some time to put everything together before responding. I'll try to respond this afternoon.

  11. I agree with Jeff.

    "A fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them.'" Powell v. McCormack, 395 U.S. 486, 547 (1969). See also Hamilton, 2 Elliot's Debates 257 ("The true principle of a republic is, that the people should choose whom they please to govern them.").

    In any event, the voters of CA voted to amend the state constitution. They weren't just passing a law open to constitutional invalidation -- they were amending the state constitution itself. Democratic principle is therefore foundational to the whole exercise.

    Analogies comparing a state constitutional amendment to federal legislation are therefore unsound. The correct analogy would be (e.g.) a repeal of the 4th Amendment via the Article V amendment process. If done via convention, it would be an expression of almost pure popular sovereignty. The only justiciable question left to the courts then, is one of procedure -- whether the amendment in question was properly passed pursuant to the procedural requirements of Article V. If it was, then the amendment "is conclusive upon the courts." Leser v. Garnett, 258 U.S. 130, 137 (1922).

  12. What is truly ironic is that in CA, the state constitution's equal protection clause was itself a creature of direct amendment by citizen initiative (it was enacted in the 70s, prop-8 style). Limiting the scope of that amendment, or carving a limited exception to it, or even repealing it -- is therefore not outside the scope of the people's amending power.

  13. @ huh--

    Here's what I'll say for now, with more to come later: democratic principle is not foundational because there is a cognizable legal question here. Namely, the question of whether the California voters "amended" or "revised" the Constitution. See my earlier posting on this matter for a brief summary of the legal issues: Proposition 8's Legality to be Tested. You can analogize this inquiry to the procedural mechanism you cite in your post. So I accept your conclusion if--and only if--we assume that this was, in fact, an amendment rather than a revision. But that's a legal question that the Courts are entitled to weigh in on, and the fact it was voted on democratically has (or should have) no bearing on the disposition.

  14. Craig, that's a non sequitur, since it doesn't follow from there being "a cognizable legal question" that "democratic principle is not foundational." The amendment (or revision) must pass democratic muster in order to pass procedural muster. The democratic requirement is part of the procedural requirement -- amendments (and revisions) must receive a bare majority of the vote before any change to the constitution is effected. The fact that there are ancillary procedural requirements does not alter this bedrock requirement. Democratic principle is foundational because ultimately, democratic legitimacy is what the procedural requirements channel. I don't see how you can deny this.

  15. @ huh--

    That's fair, and I don't disagree with it--we're just defining "foundational" differently. Since you said "I agree with Jeff" I thought you meant that the only thing needed to justify Prop 8 (and other such efforts) was that it was approved by the voters. That, I believe, is his position--that no court should be able to review whether it was a "revision" or "amendment" because the voters passed it.

    To the extent we define foundational as "integral and important, but subject to judicial review where there are legal questions" then, yes, I agree that democratic principle is foundational. Thanks for clarifying this point.


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