Liberty, Prudence, Imperfection, and Law

“Decline of the Senate, Descent from a Republic to a Democracy,” By Bruce Frohnen

This essay was authored by Bruce P. Frohnen for Nomocracy in Politics. Professor Frohnen is a Nomocracy in Politics Contributor. 

Senate Majority Leader Harry Reid’s recent move to severely restrict the use of the filibuster has received surprisingly little criticism of the type and intensity it deserves.  Even his Republican opponents, those who will be most harmed by having their right to delay indefinitely judicial nominations on which forty members dissent, have had little to say.  The Republican response has been, in essence, “Okay, you can strip powers from the minority.  Just remember that we’ll do the same to you when we are in the majority.”

Yet Reid’s change is monumental.  The Senate, an institution designed by the Constitution’s framers as a bulwark against thoughtless majorities and, in particular, the centralizing tendencies of a House of Representatives more concerned to please constituents than maintain limited government and federalism, has become little more than a somewhat slower, somewhat wealthier House.  Soon, there will be no super-majoritarian requirements at all in the Senate beyond those specifically called for in the Constitution.  Then the Senate will be “undemocratic” only in that its members will be elected from districts of unequal population (California, for example, having more people in it than, say, Wyoming).

And why would anyone think of this as a bad thing?  Why would anyone seek to stop the march of progress toward truer, fuller democracy?  Why, then, not get rid of the Senate altogether and have one, directly elected house of our legislature?  Perhaps because the United States was never intended to be a democracy, and because the framers of our Constitution recognized, quite rightly, that “pure” democracy, far from the utopia envisioned by some academics and radical activists, is a dangerous political form that inevitably leads to tyranny.

“Democracy” means rule by the people.  In ancient times such rule often was quite direct—all the people gathered to vote on all things.  But the logic of democracy is extended into the era of representative government by those who claim that legitimate governments must not merely rest on the consent of the governed, but must be specifically designed to put the will of the majority into action as quickly and directly as possible.  Publius, pseudonymous defender of our original Constitution and author of the Federalist Papers, left no doubt concerning his views on democracy.  He expressed “disgust” at the bygone republics of Greece and Italy for “the distractions with which they were continually agitated, and . . . the rapid succession of revolutions, by which they were kept perpetually vibrating between the extremes of tyranny and anarchy.”  The source of distraction in these “republics?”  At root, it was impetuous, factional rule.  Lacking the modern mechanisms of separation of powers, and the checks and balances necessary to maintain that separation, these democratic governments were too often ruled simply by majorities-of-the moment.  As a result, they constantly were at war with themselves, as rulers and ruled, majorities and minorities resorted to violence because they lacked the calming, mediating institutions needed to chain government (and the majority in government) to the rule of law.

This is not to say that the framers of our Constitution were enemies of the people, or even of popular government, rightly understood.  They rejected, after all, both monarchy and aristocracy as options for governing Americans.  They intended to establish, as they did, a government that rested on the sovereignty of the people; one that was republican in all its aspects.

The question, then, is what we (and the framers) mean and meant by the sovereignty of the people, and how this comports with a free, republican government.  For the Constitution’s framers, republicanism meant that every officer of the national government must derive his office, directly or indirectly, from the will of the governed.  Thus, members of the House of Representatives were directly elected, members of the Senate were elected by state legislatures (whose members were elected), the President was elected by special electors chosen by the people, and judges of the federal courts were put into office by that President, with the approval of the Senate.  All these officials served subject to election or during good behavior (that is, subject to impeachment and removal from office).  The result was government by consent of the governed.  It was not “democracy” in the sense of majority rule, but, rather, government over which the people might exercise control by electing their governors, and those who would appoint other governors.  The people, then, would have the power to check abuses of power by removing those who would so abuse it, as well as being able to ensure that policies receiving its sustained support in the end would become law.

Over the decades, those seeking a more active government, one which would do more to shape our nation into a particular form to their liking (generally, a more centralized government exercising more control over the people’s lives and incomes so as to produce a system of national social insurance) have dubbed this Constitutional order the “deadlock” or “gridlock” of democracy.  And so, from a progressive viewpoint, it is.  For the constitutional model of our framers is intended, not to translate the transient majority will into policy with efficiency and speed, but to foster deliberation and disinterested consideration aimed at establishing consensus views of the public good and how it might be achieved.

There are no guarantees in our Constitution that a particular policy—good or bad—will be achieved, or even maintained over the long haul.  But that Constitution was designed to ensure that minority factions and temporary majorities would be unable to push through self-interested policies without substantive, sustained debate.  Under the framers’ Constitution, there would be deliberation, giving less directly interested representatives and other parties the time and influence needed to consider the long term impact of proposed policies on the people as a whole.

Much of the debate concerning the moral legitimacy of our constitutional order has concerned how we defined “the people” for purposes of participation in republican government.  Race, sex, and age were, of course, the most critical categories of person considered in that debate.  That such debates concern justice as well as prudence seems clear, and suggests that much of the movement toward what we now term “democracy” was, in fact, highly necessary to maintain the legitimacy of republican government.  But such considerations are a far cry from the demand that the majority party in office be empowered to change public policy and judicial (and other) personnel as quickly as possible to make over the nation in its own ideological image.  Whether from the left or the right, such a “democratic” drive for power endangers the constitutional framework on which we have relied for protection against tyranny.

Truly “majoritarian” government is government that fails to recognize any limits on its own right to rule.  Indeed, as Bertrand de Jouvenel remarked, the danger of democracy is that, its claim to legitimacy being universal, it is freed from any limitations on its own powers.  Everything that may be advantageous to do, democratic governments feel compelled to do, for there is no limit to what the people demand.  Constitutionalism requires limits on these claims.  And the only way such limits can be maintained in a government resting on the consent of the governed is through mechanisms—separation of powers and supermajority requirements prominent among them—ensuring deliberation and consensus.

The classic example of a democratic government taking its power to its logical conclusion is that of the French Revolutionary Jacobins.  These democratic rulers determined that “the people” must be freed from aristocracy, feudalism, and religion through the use of the guillotine.  After much blood, the result was Napoleon, who claimed the revolution was completed in his own person.

But there are less dramatic possibilities.  Publius himself warned that the real, present danger to be feared in a republican government is establishment of a class of rulers separate from the people.  Ideologues of democracy would insist that such a class results from brakes of any kind being put on instantiation of the general will into public policy.  Publius knew better.  He defended our Constitution in large measure because its mechanisms would prevent majorities from forming too easily.  The Constitution’s mechanisms would allow less personally interested legislators to prevent factional legislation from becoming law, thereby upholding liberty and the rule of law.  The problem is that such a system requires virtue even as it promotes virtue.  Such a system encourages impartial consideration of legislation and impartial administration once the legislation becomes law.  In this way it promotes the rule of law and instills respect for public order in governors and governed alike.  But such a system requires that governors know that they will be subject to the laws that they pass—that they will return to private life, rather than spending their entire careers in government, and that even while serving they will have to abide by the same laws as everyone else.  Without this most fundamental support for the rule of law, constitutional mechanisms will become meaningless—as they have in recent years.  As Publius put it, once “the vigilant and manly spirit which actuates the people [is] so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

For decades, now, we have been governed by men and women whose own offices are exempt from labor and other laws they impose on the rest of us.  Members of Congress and their employees have their own retirement system, they are subsidized against the effects of Obamacare, and they use earmarks and other means to benefit friends so that they, and those close to them, can enjoy privileged status and increased wealth.  They are only aided in this self-interested conduct by a naïve belief that “majority rule” will accomplish anything other than the establishment of partial, inconstant government.  They have been empowered by childish belief in the power of majorities to produce all good and prevent all evil, such that they have formed a separate class from the people.  Such a ruling class is inimical to ordered liberty, and the citizens have only themselves to blame for tolerating it.

3 Responses to ““Decline of the Senate, Descent from a Republic to a Democracy,” By Bruce Frohnen”

  1. gabe

    Prof Frohnen:

    Great essay – spot on!!!
    I, too, place the blame on “We the citizens” – unfortunately we have grown accustomed to the a continual diminishment not only of our liberties but our “role in governing” – no, I am not preaching democracy but rather our role as citizens to make certain that our constitutional STRUCTURE is not completely eliminated.

    take care

  2. bobcheeks

    And, I agree with brother Gabe re: the good Dr.’s essay.

    The question, now that we’ve differentiated the problem and determined that Madison was right in Fed. 39 re: the ‘ruling class’ and further that we are now, more or less, a nation of people estranged from virtue, is what is our course of action?

    I would very much like to read someone’s thoughts on how, those of us who are the last of the ‘republicans’, respond to the current disorder.


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