Editors’ note: “Democracy in America: a symposium” examines the status of popular sovereignty in the United States today, nearly two centuries after the seminal work of the political theorist Alexis de Tocqueville. Other participants include Victor Davis Hanson, Daniel J. Mahoney, James Piereson & Glenn Ellmers.
Almost all the rulers who have tried to destroy freedom have at first attempted to preserve its forms. This has been seen from Augustus down to our own day.
—Alexis de Tocqueville, The Old Regime and the Revolution (1856)
Democracy in America: what is it? Whatever it is, we know that it is under siege. Barely a moment goes by these days without tocsins sounding about various threats to “our democracy” (I’ll come back to that plural possessive below). It used to be that the biggest, baddest threat to “our democracy” was Donald Trump (I’ll come back to that, too). Then a curious thing happened. Trump still gets prominent billing, ex officio, as it were, but when it comes to “threats to our democracy,” he seems to have been overshadowed somewhat by a curious new threat: the Constitution.
How can that be, you ask? Isn’t the Constitution of the United States, in addition to being our founding document and the arbiter of what is lawful and what isn’t, the fundamental guarantor of “our democracy”? That was yesterday. Today, if you are truly up-to-date, you know that the Constitution, while venerable, is basically at odds with democracy. “We Had to Force the Constitution to Accommodate Democracy, and It Shows,” reads one headline in The New York Times. “Let’s Give Up on the Constitution,” reads another. “The U.S. Lacks What Every Democracy Needs,” reads a third, whose column goes on to lament “the high cost of living with an old Constitution.”
The fact that the U.S. Constitution is—by far—the world’s longest-serving constitution used to be a point of pride. Now, for some activists, that longevity is an embarrassment as well as an affront. The New York Times may have long since abandoned its pretensions to bringing its readers the news, preferring instead to batten them on whatever The Narrative demands. But, considered as a barometer of the vacillating pressures of left-wing political fashion, the paper has grown ever more sensitive. The culmination of its campaign against the Constitution came on August 31 with a column by Jennifer Szalai entitled “The Constitution Is Sacred. Is It Also Dangerous?” According to Szalai, the answer is Yes. “One of the biggest threats to America’s politics,” we read in its subtitle, “might be the country’s founding document.” Really?
A republic, nota bene, not a democracy.
It wasn’t so long ago that organs like the Times complained that Donald Trump was “a menace to the Constitution.” (Another headline from the Times: “maga Turns Against the Constitution.”) But the new memo blames the Constitution for giving us Trump. Hence the new hotness is the contention that “Trump owes his political ascent to the Constitution, making him a beneficiary of a document that is essentially antidemocratic and, in this day and age, increasingly dysfunctional.” The Constitution allowed Donald Trump to become president. Ergo the Constitution is “dysfunctional.” Quod erat demonstrandum.
Szalai leans heavily in her column on the left-wing law professor Erwin Chemerinsky and his new book No Democracy Lasts Forever: How the Constitution Threatens the United States. 1 It is almost too good to be true, but it is true that Chemerinsky is a professor at the University of California at Berkeley. Accordingly, there is no left-wing piety—about women, blacks, immigrants, January 6, Donald Trump, Republicans, and many other things—to which he neglects to genuflect or remonstrate, as the case requires. He even gives the thoroughly discredited Russia-collusion hoax another go-around and argues that, in the age of the internet, “false speech poses a serious threat to democracy.” And who gets to decide what counts as “false speech,” Professor?
Chemerinsky’s basic argument is that the Constitution, inadequate in 1787 when it was first adopted, has totally outlived whatever dubious usefulness it once had. He lavishes special animus on the Electoral College (which makes it possible for a candidate to win the popular vote but lose the election), the provision of two senators for every state, regardless of its size or population, and the Supreme Court, which also, he says, “undermines democracy” because it’s too independent and life tenure insulates justices from public opinion. (Wasn’t that precisely what the framers had in mind with Article III?) In conclusion, Chemerinsky predicts, “the time will come when Americans will realize that the Constitution itself is endangering democracy and they will start thinking of replacing it.” And if that doesn’t work, he says, there is always secession. Most legal scholars believe that the 1869 decision Texas v. White declared secession unconstitutional. But that doesn’t faze Chemerinsky: he disputes the common reading of the decision and argues that, regardless, secession can mean many things and can take a variety of forms.
Chemerinsky begins the brief coda to his book with the declaration: “Our government is broken and our democracy is at grave risk.” Again, what is that “democracy” of which he speaks? When Benjamin Franklin, emerging from the Constitutional Convention in 1787, was asked what sort of government he and his colleagues had forged, he famously said “A republic, if you can keep it.” A republic, nota bene, not a democracy. The difference is critical.
As Victor Davis Hanson notes below in his essay on “Our Athenian American Democracy,” “republics inevitably face an innate and radically democratizing opposition, which always seeks,” via “court edicts, referenda, or internal coups,” to “alter ‘mixed’ constitutions and restore the unchecked power of the people, or at least of its often-tyrannical leaders and institutional advocates.”
Among the many reasons that it is difficult to keep a republic going is the constant pressure to transform one party into the party of the regime. This indeed was the primary reason that the founders were suspicious of political parties. They worried that the growth of political parties would lead to what they called “faction,” and faction was a standing invitation to corruption. It works like this: A portion of the voting populace is in effect co-opted by politicians who promise and deliver favors in exchange for votes, which fosters a culture of corruption. You scratch my back and I bequeath you the legislative apparatus of the state, till bankruptcy do us part, and maybe not even then. This is the origin of “the Swamp.”
Originally, as Hanson also notes, “democracy” meant rule by “the demos,” the people. But as George Orwell pointed out in his novel Animal Farm, there is a moral or political entropy at work in human affairs that, unchecked, regularly perverts “the people” into “some people.” All animals are equal, you see, but some are more equal than others. As an aside, it is worth mentioning that the prevalence of this degeneration in the human heart is one reason that most political theorists, from Plato and Aristotle on down, have been profoundly suspicious of “pure,” direct, unchaperoned democracy. Aristotle thought it the worst form of government, leading almost inevitably to ochlocracy, or mob rule. James Madison, in Federalist 10, warned that throughout history most democracies have been as “short in their lives as they have been violent in their deaths.” “Theoretic politicians,” he wrote—and it would be hard to find a more contemptuous deployment of the word “theoretic”—may have advocated democracy, but that is only because of their dangerous and utopian ignorance of human nature. It was not at all clear, Madison thought, that democracy was a reliable custodian of liberty.
“Democracy” is a eulogistic word.
Nevertheless, nearly everyone wants to associate himself with the word “democracy.” Totalitarian regimes like to describe themselves as the “Democratic Republic” of wherever. Conservatives champion the advantages of “democratic capitalism.” Central planners of all stripes eagerly deploy programs advertised as enhancing or extending “democracy.” Columnists for The New York Times and Berkeley law professors attack the Constitution because it stands in the way of certain democratic impulses. “Democracy,” in short, is a eulogistic word, what the practical philosopher Stephen Potter in another context apostrophized as an “OK word.” And it is worth noting, as Potter would have been quick to remind us, that the people pronouncing those eulogies delight in advertising themselves as, and are generally accepted as, “OK people.” Indeed, the class element and the element of moral approbation—of what some sage has summarized as “virtue signaling”—are key.
It was part of Madison’s genius, supported by Alexander Hamilton and the other founders, to have forged a species of popular rule that carefully modulated the passions of the masses in such a way that protected individual liberty in the face of the imperatives of democracy. Hence the Electoral College, which is a primary mechanism for preserving federalism. Hence, too, two senators to every state: why should Wyoming, say, be swamped by the ethos of California? Such expedients are not bugs but features of a dispensation whose aim is to preserve a canvas for individual liberty. You may have noticed that the loudest voices among Democrats chanting about “our democracy” aren’t much interested in preserving individual liberty. They’re interested instead in the acquisition and retention of power, on the one hand, and the exercise of social control, on the other.
There is a sense, then, in which Chemerinsky and like-minded critics are right about the Constitution being “antidemocratic.” It is antidemocratic in the sense that it is pro-republic. Which is to say that the Constitution is primarily about circumscribing the coercive power of the government. As Madison famously put it in Federalist 51, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” The limits on federal power set forth in the Constitution make it a bulwark against many sorts of abuse, including that most constant temptation of democracies, the tyranny of the majority.
Why should Wyoming, say, be swamped by the ethos of California?
To some extent, “democracy” is a positive but empty epithet. When Chemerinsky complains that the Constitution is “antidemocratic,” the democracy he has in mind is not the same democracy that Ronald Reagan invoked when he observed that “democracy is less a system of government than it is a system to keep government limited, unintrusive: a system,” Reagan continued, “of constraints on power to keep politics and government secondary to the important things in life, the true sources of value found only in family and faith.”
Whether what Reagan says is true of democracy itself is something that we might, with Tocqueville, and with sadness, want to question. Too often democracy has been prey to deformations that encourage rather than retard the growth of government, as Daniel J. Mahoney demonstrates in his essay below. That indeed was part of what the founders had to conjure with as they combed through the graveyard of history’s failed democracies in their efforts to frame a more robust and long-lasting system of government.
Can anyone read what Madison said about the Constitution delegating to the federal government only powers that are “few and defined” without a smile? How quaint it all sounds to our ears. And what do we make of the observation, from Federalist 57, that the people would never tolerate a law that was “not obligatory on the legislature, as well as on the people”?
Article I of the Constitution vests all legislative power in the Congress. But for many decades now, Congress has been assiduously avoiding that duty. As the political philosopher James Burnham noted back in the 1940s in The Managerial Revolution: What Is Happening in the World, laws in the United States were, even then, increasingly being made not by Congress, but by an alphabet soup of executive-branch agencies. And note that Burnham wrote decades before the advent of such monstrosities as the epa, hud, the cfpb, the Department of Education, and the rest of the administrative agglomeration that governs us in the United States today. More and more, we are ruled not by laws but by ad hoc diktats emanating from semiautonomous and largely unaccountable quasi-governmental bureaucracies, many of which meet in secret but whose proclamations have the force, though not the legitimacy, of law.
Indeed, Americans today find their lives directed by a jumble of agencies far removed from the legislature and staffed by bureaucrats who make and enforce a vast network of rules that govern nearly every aspect of our lives. Who defines the scope of those rules? It is difficult to say. This is the puzzle that James Piereson underscores below in “The Washington octopus.”
What is “discrimination” under the Civil Rights Act? What is the definition of “clean air” or “pollution” under the Clean Air Act? How do we define “sex discrimination” under Title IX—indeed, how do we define “sex” or “gender”? How do we define “ballot access” under the Voting Rights Act? What is the definition of “transparency” under the mandate of the Securities Exchange Commission (sec)? The laws as passed by Congress do not answer these questions in any detail. As a consequence, civil servants have latitude to define those terms, and to issue regulations that follow from them, with little oversight from Congress. Laws may be congressional in origin, but they are now mostly administrative or bureaucratic in content.
We have entered the vertiginous realm of the “administrative state,” what Glenn Ellmers below calls the “nonconsensual rule of America’s managerial class.”
One of the most disturbing features of this phenomenon was exposed by Philip Hamburger in his work on the history and evolution of the administrative state. As Hamburger notes, the expansion of the franchise in the early twentieth century went hand in hand with the growth of administrative, that is to say, extralegal, power. For the people in charge, equality of voting rights was one thing. They could live with that. But the tendency of newly enfranchised groups—the “bitter clingers” and “deplorables” of yore—to reject progressive initiatives was something else again. That was unacceptable.
In 2016, Donald Trump was elected in a free, open, and democratic election. But the nomenklatura screamed that his election was illegitimate, a challenge to democracy, because—why? Because the wrong person won. That was Trump’s tort: he was a threat to “our democracy” because he won, because people voted for him.
Woodrow Wilson, a standard-bearer for an earlier incarnation of the progressive juggernaut, epitomized this elitist spirit. “The bulk of mankind,” he noted sadly, “is rigidly unphilosophical, and nowadays the bulk of mankind votes.” What to do? The solution was to shift real power out of elected bodies and into the hands of the right sort of people, enlightened people, progressive people, people, that is to say, like Woodrow Wilson. Therefore, Wilson welcomed the advent of administrative power as a counterweight to encroaching democratization. And thus it was, as Hamburger points out, that we have seen a transfer of legislative power to the “knowledge class,” the managerial elite—the “new ruling class” that James Burnham anatomized.
Legitimacy is draining out of our governing institutions.
A closer look at the so-called knowledge class shows that what it knows best is how to preserve and extend its own privileges. Its activities are swaddled in do-gooder rhetoric about serving the public, promoting democracy, looking after “the environment,” helping the disadvantaged, fighting racism, and similar performative kindnesses. But what they chiefly excel at is consolidating and extending their own power.
Who staffs this new elite? That, too, is a difficult question to answer. Elsewhere, I have called the governing entity “The Committee.” I do not know exactly who populates it. Vivek Ramaswamy touched on the sponginess of the situation when he noted that with Kamala Harris, Republicans are “not running against a candidate. We’re running against a system. They require a candidate they can control, which means having original ideas is a disqualification.” But who is “they”? Exactly who, for example, told Joe Biden that he had to go, the voters be damned? Whoever it was, you can be sure that they’re on The Committee.
C. S. Lewis touched on the broader psychological or moral dimension of this phenomenon in a lecture called “The Inner Ring.” In every social organization, Lewis wrote, there exist two hierarchies. One is an official and public hierarchy. The other is covert. The names of its members are “not printed anywhere.”
Nor is it even a formally organised secret society with officers and rules which you would be told after you had been admitted. You are never formally and explicitly admitted by anyone. You discover gradually, in almost indefinable ways, that it exists and that you are outside it; and then later, perhaps, that you are inside it. . . . It is not easy, even at a given moment, to say who is inside and who is outside. Some people are obviously in and some are obviously out, but there are always several on the borderline.
Many commentators have noted the profoundly undemocratic maneuver with which The Committee erased Joe Biden and installed Kamala Harris as the Democratic presidential nominee. After all, nearly fifteen million people voted for Joe Biden in the Democratic primary. He won, hands down, because those who inhabit the Inner Ring of The Committee made certain that other candidates—including Robert F. Kennedy Jr.—were shunted to one side. They had done the same thing to Bernie Sanders years before. All, of course, in the name of “democracy.”
Which brings me to the distinction between “democracy” and “our democracy.” The latter poaches on the authority and prestige of the former. But what it really means is “their oligarchy,” “their prerogative.” As I have noted elsewhere, honestly parsed, the phrase “our democracy” means “rule by Democrats.” Accordingly, to such questions as “Was the election fair?,” what you first need to know in order to answer is, “Who won?” If it was the Democrats, then the election was fair. If the Democrats lost, then the election was stolen.
There are further things worth bearing in mind as we contemplate the political distempers of the times. One concerns the hardening of the Left. Barack Obama’s victory in 2008, followed by the incomprehensible victory of Donald Trump, has radicalized and emboldened the Left.
Today, the Left says things they would hitherto only have thought and does things that they would hitherto only have said. It used to be that there was a certain latitude accorded to opposing views. That’s all over now. What we see is the triumph not just of political correctness but also of visceral intolerance that nurtures a “by-any-means-necessary” attitude. Every issue is an existential emergency for which the Left’s shock troops are willing to go to the wall. Every loss demands that people scream at the sky. We win or we threaten to burn everything down. At least since Trump’s victory, the dominant attitude has been that only the Left is allowed to win. Any conservative victory is by definition illegitimate, a blow to “our democracy.”
It seems to me that conservatism has three main choices. One is outright surrender. One is the dhimmitude of the well-pressed but housebroken Right that exchanges its pampered place on the plantation for political irrelevance. The third choice is the perhaps paradoxical option of what we might call Alinskyite conservatism, after the canny left-wing activist Saul Alinsky. This option eschews the quietism of surrender for the activism of what Donald Trump calls “winning.”
How is this to be accomplished? As Piereson suggests below, one major goal must be to downgrade the place of Washington, the city as well as the spirit it entails, in the metabolism of American political life. Piereson is quite correct—it is an important insight—that notwithstanding its overwhelmingly Democratic coloration, the capital has developed into a kind of “political party in its own right.” Its triumph stands behind the real threat to the republic bequeathed to us by the founders. That threat is not the Constitution but subservience to the faceless managerial elite that exercises the real power in our society. Legitimacy is draining out of our governing institutions at an alarming rate. Stanching that debilitating flow requires that we redirect our attention away from the greedy puppet show in Washington to the true source of legitimacy, which is with the people.
No Democracy Lasts Forever: How the Constitution Threatens the United States, by Erwin Chemerinsky; Liveright, 240 pages, $29.99 ↩
