The preamble to the American Constitution begins with the phrase “We the people…”
But could the people of America be counted on do the right thing all or even most of
the time?
The principal architect of the Constitution, James Madison, gave this question a great
deal of thought.
His answer was a decided “no.”
“Whenever there is an interest and power to do wrong,” he said, “wrong will generally
be done.”
For his new nation, Madison wanted as much freedom as possible with as little government
as possible. But he had no illusions. Tyranny, he knew, comes in many forms. It’s not confined
to monarchies and dictatorships.
In a democratic society, the threat of tyranny comes from the people themselves.
The Founders called this the “tyranny of the majority.” The majority will, if it
can, put its own interests above those of the minority and generally not hesitate to
deprive it of its rights and freedoms.
This is why Madison was preoccupied with the problem of what he called “factions,”
the word he used for any kind of organized pressure group. Madison deemed both minority
and majority factions dangerous. Yet of the two types of factions, he considered a majority
faction to be more dangerous. Why? Because minority factions can be curbed by the power
of the majority. But who will curb the majority?
This is the central purpose of the Constitution: to limit, frustrate, and in some cases block
majority rule. As Madison put it, the great task was to devise a document that would “first
enable the government to control the governed” and “in the next place oblige it to control
itself.”
How to do this?
Madison had a plan.
First, the Constitution had to be written down.
We’re so accustomed today to national constitutions that we need to remember that, prior to the
American constitution, no country in the world had one. And since the adoption of the US
constitution, many countries have had constitutions that came and went, some lasting just a few
years. Yet the American constitution has now endured for nearly two and a half centuries.
The original document was written on four pieces of parchment and is 4543 words long.
Its remarkable brevity perfectly matches its purpose: to create a framework for limited
government. To Madison, this meant that the authority of the federal government should
cover certain listed or “enumerated” areas. Outside those areas, the government has no authority.
Second, the rights of the citizens had to be clearly spelled out.
That’s why the first ten amendments to the Constitution known as the Bill of Rights contain
a series of limitations on government.
The rights in the Bill of Rights typically begin, “Congress shall make no law…”
Congress shall make no law restricting free speech, or freedom of the press, or the free
exercise of religion.
Third, the concept of representative government had to be clearly defined.
Representative government means that the people do not rule directly; they rule by electing
representatives who govern in their stead. Madison counted this practice—a radical
departure from the direct democracy of the ancient Athenians—as the distinguishing
mark between “democracy” and a “republic.” A large and extended society, Madison argued,
can function effectively only as a republic.
And a republic is a much better guard against tyranny of the majority than a democracy,
in which, by definition, the majority can do whatever it wants
Fourth, the power within the government must be divided.
The Constitution separates power between an elected legislature charged with making laws,
an elected executive charged with enforcing them, and an appointed judiciary empowered
with resolving legal disputes.
A further division happens between the national government and the states so that some powers
are exercised at the national level, others at the state and local level.
Fifth, mutual oversight—checks and balances—was necessary to restrain the power of the individual
branches.
Because Madison understood how easy it is for a country to devolve into tyranny, he
ensured that each of the three branches of the government act as a check on the power
of the other two. Congress has the power to make laws, but the
president can veto them, and vetoes can be overridden only by congressional supermajorities.
The President and his executive branch enforce the laws, but there is congressional and judicial
oversight. The judiciary interprets the Constitution and the laws, but judges are nominated by
the President and confirmed by the Senate.
This is not a complete list, but it gives a clear picture of Madison’s ambition: to
give America a political system that would promote freedom by making it very hard for
the human appetite for power over others to ever be realized.
He succeeded.
Thus far.
I’m Dinesh D’Souza for Prager University.