Spectrum Three: Democracy vs. Constitutionalism.
Perhaps no better defense of democracy exists than Thomas Jefferson's.
It was his belief that majority rule is not perfect, but it is the best
form of government. The only other alternatives are rule by the minority
(which is worse) or rule by one person (which is even worse). Requiring
unanimous consent to pass laws is not practical, since universal agreement
on an issue is extremely rare, and government would become paralyzed on
controversial issues. Many conservatives and libertarians try to get around
this by advocating constitutionalism, or the protection of every individual's
rights by a constitution. But this only delays by one step the dilemma
that Jefferson spoke of. How is such a constitution to be written, interpreted
and enforced? By a majority? A minority? Or a single person?
Jefferson's arguments on majority rule are brilliant and virtually
unanswerable; it is difficult to imagine alternatives to the system he
described. The following quotes highlight his philosophy on democracy:
"And where else will [Hume,] this degenerate son of science,
this traitor to his fellow men, find the origin of just powers, if not
in the majority of the society? Will it be in the minority? Or in an individual
of that minority?" -- Thomas Jefferson to J. Cartwright, 1824.
Jefferson's philosophy was that majority rule is not perfect, but it
is the only form of government that reduces tyranny to the smallest degree
possible. And, indeed, it is difficult to imagine alternatives which would
be improvements. Not only does majority rule ensure that the least number
of people are going to be dissatisfied, but the constitution further protects
the rights of the minority, telling the majority what it cannot
do to tyrannize the minority. Even so, our constitution is not drawn up
by dictators, or small bands of dictators. It is ultimately approved by
the majority of the people, through their elected representatives. All
forms of our government ultimately boil down to majority rule.
"Where the law of the majority ceases to be acknowledged, there
government ends; the law of the strongest takes its place, and life and
property are his who can take them." -- Thomas Jefferson to Annapolis
"Is uniformity of opinion desirable? No more than of face and
stature." -- Thomas Jefferson: Notes on Va., 1782.
"Is uniformity attainable? Millions of innocent men, women
and children since the introduction of Christianity have been burnt, tortured,
fined and imprisoned, yet we have not advanced one inch toward uniformity."
-- Thomas Jefferson: Notes on Va., 1782.
"Difference of opinion leads to enquiry, and enquiry to truth;
and I am sure...we both value too much the freedom of opinion sanctioned
by our Constitution, not to cherish its exercise even where in opposition
to ourselves." -- Thomas Jefferson to Mr. Wendover, 1815.
"Every man cannot have his way in all things. If his opinion
prevails at some times, he should acquiesce on seeing that of others preponderate
at other times. Without this mutual disposition we are disjointed individuals,
but not a society." -- Thomas Jefferson to J. Dickinson, 1801.
"We are sensible of the duty and expediency of submitting our
opinions to the will of the majority, and can wait with patience till they
get right if they happen to be at any time wrong." -- Thomas Jefferson
to J. Breckenridge, 1800.
"If the measures which have been pursued are approved by the
majority, it is the duty of the minority to acquiesce and conform."
-- Thomas Jefferson to W. Duane, 1811.
"Bear in mind this sacred principle, that though the will of
the majority is in all cases to prevail, that will, to be rightful, must
be reasonable; that the minority possess their equal rights, which equal
laws must protect, and to violate would be oppression." -- Thomas
Jefferson: 1st Inaugural, 1801.
Even so, some utopians claim it is possible to create a political system
of perfect individual rights, where even the will of the minority is respected
and enacted. These utopians usually call for individual rights to be protected
by a much stronger constitution, and are therefore called constitutionalists.
According to this school of thought, democracy often violates the
rights of the minority. For example, under democracy, the majority can vote
to tax 90 percent of what the rich make, and the rich must surrender what
they have rightfully earned. (There is a question of whether the rich have
really earned all their income "rightfully" or through exploitation,
but let this controversial point pass.) To correct this perceived injustice,
they call for a constitution that better protects the freedom, rights and
property of individuals.
According to most constitutionalists, individuals have a right to keep
everything they earn, a right to spend their money however they want, and
a right to make contracts and associations of their own free will. No one
can force them to do anything for anyone else; everything they do is by
their own choice. The only exception to their freedom is that they cannot
violate the rights of others. Libertarians have a popular saying: "The
right to swing your fist stops at my nose."
These are perfectly laudable goals, but constitutionalists are usually
vague on how they can be reached, and often ignore direct questions about
what such a system would look like. What few blueprints have been offered
quickly reveal their unworkability. The problems constitutionalists face
Constitutionalists severely underestimate the complexity of defining
and defending individual rights. Few people agree on what a "right"
is, let alone how it can be violated in any specific case, let alone how
it should be defended. The diversity of opinion on the subject points up
the value of democracy in resolving these issues. Constitutionalists may
try to get around this by calling for scholars to work out a blueprint
of a rights-based government using the strictest rules of logic and the
best empirical evidence. But our nation's scholars are already trying
to do that, and still there is a broad diversity of opinion spanning the
entire political spectrum. In fact, even within the Libertarian
Party there is conflict among its scholars over the definition and defense
of rights, and one would presume that they -- of all people -- would have
a consensus by now. The fact that not even Libertarians agree among themselves
clearly proves the byzantine complexity of defining and defending rights.
- It's one thing to say that individual rights should be protected;
it's quite another to identify and judge the literally millions
of instances where there is a question of rights violations. Society is
filled with countless human transactions, each one different, each one
changing in the face of new technology, science or social mores. And each
one offers a new way for a right to be violated. This is why the Supreme
Court has such a heavy workload, and why they grapple with problems of
almost unsolvable complexity. This is also why Congress is so busy passing
laws; they are protecting individual rights under changing and extensive
circumstances. The constitution is only meant to state general principles
of governing; it is up to Congress and the courts to apply those principles
in the seemingly infinite number of specific cases where individual rights
can or are violated. Which begs the question: who legislates the laws and
judges the cases? A majority? A minority? Or an individual?
- Individual rights are difficult to define and protect because they
are not absolute. A classic example is the right to free speech vs. the
right not to be harmed by free speech. Contrary to what the First Amendment
says, many forms of speech are outlawed in this country, and rightfully
so. Examples include slander, libel, perjury, insider-trading, malicious
deceptions, impersonating an officer, revealing classified information,
shouting "Fire!" in a crowded theater, making bomb jokes in an
airport, etc. Clearly many qualifications exist to the right to free speech,
but who should make the judgment calls in determining these countless qualifications?
A majority? A minority? Or an individual?
The upshot is that until humans acquire perfect knowledge and perfect
logic -- thereby reaching unanimous agreement -- there is no hope of knowing
how a constitution should be written to achieve a utopia of perfect individual
rights. Lacking this omniscience, the people do best by determining their
laws and constitutions by majority rule.
Some constitutionalists go too far in the other direction: they try
to escape any analysis of rights at all. To these constitutionalists, rights
are natural, self-evident and God-given; they are received truths, handed
down from the Founders of the Republic like Moses from the Mount. Typically,
the Founders are treated as secular saints, with a wisdom more than human,
and to question their revelations is to question sacred dogma. It is not
difficult to imagine how such true believers would handle the question
of rights when and if they could ever come to power. Just as their interpretation
of rights depends on a dogmatic, authoritarian source, so would their law-giver
and law-defender be a dogmatic, authoritarian source. It could not be otherwise.
(Try imagining so!)
The bottom line is that constitutionalism is too utopian, and simplistically
utopian at that. As citizens, we cannot be asked to try a system that its
adherents cannot even describe.
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