By Yuval Levin
Friday, June 05, 2026
Is our government legitimate?
Although we rarely ask that question quite so bluntly, it
actually lies at the bottom of many of our deepest disputes. Those
disagreements that really cut to the core of our politics tend to be less about
the direction of public policy in one arena or another than about who should
have power in our government, by what right, in what way, through what means,
and to what ends.
These questions were at the very heart of the American
Revolution, which took itself to be responding to an abdication of governmental
legitimacy. And they were then crucial to the effort to frame a legitimate
constitutional system in the revolution’s wake.
Some of the most fundamental political debates we have
today are about whether that effort succeeded. There have long been critics of
the U.S. Constitution who argue that the system lacks legitimacy. Some of them
now teach in America’s leading law schools and occasionally populate the upper
reaches of government. But even at their most intellectually serious, such
critics too rarely engage with what our Constitution is really trying to
achieve when it comes to legitimacy, and why.
So in this 250th year of our republic, as we
reflect on our history and also look forward, it is worth asking some basic
questions: What did the American founders think a legitimate form of government
needed to look like? Does their test of legitimacy still make sense? And does
the form of government we inherited from them pass that test?
***
We might as well start with the Declaration of
Independence, which is after all what we are celebrating when we treat this
year as the 250th anniversary of the American founding.
The Declaration clearly addressed itself to a legitimacy
crisis. And at first glance, it seems to offer a straightforward answer to the
question of what form a legitimate government would need to take. Governments
properly formed to secure the rights of the people, it tells us, “derive their
just powers from the consent of the governed.” Consent requires accountability,
and presumably that means it requires some set of democratic (or, in the
parlance of the founders, republican) institutions, and especially elective
offices.
But the Declaration doesn’t actually make that plausible
leap from the necessity of consent to the necessity of democratic forms. In
fact, it declares itself to be indifferent to specific forms of government. And
it does so in the same sentence in which it insists that governments derive
their just powers from the consent of the governed.
Here is the great and famous second paragraph of the Declaration of Independence, which amounts to a set of
criteria for governmental legitimacy:
We hold these
truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness.—That to secure these rights,
Governments are instituted among Men, deriving their just powers from the
consent of the governed,—That whenever any Form of Government becomes
destructive of these ends, it is the Right of the People to alter or to abolish
it, and to institute new Government, laying its foundation on such principles
and organizing its powers in such form, as to them shall seem most likely to
effect their Safety and Happiness.
On its face, what we see here is a functional rather than
a formal definition of political legitimacy. Human beings are all equal, and so
endowed with equal rights; governments exist to secure these rights; and when
our government fails to secure them, we may overturn that government and
replace it with another of whatever form we judge best suited to secure them
and to make us safe and happy.
To us today, the notion that governments derive their
just powers from the consent of the governed suggests that governments have to
be elected, or that there can’t really be a legitimate monarchy. There were
certainly people in the late 18th century who thought that too.
Thomas Paine made that argument in Common Sense, for instance. But the
Declaration of Independence did not. It did not suggest that there can’t be a
legitimate monarchy. It did not argue that the King of England couldn’t
rightfully rule in England. It didn’t even argue that he couldn’t rightfully
rule in America.
In fact, if you follow the logic of the grievances laid
out later in the Declaration, you’d have to conclude that the Americans did
live under a legitimate monarchy that did secure their rights until not all
that long before the Declaration was written. That government rendered itself
illegitimate not because it wasn’t elected by the people but because it stopped
securing their rights and started undermining and threatening those rights. Not
its form but its function was the problem.
So at least at first glance, the Declaration seems to say
that legitimacy is not a consequence of form but of function. When we find
ourselves needing to arrange a government, we can do so in any form that seems
likely to serve the proper function of government—that is, the protection of
our rights.
But who is this “we”? Who makes this decision, and how?
That, after all, is what the question of forms of government is really
about: who makes decisions, and how. Is the Declaration of Independence really
indifferent to the answers to those questions?
As a practical matter, and even as a logical matter, it
couldn’t be indifferent to them. Those are questions that have to be answered
somehow, and the answer would have to be rooted in the premises laid out in
that very same second paragraph of the Declaration quoted above. That answer,
moreover, would have to matter not only when we form a new government but also
in its continuing work.
If we are all equal, and have equal rights, and
government requires our consent, there can’t be an infinite number of ways to
obtain that consent, or to achieve legitimacy. Abraham Lincoln, for example,
thought there could really be only one. Gesturing toward that same paragraph in
the Declaration, Lincoln argued that it must point to majority rule. In his First
Inaugural Address, he said:
Unanimity is
impossible. The rule of a minority, as a permanent arrangement, is wholly
inadmissible; so that, rejecting the majority principle, anarchy or despotism
in some form is all that is left.
If we believe the Declaration’s self-evident truths are
true, and we want to avoid anarchy or despotism, then majority rule would seem
to be the only possible route to legitimacy in government. And majority rule
obviously has some implications for the forms that a government can take.
Once we see this point, the Declaration’s ambivalence
about forms of government quickly comes to seem less like genuine agnosticism
and more like a carefully couched case for popular sovereignty.
Consider again, for example, the grievances that make up
most of the document. They do suggest that a king can be a legitimate sovereign
but that the particular British monarch of that moment had acted in ways that
nullified his legitimacy. But just what were those ways?
Here are the first five grievances listed in the
Declaration:
He has refused his
Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden
his Governors to pass Laws of immediate and pressing importance, unless
suspended in their operation till his Assent should be obtained; and when so
suspended, he has utterly neglected to attend to them.
He has refused to
pass other Laws for the accommodation of large districts of people, unless
those people would relinquish the right of Representation in the Legislature, a
right inestimable to them and formidable to tyrants only.
He has called
together legislative bodies at places unusual, uncomfortable, and distant from
the depository of their public Records, for the sole purpose of fatiguing them
into compliance with his measures.
He has dissolved
Representative Houses repeatedly, for opposing with manly firmness his
invasions on the rights of the people.
All of these are in fact complaints about the king’s
obstruction of the operation of representative legislatures, which work by some
form of majority rule to make laws for the community.
The other two dozen or so grievances in the document can
then be readily divided into two other categories: complaints about the king’s
obstruction of the operation of the judiciary, and complaints about abuses of
the king’s own powers as an executive. George III is accused of things like
making “judges dependent on his Will alone,” corrupting the administration of
justice, and intentionally failing to protect the people from external threats.
So while the Declaration says it is indifferent to forms
of government, its complaints about the failure of the British government to
secure the rights of the people are in fact complaints about its failure to
function as a government that governs through representative legislative
assemblies, a responsible executive, and an independent judiciary.
And the core principled complaint offered up by the
colonists both before and after the Declaration focused on the necessity of
representation as a precondition for legitimacy—or in other words, on majority
rule. “No taxation without representation” is not a line of argument that is
agnostic about forms of government.
And yet, the Declaration’s emphasis on function over form
still matters enormously. It suggests criteria of legitimacy for government
that go well beyond majority rule, and in fact it points in the direction of an
enormous challenge to the legitimacy of majority rule.
The logic of the Declaration implies that the people’s
rights cannot be effectively secured in the long run without some form of
majority rule. But that does not mean that any form of it will do, or that the
more thoroughly democratic a regime becomes, the more protective it is of the
rights of the people.
That, in fact, is plainly not the case, and for a simple
reason. A majority is composed of a part of society, not the whole. Ideally,
the majority will have the interest of the whole of society at heart. But
realistically, majorities will often pursue the interests that their members
share in common, and they always run the risk of doing so at the expense of the
rights of minorities, or of individuals who aren’t part of the majority.
This tension is pretty much the oldest and most familiar
problem with democracy. Majorities can tyrannize minorities. You can’t look for
very long at the history of democracy—or at the history of the United
States—without seeing just how horrendously oppressive majorities can sometimes
be.
So majority rule is an essential principle of legitimacy,
but it can also become a principle of despotism. There is no alternative to it
if you want a legitimate government, but there are huge risks to it as the
organizing principle of a legitimate government.
The Declaration of Independence doesn’t tell us how to
form a government that accounts for this problem. But it does put forward a
demanding set of criteria for whatever forms might be proposed.
In other words, the Declaration tells us that majority
rule is an essential means of legitimacy, but that the end—the
very definition of what legitimacy really is in government—is securing the
rights of the people in light of the equality, and therefore the universality,
of their rights. A government that doesn’t secure the rights of all is not a
legitimate government, even if it is accountable to the majority. Majority rule
is a starting point for deciding on forms of government, but it is not all that
matters.
This is a very demanding test of legitimacy, and a very
grave challenge to any prospective American law-giver. And it is exactly the
challenge that the United States Constitution eventually rose to meet. The
Declaration of Independence outlined the criteria that an American regime would
need to satisfy, and the Constitution set about satisfying them.
***
But the Constitution spoke to the challenge of legitimate
majority rule not only because the Declaration had laid out that challenge. It
did so above all because of the circumstances of the intervening years.
The Constitution, like the Declaration, came together in
the summer, in Philadelphia, in what we now call Independence Hall. The two
documents were debated and approved in the same room, but 11 years apart. And
the experience of those 11 years confirmed the difficulty of the challenge that
the Declaration had sketched out.
They were seven years of war and four years of peace. The
war was fought for self-government, and against abuses of power by a government
that was not sufficiently accountable to the people it governed. The revolution
came to be understood, at least by the end of the war, as what we might call a
struggle for democracy. And the forms of government established in the states
during and after the war tended to be radically democratic: Strong legislatures
kept close to the people, in several cases through annual elections, and a kind
of thoroughgoing majority rule.
There was general agreement in America that these
republican forms were necessary, and in some respects that they were key to
what the war was about. But by the end of the war, and especially in those
first years of peace, it also became increasingly clear that these modes of
government were not working well. They didn’t govern effectively, nor did they
protect the rights of the people effectively. The populist governance of those
years regularly devolved into mob rule, which led to widespread instability, governmental
dysfunction, and in some cases, outright political violence.
Both of these worries, about the ineffectiveness and the
injustice of how America was governing itself, led to the pursuit of a new
Constitution. And both worries were very much on the minds of the people who
drafted and negotiated that Constitution.
They were above all on the mind of James Madison. In Federalist
10, when Madison described what had made a new Constitution necessary,
he focused on precisely the dangers of reckless majority power. He described
that problem this way:
Complaints are
everywhere heard from our most considerate and virtuous citizens, equally the
friends of public and private faith, and of public and personal liberty, that
our governments are too unstable, that the public good is disregarded in the
conflicts of rival parties, and that measures are too often decided, not
according to the rules of justice and the rights of the minor party, but by the
superior force of an interested and overbearing majority.
This danger of majority power is of course a particular
risk for governments rooted in majority rule, and Madison took it to be the
source of the deepest problems such governments had always faced throughout
history. As he put it: “The instability, injustice, and confusion, introduced
into the public councils have, in truth, been the mortal diseases under which
popular governments have every where perished.”
And yet, Madison was absolutely committed to the
principle of majority rule. And the Constitution, unlike the Declaration of
Independence, did not pretend to be ambivalent about forms of government. It
was, after all, itself a proposed form of government, and so couldn’t feign
agnosticism. The republican principle, the principle of majority rule through
representation, was the implicit and often also explicit premise of every
discussion held at the Constitutional Convention, and every argument made in favor
of the Constitution. The government the founders were designing was going to be
a republic.
But it was also designed with a keen awareness that forms
of government were means and not ends, and that the end to be pursued, in the
Constitution just as in the Declaration, was a government geared to securing
the rights of the people. How the two could be balanced—how majority rule and
minority rights might be secured simultaneously—was the great question for
Madison, and he took it to be the great challenge to republican government
everywhere and always.
This is the very subject of Federalist 10,
Madison’s most profound contribution to the tradition of political thought. We
tend to describe that essay as being about the problem of faction. And we have
a good excuse for describing it that way: That is what Madison says it is
about. But if you actually read it, you find that Madison is not primarily
focused on factionalism in the sense of fragmentation or the proliferation of
interests and views in society. He’s focused on the risks of majority rule.
Here is the paragraph that lays out the core problem Madison thinks the
Constitution needed to address:
If a faction
consists of less than a majority, relief is supplied by the republican
principle, which enables the majority to defeat its sinister views by regular
vote. It may clog the administration, it may convulse the society; but it will
be unable to execute and mask its violence under the forms of the Constitution.
When a majority is included in a faction, the form of popular government, on
the other hand, enables it to sacrifice to its ruling passion or interest both
the public good and the rights of other citizens. To secure the public good and
private rights against the danger of such a faction, and at the same time to
preserve the spirit and the form of popular government, is then the great
object to which our inquiries are directed. Let me add that it is the great
desideratum by which this form of government can be rescued from the opprobrium
under which it has so long labored, and be recommended to the esteem and
adoption of mankind.
This is the core challenge for Madison. The Constitution
has to secure the public good and private rights—first and foremost. But at the
same time it has to preserve the spirit and the form of popular government.
Those two goals, in that order, are how the Declaration
of Independence saw things too. But while the Declaration limited itself to
laying out these goals and showing that they had not been met in Britain’s
treatment of America, Madison and his fellow framers of the Constitution had to
actually figure out how to achieve these two frequently contradictory goals
simultaneously.
And they did.
***
The tension between majority rule and minority rights is
behind a lot of what is most peculiar and frustrating about the American
Constitution. Above all, it is behind the system’s insistence on impeding
narrow majorities and forcing them to grow before they can wield real power.
By separating the branches of government and setting them
in each other’s way, by dividing Congress into two houses chosen by different
electorates and formulas of representation, by empowering sovereign states and
the national government simultaneously, and more generally by sustaining
multiple competing centers of power, the Constitution compels narrow majorities
to expand themselves and build broader coalitions before they can act. All of
these mechanisms are means of requiring and facilitating negotiation. And the
politics envisioned by the Constitution is from every angle a politics of
negotiation.
The Constitution embraces the essential justice, indeed
the inescapable necessity, of majority rule. But it also works to create the
conditions for negotiated accommodations, so that majority rule might on the
whole be protective of minorities too, and might produce stable, durable,
effective government. Small, ephemeral majorities are restrained and frustrated
in the service of empowering a more considered and therefore effective majority
rule.
The aim is precisely to meet the two often conflicting
goals set out in the Declaration of Independence. The great political
philosopher Harry Jaffa once described the matter this way, in the Declaration’s own
terms:
Because men are by
nature equal; because, that is, no man is by nature the ruler of another,
government derives its just powers from consent—that is, from the opinion of
the governed. But government based upon the consent of all must operate upon
the only practicable approach to unanimity, namely, the rule of the majority
however defined; and majorities can take shape or form only in and through the
process of discussion. It is for this reason that discussion is indispensable
to the democratic process; but the principle of discussion can never be
separated from the principle of majority rule; nor can the principle of
majority rule be separated from the principle of the natural equality of
political rights of all men.
This kind of restrained majority rule means that
majorities are constantly shifting and transforming themselves, making it more
likely that every American will sometimes be in the majority and sometimes in
the minority.
This was Lincoln’s view of how majority rule could be
legitimate, too. In the very same paragraph of his First Inaugural cited above,
where he insisted there could be no alternative to majority rule, Lincoln also
noted that such rule cannot be pure if it is to be legitimate, arguing that “a
majority held in restraint by constitutional checks and limitations, and always
changing easily with deliberate changes of popular opinions and sentiments, is
the only true sovereign of a free people.”
This impurity of our system’s majoritarianism is now
often held up by critics as proof of its illegitimacy. That the Constitution
doesn’t simply empower one majority to govern unimpeded, however narrow or
ephemeral it might be, and that it instead forms governing majorities in
different institutions by different modes of representation and sets them
against each other, is said to be evidence of its undemocratic character. But
this critique mistakes means for ends, and so would purify democracy at the expense
of legitimacy and not in its service. What it treats as the problem is actually
the solution. In effect, the imperative for “discussion,” in Jaffa’s terms,
operates as a constitutional restraint that better enables majority rule to
coexist with minority rights.
Such discussion, and the negotiated politics it makes
possible, must happen in Congress above all. And the Constitution clearly
envisions the Congress—its first and foremost branch of government—as an arena
for bargaining and accommodation. The institution is built to be representative
of key constituencies in American society but also to refine and elevate the
wishes of those constituencies through negotiations among representatives. A
functional Congress is essential to a functioning American constitutionalism,
and congressional dysfunction is at the heart of our system’s broader problems
now.
But the other branches play key parts in balancing the
competing goods of majority rule and the securing of everyone’s rights. The
president has some independence from Congress but ultimately has to act within
the legal frameworks negotiated by and with Congress, and so can exercise some
judgment that stands apart from the will of momentary majorities but is
nonetheless subject and accountable to voters. And the courts are granted
extraordinary independence from both the public and the other branches—judges
serve for life, their pay can’t be cut, and they never have to face voters—so
that they can protect the rights of all even as they secure the application of
the laws enacted by majorities.
All of this makes for a system that plainly prioritizes
legitimacy, even above efficiency. This is a common frustration with the
American system of government, especially in comparison with some other forms
of democracy. Our system is slow and cumbersome. It’s hard to make policy, and
the process required to do so often deforms clean and technically appealing
schemes into messy, clumsy muddles. And all of this happens through adversarial
bargaining. It always feels like conflict, and pretty much no one ever gets
quite what they want.
All of those critiques are true. But they describe a
price we pay for a system of government that has managed for nearly two and a
half centuries now to allow our society to navigate extremely treacherous
waters while generally, and increasingly, meeting the very challenging criteria
of legitimacy set out in the Declaration of Independence—balancing majority
rule and minority rights.
***
We often take that achievement for granted. But this
year, as we celebrate the 250th anniversary of the American
founding, is a time to appreciate it—and to reflect on what has made it
possible.
It was not by any means obvious that our system could
last this long. On August 8, 1787, the Constitutional Convention took up the
question of the formula for representation in the House of Representatives. In
his notes from that day, James Madison recorded that, while he
himself was making a mundane point about how one proposed approach might play
out over many decades, Massachusetts delegate Nathaniel Gorham rose to object
that thinking so far ahead was a waste of time.
“It is not to be supposed that the government will last
so long as to produce this effect,” Gorham said. “Can it be supposed that this
vast country, including the Western territory, will 150 years hence remain one
nation?”
It was a reasonable question. And Madison makes no
mention in his notes of offering any answer to Gorham. But the Constitution
that the convention ended up producing was itself an affirmative answer. The
system of government it created could last, and it has lasted, with amendments
and adaptations, far longer than even a century and a half.
There are people in our society who take that to be a bad
thing, and consider our Constitution an embarrassingly ancient relic. But the
durability of our politics is not a mark against it. Our politics is durable
because it is adaptable. It is adaptable because it was built to sustain a
dynamic balance. And it was built to sustain a dynamic balance because it was
constructed with a keen awareness of the permanent tension between the two
essential preconditions for the legitimacy of a government in a free society:
majority rule and equal rights.
Our Constitution demonstrates how both can be secured at
once. And in that respect, it is an answer to a question posed by the
Declaration of Independence 250 years ago this year. A politics built to never
stop asking that question is a politics that can endure, regardless of how much
the world might change.
When we take our system of government for granted, we
tend to see only what it prevents us from doing and to ignore what it enables
us to do. We see the bad but not the good. And that is precisely because of how
extraordinarily effective our system has been at securing the good. Its success
has led us to forget why it is necessary.
But if our form of government is going to last another
250 years, we will have to grasp just how successful it has been and therefore
also just how necessary it remains. The greatest challenge we will face is the
challenge we have faced from the start: the challenge of legitimacy. The
political inheritance that we are privileged to enjoy as Americans offers us
the resources to meet that challenge. But we can only do that if we are
prepared to understand and use them.
So the question we confront in this anniversary year is
not whether the Declaration of Independence and the Constitution are up to
meeting the challenges of the next 250 years, but whether we are up to meeting
those challenges—and whether we can prepare those who will follow us to meet
them too.
