Jamelle Bouie Is Wrong about the Constitution

By Adam M. Carrington

Sunday, November 07, 2021

 

New York Times opinion columnist Jamelle Bouie wants the Constitution to serve Americans, not the other way around. It’s difficult to argue with that sentiment — at least in the abstract. The Framers certainly did not. In Federalist No. 45, James Madison, the father of the Constitution, wrote: “Were the plan of the [constitutional] convention adverse to the public happiness, my voice would be, reject the plan.” Indeed, the Framers would not consider their creation sacred — though they would countenance a reverence for the law. The Constitution should receive serious evaluation as to whether it serves the public good, not mindless adoration.

 

Bouie believes that the Constitution has thwarted public happiness for a long time, if not from its inception. In his estimation, it does so by inhibiting what the American Revolution initiated — namely, an “impulse toward democracy and political equality” that continues to this day. He contends, then, that constitutional barriers to this impulse must go, including the Electoral College and equal representation in the Senate.

 

Thus, Bouie links public happiness to a continuing purification of our political system, one that excises nondemoncratic elements and facilitates the impulse toward “greater representation and political equality.” With this accomplished, the Constitution would better serve its purpose, shared with all institutions, of existing “for us and our flourishing.”

 

The crucial point consists of whether Bouie correctly connects Americans’ flourishing with an ever-purer democratic system. He rightly sees the Constitution as opposed to this link. Yet he doesn’t seriously engage the Framers’ reasons for deliberately constructing our governing document in this way.

 

The Constitution’s Preamble lays out the main goals for its subsequent articles and amendments. It seeks to better our political union, establish justice, provide for internal tranquility and external security, as well as secure liberty’s blessing to us and for the future.

 

Does democracy facilitate these means of human flourishing? Here, Bouie seems to make a mistaken assumption, one similar to that made by Thomas Paine in his 1776 pamphlet, Common Sense. Paine also often argued that problems in political systems stemmed from inadequate fidelity to and purity of popular rule. When problems manifested, they typically owed to some semblance of aristocracy or monarchy, which spoiled  the otherwise pure brew. Simply remove those elements and their enablers, and all will be well.

 

Just as Bouie calls on us to not idolize the Constitution, however, its Framers cautioned against sacralizing popular government. Yes, the Constitution is committed to popular rule. That is why it begins “We the People,” and why its Framers consistently advocated popular rule as the best, if only legitimate form of government. This point itself stemmed from the commitment made in the Declaration of Independence to the “self-evident truth” that “all men are created equal.”

 

Still, previewing the more famous Federalist No. 51, Federalist No. 15 asks: “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint.” Humans tend to act against reason and justice regardless of the form political rule takes. We oppress, we cheat, and we destroy because we’re far from angels. The popular form of government, then, provides no absolute cure to these vices. Instead, it faces the same threats that these evils pose to all political communities.

 

Thus, when Bouie rebuts those who claim that we are a republic by defining democracy itself as representative, not direct, government, he wins a skirmish only to lose the greater battle. Indeed, the Founders had significant critiques of republics, as well. Though human vice persisted under all forms of rule, it manifested in particular ways in popular as opposed to aristocratic or monarchical systems. Popular governments often lack stability. Their capricious tendencies stem from indulging temptations to act from passion, not reason. In fits of passion, popular government becomes a mob. A mob turns a political community into anarchy. And anarchy often resolves itself in the installation of tyranny — itself the death of even the formality of popular rule.

 

The Framers found this story not only logical but historical. Publius in Federalist No. 9 writes of “the disorders that disfigure the annals of” previous republican governments. History is littered with countless examples of erstwhile free republics devolving from peace and human flourishing into violence, turbulence, and oppression. “If it had been found impracticable to have devised models of a more perfect structure,” Publius warns, “the enlightened friends to liberty would have been obliged to abandon the cause of that species of government as indefensible.” In other words, popular rule had such a checkered history with facilitating public happiness that American must improve it or lose it.

 

The Founders’ answer, found in the Constitution, was not to be purely popular and hope for the best. No reasonable hope lie there. Instead, the Constitution seeks to order and channel popular rule so as to accentuate its virtues and ameliorate its often fatal vices.

 

Ultimately, the Constitution derives all political power from the people. In some fashion, all offices of political authority trace their origin to the people’s choice. Many of those offices, too, carry a limited term before the people must decide again. But the Constitution also structures popular selection so that some offices are indirectly — not directly — chosen by the people. It gives terms of office that vary widely in length, including a judicial system with lifetime appointments.

 

This set-up attempts to make popular decision-making the most stable, rational, and just it can be. For instance, members of the U.S. House of Representatives are directly elected for a short term of two years. While the Constitution maintains a closer dependence on and affiliation with the people in the case of House members, it also encourages stability with the longer stints served by those elected to the Senate and the presidency. It further encourages more rational decision-making by the indirect selection of the latter two offices. Though that indirection has changed with time, those offices’ longer terms still permit time in which passions can cool and reason can make its case. The lifetime service of judges, moreover, encourages the people to act through — and thus be bound by — their own laws, even when tempted to do otherwise in a particular case. The judges, when acting correctly, hold the people to their own standards — standards that, declared as laws, often partake of a stabler, more rational, and thus more just manifestation of popular will.

 

For these reasons, we should be reticent to accept Bouie’s link between greater democracy and our own safety and happiness. As Madison wrote in Federalist No. 55, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” To protect and enhance human life, we must take seriously the Constitution’s structural measures in making popular rule the best it can be. America’s record for justice under the Constitution has been far from perfect. But it has far outstripped its republican ancestors.

 

At the same time, perhaps we might find common ground with Bouie’s democratic impulses. For another impulse threatens the Constitution, one distinct from the argument for purer democracy. That is the call for the rule of expertise — a technocracy of sorts. Rather than putting too much faith in the people, this form places too little, reducing their decision-making to rubber-stamped ratifying of expert orthodoxy. In the end, it undermines the Constitution’s popular commitments in favor of a bureaucracy.

 

We saw both of these dangerous impulses on display in the past year, from the mobs at work in our cities and in our Capitol to COVID-19-era demands that we reflexively “trust the science.” Both impulses see something of the truth. Yet both contain fatal flaws in how they pursue that truth. Our democratic desires fixate on power, our technocratic pining for surety.

 

The Constitution offers neither to the extent to which these two camps desire. Instead, it asks us to do the same thing admonished at the Greek temple in ancient Delphi: Know thyself. The Constitution offers a means to that knowledge, channeling our politics to accentuate our virtues and to mitigate our vices. Given that knowledge, it then offers us what we need to flourish: self-government under the rule of law.