Democracy in America: What Is It?
Editor's Note
A nation whose inhabitants speak different languages sets itself up for real problems. The Left used to claim that President Trump was a threat to the Constitution. Now, they say the Constitution itself is the problem. Our language barrier is growing from our towns and cities wracked by mass migration to our halls of government overwhelmed by an anti-republican administrative state.
Roger Kimball returns to explain the real threat to our republic.
Whatever it is, we know that it is under siege. Barely a moment goes by without tocsins sounding about various threats to “our democracy.” It used to be that the biggest, baddest threat to “our democracy” was Donald Trump. Then a curious thing happened. When it comes to “threats to our democracy,” Trump seems to have been overshadowed somewhat by a 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. It wasn’t so long ago that organs like the New York Times complained that Donald Trump was “a menace to the Constitution.” But the new narrative blames the Constitution for giving us Trump. Hence the new hotness is the contention, recently voiced by Jennifer Szalai in the Times, that “Trump owes his political ascent to the Constitution, making him a beneficiary of a document that is essentially antidemocratic.” The Constitution allowed Donald Trump to become president. Ergo, the Constitution is “dysfunctional.” QED.
Szalai leans heavily in the essay in question on the left-wing law professor Erwin Chemerinsky and his new book No Democracy Lasts Forever: How the Constitution Threatens the United States. It is almost too good to be true, but Chemerinsky is a professor at the University of California, 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 1789 when it was first adopted, has totally outlived whatever dubious usefulness it once had. He directs special animus toward 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 he says also “undermines democracy” because it is 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.”
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 has noted, “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. You scratch my back and I bequeath you the legislative apparatus of the state, ‘til bankruptcy do us part — and maybe not even then. This is the origin of “the Swamp.”
Originally, “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.”
It was part of the founders’ genius 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?
There is a sense, then, in which the Constitution’s detractors are right about its being “antidemocratic.” It is anti-democratic in the sense that it is pro-republic. 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.
When activists complain that the Constitution is “antidemocratic,” the democracy they have in mind is not the one 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…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” today is something that we might, with sadness, want to question. Can anyone read what Madison said about the Constitution delegating to the federal government only powers that are “few and defined” without a smile?
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. We have entered the vertiginous realm of the “administrative state,” what Glenn Ellmers 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 20th 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.
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?
Many commentators have noted the profoundly undemocratic maneuver by which Biden was erased and Kamala Harris installed as the Democratic presidential nominee. After all, nearly fifteen million people voted for Joe Biden in the Democratic primary. He won, hands down, because certain high-level Democrats made sure 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 us 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. 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.”
To reverse these developments, one major goal of conservatives must be to downgrade the place of Washington — the city as well as the spirit it entails — in the metabolism of American political life. Notwithstanding its overwhelmingly Democratic coloration, the capital has effectively developed into a political party itself. Neither Republican nor Democratic, it is the party of the regime. 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.