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Is the American Experiment Legitimate?
How the Constitution met, and still meets, the test posed by the Declaration of Independence.
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.
A government that doesn’t secure the rights of all is not a legitimate government, even if it is accountable to 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.
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.
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
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