Democracy and the Ethical Life: A Philosophy of Politics and Community (Second Edition, Expanded)

IX. Constitutionalism and Popular Sovereignty

Constitutionalism and Popular Sovereignty IX So far we have sought mostly by elimination to determine how popular self-government can be made compatible with the needs of the ethical life. I have tried to show that Rousseau 's influential theory of democracy does not come to grips with man's moral predicament. Only because he denies that man's baser inclinations are a part of the essence of human nature and assumes the morality of the spontaneous popular will can he advance his notion of plebiscitary rule, according to which the majority of the moment is allowed to set public policy. If it is true as I have argued that man is not spontaneously propelled in the direction of morality, democratic theory must instead concern itself with the need for ethical self-discipline and look for the political means by which such discipline can be promoted. I have intimated that some form of constitutionalism is called for. The American Constitution Constitutional democracy we define broadly as popular rule under legal restraints which cannot be changed or removed without the support of a qualified majority over an extended period of time. Our analysis of this concept may be brought into closer contact with the institutional problems of democ154 CONSTITUTIONALISM AND POPULAR SOVEREIGNTY 155 racy by using the American constitution as an illustration. In so doing I am not suggesting that its particular provisions are necessarily the best available example of this type of democracy , only that they offer a good practical illustration of the general principle. One of the rules generally regarded as essential to the definition of democracy is that with some possible exceptions all adults should have the right to affect government policy through voting and be eligible for public office. The authors of the United States Constitution did not envision "universal suffrage" in the modern sense of the word. They left the qualifications for the right to vote up to the individual states, assuming only that popular participation would be comparatively widespread, as was already the case at the time. Perceived from the beginning as more democratic than the governments of the leading European countries and soon viewed by foreign observers like Alexis de Tocqueville as the very embodiment of popular rule, the American constitutional system has only had its democratic reputation enhanced by the extension of popular suffrage. Although this development was not prescribed in the original document, one is justified in thinking of the system of government it regulates as democratic with regard to popular participation. Does it follow that we must accept Abraham Lincoln's description of American government as government for the people, by the people, and of the people? Curiously, from the point of view of much modern democratic theory, this allegedly democratic form of government is not designed to maximize the influence of popular majorities. Indeed, the founding fathers had no wish to create a "democracy," claiming instead that the Constitution established a "republic." One might even say that through its system of checks and balances it tends to thwart the will of the momentary national 156 DEMOCRACY AND THE ETHICAL LIFE majority. In fact, the people, viewed as an undifferentiated mass, is not even given constitutional recognition. There is no institutional channel through which a mere numerical majority can work its will. The "people" of the constitution is made up of a number of overlapping, subdivided electorates. Not even the president is chosen by a national majority. He is selected by a majority of the Electoral College, a body chosen by pluralities in the various states and according to a formula which further ignores the national majority by giving overrepresentation , by numerical standards, to the smaller states. The members of the Senate and House are elected by pluralities of yet other electorates (the Senate originally by the state legislatures). To the extent that the undifferentiated mass of the people or a majority thereof can be said to have a unified political will at all, there is no point in the American system of government where that will can be applied. The electoral processes of American democracy are far removed from what might perhaps be regarded as the plebiscitary ideal, the national referendum on public policy. The same anti-plebiscitary slant marks the process whereby policy is made by the federal government. The Constitution prescribes a division of power between an executive, legislative , and judicial branch. In order for a...