Spectrum Three: Democracy vs. Constitutionalism.


Perhaps no better defense of democracy exists than Thomas Jefferson's. It was his belief that majority rule is not perfect, but it is the best form of government. The only other alternatives are rule by the minority (which is worse) or rule by one person (which is even worse). Requiring unanimous consent to pass laws is not practical, since universal agreement on an issue is extremely rare, and government would become paralyzed on controversial issues. Many conservatives and libertarians try to get around this by advocating constitutionalism, or the protection of every individual's rights by a constitution. But this only delays by one step the dilemma that Jefferson spoke of. How is such a constitution to be written, interpreted and enforced? By a majority? A minority? Or a single person?


Jefferson's arguments on majority rule are brilliant and virtually unanswerable; it is difficult to imagine alternatives to the system he described. The following quotes highlight his philosophy on democracy: Jefferson's philosophy was that majority rule is not perfect, but it is the only form of government that reduces tyranny to the smallest degree possible. And, indeed, it is difficult to imagine alternatives which would be improvements. Not only does majority rule ensure that the least number of people are going to be dissatisfied, but the constitution further protects the rights of the minority, telling the majority what it cannot do to tyrannize the minority. Even so, our constitution is not drawn up by dictators, or small bands of dictators. It is ultimately approved by the majority of the people, through their elected representatives. All forms of our government ultimately boil down to majority rule.

Even so, some utopians claim it is possible to create a political system of perfect individual rights, where even the will of the minority is respected and enacted. These utopians usually call for individual rights to be protected by a much stronger constitution, and are therefore called constitutionalists.


According to this school of thought, democracy often violates the rights of the minority. For example, under democracy, the majority can vote to tax 90 percent of what the rich make, and the rich must surrender what they have rightfully earned. (There is a question of whether the rich have really earned all their income "rightfully" or through exploitation, but let this controversial point pass.) To correct this perceived injustice, they call for a constitution that better protects the freedom, rights and property of individuals.

According to most constitutionalists, individuals have a right to keep everything they earn, a right to spend their money however they want, and a right to make contracts and associations of their own free will. No one can force them to do anything for anyone else; everything they do is by their own choice. The only exception to their freedom is that they cannot violate the rights of others. Libertarians have a popular saying: "The right to swing your fist stops at my nose."

These are perfectly laudable goals, but constitutionalists are usually vague on how they can be reached, and often ignore direct questions about what such a system would look like. What few blueprints have been offered quickly reveal their unworkability. The problems constitutionalists face are these: Constitutionalists severely underestimate the complexity of defining and defending individual rights. Few people agree on what a "right" is, let alone how it can be violated in any specific case, let alone how it should be defended. The diversity of opinion on the subject points up the value of democracy in resolving these issues. Constitutionalists may try to get around this by calling for scholars to work out a blueprint of a rights-based government using the strictest rules of logic and the best empirical evidence. But our nation's scholars are already trying to do that, and still there is a broad diversity of opinion spanning the entire political spectrum. In fact, even within the Libertarian Party there is conflict among its scholars over the definition and defense of rights, and one would presume that they -- of all people -- would have a consensus by now. The fact that not even Libertarians agree among themselves clearly proves the byzantine complexity of defining and defending rights.

The upshot is that until humans acquire perfect knowledge and perfect logic -- thereby reaching unanimous agreement -- there is no hope of knowing how a constitution should be written to achieve a utopia of perfect individual rights. Lacking this omniscience, the people do best by determining their laws and constitutions by majority rule.

Some constitutionalists go too far in the other direction: they try to escape any analysis of rights at all. To these constitutionalists, rights are natural, self-evident and God-given; they are received truths, handed down from the Founders of the Republic like Moses from the Mount. Typically, the Founders are treated as secular saints, with a wisdom more than human, and to question their revelations is to question sacred dogma. It is not difficult to imagine how such true believers would handle the question of rights when and if they could ever come to power. Just as their interpretation of rights depends on a dogmatic, authoritarian source, so would their law-giver and law-defender be a dogmatic, authoritarian source. It could not be otherwise. (Try imagining so!)

The bottom line is that constitutionalism is too utopian, and simplistically utopian at that. As citizens, we cannot be asked to try a system that its adherents cannot even describe.

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