How Dell10cratic Is the Constitution? Robert A. Goldwin and ~Villiam A. Schambra editors American Enterprise Institute for Public Policy Research Washington, D.C. This book is the first in a series in AEI's project IIA Decade of Study of the Constitution," funded in part by a Bicentennial Challenge Grant from the National Endowment for the Humanities. Library of Congress Cataloging in Publication Data Main entry under title: How Democratic is the Constitution? (AEI studies; 294) 1. Representative government and representation-United States­ Addresses, essays, lectures. 2. United States-Constitutional history-Addresses, essays, lectures. 3. Democracy-Addresses, essays, lectures. 1. Goldwin, Robert A., 1922- II. Schambra, William A. III. Series: American Enterprise Institute for Public Policy Research. AEI studies; 294. JK21.H78 321.8'042'0973 80-24291 ISBN 0-8447-3400-4 ISBN 0-8447-3399-7 (pbk.) 3 5 7 9 10 8 6 4 © 1980 by the American Enterprise Institute for Public Policy Research, Washington and london. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing from the American Enterprise Institute except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed in the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. Printed in the United States of America The American Enterprise Institute for Public Policy Research, established in 1943, is a nonpartisan, nonprofit research and educational organization supported by foundations, corporations, and the public at large. 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Storing Contents Preface Robert A. Goldwin and William A. Schambra Democracy and the Constitution 1 1 Gordon S. Wood Decent, Even Though Democratic 18 2 Ann Stuart Diamond The Constitution as an Elitist Document 39 3 Michael Parenti Does the Constitution "Secure These Rights"? 59 4 Walter Berns Democracy and the Citizen: Community, Dignity, and 5 the Crisis of Contemporary Politics in America 79 Wilson Carey McWilliams Deliberative Democracy: The Majority Principle in 6 Republican Government 102 Joseph M. Bessette Conservatives, the Constitution, and the "Spirit of 7 Accommodation" Alfred F. Young 117 The Editors and the Authors 149 Preface When the question, How democratic is the Constitution? was an­ swered with a resounding, Not at all, by Charles A. Beard in 1913, there resulted an intense debate among public officials, political ac­ tivists, and academicians that has not subsided to this day. It is not difficult to understand why that question was and is so engaging, for it has profound implications for the way we think about and behave toward the Constitution and for the way we understand ourselves as a nation. We profess to be a democracy, indeed, the beacon of democratic liberty throughout the world. But if Beard was correct that the Con­ stitution is undemocratic-that it was designed to protect the wealthy by frustrating popular majorities-then there is a great discrepancy between our nation's ideals and its institutions. That discrepancy would have an important bearing on the way we understand our politics: it would seem to explain many of its complexities, frustra­ tions, and shortcomings. And that discrepancy would have, as it had during the Progressive important implications for political action and reform: Should we not seek to bring our institutions into line with our ideals by "democratizing" the Constitution through the initiative, referendum, recall, and other devices? But if Beard was not correct-if the Constitution is in fact demo­ cratic, or if it was designed to secure rights for all through represen­ tative institutions-then we would have to understand the relationship between our ideals and institutions differently: perhaps the institutions that Beard and others have denounced as obstacles to majority rule in fact ensure that majorities rule in a sober, decent fashion. If there is a discrepancy between American ideals and institutions, it may be that our modern notions of democracy should be brought into line with "the American idea of democracy" implicit in our majority­ moderating institutions. The variety of views expressed in this volume's essays should give the reader a sense of the complexity, as well as the importance, of the question, How democratic is the Constitution? For instance, when we speak of democracy, do we mean a democracy defined by the limited equality of political rights or a democracy that demands equal­ ity in all respects? And is it instructive to compare both of these senses of democracy with an earlier sense, whereby democracy meant a kind of regime in which each citizen shared fully in the making of decisions and bore a wide range of citizenly obligations toward the community? When we speak of the "Constitution," is there a Consti­ tution whose central meaning remains the same today as two hundred years ago, or does the Constitution's meaning change fundamentally as new times introduce new understandings? And is the question, How democratic is the Constitution? the primary one, or were the Founders right, along with those who opposed the Founders and the ratification of the Constitution, in being less concerned with democ­ racy than with the securing of rights? The editors selected the essays in this volume to introduce the reader to a wide range of views on these questions, presented by spokesmen as authoritative, thoughtful, and instructive as could be found. The reader should be able to make up his own mind, therefore, with the assurance that he has considered many reasonable arguments and has not simply succumbed to the orthodox view of the left or right. Robert A. Goldwin William A. Schambra 1 Democracy and the Constitution Gordon S. Wood How democratic is the Constitution? is a loaded question. It implies that the fundamental document of our national political system may be at odds with our democratic political faith. Yet, this was the central question asked at the time the Constitution was framed, and it is a question that Americans have raised ever since. Throughout most of the nineteenth century, the Constitution's relation to democracy was usually taken for granted. In George Bancroft's view, the Constitution was the providential expression of the American people's progress toward democracy. To be sure, antebellum Southerners tried to make the Constitution their own, and some Northern abolitionists thought that the Constitution's recogni­ tion of slavery made the Constitution an abomination. The Civil War and several amendments to the Constitution cut off any serious questioning of the Constitution's democratic character. It was left to the Progressive Era at the end of the nineteenth century and beginning of the twentieth century to open up the origins of the Constitution to critical scholarly investigation and to mount a mas­ sive challenge to the identity between the Constitution and democracy. During the last three decades of the nineteenth century, the Supreme Court declared unconstitutional a number of state laws attempting economic and social reforms. These decisions, which seemed to be frustrating the ability of the people to carry out their wishes, provoked a far-reaching debate over judicial review, the nature of the Constitution, and its relation to democracy. By the early twentieth century, this debate had generated more books and documents on the Constitution and its origins than at any other time in our history. While this controversy led