The Constitution is not the problem with America today
Opinion by George A. Nation III, The Hill, 10/18/22
It has become fashionable among the extreme left to blame the for the country’s failure to adopt a progressive agenda. Progressives find fault with the Constitution because in certain instances its provisions prohibit simple majority rule: democracy. Such criticisms demonstrate a failure to understand the fundamental purpose of the Constitution and the context in which it was adopted.
The Constitution was never intended to usher in a pure democracy. In fact, its two most fundamental concerns were to create a central government stronger than that which had existed under the Articles of Confederation and, at the same time, to protect individual, God-given rights of — among others — life, liberty and the pursuit of happiness from the potential for tyranny in this new, stronger central government.
The Founders were concerned that without some limitations, pure democracy could simply devolve into mob rule. It matters little whether an individual’s God-given rights are trampled by a dictator, an aristocracy, or a mob consisting of a majority of the people — the rights of the individual are still trampled regardless of the nature of the government that does the trampling.
As a result, rights of individuals are established in the Constitution and cannot be taken away by a simple majority wanting to do so. The government cannot amend the Constitution without the consent of supermajorities. And, importantly, the Constitution makes clear that the central government has only the rights specifically granted to it in the Constitution. In other words, the power of the central government cannot be increased without the support of various supermajorities to approve an amendment to the Constitution that would increase the power of the central government.
Far from being the problem that those on the left allege it to be, the Constitution and its non-democratic supermajority provisions provide strong protection against mob rule for individual rights, freedoms and liberties. The Constitution certainly can be amended — it has been, 27 times — but to do so requires consensus so that supermajorities can be convinced to support proposed amendments. Building this consensus necessarily involves compromise, which is precisely what the Founders had in mind.
Progressives simply need to accept the fact that their agenda cannot be adopted unless they get more votes. To get the votes they must compromise and convince their fellow citizens of the correctness of their position. This is called deliberation, and it is necessary under our system precisely because it prevents the worst excesses of a pure democracy/mob rule.
Those who seek changes, whether on the right or the left, should spend their time in deliberation and achieve consensus through compromise, rather than focusing their energies on changing — or, heaven forbid, eliminating — the U.S. Constitution.
An important political problem is the dominance of the two political parties, what the Founders would have called “factions.” Today, for various reasons such as closed primaries, social media, and cable TV, political parties have a greater ability to amplify extreme positions on both the right and the left. Worse, our dominant political parties have fomented a dangerous and dysfunctional level of vitriol, extremism and intolerance in our political discussions — such that true debate, deliberation and compromise is often impossible.
For example, if the support of a simple majority is not sufficient to make changes to the Constitution, then obviously a minority cannot change the Constitution either. We do not have “rule by the minority,” regardless of the left’s hyperbole. Such claims often center on the fact that representation in the Senate is not based on population and fail to understand the context in which the Constitution was adopted.
In the late 18th century, as now, there were states of various sizes and, in order to convince them to join the union under the terms of the Constitution, the smaller states wanted assurance that their concerns would not be overwhelmed by larger states that had more citizens and a larger number of votes. The compromise that was established created two houses of Congress. One, the House of Representatives, is responsive to simple majorities; the other, the Senate, is designed to provide equality of representation by state, regardless of population.
Why would smaller states ever have joined the union if doing so meant they would simply be ruled by the larger states? They had just thrown off the tyrannical English government under King George III and were not about to replace it with a different potential tyrant. When the states joined the union, they knew that these rules could be changed, but only pursuant to the amendment process involving supermajorities that is laid out in Article V.
George A. Nation III is a professor of law and business at Lehigh University. The views expressed here are his alone and not those of the university.