Constitution 101: The Meaning and History of the Constitution – Lecture 3

The Problem of Majority Tyranny

On December 23, 1783, George Washington resigned his commission as commander of the army.  The final Revolutionary War battle at Yorktown was over two years in the past, but Congress had asked Washington to keep the army together until the terms of the peace were settled.  Washington had agreed and continued the difficult task of supplying his army through action by Congress that required the cooperation of the 13 states.  Now it was time for Washington to return to the life of a citizen of the new republic.

Had Washington not been the man he was, things could have turned out differently.  We know of at least one officer who urged Washington to declare himself King, and the many soldiers who idolized Washington might have swept him into power.  Instead, he wrote a formal rebuke, a stinging response that officer remembered for the rest of his life.  Washington’s cause was never personal power or exalted office, but rather the establishment of civil and religious liberty in the country he loved.  He would not be the charismatic man on horseback who had undermined so many promising experiments in political liberty.  Instead, he established the American tradition of military deference to civilian authority throughout the war and during its aftermath.

Still, Washington believed that there were problems with the Articles of Confederation, the governing document of the United States, in effect between 1781 and 1788.  He had circulated a letter to the governors of the thirteen states in June, 1783, in which he warned that absent a strong union to govern the general concerns of the confederated republic, the confederated republic would not be of long duration.  “It is only in our united character as an empire that our independence is acknowledged, that our power can be regarded, or our credit supported, among foreign nations….We shall be left nearly in a state of nature, or we may find by our own unhappy experience that there is a natural and necessary progression from the extreme of anarchy to the extreme of tyranny; and that arbitrary power is most easily established on the ruins of liberty…”  Washington presented four pillars underlying the guaranty of ongoing liberty:  (1) An indissoluble union of the states under one federal union; (2)  Sacred regard to public justice;  (3)  Adoption of a proper peace establishment; and (4)  Pacific and friendly disposition among all the American people, leading to mutual concessions and sacrifice of individual advantages to the interest of the whole union.

The Articles were, at the same time, both feeble and potentially tyrannical.  Central powers were mainly related to military and foreign affairs, state recognition of each other’s laws, some weak provisions regarding interstate commerce, regulation of weights and measures and coinage; and the post office.  Taxes could be levied on the states, but the state governments had the power to pay them or not, and $40 million in war debts remained unpaid.  Each state’s delegation had one vote; it took 9 votes to pass anything, and the full 13 votes to amend the Articles.  Due to conflict with the executive during the colonial period, there was no separation of executive power.  The Congress established a committee of one representative from each state to oversee administration.  One of the committee was chosen to preside for each year, thus the derivation of “president” in the American system.  There was no provision for an independent judiciary, so all disputes were to be resolved in Congress.  In the absence of separation of powers, a legislature operates unchecked, with no opposition possible.  Far from securing natural rights, this was a structure that, had it been more effectual, placed the life, liberty, and property of any citizen in the power of an unchecked legislature.

Many of the founders were coming to see the problems with the Articles.  They were caught in a dilemma.  If they increased the power of the central government, they would also increase the possibility for tyranny.  Jefferson recognized the problem in the constitutional order of his own state of Virginia:  “All the powers of government, legislative, executive, and judiciary, result to the legislative body.  The concentrating these in the same hands is precisely the definition of despotic government.  It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one.”  More power might lead to tyranny of the majority, with no regard to the interests of the minority or the community as a whole, and no protection of individual rights.  In Jefferson’s words:  “The time to guard against corruption and tyranny is before they shall have gotten hold of us.”  So, any changes to the Articles that empowered the central government would have to meet the challenge of checking legislative power.

Washington’s letter had noted the advantages enjoyed by the new republic.  We were formed in a time “when the rights of mankind were better understood and more clearly defined than at any former period.”  We were in a land of abundance.  If well governed, we could achieve human greatness.  Our task was to form a more perfect union, not perfecting people, but using our experiences under the Articles to discover a better way to combine in the protection of liberty.  Washington saw an unfinished republic:  “It is yet to be decided whether the Revolution must ultimately be considered a blessing or a curse:  a blessing or curse, not to the present age alone, for with our fate will the destiny of unborn millions be involved.”

Legislators are people, and people are flawed.  Around this practical insight, constitutional reformers would build a governing regime with the best possible chance of ensuring accountability to the people.

In advocating for an entirely new constitution, James Madison listed the eleven “vices” of the system under the Articles.  Failure of the states to comply with required funding.  Encroachment of the states on federal authority.  Violations by the states of treaty obligations.  Trespasses of the states on the rights of each other.  Lack of cooperation in matters where common interest requires it.  No power provided to protect the constitutional order of states threatened by internal violence.  No enforcement mechanisms for federal laws.  Lack of ratification in the constitution of some states, leaving allegiance in those states to simple legislative enactment.  Recent multiplicity of laws in the states, threatening people’s liberty.  Recent mutability of laws in the states, leading to an instability in the legal systems harmful to the people.  Injustice in state laws, calling into question the republican principle that the majority is the safest guardian of the public good and of private rights.  Madison ascribed this last fault as a result of faction, which derived from both the operation of the representative bodies and the private interests of the people.  Madison recognized the danger of a tyranny of the majority, and advocated that any new federal constitutional order address it.  “The great desideratum in government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions, to control one part of the society from invading the rights of another, and at the same time sufficiently controlled itself, from setting up an interest adverse to that of the whole society.”

Factions couldn’t be removed, as this would destroy liberty, a cure worse than the disease.  Factions are sown in the nature of man, and the different interests of men.  The other alternative was to control faction.  There were several aspects to Madison’s solution, reducing the power of faction–including that of the most dangerous majority faction.  First, powers should be separated, so a strong executive and and independent judiciary would balance legislative power.  Second, Madison believed that a representative republic extending over a large area expands the variety of parties and interests.  As Madison expressed it in Federalist 10:  “You make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or, if such a common motive exists, it will be more difficult for all who feel it to discover their own strength and to act in unison with each other.”  The founders opposed direct democracy due to unstable decisions made on the basis of temporary passions rather than rational thought.  They hoped people would choose their representatives wisely.  But even should bad decisions occur from elections, Madison’s ideas would check bad outcomes by distributing power and providing time for more thoughtful decisions.  Again, politicians are people, and people are flawed—and politicians must be checked.  This was a new way of thinking about constitutionalism and republicanism, an understanding of the dangers of pure majoritarianism, and a structural way of addressing the problem.

In the spring of 1787, a convention was called in Philadelphia to consider changes to the Articles of Confederation.  Washington and Madison came early, both committed to replacing rather than revising the Articles.  They wondered if any of the other delegates would join them in their objective.  There was an eleven day delay before the meetings could be convened, as delegates were slow to arrive.  Madison, a consummate politician, used the time wisely.  The Constitution of the United States of America was about to be born.  Washington’s commitment to a civil society conceived in liberty was about to be honored.

Stephen Zierak, CPCU/ARM, graduated from Boston University with a BA in Political Science in 1969. After a forty year career in property casualty insurance underwriting, Mr. Zierak retired as a Vice President of Swiss Re America in 2010. At that time, he relocated to Hawaii, a move he had always wanted to make, but had delayed due to lack of appropriate professional opportunities here. Mr. Zierak plans to continue his studies in Political Science, never really abandoned even during his professional career, and to write on matters of public policy. Recently, he produced for Grassroot Institute summaries of Hillsdale’s 10-part internet course on our Constitution. Stephen Zierak is married to the love his life, Teodora, and they reside in Honolulu.

This lesson is taught by Dr. David Bobb, Director of Hillsdale’s Kirby Center for Constitutional Studies and Citizenship, located in Washington, D.C. Dr. Bobb also teaches American politics and political theory to students participating in the Washington-Hillsdale Internship Program.  The Kirby Center seeks to inspire citizens to lives worthy of the blessings of liberty. From 2001 to 2010, Dr. Bobb directed Hillsdale’s Hoogland Center for Teacher Excellence, providing a program of civic education for high school teachers. He received his BA from Hillsdale College and his PhD in Political Science from Boston College. This lecture was posted on the internet March 5, and those interested may register at Constitution.Hillsdale.edu. There is no fee.  There will be seven more lessons, available weekly on Mondays.

The next lecture in this series is Separating Powers: Preventing Tyranny, taught by Dr. Kevin Portteus. It will be available on the internet Monday, March 12.

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