WILL Blog | Flanders: Preserving Democracy by Limiting Democracy

In this complicated election season, the extent to which party primaries should represent the voice of the people has been an increasing subject of debate.  An article in The Hill last week proclaimed the prospect of a contested convention to be “undemocratic,” and Donald Trump has recently decried Colorado rules that select delegates without a public vote as “unfair.”   While such conceptions of unfairness might be readily accepted by generations raised under the misconception that democratic governance boils down to “majority rule,” the American system of government, at least as intended by the founders, is far more complex than that.   Instead of a failure of the parties to adhere to democratic principles, this primary season could instead be seen as an example of the wisdom of placing limitations on democracy.

While the idea of placing limitations on the will of the people may sound anti-American, in reality it is precisely what out founders sought to do.   Indeed, the writers of the constitution feared the tyranny of the majority just about as much as the tyranny of King George.  Recognizing the inherent fallibility and selfishness of man, they took a dim view of the extent to which people would respect the rights of political minorities.  It was important to check the power of the majority so that those rights would be respected.  James Madison, writing in Federalist 51, said that empowering political minorities was the key to ensuring that their rights were protected:

Whilst all authority … will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

Perhaps the best way to understand the difference between democracy and a democratic republic is the analogy of the courtroom versus the lynch mob.  When a person is on trial in court, many rules are in place to ensure that the person receives a fair shake.  Certain evidence may be deemed inadmissible, and the presumption of their innocence holds sway.  When a person is instead being judged by a lynch mob, these rights are no longer in place.  The mob is a pure democracy—if the majority believes the person guilty, “justice” will be served.  But the rights of the person on trial—the minority—have been usurped.

It is for just this reason that limitations on the power of the people were placed in the constitution.  So that the passions of the masses in the House of Representatives could be held in check, the United States Senate was elected by state legislatures.  So that the President could represent the states rather than the people, the Electoral College was instituted.

In the same way, both political parties have decided that checks on the  desires of the majority (or at least plurality) of party voters – e.g., the selection of nominees by a convention of delegates, the requirement of an absolute majority – help nominate the best candidate for President.

Such a process places limits on the power of voters and, in that sense, is “undemocratic,” but this term should not necessarily be used as the pejorative that it generally is.  Rather, this process is consistent with the notion held by the founders that the passions of the people must sometimes be tempered by the need to respect the rights of the political minority and the wisdom of those who can take a broader view.



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