The Transformation of the American Democratic Republic

Stephen M. Krason

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781412854986
  9781412847452
• eBook ISBN:
  9781351296946
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

In this stimulating volume, Stephen M. Krason considers whether the Founding Fathers' vision of the American democratic republic has been transformed and if so, in what ways. He looks to the basic principles of the Founding Fathers, then discusses the changes that resulted from evolving contemporary expectations about government. Referencing philosophical principles and the work of great Western thinkers, Krason then explores a variety of proposals that could forge a foundation for restoration.

Acknowledging that any attempt to revive the Founders' views on a democratic republic must start in the public sphere, Krason focuses on concerned citizens who are aware of the extent to which our current political structures deviate from the Founders' vision and want to take action. Ultimately, a democratic republic can exist, be sustained, and flourish only when there is a deep commitment to it in the minds and norms of its people.

Written by a foremost authority in the field of US Constitutional law, this book will appeal to those interested in American history, society, and politics.

CHAPTER 1

AMERICA’S “PARCHMENT REGIME”: THE ORIGINAL CHARACTER OF THE AMERICAN DEMOCRATIC REPUBLIC AND THE CULTURE SUPPORTING IT

Introduction

We hear it said often that the practice of something does not measure up to the theory behind it. This is the case with political orders as with other types of entities, as well as with individual persons.

In Federalist 10, James Madison says that in “a pure democracy… there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention…and as short in their lives as they have been violent in their deaths.”¹ With such an utterly unflattering assessment by the main author of the Constitution, one wonders how we might be able to refer to the United States as a democratic republic? Martin Diamond, Winston Mills Fisk, and Herbert Garfinkel, in their book entitled The Democratic Republic, say that the U.S. is “democratic”—in the representative, not pure, sense—because it features majority rule, and is “republican” because it was intended to demonstrate such characteristics as restraint, sobriety, competence, and liberty.² There was intended to be majority rule, to be sure, but within the context of preserving minority rights; that is, the minority could not be suppressed or its liberty destroyed. As Diamond, et al. say, our Constitution is “faithful to the spirit and form of democracy…[but] guards against its dangerous propensities.” The latter are not just the tyranny referred to by Madison, but also folly, feebleness, and ineptitude.³ It seeks to “reconcile the advantages of democracy with the sobering qualities of republicanism,” and “to render a democratic regime compatible with the protection of liberty and the requisites of competent government.”⁴ The consent of the governed, then, is at the heart of the American political order, but its force is mitigated by the restraints of representative institutions, the rule of law, and social, cultural, and moral influences. This insures that the majority’s will not only is not abusive, but also that the common good of the political order will be promoted.

The View Prevalent at the Time of the American Founding Fathers about the Principles and Practices Needed to Sustain a Democratic Republic

We can identify at the time of our Constitution’s adoption widely held views about the principles and practices that have to be prevalent to sustain a democratic republic. They represent: 1) a mixture of institutional factors and democratic (i.e., democratic republican) practices; 2) those that relate strictly to democratic principles and practices; and 3) those involving social conditions that are necessary to sustain republican government. We can identify these views in writings of the individual American Founding Fathers (i.e., the leading figures at the 1787 Constitutional Convention and Thomas Jefferson, who is often also reckoned a “Founding Father”), major political documents of the constitutional (i.e., Founding) era, the thought of the philosophers of republican government who especially influenced the thinking of the Founders, and the retrospective assessment of the greatest commentator on the American democratic republic, Alexis de Tocqueville. These are principles and practices that from learned reflection and actual experience the leading political thinkers and statesmen of the Founding Era concluded should be present to call a political order a “democratic republic.”

Regarding the first category (institutional arrangements), separation of powers, checks and balances, an independent judiciary, and federalism were particularly emphasized. Separation of powers did not happen automatically in early America, even though it was a staple of the thinking of such influential political philosophers as John Locke and Baron de Montesquieu. Indeed, after the outbreak of the Revolutionary War legislative supremacy was the order of the day in the American states, an outgrowth of the bitterness about the overbearing royal-appointed colonial governors in the years before.⁵ The abuses of institutionally unchallenged legislative power became readily apparent, however, as the Federalist Papers make clear.⁶ The writings of numerous Founding Fathers underscore the centrality of the notion of separation of powers. In spite of the movement toward legislative supremacy in the period 1776-1789, it also appears as a basic principle in such prominent new state constitutions as those of Virginia and Massachusetts.⁷ James Madison sums it up in Federalist 47: “No political truth is certainly of greater intrinsic value.”⁸

Checks and balances, of course, is a concomitant of separation of powers. Alexander Hamilton, another prominent Founder, speaks of the need for “mutual checks.”⁹ It had roots going back at least to Solon in ancient Athens.¹⁰ George Dargo writes that “separation of powers, mixed with an elaborate system of checks and balances among roughly equal branches” became the cornerstone principle of American government.¹¹

Probably the most famous Founding Era argument for an independent judiciary is Hamilton’s Federalist 78, although the Declaration of Independence also pointedly speaks about it when it includes among the colonists’ grievances against King George III that “[h]e has made judges dependent on his will alone for the tenure of their offices, and the amount and payment of their salaries.”

The federal system was not something established in the Founding Era; the Constitution was erected upon the long-existing reality of it. Hamilton, representing well the general views of the Founders, insisted that the state governments had to be strong and a balance of power between them and the new federal government was as essential as the forging of a strong union.¹² Later, Tocqueville mentioned the federal system as crucial to the American democratic republic (“one of the most powerful combinations favoring human prosperity and freedom”).¹³ Both the Framers and Tocqueville spoke about how the federal structure in conjunction with the large land mass and population of the U.S.—large even then with many fewer states—gives rise to the notion of the extended republic. They argued that this helps protect liberty because within it dangerous factions (see below) and intense political passions are more likely to be geographically contained.¹⁴

It is clear that both the Founding Fathers and Tocqueville were suspicious of excessive centralization of government. The Founders state that the national government under the Constitution only has a limited range of powers and would be concerned only with matters of general concern to the whole country.¹⁵ Tocqueville speaks of “the extreme evils which centralization can produce.”¹⁶ His conclusion that it is good for the American democratic republic that the nation (at that time) had “no great capital” seems to be connected with this concern about centralization.¹⁷ Despite his admiration for democratic republics, he was concerned that what might happen as time goes on is that while they would continue to let individuals have some role in shaping “important affairs”—for example, by extending them the franchise—they would increasingly regiment the particular everyday aspects of their lives.¹⁸ He sees equality as preparing men for this kind of “gentle” despotism, with enhanced centralized governmental authority, since it makes them so independent of one another that they will be only too ready to turn to the state as protector and provider.¹⁹

There are several factors that combine institutional arrangements and democratic practice, not fitting neatly into simply one or the other. These include the following: the notion that the makers of the laws must be subject to them like everyone else; the need for a “mixed” government, where both the propertied or leading elements of the political society and the much more numerous popular elements are represented; the presence of parties and factions to check each other so as to preserve liberty, not allowing any one group to become so powerful that it threatens the common good; and also that the laws and not the mere arbitrary whim of rulers control public affairs (i.e., “a government of laws and not of men”).

The applicability of the laws to their makers was stressed by the political philosopher John Locke²⁰ and was commonly accepted in the political life of America almost from the beginning. Locke saw this, along with rotation in office, as being a major means of avoiding political arbitrariness.²¹ This was something that obviously distinguished a constitutional regime from, say, a traditional monarchy.

Closely related to this principle, of course, was the notion that there must be a government of laws or, in other words, the rule of law must prevail. This was certainly not a new idea in the Founding period; we can find it as far back as Aristotle’s writing (which indirectly influenced the liberally-educated Founding Fathers through their learning),²² although for the most part we find that it took root in customary practice only after centuries of political struggle and constitutional development. Indeed, Aristotle delineated the fundamental elements of the rule of law (he also called it “constitutional rule”): it furthers the common interest of the community as against individualistic or singular group interests (even though the former is mostly derived by compromise among different specific interests); governance proceeds by means of general regulations instead of arbitrary decrees; and government is carried out by willing citizens instead of by force-wielding despots.²³

We see many emphatic endorsements of the rule of law in the Founding Era and the thought that influenced it. Locke says that men must be “govern[ed] by promulgated establish’d Laws…,” “to have one Rule for Rich and Poor”…[and] be designed for no other end ultimately but the good of the People.”²⁴ Montesquieu says that a democratic republic requires ordered political liberty within law.²⁵ Such thinkers as John Milton and James Harrington, who influenced the Founders but less directly than Locke and Montesquieu,²⁶ also stressed the rule of law.²⁷ John Adams writes, “the laws…are the only possible rule, measure, and security of justice.”²⁸ Thomas Jefferson insists on the need for “equal laws” to protect the “equal rights” of all, even minorities.²⁹

In the writing of the Founding Era and the thinkers who inspired it, we find frequent references to two other points relating to law, which are part of the notion of the rule of law. While these fit more appropriately into our other categories, for the sake of continuity we relate them here. Most crucial is that the civil laws embody natural law or principles of morality not made by men (this is in the category of democratic principles and practice, without any institutional dimension; that is, it is a principle for lawmakers in a democratic republic to put into practice in their activity of lawmaking).³⁰ When reference is made to “good laws” in the writing of the Founding Era and in the philosophers of constitutional or republican government from the seventeenth century to Tocqueville, what is meant is the upholding of the rule of law (as defined above) and of the notion of the civil laws embodying natural law. The other point pertaining to law fits into the category of social conditions and attitudes. It is that in a democratic republic, all citizens—rulers and ruled alike—must have a respect for law. Washington and Adams say that the laws must not just be respected, but revered.³¹

The notion of the mixed government or mixed regime is the foundation for separation of powers. Mixed government as it appeared in the American colonies was different from the classical understanding of it and even the version that prevailed in England. The classical notion called for involving in the ruling activity monarchical, aristocratic (usually, in practice, oligarchic), and popular elements. (The latter referred to the many who were poor). This was approximated in England with the particular governmental institutions that took shape: the king or queen, the House of Lords (which represented the traditional landed aristocracy), and the House of Commons (which represented the majority who were not in the royal family or aristocracy, the commoners). The arrangement that took shape in the American colonies was necessarily somewhat different since there was no Am...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction: The Aim of This Study
• Chapter 1 America’s “Parchment Regime”: The Original Character of the American Democratic Republic and the Culture Supporting It
• Chapter 2 1789-1817: The Formative Years, The Federalist Party Era, and Jeffersonianism
• Chapter 3 1817-1840: The Eras of “Good Feelings” and Jacksonian Democracy
• Chapter 4 1840-1877: Expansion, Sectionalism, the Civil War, and Reconstruction
• Chapter 5 1877-1920: The Gilded Age, the Progressive Era, and World War I
• Chapter 6 1920-1945: The “Roaring Twenties,” the Great Depression, and World War II
• Chapter 7 1945-1960: Post-World War II America and the Cold War
• Chapter 8 1960-1980: The Welfare State, Cultural Upheaval, and the Reign and Decline of Liberalism
• Chapter 9 1980-Present: The Upsurge of Conservatism, Economic Transformation, and Post-Cold War America
• Chapter 10 Analysis and Conclusion: How and Why the American Democratic Republic Has Been Transformed
• Selected Bibliography
• Index