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"The Tyranny of the Majority" - from Alexis de Tocqueville's "Democracy in America" ^ | 1835 (Volume 1) & 1840 (Volume 2) | Alexis de Tocqueville

Posted on 03/28/2009 8:31:50 AM PDT by Loud Mime

This is great prep for an argument with a liberal.

Feel free to highlight your favorite sections:

Chapter XV: Unlimited Power Of Majority, And Its Consequences—Part II

Tyranny Of The Majority

How the principle of the sovereignty of the people is to be understood—Impossibility of conceiving a mixed government—The sovereign power must centre somewhere—Precautions to be taken to control its action—These precautions have not been taken in the United States—Consequences.

I hold it to be an impious and an execrable [execrable: extremely bad or unpleasant] maxim that, politically speaking, a people has a right to do whatsoever it pleases, and yet I have asserted that all authority originates in the will of the majority. Am I then, in contradiction with myself?

A general law—which bears the name of Justice—has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are consequently confined within the limits of what is just. A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great and general law of justice. Ought such a jury, which represents society, to have more power than the society in which the laws it applies originate?

When I refuse to obey an unjust law, I do not contest the right which the majority has of commanding, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. It has been asserted that a people can never entirely outstep the boundaries of justice and of reason in those affairs which are more peculiarly its own, and that consequently, full power may fearlessly be given to the majority by which it is represented. But this language is that of a slave. A majority taken collectively may be regarded as a being whose opinions, and most frequently whose interests, are opposed to those of another being, which is styled a minority. If it be admitted that a man, possessing absolute power, may misuse that power by wronging his adversaries, why should a majority not be liable to the same reproach? Men are not apt to change their characters by agglomeration; nor does their patience in the presence of obstacles increase with the consciousness of their strength. *c And for these reasons I can never willingly invest any number of my fellow-creatures with that unlimited authority which I should refuse to any one of them.


[ No one will assert that a people cannot forcibly wrong another people; but parties may be looked upon as lesser nations within a greater one, and they are aliens to each other: if, therefore, it be admitted that a nation can act tyrannically towards another nation, it cannot be denied that a party may do the same towards another party.]

I do not think that it is possible to combine several principles in the same government, so as at the same time to maintain freedom, and really to oppose them to one another. The form of government which is usually termed mixed has always appeared to me to be a mere chimera. Accurately speaking there is no such thing as a mixed government (with the meaning usually given to that word), because in all communities some one principle of action may be discovered which preponderates over the others. England in the last century, which has been more especially cited as an example of this form of Government, was in point of fact an essentially aristocratic State, although it comprised very powerful elements of democracy; for the laws and customs of the country were such that the aristocracy could not but preponderate in the end, and subject the direction of public affairs to its own will. The error arose from too much attention being paid to the actual struggle which was going on between the nobles and the people, without considering the probable issue of the contest, which was in reality the important point. When a community really has a mixed government, that is to say, when it is equally divided between two adverse principles, it must either pass through a revolution or fall into complete dissolution.

I am therefore of opinion that some one social power must always be made to predominate over the others; but I think that liberty is endangered when this power is checked by no obstacles which may retard its course, and force it to moderate its own vehemence.

Unlimited power is in itself a bad and dangerous thing; human beings are not competent to exercise it with discretion, and God alone can be omnipotent, because His wisdom and His justice are always equal to His power. But no power upon earth is so worthy of honor for itself, or of reverential obedience to the rights which it represents, that I would consent to admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on a people or upon a king, upon an aristocracy or a democracy, a monarchy or a republic, I recognize the germ of tyranny, and I journey onward to a land of more hopeful institutions.

In my opinion the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their overpowering strength; and I am not so much alarmed at the excessive liberty which reigns in that country as at the very inadequate securities which exist against tyranny.

When an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority, and implicitly obeys its injunctions; if to the executive power, it is appointed by the majority, and remains a passive tool in its hands; the public troops consist of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain States even the judges are elected by the majority. However iniquitous or absurd the evil of which you complain may be, you must submit to it as well as you can.



[ A striking instance of the excesses which may be occasioned by the despotism of the majority occurred at Baltimore in the year 1812. At that time the war was very popular in Baltimore. A journal which had taken the other side of the question excited the indignation of the inhabitants by its opposition. The populace assembled, broke the printing-presses, and attacked the houses of the newspaper editors. The militia was called out, but no one obeyed the call; and the only means of saving the poor wretches who were threatened by the frenzy of the mob was to throw them into prison as common malefactors. But even this precaution was ineffectual; the mob collected again during the night, the magistrates again made a vain attempt to call out the militia, the prison was forced, one of the newspaper editors was killed upon the spot, and the others were left for dead; the guilty parties were acquitted by the jury when they were brought to trial.

I said one day to an inhabitant of Pennsylvania, "Be so good as to explain to me how it happens that in a State founded by Quakers, and celebrated for its toleration, freed blacks are not allowed to exercise civil rights. They pay the taxes; is it not fair that they should have a vote?"

"You insult us," replied my informant, "if you imagine that our legislators could have committed so gross an act of injustice and intolerance."

"What! then the blacks possess the right of voting in this county?"

"Without the smallest doubt."

"How comes it, then, that at the polling-booth this morning I did not perceive a single negro in the whole meeting?"

"This is not the fault of the law: the negroes have an undisputed right of voting, but they voluntarily abstain from making their appearance."

"A very pretty piece of modesty on their parts!" rejoined I.

"Why, the truth is, that they are not disinclined to vote, but they are afraid of being maltreated; in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal privileges." "What! then the majority claims the right not only of making the laws, but of breaking the laws it has made?"] If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions; an executive, so as to retain a certain degree of uncontrolled authority; and a judiciary, so as to remain independent of the two other powers; a government would be formed which would still be democratic without incurring any risk of tyrannical abuse.

I do not say that tyrannical abuses frequently occur in America at the present day, but I maintain that no sure barrier is established against them, and that the causes which mitigate the government are to be found in the circumstances and the manners of the country more than in its laws.

Effects Of The Unlimited Power Of The Majority Upon The Arbitrary Authority Of The American Public Officers Liberty left by the American laws to public officers within a certain sphere—Their power.

A distinction must be drawn between tyranny and arbitrary power. Tyranny may be exercised by means of the law, and in that case it is not arbitrary; arbitrary power may be exercised for the good of the community at large, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but, if necessary, it can rule without them.

In the United States the unbounded power of the majority, which is favorable to the legal despotism of the legislature, is likewise favorable to the arbitrary authority of the magistrate. The majority has an entire control over the law when it is made and when it is executed; and as it possesses an equal authority over those who are in power and the community at large, it considers public officers as its passive agents, and readily confides the task of serving its designs to their vigilance. The details of their office and the privileges which they are to enjoy are rarely defined beforehand; but the majority treats them as a master does his servants when they are always at work in his sight, and he has the power of directing or reprimanding them at every instant.

In general the American functionaries are far more independent than the French civil officers within the sphere which is prescribed to them. Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion, and backed by the co-operation, of the majority, they venture upon such manifestations of their power as astonish a European. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.

Power Exercised By The Majority In America Upon Opinion In America, when the majority has once irrevocably decided a question, all discussion ceases—Reason of this—Moral power exercised by the majority upon opinion—Democratic republics have deprived despotism of its physical instruments—Their despotism sways the minds of men.

It is in the examination of the display of public opinion in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Intellectual principles exercise an influence which is so invisible, and often so inappreciable, that they baffle the toils of oppression. At the present time the most absolute monarchs in Europe are unable to prevent certain notions, which are opposed to their authority, from circulating in secret throughout their dominions, and even in their courts. Such is not the case in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, a submissive silence is observed, and the friends, as well as the opponents, of the measure unite in assenting to its propriety. The reason of this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands, and to conquer all opposition with the energy of a majority which is invested with the right of making and of executing the laws.

The authority of a king is purely physical, and it controls the actions of the subject without subduing his private will; but the majority possesses a power which is physical and moral at the same time; it acts upon the will as well as upon the actions of men, and it represses not only all contest, but all controversy. I know no country in which there is so little true independence of mind and freedom of discussion as in America. In any constitutional state in Europe every sort of religious and political theory may be advocated and propagated abroad; for there is no country in Europe so subdued by any single authority as not to contain citizens who are ready to protect the man who raises his voice in the cause of truth from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people is upon his side; if he inhabits a free country, he may find a shelter behind the authority of the throne, if he require one. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic institutions exist, organized like those of the United States, there is but one sole authority, one single element of strength and of success, with nothing beyond it. In America the majority raises very formidable barriers to the liberty of opinion: within these barriers an author may write whatever he pleases, but he will repent it if he ever step beyond them. Not that he is exposed to the terrors of an auto-da-fe, but he is tormented by the slights and persecutions of daily obloquy. His political career is closed forever, since he has offended the only authority which is able to promote his success. Every sort of compensation, even that of celebrity, is refused to him. Before he published his opinions he imagined that he held them in common with many others; but no sooner has he declared them openly than he is loudly censured by his overbearing opponents, whilst those who think without having the courage to speak, like him, abandon him in silence. He yields at length, oppressed by the daily efforts he has been making, and he subsides into silence, as if he was tormented by remorse for having spoken the truth. Fetters and headsmen were the coarse instruments which tyranny formerly employed; but the civilization of our age has refined the arts of despotism which seemed, however, to have been sufficiently perfected before. The excesses of monarchical power had devised a variety of physical means of oppression: the democratic republics of the present day have rendered it as entirely an affair of the mind as that will which it is intended to coerce. Under the absolute sway of an individual despot the body was attacked in order to subdue the soul, and the soul escaped the blows which were directed against it and rose superior to the attempt; but such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The sovereign can no longer say, "You shall think as I do on pain of death;" but he says, "You are free to think differently from me, and to retain your life, your property, and all that you possess; but if such be your determination, you are henceforth an alien among your people. You may retain your civil rights, but they will be useless to you, for you will never be chosen by your fellow-citizens if you solicit their suffrages, and they will affect to scorn you if you solicit their esteem. You will remain among men, but you will be deprived of the rights of mankind. Your fellow-creatures will shun you like an impure being, and those who are most persuaded of your innocence will abandon you too, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence in comparably worse than death."

Monarchical institutions have thrown an odium upon despotism; let us beware lest democratic republics should restore oppression, and should render it less odious and less degrading in the eyes of the many, by making it still more onerous to the few. Works have been published in the proudest nations of the Old World expressly intended to censure the vices and deride the follies of the times; Labruyere inhabited the palace of Louis XIV when he composed his chapter upon the Great, and Moliere criticised the courtiers in the very pieces which were acted before the Court. But the ruling power in the United States is not to be made game of; the smallest reproach irritates its sensibility, and the slightest joke which has any foundation in truth renders it indignant; from the style of its language to the more solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape from this tribute of adulation to his fellow-citizens. The majority lives in the perpetual practice of self-applause, and there are certain truths which the Americans can only learn from strangers or from experience.

If great writers have not at present existed in America, the reason is very simply given in these facts; there can be no literary genius without freedom of opinion, and freedom of opinion does not exist in America. The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes the wish of publishing them. Unbelievers are to be met with in America, but, to say the truth, there is no public organ of infidelity. Attempts have been made by some governments to protect the morality of nations by prohibiting licentious books. In the United States no one is punished for this sort of works, but no one is induced to write them; not because all the citizens are immaculate in their manners, but because the majority of the community is decent and orderly.

In these cases the advantages derived from the exercise of this power are unquestionable, and I am simply discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is an accidental occurrence.

Effects Of The Tyranny Of The Majority Upon The National Character Of The Americans

Effects of the tyranny of the majority more sensibly felt hitherto in the manners than in the conduct of society—They check the development of leading characters—Democratic republics organized like the United States bring the practice of courting favor within the reach of the many—Proofs of this spirit in the United States—Why there is more patriotism in the people than in those who govern in its name.

The tendencies which I have just alluded to are as yet very slightly perceptible in political society, but they already begin to exercise an unfavorable influence upon the national character of the Americans. I am inclined to attribute the singular paucity of distinguished political characters to the ever-increasing activity of the despotism of the majority in the United States. When the American Revolution broke out they arose in great numbers, for public opinion then served, not to tyrannize over, but to direct the exertions of individuals. Those celebrated men took a full part in the general agitation of mind common at that period, and they attained a high degree of personal fame, which was reflected back upon the nation, but which was by no means borrowed from it.

In absolute governments the great nobles who are nearest to the throne flatter the passions of the sovereign, and voluntarily truckle to his caprices. But the mass of the nation does not degrade itself by servitude: it often submits from weakness, from habit, or from ignorance, and sometimes from loyalty. Some nations have been known to sacrifice their own desires to those of the sovereign with pleasure and with pride, thus exhibiting a sort of independence in the very act of submission. These peoples are miserable, but they are not degraded. There is a great difference between doing what one does not approve and feigning to approve what one does; the one is the necessary case of a weak person, the other befits the temper of a lackey.

In free countries, where everyone is more or less called upon to give his opinion in the affairs of state; in democratic republics, where public life is incessantly commingled with domestic affairs, where the sovereign authority is accessible on every side, and where its attention can almost always be attracted by vociferation, more persons are to be met with who speculate upon its foibles and live at the cost of its passions than in absolute monarchies. Not because men are naturally worse in these States than elsewhere, but the temptation is stronger, and of easier access at the same time. The result is a far more extensive debasement of the characters of citizens.

Democratic republics extend the practice of currying favor with the many, and they introduce it into a greater number of classes at once: this is one of the most serious reproaches that can be addressed to them. In democratic States organized on the principles of the American republics, this is more especially the case, where the authority of the majority is so absolute and so irresistible that a man must give up his rights as a citizen, and almost abjure his quality as a human being, if te intends to stray from the track which it lays down.

In that immense crowd which throngs the avenues to power in the United States I found very few men who displayed any of that manly candor and that masculine independence of opinion which frequently distinguished the Americans in former times, and which constitutes the leading feature in distinguished characters, wheresoever they may be found. It seems, at first sight, as if all the minds of the Americans were formed upon one model, so accurately do they correspond in their manner of judging. A stranger does, indeed, sometimes meet with Americans who dissent from these rigorous formularies; with men who deplore the defects of the laws, the mutability and the ignorance of democracy; who even go so far as to observe the evil tendencies which impair the national character, and to point out such remedies as it might be possible to apply; but no one is there to hear these things besides yourself, and you, to whom these secret reflections are confided, are a stranger and a bird of passage. They are very ready to communicate truths which are useless to you, but they continue to hold a different language in public.

If ever these lines are read in America, I am well assured of two things: in the first place, that all who peruse them will raise their voices to condemn me; and in the second place, that very many of them will acquit me at the bottom of their conscience.

I have heard of patriotism in the United States, and it is a virtue which may be found among the people, but never among the leaders of the people. This may be explained by analogy; despotism debases the oppressed much more than the oppressor: in absolute monarchies the king has often great virtues, but the courtiers are invariably servile. It is true that the American courtiers do not say "Sire," or "Your Majesty"—a distinction without a difference. They are forever talking of the natural intelligence of the populace they serve; they do not debate the question as to which of the virtues of their master is pre-eminently worthy of admiration, for they assure him that he possesses all the virtues under heaven without having acquired them, or without caring to acquire them; they do not give him their daughters and their wives to be raised at his pleasure to the rank of his concubines, but, by sacrificing their opinions, they prostitute themselves. Moralists and philosophers in America are not obliged to conceal their opinions under the veil of allegory; but, before they venture upon a harsh truth, they say, "We are aware that the people which we are addressing is too superior to all the weaknesses of human nature to lose the command of its temper for an instant; and we should not hold this language if we were not speaking to men whom their virtues and their intelligence render more worthy of freedom than all the rest of the world." It would have been impossible for the sycophants of Louis XIV to flatter more dexterously. For my part, I am persuaded that in all governments, whatever their nature may be, servility will cower to force, and adulation will cling to power. The only means of preventing men from degrading themselves is to invest no one with that unlimited authority which is the surest method of debasing them.

The Greatest Dangers Of The American Republics Proceed From The Unlimited Power Of The Majority

Democratic republics liable to perish from a misuse of their power, and not by impotence—The Governments of the American republics are more centralized and more energetic than those of the monarchies of Europe—Dangers resulting from this—Opinions of Hamilton and Jefferson upon this point.

Governments usually fall a sacrifice to impotence or to tyranny. In the former case their power escapes from them; it is wrested from their grasp in the latter. Many observers, who have witnessed the anarchy of democratic States, have imagined that the government of those States was naturally weak and impotent. The truth is, that when once hostilities are begun between parties, the government loses its control over society. But I do not think that a democratic power is naturally without force or without resources: say, rather, that it is almost always by the abuse of its force and the misemployment of its resources that a democratic government fails. Anarchy is almost always produced by its tyranny or its mistakes, but not by its want of strength.

It is important not to confound stability with force, or the greatness of a thing with its duration. In democratic republics, the power which directs *e society is not stable; for it often changes hands and assumes a new direction. But whichever way it turns, its force is almost irresistible. The Governments of the American republics appear to me to be as much centralized as those of the absolute monarchies of Europe, and more energetic than they are. I do not, therefore, imagine that they will perish from weakness. *f


[ This power may be centred in an assembly, in which case it will be strong without being stable; or it may be centred in an individual, in which case it will be less strong, but more stable.]


[ I presume that it is scarcely necessary to remind the reader here, as well as throughout the remainder of this chapter, that I am speaking, not of the Federal Government, but of the several governments of each State, which the majority controls at its pleasure.] If ever the free institutions of America are destroyed, that event may be attributed to the unlimited authority of the majority, which may at some future time urge the minorities to desperation, and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.

Mr. Hamilton expresses the same opinion in the "Federalist," No. 51. "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as in the latter state even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so in the former state will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it."

Jefferson has also thus expressed himself in a letter to Madison: *g "The executive power in our Government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the Legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period." I am glad to cite the opinion of Jefferson upon this subject rather than that of another, because I consider him to be the most powerful advocate democracy has ever sent forth.

[ March 15, 1789.]

TOPICS: Constitution/Conservatism; Government; Philosophy
KEYWORDS: alexiscalledit; democrats; detocqueville; federalistpapers; majority; socialism; tyranny
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To: Loud Mime
the ethics that should serve as our guide.

A fool's bet if there ever was won. It's like Madison's arguments against a bill of rights. The people would never misconstrue the extent of federal power! They would never use "general welfare", "necessary and proper", or "supreme law of the land" in ways beyond what they intended! Who would do such a thing. That was Madison's argument. And much as I love and admire the man, I have to say it's amazing that someone so brilliant could be so naiive.

41 posted on 03/29/2009 9:43:28 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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To: Huck
Madison was like another politician, who said he was against the bill of rights before he was for it.

I believe the anti-BOR argument is best presented in Federalist 84, by Alexander Hamilton.

After all of this, we now see that the BOR is subject to the ruler's interpretation. And we have seen that Hamilton's warning that it would bring claims of "rights not granted" most accurate.

One of Madison's more notable speeches is next:

“If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their Own hands; they may a point teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.”

James Madison in the House of Representatives,
February 3, 1792; on the Cod Fishery Bill and granting bounties

Even though the founders understood human nature and dirty politics, they, like everybody else, had more to learn. I believed that they wanted a simple constitution because the anti-federalists were very suspicious of anything that was too big. That is probably why the BOR was an add-on; it showed that the Constitution had some flexibility.

The first session of congress is referred to some historians as a continuation of the Constitutional Convention. I am now reading a book that has some good information on that session; it's quite interesting.

42 posted on 03/29/2009 11:39:22 AM PDT by Loud Mime (Things were better when cigarette companies could advertise and Lawyers could not.)
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To: Loud Mime; Huck; cthemfly25; RC2
Events have overtaken many of the objections our Founding Fathers had to size as an obstacle to the formation of a republic. Technology make distance, in terms both of travel and communication, no longer a barrier. But, it strikes me that the Founders most feared the fragmentation of the commonality of interests, religion and culture that size might facilitate. In the following, Tocqueville intimates how this might occur:

”Not only is a democratic people led by its own taste to centralize its government, but the passions of all the men by whom it is governed constantly urge it in the same direction. It may easily be foreseen that almost all the able and ambitious members of a democratic community will labor unceasingly to extend the powers of government, because they all hope at some time or other to wield those powers themselves. It would be a waste of time to attempt to prove to them that extreme centralization may be injurious to the state, since they are centralizing it for their own benefit. Among the public men of democracies, there are hardly any but men of great disinterestedness or extreme mediocrity who seek to oppose the centralization of government; the former are scarce, the latter powerless.”

. . . . . Alexis de Tocqueville, Democracy in America, Appendix Z. – Vol. II, p. 296

Is it ‘great disinterestedness’ or ‘extreme mediocrity’ that comes to mind when one considers such characters as Pelosi, Frank, Specter, Reid, Murtha, Snowe, &c (including the Most Merciful, the Anointed One, himself). What happens to a republic when power is seized by nothing but ‘extreme mediocrities’ in the absence of any persons of ‘great disinterestedness’? Size may indeed be an objection to the functionality of a republic, but the existence of ‘extreme mediocrity’ seems more likely the source for the failure of republics.

Just one person’s opinion. Nothing more.

43 posted on 03/29/2009 7:32:46 PM PDT by YHAOS
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To: Loud Mime
A Bill of Rights was standard form at the state level back in those days. It's a bit surprising they didn't assume they'd have one and get Adams/Jefferson to draw it up.

I don't think it's fair to paint Madison as a politician on the issue. I think he was a great steward of the Constitution. He believed in it and did everything he could for it. He made an honest deal with the people of Virginia and kept up his end of the bargain. The politician's move would have been to promise to bring it up right away, and then bury it, or add a poison pill, or simply change your tune and reneg on your promise. He kept his word and did so with honor. He allowed republicanism to work. He helped it work.

I think the founders would primarily blame the people for the failures. But they would also see some structural weaknesses that could have been avoided. They made a gamble on the people. They knew it was iffy. I think if they could do it over again, they'd be much, much more precise about the limitations on gubmint power. They thought it absurd, and uneccessary. They were wrong. It needed to be spelled out like a laundry list in the plainest language.

Even the Bill of Rights crowd got it wrong in the end. Just as an example...the 10th amendment-an utterly toothless waste of ink.

Instead of the weak disclaimer being the substance of the amendment...

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"

It should read: The following powers are reserved to the States and are completely outside the jurisdiction of the Federal Government:

Followed by an exhaustive list of every imaginable thing. And then, at the end of all that, the 10th amendment would be a catch-all disclaimer, with about as much force to it as one might realistically expect.

I know they thought they had spelled out just what the limits were already. They thought it unnecessary. I think they were dead wrong on that, and should have added a few extra layers of explicit security.

Just imagine if they had dealt with the issue of secession. A lot of trouble could have been avoided there.

Hamilton, like Madison, presumed that the Constitution itself was safe from perversion. That the loopholes weren't going to work. I'm just saying if they could do it over, I'll bet they'd make it even clearer and more iron clad. Even the most cautious got it wrong, and allowed the Federal branch too much power and leeway.

44 posted on 03/30/2009 7:47:06 AM PDT by Huck ("He that lives on hope will die fasting"- Ben Franklin, Poor Richard's Almanac)
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