The government of the United States is called a constitutional democracy. It is a democracy because the government is based on the consent of the people. Further, the government operates according to the principle of majority rule. The people, for example, elect their representatives and senators in Congress by majority vote; and the members of Congress make laws according to majority rule.
The popular and democratic government of the United States, however, is limited by the higher law of the Constitution in order to secure, as the Declaration of Independence says, the “unalienable rights” of every person. These legal limitations on the people's government make the United States a constitutional democracy, not an unlimited democracy.
James Madison and other framers of the Constitution feared the new threat to liberty that could come from a tyrannical majority. In times past, the threat to liberty came from the unrestrained powers of a king or an aristocracy. Madison, however, saw a new danger, which he expressed in a letter to Thomas Jefferson (Oct. 17, 1788):
Wherever the real power in a Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number [majority] of the constituents. This is a truth of great importance, but not yet sufficiently attended to…. Whenever there is an interest and power to do wrong, wrong will generally be done, and not less readily by [a majority of the people] than by a… prince.
Madison wanted government by majority rule of duly elected representatives of the people, but the majority's power must be limited by the higher law of a written constitution. If not, people that the majority disliked could lose basic freedoms and opportunities.
In The Federalist Nos. 10 and 51, James Madison argued for constitutional limits on power in government in order to protect the liberty and security of individuals. He opposed equally the absolutism, or total power, of a monarch or military dictator (the tyranny of one), an aristocracy or oligarchy (tyranny of the few over the many), or a majority of the people (tyranny of the many over the few). In a republic or representative democracy (government by elected representatives of the people), the greatest threat to liberty would come from an unrestrained majority. This threat could be overcome by constructing constitutional limits on majority rule in order to protect minority rights.
A constitutional democracy, then, is government by majority rule with protection of minority rights. It is democratic because of its foundations of popular consent and majority rule. It is constitutional because the power of the majority to rule is limited by a supreme law.
In the constitutional democracy of the United States, the Supreme Court uses its power of judicial review to make decisions about issues in specific cases concerning limits on majority rule or on minority rights. In many landmark decisions, such as West Virginia State Board of Education v. Barnette (1943), the Court has limited the power of majority rule in order to protect the rights to liberty of individuals in the minority. Writing for the Court in the Barnette case, Justice Robert Jackson argued that a person's rights to liberty, such as the right to free exercise of religion, “are beyond the reach of majorities.” They may not, he wrote, “be submitted to vote,” and “they depend on the outcome of no elections.”
In other landmark decisions, the Court has limited an individual's rights to liberty in order to maintain the democratic power of majority rule. For example, in United States v. O'Brien (1968), the Court upheld a federal law that made it a crime for anyone to destroy a draft card, the document that indicates that a person has registered with the government for possible induction into the armed forces. David O'Brien was denied the right to burn his draft card as a protest against the government. According to the Court, this violation of a federal law, enacted by majority rule of Congress, was not a permissible expression of freedom under the 1st Amendment.
See also Constitutionalism; Judicial review; Liberty under the Constitution; United States v. O'Brien; West Virginia State Board of Education v. Barnette
Sources
- John Agresto, The Supreme Court and Constitutional Democracy (Ithaca, N.Y.: Cornell University Press, 1984).
- Walter Berns, Taking the Constitution Seriously (Lanham, Md.: Madison Books, 1992). Jon Elster and Rune Slagstad, eds., Constitutionalism and Democracy (New York: Cambridge, 1988)
