A Majority Held in Restraint

According to Abraham Lincoln’s first inaugural address, “A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” In growing numbers and with increasing fervor, twenty-first century Democrats are calling for “structural reforms,” including: expanding the Supreme Court, which has held steady at nine justices for the past 157 years; curtailing the Court’s powers through term limits and “enforceable” codes of conduct; eliminating the Electoral College in favor of direct popular election of the president; and conferring statehood on Washington, DC and Puerto Rico to make Democratic Senate majorities more attainable.

At the root of these proposals is an animus against restraining majorities through constitutional checks and limitations. Beyond seeking partisan advantages, the Democratic Party is manifesting its name by standing up for the right and capacity of the people to govern themselves, which requires standing against those who believe it is safer for the majority’s impact on governance to be delayed and qualified rather than immediate and direct. To employ a word that has fallen out of common use, the essence of democratism is the idea, expressed most famously by John Dewey, that “the cure for the ills of democracy is more democracy.”

In opposing these structural reforms, the Republican Party, in addition to seeking to sustain and extend its partisan advantages, is living up to its name. The essence of republicanism is the belief that the cure for the ills of democracy is better democracy, not necessarily more democracy. The republican supports government by consent of the governed while also believing that democracy needs protection not only from its opponents, those who favor rule by the few rather than by the many, but also from its own self-destructive proclivities.

One of these proclivities is democratic impetuousness or willfulness, a possibility suggested by Lincoln’s endorsement of deliberate changes of popular opinions and sentiments, a purposeful approach grounded in careful consideration of alternatives and consequences. An even more serious danger is majority tyranny. As James Madison warned in The Federalist Papers, a “majority faction” united by some “ruling passion or interest” inimical to the well-being of the entire nation would use democratic principles and processes to render itself irresistible. If a majority faction pursued its own vision by violating the rights of any or all who are not members of the majority, the latter’s only options would be submission or revolutionary resistance.

Throughout American history, the struggle between democratism and republicanism has generated more-or-less debates, rather than all-or-nothing ones. The democrat holds that the burden of proof is on those who defend checks and limitations that restrain democratic majorities. Restraints, that is, no matter how clearly written in the Constitution or settled as a matter of custom, deserve to be periodically challenged to see if they retain their justification, if they are measures we would adopt today if they did not already exist.

In this spirit, the nation ratified the 17th Amendment in 1913, choosing direct election of US senators in place of their selection by each state’s legislature, the method prescribed by the Constitution as originally written. Experience had shown that Americans were increasingly disposed to subvert rather than respect the role of state legislatures in choosing US senators. The Lincoln-Douglas debates of 1858, when the two senatorial nominees turned that year’s state legislative elections into a proxy fight over Illinois’ US Senate seat, was the most important milestone in indirect election’s demise. By the beginning of the twentieth century, even the Constitution’s severely restrictive amendment process, itself among the most important checks and limitations on popular majorities, could not save the Constitution’s original plan for selecting senators.

The republican view is that the burden of proof is on those who would discard long-established checks and limitations. Never tear down a fence, Chesterton warned, until you understand clearly why it had been built in the first place. Despite winning reelection by a landslide in 1936, Franklin Roosevelt failed to meet this burden in 1937 when he endorsed legislation that would add as many as six new justices to the Supreme Court, a proposal critics labeled as “court-packing.” In the words of historian David M. Kennedy, FDR’s plan came to be seen as an “affront to traditional notions of constitutional order.” Despite Democratic majorities exceeding 75% in both houses of Congress after the 1936 elections, even congressional New Deal supporters, in Kennedy’s account, “objected on principle to any compromising of the judiciary’s independence.” The Judicial Procedures Reform Bill died without ever receiving a floor vote, having been rejected by the Senate Judiciary Committee, whose report on the bill called it a “needless, futile, and utterly dangerous abandonment of constitutional principle.”

If Democrats try to enact their structural reforms in the coming years, the popular response will help us gauge whether Americans care as much about constitutional principle as they did in 1937. But the test is only approximate, since some of the structural reforms are more like the 17th Amendment, acknowledgments that facts on the ground are no longer aligned with a long-standing constitutional limitation, than like FDR’s proposed court expansion, which reflected a democratist dislike of constitutional limitations as such.

The idea of term limits for Supreme Court justices, for example, reflects the reality that justices now serve far longer than was common for most of our history. In 2007, one scholar calculated that a Supreme Court justice’s average tenure had been 15 years before 1970, but 26 years since then. Increased life expectancy is part of the story, but another is that Supreme Court justices are no longer drawn from the ranks of public officials generally, but are constitutional scholars who move from law schools into the judiciary. No Supreme Court justice in living memory has had a career like that of Charles Evans Hughes, who was governor of New York before President Taft nominated him to the Court in 1910, resigned to run for president in 1916, served as Secretary of State under President Harding and Coolidge, and rejoined the Court as Chief Justice in 1930. (Taft himself became Chief Justice in 1921, eight years after leaving the presidency.) As recently as 1965, President Lyndon Johnson prevailed upon Arthur Goldberg to resign from the Supreme Court, less than three years after he had joined it, to become the US ambassador to the United Nations.

No Court member today expects to do any other job as interesting or important, so, with the help of modern medicine, they stay and stay. An 18-year term limit would not only guarantee two nominations during each four-year presidential term, but expand the Court’s talent pool. Lacking the incentive to appoint youthful jurists expected to serve for three decades and beyond, presidents would have good reason to consider potential justices who are in their late fifties or sixties.

Court packing is dangerous today for the same reason it was 89 years ago: the judicial branch cannot be a check or limitation on the majorities that elect the president, Congress, and thousands of state and local officials if it is also an instrument of the popular will. If one party packs the Court to further its agenda, the other party will inevitably retaliate with its own expansion of the Court. With each iteration, the Court will become larger and less legitimate, its rulings accorded no more respect from those who oppose them than is now given to press releases from the Democratic National Committee or its Republican counterpart.

Of course, the dream of those who demand structural reforms to our constitutional system is that there will be one and only one expansion of the Supreme Court: the reforms will ensure that the minority party never again gains a majority and, with it, the power to pack the Court to its own advantage. Structural reforms, in other words, will make the majority party the vehicle of an unassailable majority faction, turning Madison’s greatest fear into the reformers’ highest goal.

Abolishing the Electoral College in favor of direct popular election of the president would greatly advance the cause of majority faction. Under the Electoral College, where the presidency is decided in winner-take-all elections in each state, rival candidates have strong incentives to moderate their message to appeal to a wide variety of voters across a large, diverse array of states. Running up the vote in your best states is pointless, because you win the same number of electoral votes with modest victories in those states as with landslides. The incentive under direct popular election would be the opposite: to get the biggest possible majority and the largest possible turnout in your best states with fiery, divisive rhetoric and proposals.

When it is not necessary to change, according to a famous distillation of the conservative sensibility, it is necessary not to change. The wisdom of this adage is vitiated by those conservatives who make clear their belief that, if you examine any question long enough, it turns out that it is never necessary to change. Resistance to Democrats’ structural reforms is more likely to succeed if it is strategic and selective than if it is as dogmatic in defense of each and every constitutional check and limitation as Democrats are in opposing restraints on the popular will. Such republicanism has the best chance to revive the spirit of 1937 and preserve a constitutional republic where a diverse, often divided citizenry sorts out ways to share a country and sustain self-government

William Voegeli is a Senior Fellow of the Claremont Institute, a senior editor of the Claremont Review of Books, and author of: Never Enough: America's Limitless Welfare State (Encounter Books); and The Pity Party: A Mean-Spirited Diatribe Against Liberal Compassion (Broadside Books).