A people and government that can’t be ruled
When asked what kind of government the Constitution created, Benjamin Franklin responded, “A Republic, if you can keep it.” Franklin—the founding father of American aphorisms—did not think the Constitution was perfect. But he believed it was as close to perfection as possible at the time. Franklin also appreciated that the Constitution’s future success depended upon the American people. He argued that the Republic it created was not guaranteed to remain free forever and would become despotic “when the People shall become so corrupted as to need Despotic Government.”
President Joe Biden invoked Franklin—and his famous aphorism—to explain why he decided not to seek a second term in the White House. “America,” Biden argued, “is at an inflection point.” After more than two hundred years of imperfect success, the president contended that the Republic is now on the cusp of despotism. Biden justified his decision by arguing that stepping aside could help the Republic remain free. And he was willing to give up an office he revered if it meant saving a country he loved.
Channeling Franklin, Biden appealed to the American people to champion the Constitution and defend the Republic it created from would-be despots. He called on them to help Democrats defeat former President Donald Trump by rallying behind the candidacy of Kamala Harris—his vice president and the party’s presumptive nominee—ahead of November’s election. Biden reassured the people that it was ultimately up to them to “choose the course of America’s future.” He reminded his audience that “the great thing about America is here kings and dictators do not rule. The people do.”
But no one rules America, not even a majority of its people. That’s what makes America exceptional. For the first time in human history, Franklin and his fellow delegates to the Constitutional Convention cracked the code of freedom. They figured out how to design a free government to make it very hard for would-be rulers to turn it into a despotic one. They created interlocking institutions where Americans—or their elected representatives—can perpetually govern themselves.
Americans figured out how to crack the code of freedom through trial and error. Long before they declared their independence, Americans knew what it was like to be free. They had governed themselves for generations before Great Britain asserted its explicit right to rule them after the French and Indian War. As John Adams noted, the American Revolution occurred in “the Minds and Hearts of the People,” long before the outbreak of the Revolutionary War.
While Americans imbibed a deep-seated antipathy towards kingly rule during the revolutionary struggle, they had not yet figured out how to prevent the people from stepping into the shoes of the crown and ruling in its stead. After winning their independence, Americans inadvertently created the perfect conditions for a different kind of rule to flourish—majority rule. They created powerful state governments dominated by popularly elected assemblies, which, in turn, created a weak federal government under the states’ control. This arrangement left popular majorities free to violate the rights of the minority in each state. Those majorities quickly brushed aside requests from the federal government for money. And they freely ignored federal law and international treaties when doing so was in their interests. When confronted with the unjust consequences of majority rule, some minorities (like Daniel Shays’ downtrodden farmers) turned to violence instead of politics to achieve their goals.
Whatever Biden may say, the Constitution was designed to solve the problem of majority rule. The delegates who wrote it did not distinguish between the rule of kings and the rule of the people. Both were despots. The Constitution’s leading intellectual architect, James Madison, sums up in Federalist 47 how he and his fellow delegates understood the concept of rule. “The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective,” Madison observed, “may justly be pronounced the very definition of tyranny.”
The Constitution solved the problem of majority rule by empowering the federal government vis-a-vis the states while simultaneously restructuring it so that it was safe to empower in the first place. This institutional solution was needed because, as Madison writes in Federalist 48, “a mere demarcation on parchment of the constitutional limits” of the federal government “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”
Therefore, the Constitution’s institutional structure should be understood as preventing the sovereign—or the people—from ruling without creating a new sovereign to rule them. As Madison argues in Federalist 51, the Constitution’s institutions were essential in preventing the people from ruling. “A dependence on the people is, no doubt, the primary control on the government,” Madison observed, “but experience has taught mankind the necessity of auxiliary precautions.” The auxiliary precautions in the Constitution are its separation of powers doctrine and its complex system of checks and balances. These institutional arrangements prevent the people—or anyone else—from ruling.
If America is on the cusp of despotism, as Biden claims, it is because a majority of its people agree with him that they should rule.
Fortunately for Americans, Franklin, Madison, and their fellow delegates to the Constitutional Convention designed a government that couldn’t be ruled. They did so because they understood that self-government requires a space where free people can govern themselves. The Constitution’s genius is that it, of all the founding charters in human history, created that space.
If the Constitution empowered the people to rule, as Biden claims, it would be appropriate for all Americans to recall Madison’s contention in Federalist 47. “Were the federal Constitution, therefore, really chargeable with the accumulation of power,” in the hands of rulers constituting a minority or majority of Americans, “no further arguments would be necessary to inspire a universal reprobation of the system.”
James Wallner is a senior fellow at the R Street Institute, where he writes about the theory and practice of democratic politics. His research focuses on the separation of powers, Congress, political parties, and the federal policy process. He also serves as a Lecturer in the Department of Political Science at Clemson University.
