By: James A. Gardner
A basic design premise of the United States Constitution is that
the main constitutional mechanism for assuring good governance is
democratic accountability through elections. As Madison put
it, “[a] dependence on the people is, no doubt, the primary control
on the government.” These primary systems, when they work
properly, are expected to produce good government through the
installation in power of good rulers who will rule for the common
benefit of all. Democratic systems will thus produce “a
chosen body of citizens, whose wisdom may best discern the true
interest of their country and whose patriotism and love of justice
will be least likely to sacrifice it to temporary or partial
considerations.”
A second design premise of the Constitution, however, is that
the primary system may fail: “the effect may be
inverted. Men of factious tempers, of local prejudices, or of
sinister designs, may . . . first obtain the suffrages, and then
betray the interests of the people.” This possibility, along with
hard experience, “has taught mankind the necessity of auxiliary
precautions.” Consequently, the Constitution contains, in addition
to the primary mechanisms of democratic accountability, a set of
backup systems designed to limit the ability of bad rulers to do
serious harm to the public good. These backup systems include
the horizontal separation of powers, federalism, the protection of
specific individual liberties in the Bill of Rights, and an
independent judiciary.
A key premise of this kind of dual structural arrangement—and
the one I wish to examine in this paper—is that the function of
democracy consists mainly in the selection of officials. On
this model, democratic mechanisms provide system inputs in the form
of officials who either are good—wise, virtuous, patriotic—or
not. This input then gets fed into the governance mechanism,
producing good government in one of two ways. If the
democratic subsystem works well and the democratically chosen
officials are good, constitutional governance mechanisms produce
good governance affirmatively, by enabling well-selected officials
to take good actions purposefully, in accordance with their
character. If, on the other hand, the democratic subsystem
works poorly, and the democratically chosen officials are bad,
constitutional governance mechanisms still produce good governance
negatively (or at least negate the possibility of bad governance)
by operation of the backup system, which disables badly selected
officials from taking actions, again consistent with their
character, that are harmful to the public good.
I shall argue below that this view of the role of democracy in the
constitutional structure is too narrow, and that the effect of
democracy on the operation of constitutional systems cannot
plausibly be confined to those specific subsystems intended to
operate by overtly democratic means. Democracy is much more
powerful than this view gives it credit for: it is capable of
shaping the institutional environment in ways that affect the
operation not only of those systems designed to operate
democratically, but also the operation of systems, such as
structural backup mechanisms, that are designed to operate
independently of democratic influences. At least this has
been the case with the purportedly self-sustaining backup systems
of the U.S. Constitution, most notably the separation of powers,
which will be my focus here.