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The Constitution Won’t Save American Democracy

The US Constitution will not save American democracy from the depredations of President Donald Trump. Only American society, which has always been more democratic than the country's founders, can do that.

CAMBRIDGE – Revelations that a whistleblower from the intelligence community has accused US President Donald Trump of making inappropriate promises to a foreign leader have reignited the hopes that recently hung on the report of Special Counsel Robert Mueller. Many of those exasperated with Trump’s norm-violating, truth-bending, and polarizing presidency had believed that the system would somehow discipline, restrain, or remove him. Yet these hopes were misguided then, and they are misguided now.

The majority of voters who are fed up with Trump and the Republican Party that has loyally fallen behind him should not look to Washington insiders or a white knight to hold Trump accountable. That is society’s responsibility, first and foremost at the ballot box, and by protesting in the streets if necessary.

The conceit that the United States can be saved by Washington insiders and the Constitution is part of a common narrative about the origins of American institutions. According to this narrative, Americans owe their democracy and freedoms to founders’ brilliant, foresighted design of a system with the right types of checks and balances, separation of powers, and other safeguards.

As we explain in our new book, The Narrow Corridor: States, Societies, and the Fate of Liberty, this is not how democratic institutions and freedoms come about. Rather, they emerge and are protected by society’s mobilization, its assertiveness, and its willingness to use the ballot box when it can and the streets when it cannot. The US is no exception.

The US founders, like the economic and intellectual elites in Britain at the time, strove to develop laws and institutions that would support a strong, capable state under the control of like-minded rulers. Several of them viewed a monarchy of sorts as the best arrangement.

The US Constitution, written in 1787, reflected these preconceptions. It did not include a bill of rights and enshrined many non-democratic elements. This was not an oversight. The founders’ main objective was to calm the rising democratic fervor among common Americans and bring to heel state legislatures, which had been empowered by the Constitution’s predecessor, the Articles of Confederation.

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In the aftermath of the War of Independence, many people, smitten by the new liberties they had been promised, were intent on actively participating in policymaking. The states were responding to popular pressure, forgiving debts, printing money, and raising taxes. Their profligacy and autonomy struck many of the founders, especially James Madison, Alexander Hamilton, and George Washington, as subversive. The Constitution they drafted was meant not only to manage national economic policy and defense, but also to put the democratic genie back into its bottle.

Madison emphasized this eloquently: “you must first enable the government to control the governed; and in the next place oblige it to control itself.” Indeed, the founders did not think it was a good idea for people to protest, elect their representatives directly, or become too involved in politics.

Likewise, Madison worried that, “An increase in the population will of necessity increase the proportion of those who will labor under all the hardships of life, & secretly sigh for a more equal distribution of the blessings. These may in time outnumber who are placed above the feelings of indigence.” The Constitution was meant to prevent the desire for “a more equal distribution of the blessings” from turning into actual policy.

One of the Constitution’s catalysts was Shays’ Rebellion in Western Massachusetts in 1786-87, when some 4,000 people took up arms in a protest led by a Revolutionary War veteran, Daniel Shays, in protest of severe economic hardship, heavy tax burdens, and political corruption. The federal government’s inability to finance and field an army to suppress the rebellion was a wake-up call: a stronger state was needed to contain and quell popular mobilization. The Constitution was meant to achieve this.

But that effort did not turn out entirely as planned. The founders’ state-building efforts were met with suspicion. Many feared the consequences of a powerful state, especially once the democratic impulse was rolled back. Calls for an explicit guarantee of people’s rights grew, and Madison himself started advocating a Bill of Rights to persuade his own state, Virginia, to ratify the Constitution. He subsequently ran for president on a pro-Bill of Rights ticket, arguing that it was necessary “to conciliate the minds of the people.”

The Constitution included its checks and balances and its separation of powers partly “to oblige [the government] to control itself.” But their primary purpose was not to make America more democratic and people’s rights more secure. In the founders’ vision, these institutional arrangements, including an elite, indirectly-elected Senate, were needed not to protect the people from the federal government, but to protect that government against excessive democratic zeal.

It should be no surprise, then, that at critical junctures of American history, democratic rights and liberties have been furthered not so much by the system’s safeguards against excessive democracy or by the Constitution’s brilliant design, but by popular mobilization.

For example, in the second half of the nineteenth century, when powerful tycoons, the “robber barons,” came to dominate America’s economy and politics, they weren’t reined in by the courts or Congress (on the contrary, they controlled these government branches). The robber barons and the institutions empowering them were held to account when people mobilized, organized, and managed to elect politicians promising to regulate the tycoons, level the economic playing field, and increase democratic participation by, for example, introducing direct election of senators.

Likewise, in the 1950s and 1960s, it wasn’t the separation of powers that finally broke the back of legal racism and repression in the US South. It was the work of protesters who organized, disrupted, and built a mass movement that forced federal institutions to act. President John F. Kennedy was finally persuaded to intervene and subsequently introduced the Civil Rights Act in response to the “Children’s Crusade” of May 2, 1963, hundreds of children were arrested in Birmingham, Alabama for taking part in protests. As Kennedy put it, “The events in Birmingham and elsewhere have so increased the cries for equality that no city or state or legislative body can prudently choose to ignore them.”

Today, too, only society’s mobilization can save the US in its hour of political turmoil and crisis. White knights or checks and balances cannot be relied on to do the job. And even if they could, anything other than a resounding defeat at the ballot box would leave Trump's supporters feeling wronged and cheated, and polarization would deepen. Worse, a precedent would be set for empowering elites to check elites, relegating society to greater passivity. In that case, what happens next time an unscrupulous leader does even worse than Trump and the elites do not come to the rescue?

From this perspective, Mueller’s greatest gift to US democracy was a report that refrained from triggering the impeachment process, but that laid bare the president’s mendacity, corruption, and crimes so that voters would mobilize to exercise their power and responsibility to replace bad leaders.

The Constitution will not save American democracy. It never has. Only American society can do that.

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