Mid-Term Paper: The Constitution That Is Undemocratic

Mid-Term Paper: The Constitution that is Undemocratic

The Constitution, as the supreme law of the land, has been considered the cornerstone document of the American Republic. However, many argued on the democratic context of the Constitution, from how the institutional forces have changed, been interpreted, and the methods it has formally modified. Radical writers such as Sanford Levinson, writes in "Our Undemocratic Constitution", that the constitutional institution are undemocratic and calls for a Constitutional convention that will lead to a referendum. Therefore, we will see several opinions by writers about the controversies the constitution represents.

The biggest fear involved with having a democracy as a system of government is that "passions, therefore, not the reasons, of the public would sit in judgment" (Levinson, 19). This was the reason, according to James Madison, why not having a pure democratic constitution was an essential part in establishing the United States of America. This view is similar to Martin Diamond's claim that "the problem of democracy was its dangerous propensities to folly, feebleness, and tyranny" (Diamond, 10). In his "Founding of the Democratic Republic", Diamond tries to influence his audience that even though the system we have now is in no way, shape or form perfect it is good because if the people have more direct access to power "passions" would rule. By the constitution establishing a spirit of democracy, Diamond believes that it has filled a large enough purpose. His main argument is that when the Declaration of Independence was written it did not prescribe democracy as a solution to problems that the colonist has with the English Empire. He goes on to state that "its job [...] [was] to rally the colonist and indeed the world to the American struggle for independence by declaring the principles which animated the struggle" (Diamond, 7). Indeed, the document did accomplish that task.

Diamonds argument would indeed be supported by James Madison because he has stated in his "Federalist Number 10" that one of the promises of "a well constructed Union [...] [is] its tendency to break and control the violence of factions" (Madison, 122). This statement reflects Madison's belief that when making the Constitution that leaders should try to make a document that limits democracy in order to protect democracy. Madison does not trust people, especially those in power because he believes that in their nature they are greedy. His distrust for man is exemplified when he states that "no man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment" (Madison, 124). So when making a Constitution, it is obvious that this Founding Father was strictly opposed to pure democracy.

In contrast, Akhil Reed Amar, believes that the fundamentals of the constitution are democratic because "the truth is, that in our governments, the supreme, absolute, and uncontrollable powers remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions" (Amar, 98). When stating this, Amar is simply saying that the people, not the legislature are in the end more superior because it is from them that their power is derived. In short, Amar argues that it would be perfectly constitutional for the people to come together and change the constitution because of the majority principles that where established when the states made their own individual constitutions. He continues to state that "Article V presupposes this background right of the People, and does nothing to interfere with it. It merely specifies how ordinary government can amend the Constitution without recurring to the people themselves, the true and sovereign source of all lawful power" (Amar, 91).

The institutional changes that have occurred in our constitution, presumably the negative changes, are prescribed by Kenneth M. Dolbeare and Linda Medcalf. In "The Dark Side of the Constitution" the authors claim that the Constitution is undemocratic, it undermines civic virtues, and it discourages public participation (Dolbeare, Medcalf 121). The authors claim that Alexander Hamilton is the culprit behind this dysfunction in today's government. The Reason being that the Founding Fathers decided to build "upon the dark side of the Constitution, [there] property-protecting provisions and fear of democracy" helped Hamilton succeed "in almost completely removing the substance of public policy from popular hands" (Dolbeare, Medcalf 121). Though Hamilton succeeded in making America financially credible and progressive in other economic goal, he did so by making the government severely centralized. Hamilton's plan eventually made the country unable to meet the needs of the people because it made political involvement extremely difficult, primarily because the financial system "enriched the wealthy while putting the burden on the working and later the middle class" (Dolbeare, Medcalf 138). The authors go on to express that this is in turn makes the legal profession a policy making group that makes their mark on the United States by implementing policies through the Courts.

In opposition to Dolbeare and Medcalf, Stephen M. Griffin expresses his own belief that most change in the constitution have not come from judicial interpretation or through