Of Insurrections and Republics: Considering the plausible constitutional theory behind Sec. 3 of the 14th Amend., as well as wrestling with whether January 6th was an insurrection & if Donald Trump offered aid & comfort to the same. (JUSTIN STAPLEY, JAN 19, 2024, The Freemen Newsl-etter)

Like most of the American founders, I strongly distrust pure democracy. As John Adams once wrote, “Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide. It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy.”

I view democracy from a very utilitarian perspective, in that democratic processes are indispensable to a functioning constitutional republic but no more indispensable, and arguably less indispensable, than other aspects of republicanism, such as meritocracy, the rule of law, liberty, etc. I’m, therefore, less inclined to herald democracy as a principle or ideal, one that holds value and virtue in and of itself. As the quote from Adams suggests, every majoritarian democracy in history has ended in tyranny. In such attempts, the unvarnished will of the people inevitably empowered demagogues who played off the anxieties of the people toward achieving unchecked power. That’s why the American founders crafted a republic, one with checks and balances upon every exercise of power, including the voice of the people.

We often think of constitutions as limits on governing power and protections for the rights of the people. And they are that. But in the broader context of constitutional theory, the function of a constitution extends to purposes conducive to wrestling with the realities of human nature. Consider that, in any form of representative government, a limit placed on governing authority is a limit placed on the majoritarian will of the people and that protections for rights and liberties are, once again, limits placed on what a political majority can do to a political minority. A constitution is nothing more and nothing less than a circumscription of power—all avenues and repositories of power, including the people themselves.

Clearly, the purpose of a constitution’s circumscription of power is not to enable the unvarnished voice of the people. The very idea of limited governance is counter to the idea of democracy as an unadulterated good. To the contrary, the basic theory of constitutional governance recognizes pure democracy as one of the great evils to be avoided and democratic processes as, to at least a certain extent, a necessary evil. Constitutional theory, then, is not dedicated to establishing democracy as its ultimate aim but utilizes democratic processes as an ingredient toward the ultimate aim of establishing and preserving the sovereignty of a people.

What is the sovereignty of a people? That can prove to be a complicated question to answer. But the easiest and most straightforward way to understand popular sovereignty is Abraham Lincoln’s conception of a government “of the people, by the people, for the people.” Under the concept of popular sovereignty, the people, as a whole and not simply a majority of the people, are the reservoir of ultimate and supreme power in society. The authority of any form of government under such a scheme derives from the consent of the governed (by the people), and its legitimacy is maintained through representation (of the people) whose responsibility is to provide for the common good (for the people).

While democratic processes help provide a framework that assures government of the people and by the people to a reasonable degree, history has demonstrated that democracy is ill-suited to provide the common good for all people in a society. The unavoidable development of factions, the inevitable spirit of party, and the inescapable shortfalls of majority rule all guarantee that the effects of pure democracy cannot ever be conducive toward the common good. There must be auxiliary precautions enshrined in a political compact, a constitution, that checks and balances majoritarian power if the common good of the people can even become a possibility. Further, even government of the people and by the people is impossible through majoritarian democracy, because, once again, we’re talking about all of the people, not simply government by whichever faction or interest can cobble together a 50+1 majority.

Sovereignty, not democracy, is the ultimate aim of constitutional governance, and sovereignty, as I’ve demonstrated above, is aided by democratic processes but only secured through a strong and well-constituted form of limited government. The sovereignty of a people relies upon a constitution that is maintained as the supreme law of the land and effectively checks and balances the exercise of all power, especially the power of majorities. And this is my crucial point: the sovereignty of a people is assaulted, rather than preserved, if the provisions of a constitution are discarded or defenestrated in the name of democracy.

The Right frets about liberalism lacking a “common good” but the requirement of republican liberty that laws be applied universally enforces one.