Washington, IL. In these incoherent times, it is fitting that a group of unelected justices imposing its moral predilections on the people would be considered vital to the preservation of democracy. Or to frame that differently, it is fitting that a group of unelected justices returning the weighty and vexed questions surrounding abortion to the people so that they and their representatives—and not those unelected justices—might resolve them would be deemed deleterious to democracy. Such incongruent positions ought to give pause to those who espouse them. But in a day when it is customary for logic and reason to bow before the indignation of the righteous, pause of the sort that such incongruities invite is not likely to be given. For those who still believe in the value of discourse and remain committed to reason, there is an obligation to invite it, however futile the overture may be.

With the sort of histrionic fanfare befitting ancient Greek women who rent their clothes and hair in times of sorrow and distress, there has been much lamentation of late regarding the death of democracy. Grounds for being concerned about the current state of the Union undeniably abound, but the demise of democracy is not one of them, if only because in essence, America is not, nor ever has been, a democracy. It is not a demand for semantic fidelity that occasions this assertion. Those who framed and constituted the government of these United States—a framework and Constitution that to this day endure, however warped by time and sentiment they may be—harbored a latent distrust of democracy. This distrust was not the outgrowth of privilege and elitism as today’s fashionable revisionists would have it, but rather stemmed from a broad knowledge of history and a penetrating grasp of the nature of those beings that engender it.

The Framers’ understanding of human nature owed more to Hobbes and Locke than it did to Rousseau and his progeny. Humans were not blank slates upon which one could inscribe whatever one wills. In man, there was something stubborn that refused to bend. Humans may not have been the belligerent malefactors that Hobbes portrayed them as in the state of nature, but there still inhered in people an inveterate tendency to come into conflict with one another—a verity history continues to hammer home with unremitting regularity. This is because humans are apt to subordinate reason to passion and to sacrifice the welfare of others and the community as a whole in the pursuit of their perceived interests. Accordingly, democracies are ill-suited to combat or check these pernicious proclivities, for in any state in which the people rule, “a common passion or interest will, in almost every case, be felt by a majority of the whole.” With neither external nor internal constraints to inhibit their inclinations, the people will not hesitate to persecute and destroy those who defy them. The result is that “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” This propensity to subordinate reason to passion is so deep-rooted that even a democracy of sages would devolve into a democracy of knaves, for “in all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

To be fair, with regard to the Framers’ outlook on democracy, a few choice quotes culled from the Federalist Papers hardly is dispositive. The Framers were a motley crew, with varied and competing ideas and interests. But it does not follow from this that a representative view is beyond reach. For one, the Federalist Papers is not a desultory collection of essays penned by some marginal players at the time of the Founding. Clearly Madison, and especially Hamilton, did not see eye to eye with each of the other Framers; but their defense of the Constitution was so thorough and cogent that even Jefferson, whose hatred of Hamilton was ardent and abiding (and reciprocated), regarded the Federalist as being “an Authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed and of those who accepted the Constitution of the United States, on questions as to its genuine meaning.”

What is more, the principles of the Framers can be gleaned from those principles that did not prevail. Though an even more motley bunch than the Framers, the Anti-Federalists consistently advanced ideas that accorded much more with democracy. While they conceded the infeasibility of establishing a direct or pure democracy, they advocated a system that more closely approximated it. As Federal Farmer commented, “[one of the] essential parts of free and good government is full and equal representation of the people in the legislature… a full and equal representation [being] that which possesses the same interests, feelings, opinions, and views the people themselves would were they all assembled.” In the words of Herbert Storing, what the Anti-Federalists longed for was “a society in which there are no extremes of wealth, influence, education, or anything else—the homogeneity of a moderate, simple, sturdy, and virtuous people.” (As a relevant aside, it is worth noting that democracy and diversity do not complement each other as neatly as contemporary purveyors of each let on. What democracy demands is not heterogeneity but homogeneity, for it is undone by factionalism in the absence of conformity. With their commitment to ideological purity and intolerance for the heterodoxies that threaten it, today’s purveyors of democracy betray their true ambitions.)

But the musings of contemporaneous commentators aside, an estimation of democracy can be deduced from what the founding documents say and, for that matter, do not say. What the Constitution says, indeed, what it guarantees, is that every state in the Union shall have a Republican form of government. What exactly that entails has been a source of some contention and consternation, but it is notable that the form of government guaranteed by the Constitution is Republican and not Democratic. Were the latter form guaranteed, the document would be incoherent and self-negating, for there are a number of constitutional provisions that are by their very nature undemocratic. Suffice it to point to the method of electing presidents (via electoral votes rather than popular ones); the Senate (which, by giving equal power to small and big states, assures an unequal representation); and an independent judiciary armed with the power of judicial review (which allows unelected judges to nullify duly enacted laws passed by the people’s representatives). While each of those components is concordant with a republican form of government, none is with a democratic one. Hence the impatience of those who loudly lament democracy’s ostensible death to do away with or otherwise substantially modify each of these.

So much for what the Constitution says. But what is does not say is no less illuminating. As Clarence E. Manion, the erstwhile Dean of Notre Dame Law School, observed:

The honest and serious students of American history will recall that our Founding Fathers managed to write both the Declaration of Independence and the Constitution of the United States without using the term ‘democracy’ even once…. Such men as John Adams, Madison, Hamilton, Jefferson and others who were most influential in the institution and formation of our government refer to ‘democracy’ only to distinguish it sharply from the republican form of our American Constitutional System.

None of this is to suggest that the American republic is not democratic. To characterize a republic thus is no redundancy, for an aristocratic republic is not a contradictio in terminis, as the ancient examples of Rome and Sparta and modern cases of Venice and Geneva attest. Both Machiavelli and Montesquieu meditated on the distinction between democratic and aristocratic republics, and presumably that distinction was not lost on the Framers, even if Madison glosses over it in Federalist 39. As to which direction the American republic inclines, there can be no doubt. It is the essence of that republic that power is “derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it.” It was no mere rhetorical flourish when Lincoln, whose understanding of and reverence for the Framers ran deep, proclaimed that the great task that stood before the living—not just of his day, but for generations to come—was to ensure “that government of the people, by the people, for the people, shall not perish from the earth.” But if the democratic character of the republic is beyond dispute, it should be no less plain that America is, constitutionally, a republic and not a democracy.

America’s republican character was rooted in the Framers’ conviction that democracy would be insalubrious for securing the end that they sought. That end—let it never be forgotten—was liberty, not equality (the default aim of leftist revolutions the world over). This truth is not meant to detract from the self-evident truths posited in the Declaration’s preamble, but it should be lost on no one that the Declaration was one of independence, not equality. It should be no less evident that per its own preamble, the Constitution was ordained and established to secure the blessings of liberty, not equality (if such blessing there be). If the question that animated the Founders in 1776 was how to gain or regain liberty, the question that animated them a decade later was how best to preserve it. A decade of war and internecine discord had taught the Framers important lessons, not the least of which was that the liberty of the people will remain insecure so long as the will of the sovereign remains unrestrained, regardless of whether that sovereign is composed of one or many. In 1776, the threat to liberty came from an intractable king; in 1787, the growing threat came, in large part, from a recalcitrant populace.

The Framers navigated the fledgling nation past the Scylla of monarchy and Charybdis of democracy by establishing a regime that was designed to drift too close to neither: A republic that rests on the will of the majority but restrains that will lest it transgress the rights and freedoms of those who do not count themselves members of it. Of the checks on democracy that were adumbrated above, the judiciary is arguably the most instrumental in forestalling tyranny, whether it be that of the majority or of a minority. It is the Court’s job to defend the rights of individuals when outside forces contrive to contravene them—a delicate job, to be sure, one that, in the interest of safeguarding popular government, requires that the Court be prepared to oppose the popular will.

All of this makes the reaction to Dobbs so curious and revealing, for what the Court in effect did was cede its authority and restore it to the people and their elected representatives. Far from being a subversion of democracy, an arbitrary exercise of will rather than a judicious display of judgment, the decision is an affirmation of the republic’s democratic spirit, one that honors Lincoln’s exhortation to keep popular government from being consigned to the dust heap of history.

Those who maintain that the decision signifies a dereliction of duty insofar as the Court declined to protect a basic right of women fail to appreciate that the contested right is not the sort that the Court should be protecting. That is, the right to an abortion is neither a constitutional right nor a fundamental one. As Justice Alito notes, “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” Moreover, unlike, say, marriage, the right to abortion is not fundamental, in the sense of being deeply rooted in the nation’s history and traditions. The Constitution makes no mention of marriage, but the right to enter into it is so longstanding and elemental that any effort to restrict it is inescapably suspect. The same cannot be said of abortion. Indeed, the more enduring right in the nation’s history has been to regulate it, not exercise it.

A right to abortion can, of course, be given to women, just as a right to maternity leave can, but it is not the Court’s place to give it. The Court’s job is to safeguard rights that exist, not constitutionalize those that do not. That is the nub of Justice Thomas’s concurring opinion in Dobbs, a concurrence that raised many hackles and spurred a spate of racist vitriol from those who see racism everywhere they look save for in the mirror. What was Thomas’s originalist sin, which brought upon his head the ire of the righteous? He argued that substantive due process is a farce, an oxymoron that has no basis in the Constitution and that it should be eliminated from the Court’s “jurisprudence at the earliest opportunity.”

It is doubtful that many of those who demeaned Thomas comprehend what substantive due process is. In those acrimonious minds, Thomas’s offense was to invite the Court to reconsider its other (modern) substantive due process precedents, including those involving the right to contraception (Griswold v. Connecticut), the right to engage in sodomy (Lawrence v. Texas), and the right to same-sex marriage (Obergefell v. Hodges). That those who traduced Thomas failed to follow his reasoning is suggested by the repeated mentions of a right that Thomas did not adduce for reconsideration, namely a right to interracial marriage (Loving v. Virginia)—a right that strikes close to Thomas’s own home.

But Loving is not a substantive due process precedent, or at least not primarily one. When the Court struck down Virginia’s anti-miscegenation laws (and by extension, those of fifteen other states), it did so not on the grounds that a right to marriage was so fundamental that it could not be infringed on, but that the infringement in question amounted to an invidious discrimination. In this putative age of tolerance, discrimination inevitably carries with it a negative connotation, so it is worth stressing that laws and policies by their very nature discriminate. Visual acuity requirements for drivers’ licenses discriminate against the hard of seeing. Selective Service obligations discriminate against men (by exempting women from meeting them). A progressive income tax discriminates against the rich (by requiring them to fork over a greater percentage of their income). In discrimination cases, it is not discrimination that is intolerable, but invidious discrimination, that is, discrimination that is malicious or hostile to a particular group of people.

There can be no doubt that a law that forbids interracial marriage fits that bill. It is bigotry and bigotry alone that gave rise to such laws. Under the Equal Protection Clause, in which “lies the principle that the Government must treat citizens as individuals, and not as members of racial, ethnic or religious groups,” such laws were destined to perish. But it should be no less obvious that a law that prohibits abortion does not fit that bill. There is no bigotry in play. Laws designed to protect the life of the unborn child do not maliciously target women because they are women, but because the reality is, or until recently was, that they alone bear children.

Roe, unlike Loving, required the fabrication of a constitutional right in order to abrogate existing laws. And so too with the other substantive due process precedents. With respect to Obergefell, the most consequential of those post-Roe precedents, laws that limited marriage to one man and one woman did not invidiously discriminate against two people of the same sex any more than they did against three or four or more people, whatever their sex(es). The fact is that prior to the twenty-first century, marriage was by definition the union of one man and one woman (in the West at least). This conception of marriage did not result from any hostility or malice towards homosexual or polyamorous persons (though no doubt such hostility and malice did exist and does still), but from the procreative nature of the marriage union and the civilizational (and civilizing) part it played.

The argument is not being made for or against abortion or same-sex marriage. (Those lines of argument fall outside the lines of this essay). The point is that rights that are not explicitly guaranteed by the Constitution or reasonably inferable from it (e.g., via the Privileges and Immunities Clause) are not the Court’s to conjure up. What gets lost in the knee-jerk reactions to Dobbs is that the Court did not outlaw abortion. It simply said that the issue is for states to address. If a state wants to permit abortion on demand into the third trimester, that is its prerogative. Likewise, if a state wants to sanction bigamy, presumably it would be within its power to do so. But as the Constitution is silent on such matters, they are for the people and their representatives to decide, not the unaccountable members of the Court.

In this regard, it would behoove the knee-jerk reactionaries to consider Thomas’s very brief dissent in Lawrence. Thomas, harking back to Justice Stewart’s dissent in Griswold, commented that the challenged law, which made it a crime for two persons of the same sex to engage in sodomy, was “uncommonly silly” and that were he a member of the Texas legislature, he would vote to repeal it. But uncommonly silly laws are not unconstitutional ones. And being a member of the judicial branch and not the legislative one, his job is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” To strike down laws, however silly, that were otherwise constitutional would amount to a breach of trust and usurpation of power. A jurisprudence that sanctions that usurpation gives to an unelected elite the power to make decisions that should be resolved by the people themselves and in so doing, makes a mockery of America’s experiment in self-government.

A court decision that returns to the people the power to decide the pressing questions of the day could be considered fatal to democracy only in an age as Orwellian as this one, when doublethink routinely masquerades as rational thought. That proponents of democracy would prefer an unelected elite to settle these matters is a timely reminder of a timeless truth, one grasped by thinkers from Plato to Tocqueville, including, of course, those who framed this republic: the line that separates democracy from tyranny is always tenuous.

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1 COMMENT

  1. I found myself nodding enthusiastically with Prof Eisenberg’s excellent presentation about the nature of American democracy until a strange fracture occurred in paragraph 5. The quote from Federal Farmer’s long 1787 letter explictly refers to “full and equal representation” in terms of “interests, feelings, opinions, and views” that mirror their proportions in the populace. Somehow this was followed by a non-sequitur quote from Herbert Storing about “no extremes” and homogeneity.

    Further, David’s long parenthetical comment appears to be a partial truth that confuses necessary and sufficient, like the triumphalist 1988 assertion that “democracies are characterized by the peaceful transition of power”. In fact, monarchies ideally are characterized by that type of transition as well. Similarly, homogeneity is certainly demanded by autocracies (e.g., People’s Republic of China with its unchallengeable lockdowns) — democracies also may “demand” homogeneity in the sense of an agreement to follow laws that an individual or group doesn’t like, but those laws are ideally hammered out by compromise and coordination among heterogenous representatives.

    I do agree with David’s review of the distinction between democracy and republic, a cliche I recall from childhood more than half a century ago. As he explains clearly, a republic is not necessarily democratic (i.e., based on elections) — he names aristocratic ones from western history, but there are plenty of examples from other times and places. Sun Yat Sen’s republic included representatives of various occupations, such as farmer or blacksmith. During the Suharto regime, Indonesia’s parliament included unelected representatives from branches of the military as well as from major religions.

    However, I found his essay drifting further from my own views when I read his assertion that “the Declaration was one of independence, not equality.” I’m baffled that this literalist interpretation appears at the end of a sentence that refers to “self-evident truths”, the most prominent of which is “all men are created equal”. The Declaration (which officially titles itself “unanimous”) treats this truth as axiomatic in order to focus on derivative concepts like liberty.

    In regard to Roe v Wade, staunchly feminist Justice Ruth Ginsburg anticipated Dobbs in a 2013 speech she gave to the University of Chiago Law School, where she noted that the legality of abortion should have been a decision for state legislatures:
    https://www.abajournal.com/news/article/ginsburg_expands_on_her_disenchantment_with_roe_v._wade_legacy

    It is worth reading the original SCOTUS decision, about 20 pages long and admirably full of historical overview:
    https://caselaw.findlaw.com/us-supreme-court/410/113.html

    Important context involves the expansion of the notion of privacy in SCOTUS decisions that were often led by Justice William Douglas, such as Griswold v Connecticut in 1965 (noted by David). Along these lines, it seemed logical (and historically accurate) that forbidding a woman from aborting herself in the privacy of her own home was basically unenforceable — who could gainsay her claim that she’d had a miscarriage? As noted in the text of Roe, during times and places where abortion was outlawed, it was the provider who was usually brought to trial, not the pregnant woman.

    Returning to David’s main thesis, I agree that democracy (and in recent decades, “direct democracy” via the entire electorate voting on key decisions via presumably secure software) is often construed in a way that could lead to tyranny of the majority. If you think the Senate filibuster rule is outmoded (as I once did), consider the mirroring of democracy in student councils, which you may have participated in during high school and/or college. Should a cohort of people who “exist” as an electorate or elected body in an institution for only 4 or 6 years have the right to determine regulations that will persist long after they are gone from the scene? The ephemeral nature of such a quasi-government suggests otherwise. Conversely, shrill insistence on *stare decisis* regarding Roe was ironically anti-diversity: would those same protesters prefer to preserve other key SCOTUS decisions such as Dred Scott or Plessy v Ferguson?

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