American Democracy in Context. Joseph A. Pika
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52 provisions of the law.56
Consequences for Democracy
Drawing on John Locke’s idea of the social contract, Americans embraced a written constitution to delineate the powers of government and the rights of its citizens. In contrast, Great Britain had an “unwritten” constitution that consisted of some written documents (such as the English Bill of Rights and Acts of Parliament) but also unwritten parliamentary conventions and royal prerogatives. Americans did not believe Britain’s more amorphous constitution had done enough to protect the rights of its citizens, in part because Parliament could alter the constitution through simple legislation. The fact that we have a written constitution embodying a republican form of government designed to protect individual liberty and to prevent concentrations of power in government is, in no small measure, a direct outgrowth of the history and influences discussed in this chapter.
Today, written constitutions (largely based on the U.S. example) are the norm. Unwritten constitutions, such as those in the United Kingdom, Israel, and New Zealand, are now the exception. Yet the success of our Constitution depends not only on the strength and flexibility of its own structure but also on the convergence of other less-definable factors, including timing and luck, coupled with an underlying commitment to the rule of law. This makes it more difficult to determine how, when, or even whether the success of the U.S. Constitution can be duplicated in other countries.
We tend to take the success of our system of government for granted and forget that its structure was not preordained. As we have seen, the framers of the Constitution had fundamentally different views on many issues. Many aspects of our government could have been different if competing arguments had won at the Constitutional Convention, state ratifying conventions, or any number of other points in our history.
For example, think of how things might have been different if the United States had not approved a written Constitution and embraced judicial review as a mechanism to enforce it. We could have survived—and probably survived quite well—without either of them (the United Kingdom has), but the consequences to you and our democratic system would have been quite profound. We will see in future chapters how much judicial review touches all of our lives. School desegregation, abortion rights, and free speech protections—to name just a few things shaped by judicial review—would have had to come from political action rather than the courts. That means that some of the rights you now expect might have been delayed or never even granted. But it also means that politicians would have had to confront some issues on which they now defer to courts. The result would have been a system worse in some ways and perhaps better in others, but the result would have had a direct impact on your life.
As a final cautionary note, it is worth remembering that at the end of the day, the words of the Constitution are not enough to guarantee either liberty or the rule of law. Those words must be enforced. Many governments—including dictatorial regimes—have had constitutions with lofty but often meaningless language protecting basic rights. Even in our own country, African Americans were denied fundamental rights, such as the ability to vote, long after the Thirteenth Amendment to the Constitution had abolished slavery, the Fourteenth Amendment guaranteed the equal protection of the laws, and the Fifteenth Amendment proclaimed that the right to vote would not be abridged because of race, color, or previous condition of servitude. As the great twentieth-century American judge Learned Hand once wrote: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”57
Critical Thinking Questions
1 Constitution making often takes place in crisis-laden, post-conflict situations that provide disincentives to cooperation and make the creation of a successful constitution difficult. Remember that the first attempt to create a constitution for the United States—the Articles of Confederation—failed. What factors account for the successful drafting and ratification of the subsequent U.S. Constitution?
2 Imagine if round-the-clock cable news networks, attack ads, and the Internet had existed when our Constitution was written and ratified. How might they have changed the process? Would it have been harder for James Madison to prevail over Patrick Henry in today’s media environment? Why or why not?
3 Identify ways in which the original Constitution was undemocratic. Assess the strengths and weaknesses of those provisions. How have amendments made the Constitution more democratic? What undemocratic features remain? Should any of these remaining features be altered or abolished? If so, which ones, and how?
4 Think about the four core principles of the Constitution discussed in this chapter: republicanism, federalism, separation of powers, and checks and balances. Each influences the way government operates and the policies it enacts. Now think about a policy issue that is important to you—for example, education, health care reform, or the legalization of marijuana—and assess how each of these principles affects the development and implementation of that policy.
Key Terms
Anti-Federalists 43
Articles of Confederation 31
checks and balances 40
confederation 31
coordinate construction 48
Declaration of Independence 30
enumerated powers 41
Federalist Papers 44
Federalists 43
Great Compromise 37
implied powers 42
New Jersey Plan 36
republicanism 39
separation of powers 40
Shays’ Rebellion 33
social contract 30
Stamp Act Congress 27
supremacy clause 40
Three-Fifths Compromise 36
Virginia Plan 35
Descriptions of Images and Figures
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The details in the card are as follows.
Kansas City, Missouri Police Department
Adult Miranda Warning
1. You have the right to remain silent.
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
Adult Waiver
After the warning and in order to secure a waiver the following questions should be asked and an affirmative reply secured to each question.
1. Do you understand each of these rights I have explained to you?
2. Having these rights in mind, do you wish to talk to us now?
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Revere’s engraving of the Boston Massacre shows a row of armed men firing on the right and a few men lying dead on the street to the left. Another man who is wounded is being carried away by others. A few women are also shown standing behind them, one of whom is wringing her hands. A man is shown standing with his hand in his pocket looking to the side. A dog is standing in front looking at the soldiers firing. Most of the civilians are dressed in breeches, coat, waistcoat,