Lord Acton on the American Constitution

AT THE TIME of the utmost degradation of the Athenian democracy, when the commanders at Arginus~ were condemned by an unconstitutional decree, and Socrates alone upheld the sanctity of the law, the people, says Xenophon, cried out that it was monstrous to prevent them from doing whatever they pleased.! A few years later the archonship of Euclides witnessed the restoration of the old constitution, by which the liberty, though not the power, of Athens was revived and prolonged for ages; and the palladium of the new settlement was the provision that no decree of the council or of the people should be permitted to overrule any existing law.
The fate of every democracy, of every government based on the sovereignty of the people, depends on the choice it makes between these opposite principles, absolute power on the one hand, and on the other, the restraints of legality and the authority of tradition. It must stand or fall according to its choice, whether to give the supremacy to the law or to the will of the people; whether to constitute a moral association maintained by duty, or a physical one kept together can protect themselves only by setting bounds to the power of the majority; and to this the majority cannot be compelled, or consistently persuaded, to consent. It would be a surrender of the direct authority of the people, and of the principle that in every political community authority must be commensurate with power.
“Infirma minoris Vox cedat numeri, parvaque in parte quiescat.” “La pluralite,” says Pascal, “est la meilleure voie, parcequ’elle est visible, et qu’eue a la force pour se faire obeir; cependant c’est l’avis des moins habiles.” The minority can have no permanent security against the oppression of preponderating numbers, or against the government which these numbers control, and the moment will inevitably come when separation will be preferred to submission. When the classes which compose the majority and the minority are not defined with local distinctness, but are mingled together throughout the country, the remedy is found in emigration; and it was thus that many of the ancient Mediterranean states, and some of the chief American colonies, took their rise. But when the opposite interests are grouped together, so as to be separated not only politically but geographically, there will ensue a territorial disruption of the state, developed with a rapidity and certainty· proportione to the degree of local corporate organisation that exists in the community. It cannot, in the long run, be prevented by the majority, which is made up of many future, contingent minorities, all secretly sympathising with the seceders because they foresee a similar danger for themselves, and unwilling to compel them to remain, because they dread to perpetuate the tyranny of majorities. The strict principle of popular sovereignty must therefore lead to the destruction of the state that adopts it, unless it sacrifices itself by concession.
The greatest of all modern republics has given the most complete example of the truth of this law. The dispute between absolute and limited power, between centralisation and self-government, has been, like that between privilege by force. Republics offer, in this respect, a strict analogy with monarchies, which are also either absolute or organic, either governed by law, and therefore constitutional, or by a will which, being the source, cannot be the object of laws, and is therefore despotic. But in their mode of growth, in the direction in which they gravitate, they are directly contrary to each other. Democracy tends naturally to realise its principle, the sovereignty of the people, and to remove all limits and conditions of its exercise; whilst monarchy tends to surround itself with such conditions. In one instance force yields to right; in the other might prevails over law. The resistance of the king is gradually overcome by those who resist and seek to share his power; in a democracy the power is already in the hands of those who seek to subvert and to abolish the law. The process of subversion is consequently irresistible, and far more rapid.
They differ, therefore, not only in the direction, but in the principle of their development. The organisation of a constitutional monarchy is the work of opposing powers, interests, and opinions, by which the monarch is deprived of his exclusive authority, and the throne is surrounded with and guarded by political institutions. In a purely popular government this antagonism of forces does not exist, for all power is united in the same sovereign; subject and· citizen are one, and there is no external power that can enforce the surrender of a. part of the supreme authority, or establish a security against its abuse. The elements of organisation are wanting. If not obtained at starting, they will not naturally spring up. They have no germs in the system. Hence monarchy grows more free, in obedience to the laws of its existence, whilst democracy becomes more arbitrary. The people is induced less easily than the king to abdicate the plenitude of its power, because it has not only the right of might on its side, but that which comes from possession, and the absence of a prior claimant. The only antagonism that can arise is that of contending parties and interests in the sovereign community, .the condition of whose existence is that it should be homogeneous. These separate interest and prerogative in England, the substance of the constitutional history of the United States. This is the argument which confers on the whole period that intervenes between the convention of 1787 and the election of Mr. Davis in 1861 an almost epic unity. It is this problem that has supplied the impulse to the political progress of the United States, that underlies all the .great questions that have agitated theDnion, and bestows on them all their constitutional importance. It has recurred in many forms, but on each occasion the solution has failed, and the decision has been avoided. Hence the American .government is justly termed a system of compromises, that is to say, an inconsistent system. It is not founded, like the old governments of Europe, on tradition, nor on principles, like those which have followed the French Revolution; but on a series of mutual concessions, and momentary .suspensions of war between opposite principles, neither of which could prevail. Necessarily, as the country grew more populous, and the population more extended, as the various interests grew in importance, and the various parties in internal strength, as new regions, contrasting with each other in all things in which the influence of nature and the condition of society bear upon political life, were formed into states, the conflict grew into vaster proportions and greater intensity, each opinion became more stubborn and unyielding, compromise was more difficult, and the peril to the Union increased. Viewed in the light of recent events, the history of the American Republic is intelligible and singularly instructive. For the dissolution of the Union is no accidental or hasty or violent proceeding, but the normal and inevitable result of a long course of events, which trace their origin to the rise of the constitution itself. There we find the germs of the disunion that have taken seventy years to ripen, the beginning of an antagonism which constantly asserted itself and could never be reconciled, until the differences widened into a breach.
The convention which sat at Philadelphia in 1787, for the purpose of substituting a permanent constitution in the place of the confederacy, which had been formed to resist the arms of England, but which had broken down in the first years of peace, was not a very numerous body, but it included the most eminent men of America. It is astounding to observe the political wisdom, and still more the political foresight, which their deliberations exhibit. Franklin, indeed, appears to have been the only very foolish man among them, and his colleagues seem to have been aware of it. Washington presided, but he exercised very little influence upon the assembly, in which there were men who far exceeded him in intellectual power. Adams and Jefferson were in Europe, and the absence of the latter is conspicuous in the debates and in the remarkable work which issued from them. For it is a most striking thing that the views of pure democracy, which we are accustomed to associate with American politics, were almost entirely unrepresented in that convention. Far from being the product of a democratic revolution, and of an opposition to English institutions, the Constitution of the United States was the result of a powerful reaction against democracy, and in favour of the traditions of the mother country. On this point nearly all the leading statesmen were agreed, and no contradiction was given to such speeches as the following. Madison said: “In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard· to the maxim, that honesty is the best policy, is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals; in large numbers little is to be expected from it.”

 

[Editor’s note: this is from Acton’s classic, “Essays on Freedom”]