In his 1965 book E Pluribus Unum, Forrest McDonald marvels that “the American people – of all the world’s peoples the most materialistic and most vulgar and least disciplined – should have produced a governmental system adequate to check the very forces they unleashed.”Footnote ¹ It was, wrote McDonald, “the miracle of the age, and of the succeeding age, and of all ages to come.”Footnote ² The distinguished historian died a year and a day before Donald Trump’s first inauguration as President of the United States. After an intervening Biden administration replete with executive overreach and Trump’s even more assertive return to the White House in 2025, there can be little doubt that, were he alive today, McDonald would stick to his unflattering judgment of the American electorate. But would he still describe the American constitutional system as a miracle for our age, let alone all ages to come?

Looking at the experience of nations around the world, it is a miracle that a government instituted 237 years ago still stands. Notwithstanding Democrat claims that Trump was not the legitimate president in 2016 and Trump’s Don Quixote-like flailing after the 2020 election, it is a miracle that there have been forty-seven consecutive transitions of presidential power. It is a miracle that people arriving from every corner of the globe have united to sustain, and after the Civil War to restore, a vast and culturally diverse nation. It is a miracle that the government established by the Constitution has made significant, although unsteady, progress toward fulfilling the Declaration of Independence’s revolutionary promise of equal liberty for all.

But many in today’s America view our governmental system as anything but a miracle. They say “our democracy” is at risk, that the promise of the Declaration is a lie, that the Constitution secures white privilege at the expense of people of color, and that a constitution enacted for a horse-and-buggy society is ill suited to the globalized, warp-speed, twenty-first century.

A decade ago, Gordon Wood wrote, “Except for the era of the Civil War, the last several years of the 18th Century were the most politically contentious in United States history.”Footnote ³ Surely the third decade of the twenty-first century is giving those eighteenth-century combatants a run for their money. The divisive and often vindictive state of our politics lends credence to those who think McDonald’s miracle is actually a failed experiment.

Despite the present-day ease of communication and the associated opportunities for the exchange of ideas and experiences, Americans have segregated themselves into ideological tribes with disdain and even hatred for one another. Rather than relying on the twenty-four-hour news cycle and the instant communication afforded by the internet to avoid misunderstandings and build bridges, we have embraced the ideological fortresses of CNN, Fox News, MSNBC, and the ideological blogosphere while relying on the highly sophisticated algorithms of internet search engines to reach those with whom we agree and to insulate ourselves from ideas that might challenge our own beliefs. Making matters worse, according to a recent study by Harvard professors Jacob Brown and Ryan Enos, “[a] large proportion of voters live with virtually no exposure to voters of the other party in their residential environment.”Footnote ⁴

Federalism, the separation of powers, the Electoral College, equal representation of the states in the Senate, judicial review by unelected judges with life tenure, and even the Bill of Rights’ guarantees of free speech, religious freedom, property rights, due process, and other individual liberties have all been called into question by those frustrated with the national government’s perceived failure to right the wrongs of our history and address the challenges of the twenty-first century. Where the constitutional Founders viewed structure and rights guarantees as constraints on the hazards of democratic government, many today see the Framers’ constitutional design as a threat to democracy.

Present-day critics of the Constitution are not the first. From the beginning, the proposed Constitution was challenged by Anti-Federalists as undemocratic and a threat to the liberties of the people. A century later, the Progressives drew upon The Spirit of American Government by J. Allen SmithFootnote ⁵ and An Economic Interpretation of the Constitution of the United States by Charles A. BeardFootnote ⁶ in asserting that the Constitution was never intended to establish a democratic republic but rather “was written with the object of protecting the economic interests of a particular class.”Footnote ⁷ Although the Constitution as amended proved effective in advancing the nation toward the vision of equal liberty set forth in the Declaration of Independence, the new Progressives of the twenty-first century have embraced and amplified the late nineteenth- to early twentieth-century Progressive critique. For them, the Declaration is a lie, and the Constitution is not only classist but irredeemably racist, if only because both were written and signed by white men, many of whom were slave-owners.

Today’s critics also echo the early twentieth-century Progressives’ insistence that “[i]t was simply impossible for eighteenth-century man to address the needs of twentieth [now twenty-first] century man.”Footnote ⁸ Woodrow Wilson, destined to be the twenty-eighth president of the United States, wrote in 1885: “We are the first Americans to hear our own countrymen ask whether the Constitution is still adapted to serve the purposes for which it was intended.”Footnote ⁹ Wilson called for the replacement of the “political witchcraft” of the Constitution with the “expedients necessary to make self-government among us a straight-forward thing of simple method, single, unstinted power, and clear responsibility.”Footnote ¹⁰ From the perspective of today’s Progressives, the Electoral College, equal state representation in the Senate, and even the 1st Amendment guarantee of free speech are at the top of the list of “political witchcraft” embedded in the Constitution.

Over the course of the first Trump administration, Democrats repeatedly warned that our democracy is at risk, notwithstanding that Trump was elected in accordance with the constitutional process and that his efforts to expand the power of the executive, as with President Biden and previous presidents of both parties, were repeatedly checked by the courts. Democrats claimed that Russian interference, voter suppression, and Trump’s losing the popular vote made the 2016 election results illegitimate. Then, when Joe Biden was elected president, it was Republicans insisting that our democracy is threatened by voter fraud and corrupt election officials. Trump’s claim that the 2020 election was stolen still resonates with large numbers of people and influences the outcomes of Congressional elections. For both Democrats and Republicans, it seems, what threatens our democracy is their being on the losing side.

Among those who, like McDonald, see the Constitution of 1787 as a miracle in governmental design, there are many who attribute present-day governance challenges to our having compromised the Framers’ design through practice, interpretation, and amendment. Two amendments, the 14th and the 17th, made fundamental alterations to the Framers’ design. In the words of historian Eric Foner, the 14th (along with the 13th) Amendment created “a deeply modified federalism, which recognized the primacy of national citizenship and saw the states, not the national government, as most likely to infringe on Americans’ fundamental rights.”Footnote ¹¹ The 17th Amendment provided for popular election of United States senators, thus making them independent from the governments of the states they were meant to represent.

These amendments did transform the federal system, but larger modifications to the Framers’ design have come through executive and legislative assertion of powers not clearly recognized in the Constitution, and through judicial deference based on interpretive theories allowing for such modifications in the name of convenience or purported necessity. “By ignoring the Constitution,” wrote Ralph Rossum, “contemporary constitutional law ignores as well the questions and problematics of republican government for which the Constitution was an answer. It treats republican government as non problematic, and treats with contempt the very Constitution that makes it so.”Footnote ¹² Christopher Demuth, in a review of books by Jay Cost,Footnote ¹³ James L. Buckley,Footnote ¹⁴ and Charles Murray,Footnote ¹⁵ summarizes the three authors’ agreement that “[o]ver time, … [James] Madison’s system was undone by political ambition, popular democracy, and judicial fecklessness.”Footnote ¹⁶ Former US senator and university president Ben Sasse has suggested that if they came back to life, the Founding Fathers would “be stunned by the deformed structure of our government.”Footnote ¹⁷

It is possible, on the other hand, that at least some of the Framers’ constitutional remedies for the perils of a democratic republic were doomed to fail from the beginning. They had read about and experienced the failures of republican government, but theory as much as experience guided the solutions they devised. It would be miraculous if every element of their constitutional design proved as effective as their theories of governance promised.

1.1 A Republic (Not a Pure Democracy), if We Can Keep It

It is not surprising that some aspects of the Framers’ design are criticized today as undemocratic. As Felix Morley accurately, if controversially, observed sixty years ago: “The original Constitution was not merely undemocratic in principle. It also established undemocratic political institutions which have functioned in an undemocratic manner from the outset.”Footnote ¹⁸ In his influential book An Economic Interpretation of the Constitution, Charles Beard described the Constitution as the work of a conservative economic faction intent on advancing their own interests at the expense of the masses. As Leonard Levy puts it, Beard saw “an unrepresentative minority employing undemocratic means to protect personal property interests by establishing a central government responsive to their needs and able to thwart populistic majorities in the states.”Footnote ¹⁹

With Levy, I take a more generous view of the founding generation, both because Beard’s thesis has been persuasively countered by Forrest McDonald and others,Footnote ²⁰ and because the Framers were convincing in their commitment to popular sovereignty and in their struggle with the challenge of forming a viable government based on that commitment. If they were the self-interested aristocracy Beard described – a faction of the wealthy – it would not have taken four months of sometimes heated debate to formulate a plan, nor would they have submitted that plan to popular state conventions for ratification.

Foner has observed that the American Revolution “unleashed public debates and political struggles that democratized the concept of freedom.”Footnote ²¹ The concept of democracy implicit in Foner’s use of the term is that of the Declaration of Independence: “[T]hat all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”Footnote ²² It was and remains a statement of aspiration and an irreversible commitment to ongoing democratization of freedom including the right to vote. But it did not and does not translate into unrestricted democratic governance. Indeed, the Framers believed that restraints on democratic governance are necessary to the democratization of freedom. As Gordon Wood has observed: “Americans [after the Revolution] became so thoroughly democratic that much of the period’s political activity, beginning with the Constitution, was devoted to finding means and devises to tame that democracy.”Footnote ²³ As early as 1804, with the rise of the Jeffersonian Republicans, Alexander Hamilton doubted that they had succeeded. The night before his fatal duel with Aaron Burr, Hamilton told Theodore Sedgwick, then a justice on the Supreme Judicial Court of Massachusetts, that he saw “no relief to our real Disease; which is DEMOCRACY.”Footnote ²⁴

For the reasons recounted earlier, and as will be demonstrated throughout this book, the Framers did not establish a pure democracy but rather a representative democracy with limits – a democratic republic. Eric Posner calls it a “constitutional democracy,” by which he means “a form of government that gives political power to ordinary people while subjecting their exercise of that power to fairly rigid constitutional structures.”Footnote ²⁵

In addition to the several structural constraints noted previously, the founding generation sought to establish a democratic republic in which the views and demands of the people would be filtered through representatives. Elected representatives would be sensitive to the wishes of their constituents, but because those wishes would vary widely, representatives would be required to distill from competing and often passionately held convictions a position of moderation. The various structural constraints examined in this book would, the Framers theorized, assure that the opinions of individual representatives would be further distilled from the mix of the competing interests and understandings brought to the legislature by other representatives. Passions would give way to moderation as representatives worked together and with the other branches of government in a measured, deliberative process.

Yet much of today’s anguish about the state of our democracy reflects the widespread and seldom-questioned belief that the United States Constitution’s defining value is majoritarian democracy. Journalist Daniel Lazare, in his 1996 book The Frozen Republic, posits a fantastical scenario in which top government officials from all three branches of the government receive news that the state of California declares it will secede from the Union unless the United States Senate is reformed to allow for representation proportional to population. Lazare points out that “[o]ne rancher in Wyoming … has seventy-three times the clout in the Senate as a typical Californian threading his way through traffic.”Footnote ²⁶ Facing the prospect that Texas, New York, and other densely populated states would follow California’s lead, the government officials struggle to find a constitutional way to meet California’s demand.

Recognizing that Article V of the Constitution provides “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” and believing (probably wrongly) that the provision could not be amended even if three-fourths of the states agreed, the public officials in Lazare’s tale come up with a plan rationalized on James Madison’s explanation in Federalist 40 for why ratification of the Constitution by as few as nine states was not unconstitutional under the then governing Articles of Confederation (requiring unanimous agreement of the states for amendment). Madison “dismiss[ed] … without further observation” the objection as “the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth.”Footnote ²⁷ Lazare’s imagined public officials would conclude that allowing the Wyoming rancher seventy-three times the clout of every Californian was similarly absurd, and the Senate would be reformed without objection.

But as Lazare points out, the purported absurdity existed through the nineteenth and twentieth centuries, indeed from the founding. In 1790, a Delaware oysterman had twelve times the clout as every citizen of Virginia, and the Framers accepted that compromise with popular sovereignty as part of their scheme to control political factions. They accepted undemocratic, equal state representation in the Senate not as an absurdity but as necessary to establishing and maintaining an effective national government.

In his book Our Undemocratic Constitution, Sanford Levinson argues that the Constitution “does not deserve rote support from Americans who properly believe that majority rule, even if tempered by recognition of minority rights, is integral to ‘consent of the governed.’” He suggests five questions to be asked in assessing the “adequacy of today’s Constitution”:

• …[D]o you support giving Wyoming the same number of votes [in the Senate] as California …?

• Are you comfortable with an Electoral College that … has regularly placed in the White House candidates who did not get a majority of the popular vote …?

• Are you concerned that the President might have too much power … to frustrate the will of the majority of both houses of Congress by vetoing legislation …?

• Do you really want justices on the Supreme Court to serve up to four decades and … to be able to time their resignations to mesh with their own political preferences as to their successors?

• Do you support the ability of thirteen legislative houses in as many states to block constitutional amendments desired by the overwhelming majority of Americans …?Footnote ²⁸

Most of the Framers would have answered yes to all five questions, though they would have thought in terms of perhaps Rhode Island and Virginia rather than Wyoming and California. Too much executive power would have worried some of the founding generation, but not the authority to veto legislation. And most would have assumed that an independent judiciary would make political considerations irrelevant to judicial decisions about retirement, an assumption supported more than two centuries later by Justice Ruth Bader Ginsburg and, for a while, by Justice Stephen Breyer’s remaining on the Court in the face of significant pressures to resign. But that majority rule was stymied in these various ways would not have concerned the Framers.

Democratic government was not the core objective of the men who signed the Declaration of Independence in 1776, or those who gathered in Philadelphia in the summer of 1787, or those who ratified the Constitution in the states. Democracy was not a rallying cry for the founding generation. Joseph Ellis has observed that Thomas Paine “never used the word ‘democracy’ in Common Sense, presumably because he realized that the term carried negative connotations for most Americans as the rough equivalent of mob rule ….”Footnote ²⁹ As Richard Beeman writes: “Nearly all [of the Framers] harbored keen misgivings about the desirability of democracy as a guiding principle of the new government. Nearly everyone in the Convention would have counted himself a ‘republican,’ which at the time meant one who stood solidly against hereditary monarchy and in favor of some form of representative government.”Footnote ³⁰ Their objective was to establish a government that would serve the needs first of a confederation and then of a nation, while securing the inalienable rights of the individuals constituting the popular sovereign. Essential to achieving that objective was constraining the inevitable excesses of majority rule.

That the Declaration of Independence and the Constitution referred only to men, by which we know they intended only white (and sometimes only property owning white) men, is a frequently offered objection to the adequacy of the constitution for today’s America. But despite recurrent efforts to resist the extension of the constitutional guarantees of liberty to all people without regard to race or gender, the core principles expounded in the Declaration set America on an irreversible course toward equal liberty for all. The journey has been slow and is not yet complete, but there is no turning back and no persuasive argument for not pressing on to the finish. In his recent biography of John Calhoun, Robert Elder notes that Calhoun believed if the North and South should ever split apart, Jefferson’s inclusion of “all men are created equal” in the Declaration of Independence would be the reason.Footnote ³¹ Within a decade of his death, Calhoun was proven correct, and as Abraham Lincoln would observe, Jefferson’s language provided the foundation for the demise of slavery.

As set forth in the Declaration of Independence, among the inalienable rights is to be governed by governments “deriving their just powers from the consent of the governed.”Footnote ³² Thus for the Framers, democracy is the means by which a legitimate government is established because consent to be governed is among the liberties to be secured by that government. The Framers sought to establish a government capable of performing the tasks of an eighteenth-century European state, but unlike the European states of that era theirs was to be a government founded on liberty. Liberty, not democracy, was the guiding principle of the constitutional founding. Democracy was an expression of liberty.

The liberty of 1787 was not just private but also public liberty by which the Founders understood popular sovereignty – the right to self-government. In an oft-quoted statement correctly attributed to Winston Churchill, but attributed by Churchill to someone else, he said: “Democracy is the worst form of government except for all those other forms that have been tried.”Footnote ³³ That may also have been the view of some of the Framers, but they were not committed to democracy because it is the best or least-worst form of government, rather because the consent to be governed is among the liberties to be secured by government. A government established to secure liberty can be legitimate only if consented to by those whose liberties are to be protected. No doubt for some pragmatic purposes the Framers imagined more effective or less hazardous forms of government, but none that would be legitimate given the foundational principles of public and private liberty.

If they were going to adhere to the revolutionary principles of the Declaration of Independence, the Framers had no choice but democracy. But they recognized that democracy suffered from various shortcomings. Except when practiced in the consensual manner of the iconic New England town meeting, democracy is not practical even in relatively small communities unless something less than unanimity is required for decisions. Although majority rule as well as supermajority rule imposes laws on individuals who have not consented to those laws, the Framers recognized that simple majority rule is, for the most part, the only practical solution if government is to function and achieve its legitimate purposes. They understood that to guarantee equality for all, there must be limits on the exercise of liberty where it infringes on the equal liberties of others, including the enforcement of laws to which some affected individuals have not agreed. But majority rule reveals another serious shortcoming of democracy – its tendency to generate political factions including majority factions, which threaten both public and private liberty.

Today’s partisanship and divisive politics would not surprise the founding generation who experienced the same themselves, as did subsequent generations over the course of American history. “In 1809 the Republican minister William Bentley in Salem, Massachusetts, declared that the ‘parties hate each other as much as the French and English hate each [other] in time of war.’”Footnote ³⁴ People have always been passionate in their beliefs and critical of those who disagree with them. Plainly the situation today is not worse than it was in the middle of the nineteenth century with a civil war the only way to settle the matter.

But America is clearly more divided than it was a generation ago. Social psychologists Jonathan Haidt and Ravi Iyer observed before the 2016 election: “[W]ith the exception of the few months after 9/11, cross-partisan animosity has been rising steadily since the late 1990s.”Footnote ³⁵ They cite Pew Research polling in 2014 showing that for the first time since 1994 majorities in both political parties have not just “unfavorable views” but “very unfavorable views” of the opposing party, and that 40 percent of each party see the other party’s policies as “so misguided that they threaten the nation’s well-being.”Footnote ³⁶ To whatever extent Americans are more divided today than at other times over the last half-century, many factors may contribute.

The central objective of this book is to assess to what extent our current political divisiveness and governmental disfunction are attributable to an antiquated, or perhaps never adequate, constitution, and to what extent it is attributable to our formal and informal modifications of that constitution. But first a consideration of the nature and causes of the extreme political partisanship that characterizes our present-day politics.

1.2 The Partisan Divide

There can be no denying that the country is divided politically as seldom before. The 2014 Pew Research Center study found that “Republicans and Democrats are more divided along ideological lines – and partisan antipathy is deeper and more extensive – than at any point in the last two decades.”Footnote ³⁷ After another ten years, the situation is only worse. Bipartisan initiatives are rare in both Congress and most state legislatures. Indeed, legislators who seek to collaborate with members of the opposing party on anything other than routine, uncontroversial, matters are deemed traitors and are challenged in the next primary election as an RINO (republican in name only) or a DINO (democrat in name only). Former President Donald Trump campaigned against nearly every Republican member of Congress who voted in favor of his impeachment. We have even invented the phrase “being primaried” to describe what Trump promises to support.

Personal friendships and even families are sacrificed to differences of political opinion. Businesses are boycotted if owners contribute to the wrong party or support the wrong candidate. Blue states now boycott businesses in red states and vice versa. People of color are deemed not to be true to their race if they support the wrong party. As then candidate Joe Biden told the host of a popular radio show during the 2020 presidential campaign, if you support President Trump “then you ain’t black.”Footnote ³⁸

Americans have divided themselves into what the constitutional Framers called political factions. Business, trade, profession, residency (urban, suburban, or rural), club memberships, background, religion, race and ethnicity, gender, and just about any other personal trait or association can be the basis for identifying or being identified with a particular political faction. Political pundits refer to the Black vote, the Hispanic vote, the LBGTQ+ vote, the suburban mom vote (is that different from the soccer mom vote or now the school board mom vote?), the rural vote, the Jewish vote, the union vote, the tech industry vote, and so on. Rather than think of the neighborhoods, villages, towns, and cities in which we live and work as communities, we speak of the LGBTQ+ community, the high-tech community, the Black community, the Hispanic community, and even the intelligence community as if the sharing of particular traits constitutes anything resembling true communities.Footnote ³⁹

In reality these so-called communities are factions united by a shared political agenda. In modern parlance, they are more often referred to as special interests than as factions, but by either name they approach politics with a singular focus through informal groups and formal (lobbying and campaign) entities. Such special interest groups are inherent to democracy, and the more government does the more incentive there is for special interest factions to arise. As Jay Cost observes: “Responding to some new governmental beneficence or imposition, a faction organizes itself to apply pressure to the government.”Footnote ⁴⁰

The founding generation also suffered with a vicious and debilitating politics of division. In a draft of what would become Washington’s farewell address, Alexander Hamilton described the “partisans of Faction” who “misrepresent the opinions and views of rival districts” rendering them “aliens to each other” when they should be “tied together by fraternal affection.”Footnote ⁴¹ “Far from accepting one another as legitimate rivals,” write Steven Levitsky and Daniel Ziblatt in their 2018 book How Democracies Die, “Federalists and Republicans initially suspected each other of treason.”Footnote ⁴² James Madison’s vision for our extended republic was that the give and take of an inevitably faction-laced, democratic, politics would encourage, even require, legislators to negotiate and compromise. The result is often said to resemble sausage, but it also establishes, as best a democracy can, the public interest at a moment in time. An attribute of a democracy with free and regular elections is regular remaking of the sausage – evolving public policies that reflect the shifting interest and influence of the many factions that drive the process.

The founding generation understood that factions are inherent to democratic governance. They also understood that special interests – minority factions – sometimes gain disproportionate influence through both licit and corrupt means. More importantly they understood that unrestrained political majorities, “an interested and overbearing majority” in the words of James Madison,Footnote ⁴³ can take advantage of, even tyrannize, minority interests and individuals.

One deterrent to such behavior is the prospect for those in the majority that they will someday find themselves in a minority subject to the will of a different majority. But as we have witnessed over the last decade or two, such caution can easily give way to the temptations of implementing a majority’s agenda without any need for compromise. A we-won-you-lost, winner-takes-all, instant gratification attitude can easily displace the more compromising approach that comes with a longer-term perspective. And once one party embraces this majority-rules attitude the opposing party is more likely to do the same when given the opportunity. President Obama famously told a group of congressional Republicans that “elections have consequences,” and just to make things clear he added “I won.”Footnote ⁴⁴ His successor, President Trump, was quick to adopt the same perspective, although he surely would have done so without Obama’s example. The same attitude has infected both parties when they hold a majority in the Senate or House.

The governmental structures established in the Constitution were designed to guard democratic government from both minority and majority abuses of power. By dispersing power between the national and state governments, among the three branches of the national government and in several other ways discussed at length in Part II, the Framers sought to protect democracy from the undemocratic dominance of majority factions. They also understood that minority factions can lead to similar abuses of power by combining in common cause for mutual benefit at the expense of other interests and individuals. The risk posed by minority factions is less the purposeful tyrannizing of others than the lining of a minority’s pockets at the expense of others.