James Madison knows the People must put in place the means to protect their civil liberties
from the excesses of the government, because the even with different several departments of the
proposed US government as proposed by the Constitutional Convention dispersing government
authority, the opportunity for tyranny still cannot be checked by “exterior provisions [which] are
found to be inadequate” and so
the defect must be supplied, by so contriving the interior structure of the
government as that its several constituent parts may…be the means of keeping
each other in their proper places…in such a manner as that each may check on the
other that the private interest of every individual may be a sentinel over the public
rights. (Madison 1788)
What is key in this Madisonian construct, and which is key to the genius of the American system
of checks and balances overall, is that by these founding principles, the government is not the
society, but merely another institution within it. And that societal community also serves as a
check on the power of the government. And it is in the tyranny of the societal majority where
Fareed Zakaria goes further, and warns “Democratically elected regimes, often ones that
been reelected or reaffirmed through referenda, are routinely ignoring constitutional limits on
their power and depriving their citizens of basic rights and freedoms” (Zakaria 1997, 22). Most
importantly, Zakaria differentiates between democracy and constitutional liberalism where
constitutional liberalism, “is not about the procedures for selecting government, but rather…the
tradition, deep in Western history, that seeks to protect and individual’s autonomy and dignity
against coercion, whatever the source – state, church, or society” (Ibid., 27). Zakaria then
proceeds to warn how democratic governments can start to believe in the infallibility of their
own decisions, and by that centralize power both politically and administratively (Ibid., 30),
something he points out as historically being “the enemy of liberal democracy” (Ibid., 32). But
it is exactly that liberal democracy, ensconced in the legal protections its constitutional
prohibitions provide, that protects the People against not only a government’s tyranny, but their
own tyranny as well.
In answer to Madison and in anticipation of Zakaria, Tocqueville also raises great warning
that “the power of the majority [is] not only predominant, but irresistible…The consequences of
this state of affairs are harmful and dangerous for the future” (Tocqueville 2012, 404, 407). To
protect against that, Tocqueville argued for a “social power” superior to even the power of the
State, but that even then, when that social power has no check, it too will endanger liberty (Ibid.,
412). Unfortunately, Tocqueville does not find such a social power in place in America, a place
where he finds “less independence of mind and true freedom of discussion” than anywhere else
in the world (Ibid., 417). Indeed, Tocqueville paints an incredibly frightening picture of this
societal despotism, akin to a biblical curse, but one that sounds eerily prescient in today’s social
media driven society
…in democratic republics, tyranny does not proceed in this way; it leaves the body
alone and goes right to the soul. The master no longer says: You will think like me or
die; he says: You are free not to think as I do; your life, your goods, everything
remains with you; but from this day on you are a stranger among us. You will keep
your privileges as a citizen, but they will become useless to you. If you aspire to be
the choice of your fellow citizens, they will not choose you, and if you ask only for
their esteem, they will still pretend to refuse it to you. You will remain among men, but
you will lose your rights to humanity. When you approach your fellows, they will flee
from you like an impure being. And those who believe in your innocence, even they
will abandon you, for people would flee from them in turn. Go in peace; I spare your
life, but I leave you a life worse than death. (Ibid., 418f)
Slavery was one of America’s first examples of Tocqueville’s warning of the “tyranny of the
majority”. As of 1790, three years after the ratification of the US Constitution, of the United
States’ 3.894 million population, 694,000 was slave, or just 17.8 percent. But more than 85
percent of that slave population was in just four States, Maryland, North Carolina, South
Carolina, and Virginia, where those States’ 603,000 slaves made up more than 35 percent of the
total population. Regardless, at that time, slavery was still pervasive and allowed, with only
Maine and Massachusetts had no slaves enumerated in their census (US Department of
Commerce and Labor 1908, 8).
But it would still be another 75 years before slavery would end, and another three years after
that before the Constitution would be amended by the Fourteenth Amendment to prohibit
slavery. The United States is well versed in exercising the tyranny of the majority.
Madison, James. 1788. Federalist Papers No. 51. Bill of Rights Institute.
https://billofrightsinstitute.org/primary-sources/federalist-no-51.
US Department of Commerce and Labor, US Bureau of the Census. 1908. 1793. Heads of
Families at the First Census of the United States Taken in the Year 1790. Washington, DC:
Government Printing Office. https://babel.hathitrust.org/cgi/pt?
id=mdp.39015010341520&view=1up&seq=11&skin=2021.
Tocqueville, Alexis de. 2012. Democracy in America: In Two Volumes. Indianapolis, IN: Liberty
Fund, Incorporated.
Zakaria, Fareed. “The Rise of Illiberal Democracy.” Foreign Affairs 76, no. 6 (1997): 22–43.
https://doi.org/10.2307/20048274.
-----
Total population: 3,893,635
Slaves: 694,280
Free People 3,199,355
Slaves by State
- South Carolina 107,004 249,073
- North Carolina 100,572 393,751
- Virginia 292,627 747,610
