But something that can be endlessly reinterpreted can’t have definite meaning. And something so vague is contrary to what, from my readings, the Founding generation thought a Constitution was.

An illuminating book, The Ideological Origins of the American Revolution by Bernard Bailyn, contains a section called “Constitution and Rights” in which Bailyn presents contemporary writings showcasing the evolution of constitutional thought in America during the mid- to late-18th century. A constitution was conceived of as a fixed and inviolable covenant, between the people and/or with God, above government and permanently constraining it, that would demarcate the frontier of government power and secure the people’s “universal, inherent, indefeasible” rights. Only with the consent of “a clear majority of all the inhabitants” could alterations be made. A constitution was believed only capable of securing rights if its stipulations could not be “altered or changed by ruler or people, but [only] by the whole collective body.” Whereas room was made for judicial review, the purpose was not to “adjust” a constitution but to defend it.

The Federalist Papers are consistent with this view of constitutionalism. In Federalist 78, Alexander Hamilton writes (emphases mine):

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing….

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.

…

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

Had the Founding Fathers conceived of the role of the judiciary as not just defending the Constitution, but updating it for “changing conditions,” then how odd for Hamilton to declaim exactly that in Federalist 78, and to dispute the need for a Bill of Rights in Federalist 84. I would think if the Founding Fathers had envisioned anything like a “Living Constitution” whereby the constitution would be periodically adjusted by the judiciary, they wouldn’t have consigned the declaration of essential rights to an afterthought, or left the list as short as they did. And, had the original public understanding of the Constitution included a federal judiciary with the ability to adjust to changing conditions, then given the contemporary revulsion of central power and philosophy of constitutional rule, the states probably wouldn’t have ratified the document.

But they did ratify the Constitution, and it was put into practice, after which the earlier principles of constitutonalism continued to hold sway. In a letter written during his presidency, on March 27, 1801, to Eddy, Russell, Thurber, Wheaton, and Smith, Thomas Jefferson describes what he views as proper constitutional interpretation:

The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,–a meaning to be found in the explanations of those who advocated, not those who opposed it merely lest the constructions should be applied which they denounced as possible. These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question.

Of course, today, the explanations are obscured by the passage of two centuries. But we still have the publications in which those explanations appeared, so due diligence can mitigate against historical amnesia.

Joseph Story, a protegee of Supreme Court Chief Justice John Marshall, an influential Supreme Court justice in his own right, and the author of one of the dominant works on jurisprudence in the 19th century, the 1833 collection Commentaries on the Constitution of the United States, supports the revolutionary era idea of constitutionalism in his chapter “Rules of Interpretation” (emphases mine):

On the other hand, a rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may be fairly presumed, that the mischief is less than what would arise from a further extension of the power; or that it is the least of two evils. Nor should it ever be lost sight of, that the government of the United States is one of limited or enumerated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people, what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, ita lex scripta set, to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide and practice, then mere policy and convenience. Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes, or policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and for ever.

None of this is to say the principles of the Constitution can’t be logically extended for the modern day. Just because Article I, Section 8, doesn’t mention an air force or a space fleet doesn’t mean Congress can’t establish them; all military branches the Founding generation could have imagined appear, and little reason exists to suppose the constitution was understood to allow some branches but not others. Likewise, just because the First Amendment doesn’t mention the Internet doesn’t mean web users don’t have free speech; had the Internet existed in 1789, it likely would have been included in the First Amendment, and including it now does no violence to the principle at hand.

“Amendment by judiciary,” however—inserting, altering, or removing constitutional principles through new judicial interpretation, or, as Obama put it, “read[ing] in the context of an ever-changing world”—destroys the firm covenant “we the people” made when founding America in favor of the very oligarchical caprice the Founding generation sought to avoid with the Constitution in the first place.

Supplemental reading

Randy E. Barnett, the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, expounds on “The Original Meaning of the Commerce Clause” in an article for the University of Chicago Law Review.

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Can the United Nations and the president send American troops to war without asking Congress?

In a letter to Speaker of the House John Boehner, President Barack Obama cited UN Security Council authorization to justify war against Libyan dictator Muammar Gaddafi. The Washington Times editorial on the subject adeptly explains why Security Council Resolution 1973 is illegal under the UN’s own charter, which prohibits military intervention in the internal affairs of a state. The purpose of the UN is to help prevent wars between states, not to meddle within states.

Under United States law, the Security Council resolution also constitutes insufficient authorization for military action. Some defenders of Obama’s stance on the resolution cite the 1945 United Nations Participation Act as purportedly allowing the president to wage war based on UN authorization alone. But the Act really prohibits such unilateral military action on the president’s part.

I’ll quote the relevant section of the Act, Section 6:

The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter. The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein: Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.

The language of the section can be somewhat confusing, so I’ll break it down into more easily digestible parts.

• “The President is authorized to negotiate a special agreement or agreements with the Security Council which shall be subject to the approval of the Congress by appropriate Act or joint resolution providing for the numbers and types of armed forces, their degree of readiness and general location, and the nature of facilities and assistance, including rights of passage, to be made available to the Security Council on its call for the purpose of maintaining international peace and security in accordance with article 43 of said Charter.” This means the President of the United States can arrange a deal with the Security Council whereby the American military would be “on call” for the Security Council. Any such deal would be subject to congressional approval. (No such deal has ever been negotiated.)
• “The President shall not be deemed to require the authorization of the Congress to make available to the Security Council on its call in order to take action under article 42 of said Charter and pursuant to such special agreement or agreements the armed forces, facilities, or assistance provided for therein…” If the US has a deal with the Security Council for American troops to be “on call,” then the president doesn’t need congressional authorization to use military force under the auspices of the UN mission. This is what Obama defenders point to as legal permission for the president to ignore Congress when going to war in Libya. But remember, the US has no “on call” deal with the UN.
• “Provided, That nothing herein contained shall be construed as an authorization to tile President by the Congress to make available to the Security Council for such purpose armed forces, facilities, or assistance in addition to the forces, facilities, and assistance provided for in such special agreement or agreements.” Outside any congressionally approved “on call” arrangement, the president must seek congressional authorization before waging war on behalf of the UN. As I’ve written, the US has no forces “on call” to the UN, so this final sentence applies to the Libya operation.

Therefore, as per the United Nations Participation Act, Obama’s war in Libya is illegal. This makes three ways in which the war is illegal: Firstly, the Constitution forbids it. Secondly, the UN charter forbids it. And now, thirdly, the Act under discussion forbids it.

I shall add a fourth criterion by which the Libya war is illegal: the 1973 War Powers Resolution. According to the resolution, the president can only wage war under these three scenarios:

1. Declaration of war.
2. Specific statutory authorization.
3. American territory or soldiers are under attack.

Congress has not declared war against Libya. No law otherwise authorizes war against Libya. And Libya did not attack the United States or its military. These conditions forbid Obama’s Libya intervention under the War Powers Act, in addition to the other reasons I’ve described that the war is illegal.

Watch this

In this video from the Cato Institute, Rep. Tom McClintock explains why Obama’s war in Libya violates the Constitution.

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President Barack Obama, without congressional approval, has announced US military intervention in Libya.

I wrote the following letter to President Barack Obama regarding military action in Libya:

Mr. President, in 2007, you said the president could not legally attack another country without congressional approval. Yet that’s exactly what you’ve pledged to do regarding Libya.

The Constitution clearly says Congress, not the president, can authorize war. Alexander Hamilton supports this interpretation in Federalist 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.

Why are you reneging on what you said in 2007, thereby breaking the Constitution you swore to uphold?

Update: Vice President Gene Healy of the Cato Institute speaks in a good podcast on this topic: “Obama Makes War in Libya, Tells Congress Later“.

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1. Presidential candidates have little reason to campaign to the whole country. If partisan or personal loyalty makes victory certain in a state, a candidate can safely ignore it in favor of other states. Conversely, if a candidate will definitely lose in a state, then he won’t waste his time there. Only competitive “battleground states” see much activity.
2. We have less national turnout. If a state will assuredly support one candidate, why bother voting? Also, lack of vigorous campaigning in a state might contribute to voter apathy during an election.
3. With the winner-take-all plurality system, candidates try to attract moderate voters, so to avoid turning people off, they emphasize their personalities more than their policies. This results in bland, visionless candidates who take those traits into the White House.

I believe a new presidential electoral system is in order. We need something that rewards candidates who have bold ideas, while drawing more voters into the process as well.

Therefore, I recommend we emulate the French.

Hear me out! The French have an excellent method by which to elect their president. It is a two-stage electoral process. In the first part, candidates from all the country’s parties can run. Candidates who mobilize partisans with daring policy agendas will perform best here. Afterwards, during the second stage runoff, the first and second place finishers of the first round compete. Whoever achieves a majority vote wins. This requires the candidates to make themselves as palatable toward the center as possible.

Eliminating the Electoral College and implementing two-round direct popular vote elections here would deliver many benefits. It would reward courageous candidates with striking ideas in the first stage, but it would weed out dangerous fanatics in the second stage. It would allow smaller parties to achieve greater prominence than they could achieve in a winner-take-all elector paradigm. It would give candidates reason to campaign to every American. And it would give each voter a larger role in determining the outcome of the election.

As a German friend also pointed out to me, “I don’t quite get it that in the US, votes for the Greens i.e. are all lost, even help a candidate from the right to get into office (see 2000)—a second turn of the elections would allow Green supporters to vote for the Democrat.” This is an important point. The major parties would have to give adherents of smaller parties reasons to vote for them. This would force the Democrats and Republicans to take other parties, such as Greens and Libertarians, seriously, and perhaps heed some of their political desires. This would make more Americans feel as if they play an important role in the republican process.

To complete the reform, we also need to make going out to vote easier. Right now, we seemingly make voting as hard as we can. Elections take place on weekdays, so if Americans want to vote, they must take off work or rush to the polls before or after work. When they get there, they must wait a long time to finish the process, because the volunteer polling coordinators are old, retired people. (Young people have to work, after all.) All this makes voting seem not worth the hassle to millions of Americans.

To change that and increase turnout, every Election Day should become a federal holiday. That would allow Americans to vote without worrying about missing work and forfeiting pay, or hurrying through throngs of people in the morning or evening. Younger Americans would also be able to volunteer to oversee the polls, thereby making voting a smoother and faster experience.

While we’re on the subject of changing our electoral system, let’s consider this: At the time the Constitution was drafted, one of the Anti-Federalist objections to the document was to the pluralistic election of representatives. The Anti-Federalists argued this could allow the election of representatives whom most of the community despised, but who still managed to get more votes than anyone else. Instead, according to the Anti-Federalists, districts should select their representatives by majority vote.

I believe that Anti-Federalist objection has merit. How can a representative represent a district if most of the people there hate him? Changing congressional elections to two-stage elections, similar to what I outlined above for presidential elections, would be a good idea. That way, we could ensure the majority of citizens in a district would have voted for their congressman. All the benefits of switching the national presidential election to a two-stage majority vote model would apply here.

Many conservatives would object to the national scope of my reform plan. They’d correctly point out it would erode federalism. Because population centers—cities—would yield greater power, our executive branch might also shift to the left. Given the power of the presidency, this might produce a government similarly inclined to governments in Europe. Anathema to conservatives, that would be.

To counteract the leftward effect and to placate conservatives, I suggest we repeal the 17th Amendment. Let the state legislatures elect senators again. Senators who don’t rely upon the people as an electoral base would be a lot more willing to challenge the president. Not only might the Senate be more conservative than the President, but they’d feel safer defying him since the people who put him in office wouldn’t be the same ones who put them in office. They wouldn’t have to worry as much about the President’s popularity.

In addition, with the people electing both the House of Representatives and the President under my plan, we’d need more checks against the tyranny of the majority. Election of federal senators by state legislatures would constitute such a check.

No electoral procedures could solve all problems. But this extensive reform plan would eliminate many of them:

• Campaigns focusing only on battleground states.
• Nullification of millions of votes.
• Candidates whose only goal is to win a plurality of the ballots.
• Victories by candidates whom most of the community doesn’t support.
• Apathy of the electorate toward politics.

We especially should not underestimate the importance of the last element. Only an interested and engaged citizenry can serve as the foundation of a republic. Without it, a republic cannot stand.

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I haven’t played the game, but I’ve read it allows players to control a main character who fights both street gangs and corrupt police, during the course of which he can hijack cars, participate in shoot-outs, etc. A lot of people say it’s fun, but definitely not for kids. The game carries a rating of “M,” for “Mature,” to reflect that. This tells parents Grand Theft Auto is only for players above the age of 17.

Senator Clinton, casting herself as a defender of American values before her probable 2008 presidential election bid, has condemned the game and demanded the Federal Trade Commission investigate Grand Theft Auto, from Rockstar Games. Why? Not because of the game’s violence. Not even because of how the game was when it shipped. Instead, a user modification of the game is what has drawn Clinton’s anger. This mod permits Grand Theft Auto‘s main character to have sex with his girlfriends in various min-games, which if available in the standard game, would have earned it an “Adults Only” rating, keeping it off many store shelves. The creator of the mod, known as Hot Coffee, claims he unlocked content already in the game’s code that Rockstar had disabled. Rockstar contradicts the modder, saying that the content was never in the game, and that the modder added it all himself.

Clinton’s ruckus is much ado about nothing. Let’s presume the sex games were indeed part of the original code of Grand Theft Auto. That’s still nothing scandalous. Inactive programming from discarded features ships all the time with games. Eliminating code from abandoned ideas can be difficult, and it could even break algorithms for concepts a game’s producer wants to keep. So the game’s programmers leave the code as inactive, and it’s not part of the game as it ships. A bored modder could sift through a game’s code and write files to reactivate the dormant code, which might have occurred with the Hot Coffee mod.

Rockstar Games, though, cannot be accountable for what a modder does to Grand Theft Auto. They are responsible only for the game they distribute to the public. And the sex adventures are not part of that game. Whether someone chooses to change the behavior of the game is solely the affair of the person in question.

Besides all this, let’s not forget Grand Theft Auto bears an “M” rating. The M appears right on the box, informing parents about the game’s potential inappropriateness for children. The addition of slightly more risque sexual content by an independent modder hardly changes the overall nature of the game. If parents don’t want their kids playing such a game, then they should forbid its purchase. The use of government power to threaten investigations in order to scare game developers violates the First Amendment and imperils an activity many adults legitimately enjoy.

I don’t expect these arguments to concern many politicians or commentators. They seek easy answers to America’s problems. Rather than trying to determine the flaws with our society itself, that lead to unsafe underage sex, for example, blaming and attacking a video game is simpler. It enables politicos to sit back at their desks and say, “We’re doing something,” while the hard task of attempting to resolve our difficulties remains undone. Heaven forfend the original thought we would need otherwise!

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“This is a great day in the histroy of America,” President George Bush said after the bill’s passage. “For the first time in millennia, Americans will be able to worship the creator of their choices, without having to tolerate the Islamic and the atheistic heathen.” After Vice President Dick Cheney pulled him aside and whispered emphatically into his ear, Bush returned to the podium and said, “Oops, forget I says that last part.”

In this election year, liberals who ordinarily would have opposed the creation of a government church instead voiced support for the plan.

“Anyone who would oppose this is nuts,” said Senate Majority Leader Tom Daschle, Democrat from South Dakota.

Reaction outside the Beltway took on a markedly different tone. The hundreds of average Americans who pay attention to matters of government protested in various cities across the country against the bill. Five letters poured into congressional mailboxes objecting to the establishment of any state church.

“If I wanted to live in a theocracy, I’d go to Iran,” said one letter.

During a press conference late in the afternoon, a reporter asked presidential spokesman Ari Fleischer, “How does the president justify the bill’s obvious inconsistency with the First Amendment?”

“There is no inconsistency,” Fleischer replied. “The First Amendment only forbids the passage of any law respecting the establishment of a church.”

“Isn’t that what the bill would do?” pressed the reporter.

“Absolutely not,” answered Fleischer. “The word ‘establishment’ implies an already existing institution, and the word ‘respect’ implies the government will pay homage to it. What the bill in question will do is create a new institution that the government will control stubbornly. This is totally consistent with the vision of the Founding Fathers as expressed by Thomas Jefferson, who wrote about ‘divine Providence’ and a ‘Creator’ in the Declaration of Independence.”

When every hand in the press room immediately shot up, Fleischer said, “That will be all,” then rushed behind the press room curtains.

Little word has emerged as to how the Senate will vote on the bill, but given Daschle’s support of the bill, it will most likely pass.

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Yet in his seminal work Democracy in America, Alexis de Tocqueville says, “I do not know any country where, in general, less independence of mind and genuine freedom of discussion reign than in America.” [1]

How could this be the case, in light of the factors that Americans think make them free? The answer, according to Tocqueville, is that the very rule by the majority which Americans believe aids their liberty, instead subjects it to dire peril.

In the United States, nothing exists outside the majority to curtail its influence, says Tocqueville. The majority possesses command of everything. American society holds the needs and wants of the many above the few or the one. This stems from the American belief that the most wisdom lies with the greatest number of people; after all, if everyone has equal intellectual capacity, then whatever the most people think must be correct. For the Americans of Tocqueville’s depiction, the majority simply cannot fail.

Even those Americans who fall outside the majority fall to its will without much difficulty because Americans are equal to each other, without class distinctions. What the majority wants, most minorities can therefore swallow. Besides which, many Americans outside the majority hope someday their group will become the majority, so they recognize the majority’s right to rule as it would.

By Tocqueville’s reckoning, this makes the American majority, in a word, omnipotent. No force can halt or even delay its advance. As a consequence, the majority has no time or even inclination to consider the thoughts and ideas it squashes underfoot. [2]

Boosting the majority’s power is the structure of the legislatures. Each year, elections for the legislatures take place, often sending new representatives with new ideas to the federal capital and the various state capitals. And the legislatures have a lot of power to do what they want. The speed with which the majority selects representatives, and the power those representatives have, gives the majority the ability to enact its every whim on America’s polity. [3]

Tocqueville questions how a system in which the majority rules thusly can be free from despotism. If one man can abuse power, why can a majority not do the same? The character of men, says Tocqueville, does not change just because they are in a group. If a group—the American majority—has power without barriers, power without “time to moderate itself,” then liberty is at substantial risk. No guarantee exists against tyranny. If individuals or minorities suffer oppression, to whom can they appeal? No one, pronounces Tocqueville, for the legislature, the executive, the military, the jury, and sometimes the judiciary are under the dominion of the majority. [4]

The “tyranny of the majority” could surpass that of the absolutist. The absolutist cannot stop thoughts contrary to his own from percolating. His power lies only on the temporal plane; he has no control over mental worlds. When the majority has resolved something, though, discussion of the issue stops, and everyone goes along with the majority’s flow. The majority’s will strikes at the hearts and minds of people, stopping them from contradicting the majority, as well as crushing “the desire to do it.” [5]

Within the American majority, Tocqueville grants that one is free. But outside the majority, one finds unhappiness. A political career is impossible, for one cannot please the “single element of force and success” (i.e. the majority). And when one speaks his mind, against what the majority believes, people abandon him, and he becomes a virtual social leper. His opponents in the majority will not recognize him, nor will those Americans who think as he does, for they lack courage and do not want society to shun them, too. Consequently, one likely will surrender to the majority, and one will shut his mouth as if he is sorry he ever opened it.

This estrangement the majority bestows upon its foes assaults their very souls. This is how the majority’s tyranny can outclass that of the absolutist, whose weapons harm only the body while leaving the spirit intact. [6]

Unlike some of the aristocracies of Europe, the American majority will not allow observers to make the slightest fun of it. Writers must extol the virtues of the majority, and they can never criticize it.

“The majority, therefore,” says Tocqueville, “lives in perpetual adoration of itself.”

Tocqueville concludes, “There is no freedom of mind in America.” Whereas the Spanish Inquisition could not stop the circulation of books of which the monarchy disapproved, the American majority has no need even to try such a thing, for the very thought of publishing books contrary to the majority never occurs. Whoever is outside the American mainstream can find no device with which to spread his views and opinions. [7]

Another reason why Americans have no freedom of mind is their tendency, more than others, to accept dogma. Tocqueville concedes that everyone on the planet believes a fair share of dogma, which is evil because it makes one an intellectual slave, but necessary because otherwise one could not consider anything closely, as he would be too busy trying to prove everything. Americans enslave themselves to dogma to a frightening extent, however, according to Tocqueville.

This spawns from the American assumption everyone has more or less equal knowledge. With this notion in mind, an individual feels weak in comparison to a multitude of people; each of them is intellectually equal to him, so the combined wisdom of the mass must dwarf his own. This permits the mass—the American majority—to force its beliefs into his mind and the mind of everyone else.

The majority in this way does not persuade anyone of anything. It merely force-feeds people ready-made opinions, relieving them of the burden of constructing their own beliefs. This seriously compromises any chance of intellectual liberty or independent thought, says Tocqueville. [8]

The American majority’s control over the United States leads American historians to emphasize general causes of events. Individuals do not receive much attention. As a result, many folks start to think individual action is not voluntary. Instead, they think large forces that affect millions of people control their destinies. Scholars focus on how events came to be, and they do not think of how things could have gone otherwise. Essentially, free will itself comes into doubt. [9]

Despite all of the reasons Tocqueville cited for the rule of the majority constituting a tyranny, freedom still exists somewhat in the United States because it lacks administrative centralization. The majority can command all it wants, but to carry out its commands, the majority must use executors “who often do not depend on it, and whom it cannot direct at each instant.” Federalism, then, saves the Americans from descending into majoritarian dictatorship. It can “delay or divide” the will of the majority, sapping it of its full strength. [10]

[2] Ibid., 235-237.

[3] Ibid., 238-239.

[4] Ibid., 240-241.

[5] Ibid., 243.

[6] Ibid., 244-245.

[7] Ibid., 245.

[8] Ibid., 408-410.

[9] Ibid., 469, 471-472,

[10] Ibid., 250-251.

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