How Democratic Was the New Constitution and the Bill of Rights?

The new US Constitution, developed in 1787 and ratified in 1788, was a crucial step toward establishing democracy in America. Its purpose was twofold: first, it was aimed to replace the Articles of Confederation, under which the national government had too limited power. For example, it could not collect taxes directly, raise a sufficient military force, regulate commerce, and enforce treaties.¹ Second, the purpose of the new Constitution was to secure people’s liberties and create a strong central government, with states preserving a substantial portion of power. The protection of individuals’ liberties was ensured by the Bill of Rights, which comprises the first ten amendments to the Constitution. Being created in 1787, the Constitution reflected the founders’ views of democracy, and, when evaluated from their perspective, it can be considered democratic. However, from a modern point of view, several issues, such as the disregard of minorities and states’ governments’ ability to limit individual liberties, do not allow for considering it fully democratic.

When assessing the new Constitution from the founders’ perspective, it is necessary to remember the context in which it was developed and ratified. At the time, the world consisted of countries that were primarily kingdoms, empires, principalities, or tribal societies.² Democratic societies were not a widespread phenomenon; in fact, the founders were the first to create the document that would establish a republic that would be ruled by the public. Although from the modern point of view, the founders’ perspective on democracy can seem incomprehensive, their views were progressive at the time. In 1788 when the Constitution was ratified, the US still included slaveholder states, and its population was far more homogenous than it currently is. For example, the country was mostly Protestant, with only about 2% of the population being Jewish or Catholic.³ Most of the population was of European origin, while the majority of African Americans were enslaved and excluded from public discourse.⁴ This is much different from the current American society which has abolished slavery and seeks equality for people of various racial, religious, and ethnic backgrounds. Therefore, the founders could not take into account the democratic values that were not present at their time.

The founders saw representative democracy as the viable option for the country. They opposed direct democracy because of fear that it would threaten their interests, focused, in particular, on the retention of property.⁵ Therefore, they preferred to have a democratic republic, in which the will of people would be mediated by a body of representatives who would ensure that the interests of the elite were not jeopardized. As one of the founders, James Madison, wrote, “The public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.”⁶ As a result, the Constitution established a bicameral legislature with different schemes of selecting representatives for each chamber. The Senate would include two senators from each state regardless of its population, while the number of members of the House of Representatives would depend on the state’s population. Under this scheme, women’s interests were represented by their male relatives, poor people’s interests were represented by more wealthy Americans, and slaves were not considered to have interests other than those of their masters’.⁷ While this system could be considered democratic at the time, it cannot be considered such nowadays because it does not take into consideration the interests of all groups of the population, including minorities.

One of the democratic features of the new Constitution was the establishment of three branches of power. It separated legislative power from executive and judicial without establishing a hierarchy with the president at the top. Such a separation of power is important in democracies because it allows for deliberating and augmenting legislative decisions and helps avoid tyranny.⁸ Since the founders sought to restrict the power of the central government, creating three distinct branches of power was an important step toward democracy. In addition, the Constitution involved the practice of checks and balances, although it did not mention this term explicitly. Under this practice, one branch can limit the power of another branch, for example, by means of amendment or veto. This system was significant for establishing a democracy since it helped prevent tyranny. The separation of power and the principle of checks and balances are what make the new Constitution democratic.

Another thing that allows for considering the Constitution democratic is the Bill of Rights. States considered the inclusion of the Bill of Rights in the Constitution so important that some of them refused to ratify the Constitution without it.⁹ The Bill of Rights was not the document that granted liberties to people; instead, it was a document that limited the national government’s ability to restrict individual freedoms. This is because the founders believed that people already had certain liberties, so the Constitution could not give them, but it could prohibit the government from violating them.¹⁰ Such a view was purely democratic, in contrast to the monarchic perspective of Britain, where the king gave rights to his subjects when he signed the English Bill of Rights.¹¹ The Bill of Rights in America included ten amendments to the Constitution, which secured important individual liberties. For example, the First Amendment protected freedom of speech and religion; the Third and Fifth Amendments prohibited the government from using private property without compensation and due process.¹² The protection of individual liberties by the Bill of Rights is an important feature pointing to the democratic values pursued by the Constitution.

However, initially, the first ten amendments applied only to the federal government. While the national government was prohibited from restricting people’s freedom of speech or conducting illegal searches, these prohibitions did not apply to state governments, which meant that they could violate individual liberties.¹³ For example, in the Supreme Court cases such as Barron v. Baltimore and Permoli v. New Orleans, the Supreme Court confirmed in its rulings that the amendments from the Bill of Rights did not apply to local and state governments.¹⁴ It was not until the passage of the Fourteenth Amendment in 1868 that most of its provisions became applicable to the states. Therefore, one may conclude that, initially, the Bill of Rights was not a very useful tool for enforcing democracy since it did not prohibit state and local governments from infringing individual liberties. Although it contained important democratic values, it had too narrow application to help the country achieve true democracy.

In conclusion, the new Constitution and the Bill of Rights cannot be considered fully democratic from a modern point of view. Although the Constitution established different branches of power to avoid tyranny, it had some flaws. For example, the new Constitution did not consider the minority perspective as the interests of women, poor men, and African Americans were not paid attention to. The Bill of Rights is regarded as an important step toward democracy because it ensures the protection of individual liberties. While it is indeed so, it is important to remember that, initially, it applied only to the national government, while people remained unprotected in relation to the infringement of their rights by state and local governments.

Bibliography

Finkelman, Paul. “The American Bill of Rights at Two Hundred and Thirty Years: How Do We Think About the Bill of Rights in the Twenty-First Century?” Nanzan Review of American Studies 41 (2019): 43–61.

Hubert, David. Attenuated Democracy: A Critical Introduction to US Government and Politics. Salt Lake City: Salt Lake Community College, 2020.

Footnotes

1. David Hubert, Attenuated Democracy: A Critical Introduction to U.S. Government and Politics (Salt Lake City: Salt Lake Community College, 2020), 64-65.
2. Hubert, Attenuated Democracy, 101.
3. Paul Finkelman, “The American Bill of Rights at Two Hundred and Thirty Years: How Do We Think About the Bill of Rights in the Twenty-First Century?” Nanzan Review of American Studies 41 (2019): 59.
4. Finkelman, “The American Bill of Rights at Two Hundred and Thirty Years,” 59.
5. Hubert, Attenuated Democracy, 102.
6. Hubert, 102.
7. Hubert, Attenuated Democracy, 102.
8. Hubert, 71.
9. Hubert, 75.
10. Finkelman, “The American Bill of Rights at Two Hundred and Thirty Years,” 45.
11. Finkelman, 45.
12. Finkelman, 47-48.
13. Finkelman, 50.
14. Finkelman, 50-51.