“Democracy is the theory that holds that the common people know what they want, and deserve to get it good and hard.” – HL Mencken
Mencken certainly would not be surprised by how little the average American understands about the constitution or the nature of the American political system it was intended to establish. Anyone who has frequented internet political chat rooms can attest that that understanding is very shallow indeed. In a conversation I watched this afternoon concerning prayer in schools, one chatter kept repeating over and over “but what about the will of the people?”, arguing that since he believes that the majority of people in the US wants compulsory prayer in schools, it should exist. Is the chatter so ignorant of history that he doesn’t realize that the entire purpose of the bill of rights was to insulate the individual from “the will of the people”?
Madison, the driving force behind the bill of rights, certainly knew that encroachments on liberty were far more likely to come from a vote than by usurpation of power by a dictator. The bill of rights declares, through numerous specific enumerations and in overall effect, that no majority, no matter how large, may impose its will upon the individual. If the establishment clause of the first amendment means anything at all, it surely means that no one can be forced by the government to take part in a religious exercise against their will. Justice Robert Jackson, in a landmark decision that struck down the authority of schools to force Jehovah’s Witness children to recite the pledge of allegiance, wrote:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Simply put, no matter how fervently “the will of the people” (i.e. the will of the majority) wishes it, the government may not compel a citizen to confess a belief, or take part in a religious ceremony, or take a position on any issue. So why are so many Americans not aware of this fact? I largely put the blame on the lack of sophistication with which we teach history and political theory (which can’t really be separated) in our schools. We teach history as a cartoon, with good guys in white hats on one side and bad guys in black hats on the other. And this is done, I would argue, quite intentionally. The more simplistic one’s view is on such matters, the more easily they fall for what passes for political discourse in the US. Our political culture is now driven by the tools of marketing, with all the accompanying emphasis on buzzwords and catchphrases and slogans that one would expect as a result. In that morass of cliches, phrases like “freedom and democracy” become little more than empty catchphrases, with little thought given by those who hear them to what it means or requires. No thought is given to the fact that freedom and democracy are often in conflict, as our founding fathers obviously realized. Unchecked rule by “the will of the people” would rapidly transform into authoritarianism.
If it were up to a single yes or no referendum in the US, how many of the amendments found in the bill of rights would be ratified today? Would a single one survive? Polls show that the public supports all sorts of limitations and encroachments on those rights. The first amendment would say that we have freedom of speech, except….you can’t protest during wartime….you can’t burn a flag in protest….you can’t advocate political ideas that the majority finds objectionable. Free exercise of religion, except….you have to pray in school….and Wiccans can’t be teachers….and Indians can’t use peyote in their religious rituals because, as we all know, drugs are bad. The fourth amendment ban on unreasonable searches and seizures would have all kinds of limitations placed on it were it up for a vote. Certainly, an exception would be made for drug dealers and “terrorists”. And never mind that the fourth amendment applies before someone is convicted of such crimes, not after.
Such ignorance of the purpose of the bill of rights is truly dangerous to our society. If the citizenry does not understand that in order to have freedom for themselves they must also protect the freedom of others, lest through the shifting of political winds they find themselves in the minority, our rights are not secure. “When liberty dies in the hearts of men and women there is no constitution, law or court that can save it”, wrote Judge Learned Hand. I would only change that to read “the minds of men and women”, for it is with our minds that we must learn and understand that the nature of liberty is that it must apply to others as well as to us, that no matter how large our majority might be, we cannot impose through coercion our will on others without putting our own liberty at risk.