Constitution First, Democracy Second

Hillsdale College this week held one of its on-campus seminars, Center for Constructive Alternatives (CCA). The college holds two each semester, each on a different topic, showcasing expert lecturers from across the country. This week’s seminar was entitled, “The Supreme Court: History and Current Controversies.” As usual, the speakers were enlightening, making the general point that the Supreme Court is entrusted with the responsibility of defending the Constitution.

Sometimes the Court has proven more successful than others.

Two major topics of current interest were campaign finance regulation, as in the Citizens United case, and issues with respect to the Commerce Clause – most recently per the Court’s decision on the constitutionality of the Affordable Care Act.

As I listened to the lectures I kept thinking of the arguments made by the winner of the 1974 Nobel Prize in economics, Friedrich Hayek in his 1960 book, “The Constitution of Liberty.” One of Hayek’s points was that democracy only makes sense when individuals can make arguments and arrive at decisions independent of what they are told by their government. How can we possibly decide on whom to elect – and what policies to support – if our only source of information are those in power?

That is one reason we find various rights protected in the Constitution such as the right to free speech, the right to peaceable assembly, freedom of association, and freedom of the press. (As an aside, one might wonder how a system of government education fits into this – but that is a topic for another column.) Capital University Law School Professor Brad Smith, in supporting the Court’s decision in Citizens United, made a compelling argument for the importance of protecting the freedom of political speech .

The Commerce Clause has been used as in a major way to stretch the bounds of the Constitution. Professor Nelson Lund of George Mason University Law School gave a history of the use of the Commerce Clause from the New Deal to Obamacare. Lund made the salient point that, although Justice Roberts ultimately found another way to uphold the constitutionality of Obamacare, we can take some comfort that a majority on the Court held that interstate commerce does not include not buying things.

In the closing lecture, Professor Jeremy Rabkin, also of George Mason university Law School, gave an upbeat view. He argued that, although the Supremes have allowed the boundaries of the Constitution to be stretched – perhaps far beyond what the Founders would recognize – the fact that the Constitution still exists is a major accomplishment.

Rabkin noted our Constitution was the oldest in the world, and that all sides of the political spectrum still appeal to it. His view is that we are not in a post-Constitutional state – that it is possible to look at the bright side and hope that the Court will eventually be able to put a constraint on the powers of the executive and legislative branches.

Democracy without limit, said Tocqueville, is tyranny of the majority. The only way that democracy is compatible with individual liberty is for the temporary majority to be limited by what Hayek called the general principles by which we are to govern ourselves. The purpose of the Constitution is to set out those general principles and serve as a higher order of law. Ordinary statutory law must comply with the Constitution.

There is a good deal of confusion about the importance of democracy rather than the importance of limited government. In the wake of the Arab Spring or the fall of the Iron Curtain, much of the discussion has been about new nations achieving democracy in order to have a free society.

But it is constitutionally limited government that ensures a free society – not democracy.

While Hayek wrote that a democracy is more likely than any other form of government to result in a free society, it is our Constitution that is liberty’s safeguard. While the Supreme Court may be the institution that is supposed to protect our constitution, in the end it is only when individual citizens understand the need for limited government that we can have a free society.

For this reason Hillsdale College offers three, free, on-line courses on the Constitution. More than one-quarter million people have registered so far, and if enough people follow suit we may well preserve the Constitution for another generation.

(Dr. Gary L. Wolfram is the William E. Simon Professor in Economics and Public Policy at Hillsdale College. Find him on Facebook at www.facebook.com/GaryWolfram. And on Twitter at @Gary_Wolfram. Originally posted on The Michigan View.)