The American Founders saw themselves as engaged in a long English tradition of resistance to tyranny. They designed the Constitution to avoid tyrannies of both democratic and autocratic varieties.
“Which is better—to have one tyrant three thousand miles away, or three thousand tyrants one mile away?” So said Boston minister, Rev. Mather Byles; or at least he was credited with having said it.1 Rev. Byles was a Loyalist and was expressing a preference for monarchy. More to the point, he seemed to be suggesting that he did not think he would benefit more from an independent government in America than he did from the monarchy in England.
In referring to the three thousand tyrants who were much nearer to him than the king, Rev. Byles was touching on an important idea. That idea was that tyranny did not require an autocratic form of government, such as a monarchy. Tyranny, thought the Reverend, could even exist in a place with a representative form of government. This would be one of the major problems for the founders to overcome during the formation of the U.S. government: how to form a government that was neither too autocratic, nor subject to the whims of populism so that it swung crazily like an out‐of‐control car bouncing from one guardrail to the other. Given the founders’ experience with monarchy and their knowledge of British history, it is easy to understand their feelings about autocracy and Americans today still have an innate distrust of autocracy. On the other hand, recent movements to eliminate the Electoral College or to base the U.S. Senate on population rather than equality of the states, shows that some Americans today have forgotten why the founders also distrusted democracy.
For the revolutionaries, who would later become nation builders, tyranny was a major problem and could come from both autocracy and democracy. It was certainly something that had plagued autocratic societies for ages. It was easy for a monarchy, for example, to become tyrannical, when the king chose to exercise his absolute power in an arbitrary manner. In fact, the English had been fighting against this exact thing for centuries.
In 1215 AD the English barons kicked off the noble Anglophone tradition of resistance to arbitrary rule by rising in rebellion against King John. The barons did not appreciate the seemingly random taxes, the fees they had to pay to inherit their own lands, the impediments John had placed in between his subjects and royal justice, and a variety of other complaints. They were able to force John into issuing the Magna Carta, which contains a list of the promises he made that would help bring about better government.
That was just the first of many times the English people would put their collective foot down when they felt the king was taking his royal privilege too far. In the seventeenth century Charles I proved to be far too absolutist in his approach to the crown, especially when it came to his Catholicism, in opposition to the Protestant bent of England. The people took about a head’s worth of height from him for this. Later, his nephew James II, while being spared the beheading, was also dispossessed of his throne in response to his unwillingness to allow Parliament to play as large a role in his rule as they felt they deserved. Among the causes of complaints that continually raised their heads was James II’s demand for money without the authorization of his subjects. It was this tradition, and sometimes similar complaints, that brought the colonists to the brink of revolution in the 1770s when they felt aggrieved by the king of England.
The Declaration of Independence
By 1776 they were no longer merely at the brink of revolution. Shots had been fired at both Lexington and Concord in Massachusetts and the colonial militias had fought a major engagement with the British regulars at Breed’s Hill and Bunker Hill, overlooking the city of Boston. The colonial congress at Philadelphia, realizing that they had to come to a decision as to how far they were willing to go, assigned Thomas Jefferson to write a Declaration of Independence. In this document Jefferson would lay out the colonies’ justification for breaking away from the empire.2
The Declaration was the first opportunity for the colonists‐turned‐revolutionaries to explain the ways in which George III represented a tyrannical threat to the colonies. The justification for declaring independence from that tyranny that Jefferson laid out would come in the form of a list of grievances that was meant to show how King George III had violated the customs and rights of Englishmen in England, customs and rights that the colonists felt they also shared.
Several of the grievances in the Declaration can be lumped together and summed up as the king placing impediments to good self‐government. Jefferson wrote, for example, that the king had “dissolved Representative Houses repeatedly, for opposing…his invasions on the rights of the people,” and that he “refused for a long time, after such dissolutions, to cause others to be elected.” This was a serious violation of long‐established English custom as far as the independently minded colonists were concerned.
By 1776 the right to representation for Englishmen was already an extremely old custom as they had been represented in the English Parliament for centuries. One could argue that Parliament can be traced to Magna Carta in 1215. That charter promised that if the king needed to raise any money beyond customary feudal dues, he must ask the barons for it. At first the meetings only included the barons, but before the century was over, the commons were regularly invited to attend as well. Once again, these meetings were called by the king to ask for money, such as for funds to fight in France to try and regain lost territory. Eventually they would become more regular, always include both nobility and commons, and would have a regular meeting location.3
Trial by Jury
Magna Carta was the birthplace of another important right that Jefferson felt the king had violated: trial by jury. The barons felt that the king was far too arbitrary in his justice, something that is reflected in the clauses of the charter that King John was forced to grant.
Clauses Twenty and Twenty‐One declared that men could only be fined after oaths of “good men from the neighborhood” and only members of the nobility could swear oaths against nobility. Clause Thirty‐Eight requires trustworthy witnesses before putting any man through an ordeal. Finally, in Chapter Thirty‐Nine, free men could not be imprisoned or outlawed, etc., “except by lawful judgment of his peers.” Essentially these clauses required that criminal justice be administered at the local level, and by those among whom the accused lived.
Jefferson, and the Continental Congress suggested that the King had violated these rights. The Declaration accuses the king of “depriving us in many cases, of the benefits of Trial by Jury,” and “transporting us beyond Seas to be tried for pretended offenses.” So what, exactly, did the king do that violated these rights?
The Revenue Act of 1764 and the Stamp Act in 1765 both extended the jurisdiction of the Admiralty Courts, the nearest of which had been established in Nova Scotia. The court was given authority to levy fines or even ship forfeitures for the violation of administration rules from both acts, primarily because British officials did not believe they could secure convictions in the colonial courts. The Vice‐Admiralty court, after‐all, allowed for a judge to hear a case and render judgement, all without the inconvenience of a jury.4
When Parliament created the American Board of Customs in 1767 to enforce duties on imports for the raising of revenue, they also gave them authority to use Writs of Assistance. With these writs, the customs officials could search colonists’ houses, based on suspicion alone, for smuggled goods. The customs officials could also use the admiralty courts to help them enforce the fines resulting from these inspections. This meant that a colonist who stood accused might have to travel to Nova Scotia, which was difficult, defend himself in a trial where he was presumed guilty and must prove his innocence, in a court where there was no jury of his peers. As far as the colonists were concerned, this violated each of the relevant clauses from Magna Carta.
The colonists were also concerned about the use of soldiers in the colonies. The Declaration included complaints that the King kept a standing army in the colonies and removed the military from judicial authority. A soldier who committed a crime in America could be removed to England for his trial, out of concern that colonial courts would not deal fairly with an accused soldier. The Quartering Act of 1774 then placed more regulars right in the middle of the colonists. To the colonists this was a threat because they were convinced that the courts in England would not convict the British regulars of any crimes they committed in the colonies. The colonists also understood that the point of having the soldiers living among them thanks to the Quartering Act was for the soldiers to keep a closer eye on the colonists themselves.5
Many of these grievances served to illustrate just how arbitrary the English government had become toward the colonies. Of course, these concerns did not simply vanish the moment the Treaty of Versailles ended the War for Independence, and the newly independent colonists created a nation with an extremely weak national government under the Articles of Confederation. It did not take long, however, for some of the leaders of that nation to realize that there were serious flaws with the Articles of Confederation, and they met in Philadelphia to fix those flaws, ultimately scrapping the Articles altogether and offering a new Constitution to the people to be ratified.
Throughout the Constitutional Convention and the ratification debates both the Federalists and Anti‐Federalists showed just how concerned they were about tyranny and arbitrary government, much like their English forebears. They had direct experience with the tyranny of George III (as they saw it), but they also had knowledge of other kinds of tyranny. While they were aware of the excesses of the Protectorate under Oliver Cromwell, such as the oppression of Catholics under his Protestant regime, their fears of democracy were more theoretical than they were historical. They feared that it might be easy for a majority to oppress a minority without sufficient protections.
The document that came out of the Constitutional Convention in Philadelphia had two main functions. It set up a strong national government that would be more capable of performing essential functions of a national government. It also created high barriers to keep that strong government from becoming tyrannical. It performed this second function in a variety of ways.
The Constitution included a division of powers between the state and national governments. In Federalist 14, James Madison wrote that the national government would not “be charged with the whole power of making and administering laws.” The power of the national government would be limited to “enumerated objects, which concern all the members of the republic.” The states would retain their previous authority. Limiting the national government to enumerated powers over those areas that were themselves national in nature, such as national defense or regulating interstate commerce, was intended to prevent the national government from playing an outsized role in the daily lives of the citizens or from acting on its tendencies to despotism.6
In addition to the division of powers from federalism, the Constitution also divided powers between the separate branches of the national government, each of which was expected to jealously guard its power. James Madison, quoting Thomas Jefferson, in Federalist 48 explains that concentrating all the power of government in one body, even if it was an elected legislature, would be the very definition of despotic government, and that “173 despots would surely be as oppressive as one.” The Constitutional Convention divided the powers of the national government between the legislative, executive, and judicial branches in order to prevent anyone from exercising the powers of more than one branch simultaneously, while also making it all dependent on the legislative branch. Each of the branches had a particular role to play in the national government and was limited to that role.7
In placing limits on the powers of the national government versus the states and by dividing that power between the three branches of the national government, the Convention was paying heed to the concerns that led to the stringent limits of the Articles of Confederation. The Anti‐Federalists, after all, had been extremely concerned that the national government might develop into a tyranny. They feared that the office of the president might become a monarchy or that the Senate might turn into an aristocracy. The limits on national authority and the division of power between the branches would reduce the incentive to tyranny. In addition to this, the Convention gave impeachment power over the judicial and executive branches to the Congress and placed the appointment of Senators squarely within the purview of the individual state legislatures.8
While the concerns over tyranny developing out of the national government were quite real for the Anti‐Federalists, there were other concerns of how tyranny could grow in the United States. The Federalists themselves thought unbridled democracy could become as much of a threat to liberty as monarchy and aristocracy, as explained in detail in Federalist 10.
How the Constitution Mitigates the Threat to Democratic Factionalism
The problem with Democratic governments, as Madison explained, was faction. Faction itself can go under a variety of names such as tribalism or partisanship. It happens because people seek out others with a shared kinship, either real or imagined, with whom they form a type of community. These communities can be based on all manner of things, from political parties to nationality to religion to Trekkies‐versus‐Star‐Wars. As people form these factions, they can work together to further the interests of their faction. The causes of factionalism cannot be removed, according to Madison, so limits must be placed on factionalism’s effects.
A faction in the majority can use the power of majority to further its preference under popular government and doing so can lead to the sacrifice of the public good or personal rights. If the majority of citizens are members of a particular faith, and they required that all citizens affiliate themselves with that faith, it would be an egregious violation of the minority’s rights to follow their own conscience. While a minority faction might be able to slow down the administration of the government, the Constitution was designed to prevent a majority faction from forcing its particular passion on society at large. This is necessary, according to Madison, because democracies are “spectacles of turbulence and contention,” with wild and erratic swings according to whichever faction is in power from one moment to the next.9
The Federalists worked hard to design a system that limited faction. This can easily be seen through two institutions as set up in the Constitution: the U.S. Senate and the Electoral College.
While it has changed since then, the Senate was originally not elected by direct popular vote. The manner of choosing of senators was given to the legislatures of the individual states as the Senate was meant to represent the interests of the entire state at large rather than the voters in that state. After all, the people themselves were represented in Congress by the House of Representatives. The Senate, therefore, was designed to temper the passions of the House.10
Another check on the passions of democracy was the Electoral College. Alexander Hamilton argued that the citizens of one state might by swayed by the charisma of a charlatan or by intrigue and thus might vote for an individual of low character. That individual would have a much harder time fooling the citizens of multiple states, and the electors in the Electoral College would be even more difficult to fool. Hamilton also pointed out that the Electoral College guaranteed that the individual who won the presidency would be one who had the broadest appeal across the states rather than simply gaining a majority in the largest states.11
For the founders the beauty of the system was in its caution or conservatism, although neither of those are really the right word for it. They provided a process for modifying the Constitution, but that process is intentionally difficult so amendments could not happen on a whim. They instituted a president who represents the nation as a whole but is not elected by direct popular vote. They provided a national government that has authority over areas of general national interest, such as defense, but is constrained by the Constitution from infringing on powers reserved to states, which the states had always exercised.
While it is true that the founders saw the tendency toward monarchy and aristocracy as major threats, they also thought of unbridled democracy as a threat to the republic as well. The constraints of the Constitution did not merely inhibit the likelihood of autocracy developing. It kept the republic from drifting untethered in the winds of democratic whims. Rather than being bugs, each of the constraints on government authority and democracy were, in fact, features.
2. Declaration of Independence: A Transcription from the National Archives. This is a useful page, providing word for word text in an easy‐to‐read format. All of my quotes from the Declaration of Independence came from this page.
3. A much more in‐depth examination of Magna Carta can be found here.