From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.
James Madison, Federalist Paper #10
If it be admitted that a man, possessing absolute power, may misuse that power by wronging his adversaries, why should a majority not be liable to the same reproach? Men are not apt to change their characters by agglomeration; nor does their patience in the presence of obstacles increase with the consciousness of their strength. And for these reasons I can never willingly invest any number of my fellow creatures with that unlimited authority which I should refuse to any one of them.
Alexis de Tocqueville, Democracy in American, 1835, 1840
The common axiom of democracies, however, which says that "the majority must rule," is to be received with many limitations. Were the majority of a country to rule without restraint, it is probable as much injustice and oppression would follow, as are found under the dominion of one.
James Fenimore Cooper, The American Democrat, 1838
The Constitution of the United States begins with the words, "We the People of the United States..." This makes it sound like the Constitution was a unanimous act of all the American People. But, of course, it wasn't. The Anti-Federalists were against it. Considering that pretty much all of their cautions, complaints, warnings, and predictions about the Federal Government created by the Constitution have come true, and that the assurances of Federalists like Madison and Hamilton that Anti-Federalist concerns were baseless have proven false, we might wonder what it means that the phrase "We the People" was not just innacurate, but a kind of deception. We should be especially sobered by the reflection that, according to Madison himself, we have seen "a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators," specifically in the adoption by the New Deal Supreme Court of Hamilton's suggestion that the "General Welfare" clause meant that the Federal Government could spend money on anything. Jefferson's own comment about this was that its adoption would render the Constitution "nugatory."
But the wording of the Constitution's preamble is the key to a problem that besets Constitutional government quite generally. The phrase "We the People" suggest the Greek idea of government by the People, for which we have the word δημοκρατία, "democracy," i.e. the "rule of the people." As Lincoln famously said, we want to have a government "of the people, by the people, and for the people." The United States is thus generally said to be a democracy, with the occasional complaint and the occasional reform about it needing to be more "democratic." Democracy is suppose to allow the "will of the people" to be effected.
However, there is a conceptual, or even a metaphysical, problem with these ideas. There is no substantive entity to be identified as "the People" that can exercise will and rule a state, and there simply never is such a thing as the "will of the people," or Rousseau's "General Will," that can be put into effect. Democracies are characterized by voting; and voting, unless the election is stolen, determines the preferences of a majority. There are winners and losers. The losers, as sometimes happens, can subsequently and consequently be deprived of rights, property, freedom, and even their lives. These actions, rising to the level of crimes, can then be justified as the "Will of the People," with the victims, not unusually innocent and harmless, vilified as "enemies of the People," and dismissed as either criminal themselves or unworthy of the status of human beings. This is aptly called the "tyranny of the majority" -- the very mechanism by which rights were stripped from freed slaves in the South after the Civil War, and the Segregationist terror regimes were established, or by which legal Chinese immigrants in the United States were denied citizenship, denied the ability to have their families join them, and even denied basic property rights in California.
It thus may be a kind of comfort that neither the Declaration of Indpendence nor the Constitution of the United States use the word "democracy." And we might modestly take the term "democracy" simply to mean that it is the People who are sovereign, in whose name acts of State, justice, and policy are effected, although this still excludes those who might disagree with those acts.
We have a clue about the alternative to "democracy" as a form of government from Article IV section 4 of the Constitution, which says that "The United States shall guarantee to every State in this Union a Republican Form of Government." We are left to assume that the Federal Government described by the Constitution itself is already a "Republican Form of Government."
Unfortunately, the Constitution does not define what a "Republican Form of Government" is, and this has never been clarified or adjudicated by any legislation or case law. But we get another clue from the Declaration of Independence, which says "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." It has already stated, of course, that "these rights" are "certain unalienable rights" by which everyone is "endowed by their Creator."
In these terms, we should be justified in inferring that "Governments are instituted among Men," not to ascertain or apply the "will of the People," but to enforce the rights of individuals that the "will of the People," let alone those manifesting, as Shakespeare says, "the insolence of office," might occasionally be inclined to violate. And, where many might think that a "Republican Form of Government" means no more than government is carried out by elected representatives, rather than directly by the citizens, we have the complication here that, whatever Republican government is supposed to be, the protection of "certain unalienable rights" involves a lot more than just a mechanism by which the use of political power is conferred or effected.
How are "unalienable rights" to be enforced and protected? And how is a government to address ideologies, such as we have now, that "rights" are conferred at the discretion and at the pleasure of government, while individuals themselves are "socially constructed" fictions, with no objective reality, and so are actually part of systems of "oppression" which mystify the "oppressed" into accepting their own loss of, what, rights? Does this make sense? Well, no -- and it is all itself a mystification in favor of the absolute and unlimited power of the state and, not incidentally, its beneficiaries -- but the obscurities about the nature of American government hamper its defense in the face of the totalitarian traditions, going back to Rousseau, Hegel, and Marx, that are still a constant threat to the Enlightnment achievement of Madison, Jefferson, Washington, etc., upon which American freedom and prosperity depend.
Republican government goes back to the original Republic, i.e. the Roman Republic. The expression Res Publica simply meant the Roman State and its affairs -- the latter being one meaning of res, "thing" or "things," as in the striking name of the Icelandic Parliament, the "Althing." The Res Publica is thus not a form of government, unless we identify the government of the Roman Republic as, indeed, a particular and distinctive form of government in itself. This is what was done, beginning with the Greek historian Polybius of Megalopolis (c.200-120 BC), who, living at Rome as a hostage for many years, witnessed its government in action, in war and peace. Here is a defining statement by Polybius:
The three kinds of government that I spoke of above [monarchy, aristocracy, and democracy] all shared in the control of the Roman state. And such fairness and propriety in all respects was shown in the use of these three elements for drawing up the constitution and in its subsequent administration that it was impossible even for a native to pronounce with certainty whether the whole system was aristocratic, democratic, or monarchical...
Such being the power that each part has of hampering the others or cooperating with them, their union is adequate to all emergencies, so that it is impossible to find a better political system than this. [The Histories, Loeb Classical Library, Harvard University Press, translated by W.R. Paton, 1923, Frank W. Walbank, and Christian Habricht, 2011, Volume III, Book VI, 11.11 & 18.1-2, pp.329 & 345]
We find this tradition of thought and analysis continued centuries later by Machiavelli:
I say, therefore, that all these kinds of government are harmful in consequence of the short life of the three good ones [monarchy, aristocracy, and democracy] and the viciousness of the three bad ones [tyranny, oligarchy, anarchy]. Having noted these failings, prudent lawgivers rejected each of these forms individually and chose instead to combine them into one that would be firmer and more stable than any, since each form would serve as a check upon the others in a state having monarchy, aristocracy, and democracy at one and the same time. [The Prince, With selections from THE DISCOURSES, translated by Daniel Donno, Bantam, 1981, p.94]
Latin Res Publica was translated into Greek as Πολιτεία, whose primary meaning was as a "constitution," but which then took on the multiple meanings of the Latin expression. As such, the familiar title of Plato's Republic translates the Greek title, Πολιτεία -- even though the ideal government of Plato's "Republic" has nothing to do with any form of Roman government. The closest translation in Greek to Latin res itself is πρᾶγμα (plural πράγματα), a term extensively used by Socrates and that gets us modern words like "pragmatic." It even nicely compares to the Chinese term used by Confucius.
As described by Polybius and Machiavelli, the Roman Republic thus had what Aristotle had called a "mixed" form of government, which combined elements of other types of governments familiar to the Greeks, such as traditional monarchies, a democracy as at Athens, or a merchant oligarchy such as, without formal definitions, had developed in the commercial trading cities of Ionia. Machiavelli's own phrase, "a check upon others," suggested a system of "checks and balances," by which branches of government preserved their own power and prerogatives in opposition to the others. From John Locke (1632-1704) to Montesquieu (1689-1755), this conception evolved into the definiton of an Executive Branch, a Legislative, and a Judicial. This was not quite what Polybius had described, but we can discern the distinctions of Polybius in the features of the Executive, with quasi-monarchical powers, the Legislative House of Representatives, intended to draw the heated enthusiasms of democracy, and the Legislative Senate, intended, with the same name as the Roman Senate, to feature cooler heads provided indirectly by each State, and reflecting the interests of the several States. Polybius thus lacked the conception of an independent Judiciary.
The most essential feature of all this, then, is that it is supposed to represent a mechanism to "secure these rights." Democracy is conceived as part of the mechanism, but it is only a means to end, not an end in itself. And the ability of voters to "throw the bums out" is a vivid case of how democratic institutions can do their part. But it is the tireless vocation of politicians to deceive the voters, in the cause of their own power. Thus, making the government "more democratic" by instituting the direct election of Senators (the Seventeenth Amendment), not only made Senators less accountable (to the "People"), needing to fool the voters only once every six years, but removed a direct check of State governments on the Federal government. Thus, Senators can ignore the governments of their own States at will, since they can no longer be Recalled by State Legislatures, as formerly they could.
The saying is that many go to Washington to "do good" and end up by "doing well." People become millionaires in politics, and neither the voters nor the press always seem very concerned how that is accomplished. George Wallace explained his success in Alabama by saying, "Promise them the moon and shout n*****r." These days, a similar result in the country is frequently effected by shouting the opposite, i.e. "racist."
In his lifetime, Jefferson was already aware of problems with the mechanism of the Constitution, which unfortunately had overlooked how the Constitution and the rights of the citizens were to be enforced. When Chief Justice John Marshall, appointed by John Adams as the Revenge of the Federalists, established the role of the Supreme Court as the final arbiter of Constitutionality, Jefferson was alarmed:
But there was another amendment, of which none of us thought at the time, and in the omission of which, lurks the germ that is to destroy this happy combination of National powers in the General government, for matters of National concern, and independent powers in the States, for what concerns the States severally. In England, it was a great point gained at the Revolution, that the commissions of the Judges, which had hitherto been during pleasure, should thenceforth be made during good behavior. A Judiciary, dependent on the will of the King, had proved itself the most oppressive of all tools, in the hands of that Magistrate. Nothing, then, could be more salutary, than a change there, to the tenure of good behavior; and the question of good behavior, left to the vote of a simple majority in the two Houses of Parliament. Before the Revolution, we were all good English Whigs, cordial in their free principles, and in their jealousies of their Executive Magistrate. These jealousies are very apparent in all our state Constitutions; and, in the General government in this instance, we have gone even beyond the English caution, by requiring a vote of two-thirds, in one of the Houses, for removing a Judge; a vote so impossible, where any defense is made, before men of ordinary prejudices and passions, that our Judges are effectually independent of the nation. But this ought not to be. I would not, indeed, make them dependent on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government, that they should be submitted to some practical and impartial control; and that this, to be imparted, must be compounded of a mixture of State and Federal authorities. It is not enough that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the espirit de corps, of their peculiar maxim and creed, that "it is the office of a good Judge to enlarge his jurisdiction," and the absence of responsibility; and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear? We have seen, too, that contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power. They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the States, and to consolidate all power in the hands of that government in which they have so important a freehold estate. But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected. Were not this great country already divided into States, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every State again is divided into counties, each to take care of what lies within its local bounds; each country again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual proprietor. Were we directed from Washington when to sow, and when to reap, we should soon want bread. It is by this partition of cares, descending in gradation from general to particular, that the mass of human affairs may be best managed, for the good and prosperity of all. I repeat, that I do not charge the Judges with wilful and ill-intentioned error; but honest error must be arrested, where its toleration leads to public ruin. As, for the safety of society, we commit honest maniacs to Bedlam, so judges should be withdrawn from their bench, whose erroneous biases are leading us to dissolution. It may, indeed, injure them in fame or in fortune; but it saves the Republic, which is the first and supreme law. [Autobiography, boldface added]
Thus, Jefferson suspected that in time the Supreme Court would simply be a partisan of the Federal Government, expanding its power in the direction desired by Federalists like Alexander Hamilton and by John Marshall himself. This is what has happened, not the least in terms of the unlimited spending for the "General Welfare" that I have already noted. This gives politicians the power to buy votes, as it gives voters the idea that they can simply vote themselves money, which places the whole institution, and the whole Nation, on the road of corruption and ruin. As I write, the National Debt of the United States is $22,501,185,000,000+. A new breed of leftist economists now claim that the government can borrow and print money indefinitely. They even call it "modern monetary theory." Recently, however, we saw what can happen when Greece was on the verge of not having the money to import food. They caved in on accepting the economic rules of the European Union, which, however, required reduced spending and raising taxes -- "austerity" -- but was tepid on the Supply Side reforms for which the European Union itself has limited enthusiasm. Greek voters, long enamoured of socialism, keep voting for it, often with the justification that too much capitalism still remains in the Greek economy. To be sure, the poverty of Cuba beckons.
The National Debt of the United States, unfortunately, does not cover the "unfunded liabilities" of the Federal Government for promises of future benefits from Social Security, Medicare, Medicaid, and Federal pensions. This amounts to uncountable trillions of dollars. The Democrats, of course, promise ever more spending and liabilities, with the new taxes that would crush the economy and hamstring Federal revenues. Only politicians, bureaucrats, and their retainers and vassals benefit.
The quote above contains several pieces of Jefferson's greatest wisdom. One we could say was a prescient predicton. "Were we directed from Washington when to sow, and when to reap, we should soon want bread." This is what happened to the Soviet Union, where Stalin thought it would improve agriculture to starve the successful farmers to death (particularly in the Ukraine) and convert all farms into collective communes. Russian agriculture literally has never recovered. We should have known something had gone very wrong when the Soviets made a deal with Jimmy Carter to import American agricultural surplus wheat. Much food that was grown locally for Russians was from the private plots that collective farms allowed to (surviving) farmers. Returning Russian agriculture to private owners has been, as I understand it, a slow and fractured process.
Otherwise, we see Jefferson saying, "But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected." Jefferson discussed this principle in detail, arguing that if the United States were not broken into multiple jurisdictions of States, counties, municipalities, and private holdings, it would need to be. This is an essential point when we consider a political debate that persisted until the Civil War, whether the Constitutional was enacted by "the People," as the Preamble says, or whether it was a pact by the several States.
The former was used as an argument against the right of States to secede from the Union. However, apart from the fact that the Constitution was proposed and ratified by the individual States (few of which would have ratified if secession had been explicitly prohibited), this is a pointless debate. Since "the People" is a fiction, the only question involves the rights of individuals. Thus, the powers of the States are rightfully and prudently distributed among them. If a State wishes to secede from the Union, the proper question is whether it was always a Union "at will" or if some reasonable cause is needed, as the Declaration of Indpendence itself allows. John Locke had already said:
...yet the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. ["The Second Treatise, of Civil Government," in The Second Treatise of Civil Government, §149, 1690]
The words of the Declaration of Independence echo this assertion, where Locke here restrains himself to the authority of a Legislature, since speaking of deposing the Monarch would sound too much like treason. But the point is easily generalized, as it was.
Since the Southern Cause in the Civil War was, as Ulysses S. Grant said, one of the worst ever, not only was Secession without reasonable cause, with no evidence of the Federal Government acting "contrary to the trust reposed in" it, but the genuine cause of the Southern action, to preserve slavery, was itself something that reasonably provoked action to end it.
Even if we stipulate that the cause of the Union would violate the right of Southern States to leave the Union, or the right of Southern slave holders to keep holding their human property, it was obviously the occasion to settle the matter once and for all, perhaps with the excuse of Krishna, addressing the guilt of the Pâṇḍavas, that it may be that ordinary rules must be violated to accomplish the good. When escaped slaves began reaching Union lines, the moral dilemma of Union commanders was acute -- soon covered by the mild sophistry that slaves, used by the South for its rebellion, were "contraband" of war. But Slavery was an evil of such magnitude, and so contrary to American principles of government, that the South itself conveniently supplied the pretext for ending it. Good work. Those who argue that Southern political and property rights override the right of human beings to be free, trip over their own perverse and shameful logic.
The many ironies of modern political discourse include the accusation against capitalism that it has "winners and losers," and that Supply Side economics is a matter of wealth "trickling down" from capitalists to workers. However, there are no greater winners and losers anywhere, short of gambling or crime, than in politics, while in markets it is producers, not consumers, who are subject to failure. And the left rarely wastes tears over bankrupt businesses, especially when their own policies have driven them into failure. Meanwhile, there is no more obvious "trickle down" than in the political distribution of benefits, where politicians and bureaucrats rake in their loot, toss a few shekels to the masses, and then pay themselves generous recompense. That is how politicians, often paid no more than modest salaries, become millionaires.
This is what concentrations of power make possible, and the corruption that we see is now addressed by Public Choice economics, where politicians, bureaucrats, and rent-seekers find success in Washington, not providing popular goods and services to Americans in general, but in directing public benefits to particular rent-seeking interest groups.
John Locke already understood this:
But in Governments, where the Legislative is in one lasting Assembly always in being, or in one Man, as in Absolute Monarchies, there is danger still, that they will think themselves to have a distinct interest, from the rest of the Community; and so will be apt to increase their own Riches and Power, by taking, what they think fit, from the People. [op.cit., §138, boldface added]
Voters, as in California, have often been duped by politicians arguing that a full time legislature and more "professional" politicians would result in better government. This leads directly to the dynamic described by Locke, and now by Public Choice.
In turn, we often hear from the gullible, naive, or dishonest that "We are the government," and so politicians, somehow, are not vulnerable to to thinking "themselves to have a distinct interest, from the rest of the Community." But as Jefferson also says, "They will purchase the voices of the people, and make them pay the price." This is the truth of modern government.
We can add to this one of the greatest principles of wisdom voiced by James Madison:
But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. [Federalist Paper No. 51, boldface added]
Incidentally here, we have a statement relevant to the role of democracy. "A dependence on the people is no doubt the primary control on the government..." Thus, we can always hope that the "People" will awaken to their peril and vote the bums out. But, of course, this does not always happen, or the bums who get voted in are no better. Thus, "experience has taught mankind the necessity of auxiliary precautions." This is the motivation of the entire Constitution as a mechanism in which a democratic element figures, but in which other institutions are needed.
But the corruption has gone very deep indeed. When Alexander Hamilton told President Washington that the "General Welfare" clause allowed the Federal Government to spend money on anything, we have seen what Jefferson's reaction was. Madison, in more detail said:
I cannot undertake to lay my finger on that article in the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents..... With respect to the words general welfare, I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. [To Congress, 1791, boldface added]
The limitation on the powers of the Federal Government was enshrined by Madison in the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The interpretation of the Tenth Amendment by sophists is that it means that powers are left to the States (or to the people) so long as the Federal Government has not yet decided to take such powers for itself. But the dynamic of American government is that such arguments need not even be used. The Supreme Court allows the Federal Government to usurp Constitutional powers, with no more argument than that people want it or that it is good. Deference to legislative whim is enshrined in the jurisprudence of people like Oliver Wendell Holmes and Robert Bork. This goes out of Constitutional Government in a big way, but now draws little protest. Since it goes along with the injustices of judicial positivism, it also goes far outside the basic requirements of justice, decency, and conscience.
There is little awareness of this in public discourse, let alone in law school curricula. In bitter irony, the Tenth Amendment is often dismissed as discredited by the claims of Segregationists that their practices, in violation of the Fourteenth and Fifteenth Amendments, were justified as States Rights. Well, if it was discredited, they should repeal it. Repealing it, of course, would also repeal the rule that undelegated powers are also left "to the people." That is the goal, of course, that the rights of the people be repealed, in favor of the ruling class.
One of the last Presidents to fully understand Constitutional Government was Grover Cleveland:
I can find no warrant for such an appropriation [drought relief] in the Constitution, and I do not believe that the power and duty of the General Government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit.... The friendliness and charity of our countrymen can always be relied upon to relieve their fellow-citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.... Though the people support the Government, the Government should not support the people. [To Congress, 1887]
It is not just the "General Welfare" clause that has destroyed Constitutonal Government. The interpretation of the Commerce Clause, that the Federal Government "regulates" interstate commerce, has been expanded to the principle that the Federal Government can regulate anything that "affects" interstate commerce. This has been rolled back slightly to anything that "substantially affects," but this has made little difference in the practice of the Federal Government. After all, almost anything can be construed, and has, as "affecting" interstate commerce. It does not even need to be economic activity. Multiple Federal laws concerning "violence against women" have been passed on the principle that such violence, otherwise thoroughly addressed by State laws, "affects" interstate commerce.
The result of this is a Government of absolute and unlimited power, something that has been the goal, if not the birthright, of all rulers since the Kings of Egypt. Occasionally the truth is publicly admitted:
I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The federal government, yes, can do most anything in this country. [Congressman Pete Stark (D, CA), July 24, 2010]
All that Pete Stark left out is that this was all engineered since the New Deal by Democrats like him, and that he likes it. Pete Stark wants his will to "affect your private life." Similarly, Congressman Ted Lieu (D-CA) said:
I would love to be able to regulate the content of speech. The First Amendment prevents me from doing so... [12 December 2018]
Thus, we can trust Mr. Lieu to join Jefferson's "corps of sappers and miners" trying to take care of that pesky First Amendment. They already have done that at American colleges and universities, and from this we know their agenda. Such a person, of course, does not belong in American Government, yet the Federal Government is full of them.
From all this, the plan of government designed by Founders like Madison and Jefferson has failed, in great measure because of sophistries advanced by people like Hamiton and Marshall and weaknesses identified above by Jefferson himself. The independent Judiciary needs to be independent, not just of the Executive and Legislative branches, but of the Federal Government itself. Or at least, as Jefferson imagined, with an external check to balance the influence of the Supreme Court's Federal station.
In principle, that might not be so difficult. If Supreme Court decisions were reviewed and could be overturned by the vote of the States, this would help. Certainly, the "One Man, One Vote" principle (Gray v. Sanders, 1963, Reynolds v. Sims, 1964), which overturned the ability of the States to balance regional interests against population -- as the Federal Government does itself in the United States Senate -- probably would not have passed muster. Similarly, whether Roe v. Wade (1973) really had general popular support, and could survive debate in 50 State legislatures, would have been tested. The arguments made by the Roe majority could be challenged in genuine political fora.
These contasting cases are instructive. The justification for the "Reapportionment Cases" was that the States, by basing some representation (usually a State Senate) on principles other than population, had been violating the meaning of democracy, or at least the "equal protection" clause of the 14th Amendment. Yet Roe v. Wade itself gets justified as properly violating the principles of democracy, since the "right to an abortion" shouldn't be made to depend on the "Will of the People."
That the "Reapportionment Cases" applied a principle contrary to the system of the Federal Government itself, where Rhode Island has as many Senators as California, and rendered the actual use of bicameral State legislatures meaningless, should occasion sober reflection on the ways in which Constitutional Government is not supposed to be a pure democracy. Similarly, the Supreme Court decision mandating "gay" marriage, Obergefell v. Hodges (2015) also overruled democratic government -- especially as in California and Hawaii, where votes of the whole people ruled out "gay" marriage, and it was the African-American vote in California that was the margin of victory, much as activists wanted to blame it all on the Mormons -- while California meanwhile allowed "civil unions" that were marriages in all but name. This was on behalf of a principle that pretty much has never existed in history, i.e. marriages between people of the same sex, while leaving illegal, for instance, polygamy, which has existed cross-culturally throughout most of history, including presently still in Islamic Law, criticisms of which are routinely dismissed as "Islamophobic" or "racist."
The Supreme Court "discovering" rights that no one has ever heard of is a novel use of judicial authority. It is also curious if the reasoning for such decisions is peculiar. Thus, Roe v. Wade did not actually establish a "right" to abortion, however often it is stated that way. Roe v. Wade was based on a right to privacy, although this was then derived from the "emanations" and "penumbras" of rights already listed in the Constitution and the Bill of Rights. This farcical terminology has helped discredit Roe v. Wade and also earlier decisions, like Griswold v. Connecticut (1965), which overturned laws against birth control.
That decisions like Roe v. Wade and Obergefell v. Hodges did not cite the Ninth Amendment is noteworthy:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
They did not do so probably because of the judical positivism and the rejection of natural rights that dominates American jurisprudence. Without natural rights, however, not only is the Ninth Amendment meaningless (as Robert Bork asserted), but it is not clear what justifies novel and undiscovered rights, like abortion or "gay" marriage, in their absence.
There certainly are natural rights to privacy and to marriage. Whether privacy covers the killing of developing human beings in the womb, or marriage includes "gay" marriage, are other questions. The former arguably, and rather obviously, involves a living thing other than the mother, the recognition of whose legal status, when the right to infanticide now seems to be openly claimed by many Democrats, is precisely what is at issue. Similarly, the real issue of "gay" marriage is not marriage, but the definition of marriage.
Marriage as a legal contract establishing next of kin, rights of inheritance, etc., is something that could already be done almost anywhere, with simple civil contracts, without any redefinitions of marriage by the Supreme Court. It is the charge of government to enforce lawful contracts; but it is not clear that government needs or is obliged to define marriage, whether in forms invisible to history or traditional religion, or otherwise. However, the behavior of activists raises the question whether the purpose of "gay" marriage is actually to destroy religion and to force believers (especially Christians) to adjure their faith in the name of "civil rights." If so, it is not a strategy that is well thought out, since Islamic Law does not recognize "gay" marriage or gay or "transgender" rights; and Muslims recently, and not just radicals, have shown little inclination to compromise the requirements of their of faith in favor of the progressive nihilistic principles of comfortable liberals. The anti-American alliance of the Left with Islamist radicals is no more than, we might say, a marriage of convenience.
The question people might want to ask is whether decisions about such things are properly matters of dictatorial fiat by the Judiciary, or whether such cultural innovation should be subject to popular deliberation and decision. When Oliver Wendell Holmes, Jr. is celebrated as someone who deferred to popular and legislative authority, even if in violation of the Bill of Rights, it seems a strange world when sometimes the same people happily endorse the political abridgement of basic rights like speech and self-defense and simultaneously endorse the power of the Supreme Court to impose "rights" made up out of whole cloth.
Our problem is thus not just with democracy, but with the determination of the rights that a Republican government is charged with securing. The role of democracy in Republican institutions has as much a role to play in that determination as it does in voting the "bums" out of office. Yet so much of modern government is not about either democracy or fundamental rights; it is about the irresponsible and tyrannical authority of bureaucrats in the "administrative state." Indeed, that is a greater threat now to democracy and to individual rights than almost anything else that is going on.