In From Liberty to Democracy: The Transformation of American Government, Randall Holcombe writes:
At the end of the twentieth century, Americans viewed their government very differently from the way it was viewed at the beginning of the nineteenth century. When the nation was founded, the federal government was viewed as a protector of individual rights, but by the end of the twentieth century, the federal government was viewed as a collective decision- making institution to implement the will of the majority and to protect and further the economic interests of its citizens. The idea of limits on the government’s power has been completely eroded.
Another way to put this is that Americans gave up the modern notion of liberty and reverted to the ancient notion. The two notions of liberty are the subject of a remarkable essay, written in 1816, by the French classical liberal Benjamin Constant (1767–1830). Titled “The Liberty of the Ancients Compared with that of the Moderns,” Constant addressed a point that is perhaps more important today than it was in his own time.
He first identified how a nineteenth- century Englishman, Frenchman, or American thought of liberty:
For each of them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally it is everyone’s right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed.*
Then he took up the ancient notion of liberty:
[It] consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments; in examining the accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of the assembled people, in accusing, condemning or absolving them.
In other words, “[T]he liberty of the ancients . . . consisted in an active and constant participation in collective power. Our freedom must consist of peaceful enjoyment and private independence."
“Subjection of the Individual”
Constant emphasized the narrowness of the ancients’ liberty: “[T]hey admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community . . . . All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion.”
Constant pointed out that in the ancient democratic city-states “The will of each individual had real influence: the exercise of this will was a vivid and repeated pleasure. . . . Everybody, feeling with pride all that his suffrage was worth, found in this awareness of his personal importance a great compensation.”
But the modern mind is different, Constant said:
This compensation no longer exists for us today. Lost in the multitude, the individual can almost never perceive the influence he exercises. . . . The exercise of political rights, therefore, offers us but a part of the pleasures that the ancients found in it, while at the same time the progress of civilization, the commercial tendency of the age, the communication amongst peoples, have infinitely multiplied and varied the means of personal happiness.
Summing up, Constant wrote, “The aim of the ancients was the sharing of social power among the citizens of the same fatherland: this is what they called liberty. The aim of the moderns is the enjoyment of security in private pleasures; and they call liberty the guarantees accorded by institutions to these pleasures.”
Constant did not pronounce the modern notion superior to the ancient. He simply reported the difference. But today’s advocates of the freedom philosophy have no trouble seeing the superiority of the modern notion. Can the right to vote really constitute the entirety of liberty when the outcome of an election can dictate in what peaceful ways you may conduct your life?
The nation’s founders were moderns, sons of the Enlightenment. The Constitution is full devices meant to thwart majority rule in order to protect the individual and his property: from the presidential veto and the supermajority required for override, to representation in the Senate (two per state no matter its population), to the Bill of Rights, which prohibits Congress from making certain laws.
Moreover, we have Federalist 10, James Madison’s barrage against unchecked majority rule. Madison asked how private rights could be secured against a tyrannical majority? He replied: “[T]the majority . . . must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.”
That rules out democracy. As Madison wrote, “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. . . . 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.”
Madison thought a large republic, as opposed to a small democracy, would offer better protection of liberty and property. In light of the change Randall Holcombe recognizes, Madison seems to have overestimated people’s ability to distinguish the ancient and modern notions of liberty. Alexis de Tocqueville, by his warnings against what Jefferson called “elective despotism,” showed that he knew better.