Representative and Constitutional Democracy

• Author: Jack Fruchtman
• Profession: Professor of Political Science and Director of the Program in Law and American Civilization at Towson University, Maryland
• Pages: 28-44

American Constitutional History: A Brief Introduction, First Edition. Jack Fruchtman.

© 2016 John Wiley & Sons, Inc. Published 2016 by John Wiley & Sons, Inc.

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Representative and Constitutional

Democracy

The essence of representative government lies in the legal fiction that

legislators pass and executives enforce laws as if the people themselves

passed and enforced them. The theory holds true, despite the initial

indirect election of US senators and the ongoing process for presidents

via Electors. A good example of representative democracy in action

occurred in the electoral crisis that erupted during the 1800 presidential

election. Historians have long noted that the election demonstrated that

the new nation made a peaceful, democratic transition that year from

one political party to another, from Federalist to Republican. Itwas not

an easy power shift, because at the time presidents and vice presidents

were elected separately. Electors voted for two candidates and the one

with the highest number of electoral votes became president. The vice

president was the candidate with the second highest number of votes.

In the first two elections, no problems arose, because the Electors in

1789 and again in 1792 unanimously chose George Washington, the

only American president ever to achieve the honor. Matters changed

when political parties emerged during the Washington administration

as conflicts grew between Republicans and Federalists. Thomas

Jefferson, as secretary of state, advocated states’ rights, along with

James Madison in the House. They were opposed by Alexander

Hamilton, as secretary of the treasur y, and Vice President John Adams

who were determined to create a strong national government. In 1796,

the Federalists faced the Jeffersonian Republicans. The result was an

Representative and Constitutional Democracy 29

anomaly when a Federalist president, John Adams, served with a

Republican vice president, Jefferson. Four years later, the election

ended with a tie between the two Republican candidates. Jefferson was

the presidential candidate, and Aaron Burr the candidate for vice

president. As the Constitution required under Article II, Section1, the

tie went to the House of Representatives, which, voting by states,

elected Jefferson after 36 ballots, after one member, James Bayard of

Delaware, changed his vote. The result was the passage and ratification

of the Twelfth Amendment in 1804, which provided for the election of

presidential and vice presidential candidates together on the same ticket.

In terms of governance, while the executive and legislative branches

are separate, they must work together to fulfill their obligations to the

people. Congress makes the laws, and the president must veto or sign

and enforce them. On the other hand, both houses of Congress, by a

two‐thirds vote, may override, or nullify, a president’s veto. In this

regard, Madison in Federalist 51 spoke of how the Constitution

diffuses power so that no one branch predominates over the others.

No two branches may join together to overpower the third. This

process demonstrates how the framers envisioned a workable repre-

sentative democracy.

Meantime, the judicial authority encompasses neither lawmaking nor

law enforcement. Nor are the judges accountable to the people through

the electoral process. Moreover, the language of Article III is vague

concerning how much power the federal courts possess. Since 1791, the

courts have demonstrated that in addition to being a representative

democracy, the United States is also a constitutional democracy due to

the role of the judges. The framers set forth two basic goals for federal

judges when they heard cases. First, they oversee the actions of the other

two branches of government to ensure that they do not unconstitution-

ally delegate their powers to the other branch. Congress may not pass

laws that transfer any of its powers to the president and vice versa.

Second, judges must make certain that the president, Congress, and

the state governments do not interfere with the people’s rights and

liberties. Although no right or liberty is absolute, including fundamental

ones like those in the First Amendment, the people may express their

political opinions and publish them. Neither Congress nor a state

government may deprive them of those rights without a compelling

reason. Should a dispute arise over whether the government may limit