There were multiple motives and fears that drove the writing of our Constitution. Two of the most alluded to fears were what the drafters thought of as “factions” and “the mob”. These two concerns played a critical role in the creation of the separation of powers and the system of having Senators elected by State Legislatures rather than popular vote, which stayed in place for the first hundred years or so. Some 228 years later, as our Constitution has evolved and our country has so dramatically changed, the words we use have changed but worry about “the mob” and “factions” remains as important an issue, something to be afraid of, as it was then.
The writers of the Constitution were not attempting to create a document for a direct, participatory democracy. Their fear that “the mob” could be manipulated into “factions” that could and would do stupid and dangerous things, up to and including the destruction of the country they were trying to create, was embedded in their understanding of government and how, particularly, democratic government worked. The creation of the often referred to ‘checks and balances’ in the American Constitutional system of government was in large part predicated on creating ways to make it as difficult as possible for “the mob”, whipped up into a “faction”, looking to achieve some short term desire, to run rampant over the longer-term best interests of the country and the government.
There are at least two interesting contemporary outcomes of structures created in our Constitution that attempted to deal with this fear of mobs and factions. One structure designed to help protect us from majority mob actions, the electoral college, has in the last election, put into the Presidency a man who obtained a majority of the electoral college vote, but lost in the total popular vote by just under three million votes (the 1790 census showed 3.9 million people in the entire country). In this election, it appears a minority faction of voters have put in office a President who wants to wrench the country into actions which as they unfold even many of his voters don’t agree with. One protection from majority mob action the drafters of the Constitution struggled to put in place has been turned on its head with a minority faction of the country, through the Electoral College, putting in place the majority destructive mob action they feared.
Another evolution with the idea of reigning in of “factions” and “the mob” is that the Judicial Branch has now assumed the role in our governmental functioning originally thought to be one of the critical roles for the U.S. Senate. When John Marshall in 1803 figured out a way, without saying it too loudly, to have the Judicial Branch become the arbiter of which laws and governmental actions were constitutional and which ones were not, he started us down the path to the Judicial Branch becoming the constitutional protection against “the mob”. In 1789, the Senate, with its indirect election by state legislatures rather than by popular vote and six year term of office, was supposed to provide this protection, but today it is the judges who sit in this role. It is possible that in 2017 the Judicial Branch will need to step in to keep under control a faction created mob that more and more seems to be the Executive Branch of our government.
The drafters of the Constitution assumed that by creating these types of internal controls in the governmental structure they were creating, it would be very unlikely that the three branches of government they formed would ever come under the control of a single faction. As we look at the partisan reality of our national government today a good case can be made for saying that one of the worst fears of the drafters of the Constitution is being realized.
The Judicial, Legislative and Executive Branches of our government are now responding to the beck and call of a minority faction of the American people. This creates a very challenging and dangerous time for the functioning of our government as created and conceived in 1789. Unless, in the elections of 2018 and 2020, at least one of the three branches of our national government moves out from under the control of this minority faction we will devolve into an operating governmental system that is not grounded in the system the drafters of the Constitution created or thought would work. I have my doubts that this would be a good thing.