Randolph May Archives - Constituting America

Essay Read by Constituting America Founder, Actress Janine Turner

In declaring the purposes of establishing a new government under the newly-drafted Constitution, the Preamble is elegant in its simplicity: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The three words – “We the People” – at the beginning arguably are the most important of all the 4543 words contained in the Constitution signed in Philadelphia on September 17, 1787. After a long, hot summer of debate, we can be sure that the Constitution’s first three words were not chosen casually. The Constitution’s framers were well aware of the importance of beginning the Preamble with “We the People.” Indeed, by the time the delegates met in Philadelphia, the phrase had already appeared in two state constitutions, New Hampshire and Massachusetts.

The Convention that produced the Constitution was attended by only 55 delegates, not all of whom were in attendance throughout. And, the Constitution of 1787 was signed by only 39 of them. So, for the new governing document to gain legitimacy as a source of authority for what was to become the fundamental law of the land, “We the People” needed to be more than a felicitous opening. It needed to be the means for what the small group of men meeting in Philadelphia had wrought to be accepted as an expression of the sovereign will of the people. Consistent with Lockean social contract theory familiar to the framers, it needed to be transformed into the embodiment of the “consent of the people.”

How to accomplish this? The Constitution contained within itself the direction. Article VII provided: “The Ratification of the Conventions of nine States, shall be sufficient for the establishment of this Constitution between the states so ratifying the Same.” So at least three-fourths of the states would be required to ratify the Constitution for it to become effective. But more importantly for present purposes, the framers bypassed the legislatures then existing in each state in favor of special conventions comprised of delegates elected by the people themselves.

This ratification process meant that the Constitution, from its inception, would rest on a firmer foundation of popular sovereignty as an expression of “We the People” than if ratification had been left to agreement among the existing state governments. This was a key difference between the new Constitution and the Articles of Confederation, which it would supplant: the government under the Articles was established by a compact among the states and drew its authority from the states.

Thus, as James Madison put it in Federalist No. 39, the Constitution “is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose.” While the Constitution required nine states to approve, as Madison went to declare in No. 39, the ratification vote in each of the special state conventions would be “derived from the supreme authority in each State, the authority of the people themselves.” [Emphasis added.] In other words, the conventions in the several states, called specifically for the purpose of considering ratification of the Constitution with delegates elected for that specific purpose, necessarily would be expressions of the sovereign will of the people.

The battles in the state conventions between the Federalists and the Anti-Federalists were heated. In general, the Federalists – like James Madison, Alexander Hamilton, and John Jay, the authors of the pro-ratification Federalist Papers – contended that the Constitution, embodying the people’s collective will, established an effective government that, at the same time, protected liberty by virtue of separation of powers. The Anti-Federalists contended that the Constitution infringed too much on state sovereignty, thereby impeding the states from protecting individual rights. But, the important point for present purposes is that the vigorous debates by delegates elected to conventions for the specific purpose of deciding ratification constituted the means of expressing the people’s sovereign will.

In sum, the state ratifying conventions and the vigorous debates among the elected delegates in those conventions were the devices by which the Constitution itself envisioned that the new government would rest on a foundation of popular consent. The conventions were how “We the People” gave our assent to be governed by a new Constitution, which, by its own terms in Article VI, is ” the supreme Law of the Land.”

Randolph J. May is Founder and President of The Free State Foundation, an independent, non-profit free market-oriented think tank founded in 2006. From October 1999-May 2006, Mr. May was a Senior Fellow and Director of Communications Policy Studies at The Progress & Freedom Foundation. Prior to that, he practiced communications, administrative, and regulatory law as a partner at major national law firms. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communication Commission. He has held numerous leadership positions in bar associations and professional organizations, including serving as Chair of the American Bar Association’s Section of Administrative Law and Regulatory Practice, a Fellow of the National Academy of Public Administration, and as a Public Member of the Administrative Conference of the United States. Mr. May has published more than four hundred articles and essays on communications, administrative and constitutional law topics.

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Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 643 (start with chapter 3 heading) – 645 of this edition of Democracy in America.

Perhaps more than anything else, De Tocqueville is remembered for his observation that early Americans were inclined to participate in many voluntary associations. In one of the most oft-quoted passages from Democracy in America, De Tocqueville reported that “Americans of all ages, all conditions, and all dispositions constantly form associations.” These include “not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds – religious, moral, serious, futile, general or restricted, enormous or diminutive.”

For De Tocqueville – at least for the traveling reportorial De Tocqueville – this proclivity to engage in all manner of voluntary associational activity created an optimistic cast for the future of democracy in America. Not only would such “habits of the heart” satisfy what De Tocqueville considered to be an innate need of individuals to lead fulfilling lives, but they ought to reduce the need for the government to play as large a role in supporting the populace as would otherwise be the case.

But De Tocqueville the political philosopher painted a distinctly different, darker picture. While acknowledging the positive mediating role of associational activity, De Tocqueville predicted, presciently, that modern democracies inevitably would tend towards a centralization of power that would threaten individual liberty. In this chapter, “That the Sentiments of Democratic Peoples Are in Accord with Their Ideas in Bringing Them to Concentrate Power,” De Tocqueville starkly proclaimed that, in the future, “Centralization will be the natural government.”

Why did De Tocqueville boldly predict that government power would become ever more centralized? The answer lies in the opening to this chapter: “If, in centuries of equality, men easily perceive the idea of a great central power, one cannot doubt, moreover, that their habits and sentiments predispose to recognize such power and lend it a hand.” Here, and in other chapters too, De Tocqueville highlighted man’s natural striving, especially in democratic societies, to achieve ever greater degrees of what he called “equality of condition.”

But he understood – and this is key – that human nature is such that some men, by virtue of their greater innate personal pride, will always seek to gain an advantage that will allow them to surpass others, to rise above the common line of equality.

And, for De Tocqueville, it is this inexorable, yet natural, tendency in democracies for men to struggle for equality of condition that inevitably will lead to centralization of government power. For only a strong government, De Tocqueville claimed, will possess the power, through imposition of what he called “a network of small, complicated, painstaking, uniform rules,” (II, 4, 6) to restrain those who seek to rise above the uniformity of the crowd. So, to enforce the uniformity that the “equality principle” encourages, the citizenry will call for ever more centralized government. And, concomitantly, the central government favors equality, for it “singularly facilitates the action of such a power, extends it, and secures it.”

Here is how De Tocqueville, in this chapter, explains the willingness of the populace to cede power – and concomitantly a measure of individual freedom – to the government: “The sovereign, being necessarily above all citizens and uncontested, does not excite the envy of any of them, and each believes he deprives his equals of all the prerogatives he concedes to it.” And so “every central power adores uniformity,” because it “spares it the examination of an infinity of details with which it would have to occupy itself if it were necessary to make a rule for men, instead of making all men pass indiscriminately under the same rule.”

It’s not difficult to discern the relevance of De Tocqueville’s views regarding “equality” and centralization of power to the reality of contemporary America. De Tocqueville, in referring to “equality of condition,” did not explicitly distinguish, as we often do today, between “equality of opportunity” and “equality of outcome.” There are many individuals and special interest groups advocating for the latter, of course. And their success has led governments at all levels to adopt various forms of “affirmative action” programs and Diversity, Equity, and Inclusion (DEI) initiatives, many of which, in efforts to achieve “equality of outcome,” naturally depend on government compulsion for enforcement.

My purpose in this essay is not to debate the merits of any particular government program whose objective is to achieve “equality of outcome” rather than “equality of opportunity.” Rather it is to say that I think De Tocqueville, were he alive today, would not be surprised that the powerful “equality” imperative that he foresaw has been responsible, at least in part, for the increasing centralization of power in America at the expense of individual liberty.

But I suspect De Tocqueville would suggest that a counter to such centralization lies in nurturing and supporting private voluntary associations such as those he observed on his travels through America in 1831 and 1832. Elsewhere in Democracy in America (II, 2, 5), he asked, “what political power would ever be in a state to suffice for the innumerable multitude of small undertakings that Americans execute every day with the aid of an association?”

I bet De Tocqueville would answer his rhetorical question: “None!”

Randolph May is President of the Free State Foundation, a free market-oriented think tank in Rockville, MD.

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