The notion that the Constitution should be malleable to the will of a majority finds its philosophical basis in the work of the philosopher Rousseau, who was not influential among the founders of our Constitution, but whose work became more and more important during the 19th Century. Marx, with his notion that governments would eventually be under the sway of the “Will of the Proletariat, derives support for his theories directly from the thought of Rousseau.
The Ghost of Rousseau
Rousseau is the originator of the notion of a “General Will” expressed by the voters in a democratic society. Many people think of it as his foundational achievement as a social and political philosopher. If the idea of a Social Contract provides a vehicle to construct a society of atomized individuals, the General Will as a political idea is an answer to the question the mechanism that can form a society based on the Social Contract.
While ancient writers focused on ideas like “The General Good” or “Public Peace” (transcendent public goods inherent in human society), Rousseau develops the concept of a “General Will” of the people. From the beginning, one can observe the individualistic and power-driven nature of modernity. The General Will is not something outside the human individual; society seeks it, and it is part of the human condition to be imposed. As a “General Will” of the people, it has no inherent limitations. This idea underpins the modern tendency toward large-scale tyranny. A more modest perspective might be to view the general will and general good as goals we strive for as a society, but which our human finiteness and self-centeredness make it impossible to fully realize.
For the modern progressive movement, it was essential to establish that the Constitution was a human document to be interpreted in accordance with the will of the people at a given point in time. This notion of the will of the people transfers the discussion from one of the duty of the state to proto individuals to a discussion of the extent of the power of the government to institute the given “will of the people. In the process, the role of government is inevitably changed to accomplishing the presumed will of the people, not the protection of the rights of individuals.
The Democratic Party, initially formed by Andrew Jackson, embraced the notion of the will of the people as part of its belief that the will of the majority was embodied in the Democratic Party and its principles. President Martin Van Buren, who followed Andrew Jackson as President, adopted the view that the will of the people, as embodied in the policies of his party, was and should be the ultimate guide to determining the meaning of the Constitution. [1]
This view shifted the notion of the sovereignty of the people from being inherent in each individual citizen to an abstract concept of a discernible will of the people that existed in the collective. This notion is not different from the Nazi notion that there was a will of the German People or the Communist view of a Will of the Russian Proletariat. And interestingly enough, this will could be used in each case to enshrine in law the prejudices of its proponents, in the case of the early Democratic Party, the notion that slavery should and could be constitutionally protected.
In the years prior to the Civil War, successive Democratic Party leaders sought to find a way around the problem of slavery. Many of the founding generation, including some such as Washington, Jefferson, and Madison, disliked slavery and thought it incompatible with the ideals of the Declaration of Independence. Nevertheless, to address the problems of the Articles of Confederation, they were required to delay resolving the issue of slavery. Congress tried successive strategies, such as the Missouri Compromise (1820) and the Kansas and Nebraska Act (1854), but these only made matters worse as the nation became divided between those committed to the abolition of slavery and those who would protect the institution.
Salmon Chase, an early abolitionist lawyer, Senator from Ohio, and Lincoln’s Secretary of the Treasury, argued early that no legislature, state or federal, could abrogate the fundamental laws of nature, of which personal freedom was the first and most basic.[2] As a Senator, he put the matter plainly: “What kind of popular sovereignty is it that allows one portion of the people to enslave another portion?”[3] Thus, the pre-civil War Republican Party was characterized by its belief that the people had rights reserved by the Constitution, which a majority cannot abrogate, however large.
The Kind of Natural Rights Protected
During the Civil War, Lincoln and the Republicans in Congress took the position that the president was entitled to free any slaves, whether in a slave or free state, as a matter of military necessity. This is the genesis of the Emancipation Proclamation. After the war, Congress enacted the Civil Rights Act of 1866 designed to protect the rights of former slaves to make and enforced contracts to sue and be sued, to give evidence in court, to inherit property, and to purchase, lease, cell holding convey real and personal property and have the full and equal benefit of all the laws and proceedings for the security of persons and property, as enjoyed by any other citizen of the United States.[4] When President Andrew Jackson vetoed the major, Congress drafted the 14th Amendment to the Constitution, which overruled his veto and put the matter beyond alteration by the Supreme Court.
14th Amendment
On April 9, 1868, three years after the war’s end, the Fourteenth Amendment was ratified by the requisite number of states. Section 1 of this Amendment provides as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [5]
The 14th Amendment makes it abundantly clear that citizens of the United States have certain rights that cannot be taken away from them without due process, including life, liberty, and property. In other words, those rights “reserved to the people” by the Constitution, and which rights presumably preceded the Constitution, cannot be abrogated by either state or federal government.[6]
Selective Incorporation
The plain language interpretation of the 14th Amendment suggests that the Bill of Rights applied to both the states and the federal government. However, in the Slaughterhouse cases of 1873, the Court seemed to close the door on applying the Bill of Rights to state governments. [7]Nevertheless, starting in 1897 and continuing throughout the 20th century, the Court issued several decisions indicating that the Due Process and Equal Protection Clauses of the 14th Amendment also apply to state governments and other governmental entities, such as schools. They did so using a case-by-case approach known as “Selective Incorporation.” Today, the vast majority of the Bill of Rights has been held to apply to both state and federal authorities. Nevertheless, it is my view that Selective Incorporation ignores the plain language of the 14th Amendment that “no state” may impair the privileges and immunities of citizens of the United States.
Conclusion
The Civil War and the amendments that resulted from it went a long way toward securing the fundamental rights of all citizens of the United States. It was left to a specific constitutional amendment to ensure women’s rights to vote. [8]However, on the whole, the Civil War’s amendments can be seen as supportive of the notion that each individual American has certain civil rights that no government, however majoritarian, can infringe upon. Unfortunately, the Progressive Movement of the late 19th and 20th Centuries placed stresses on this view which may only now be being overcome.
Copyright 2025, G. Christopher Scruggs, All Rights Reserved
[1] Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (New York, NY: Broadside Books (Harper Collins), (2016), 88.
[2] Id, at 94
[3] Id, at 97.
[4] Id, at 102. Civil Rights Act of 1866 14 Stat. 27 (1866).
[5] Constitution of the United States of America, Amendment XIV (1868).
[6] Id, 107,
[7] The Slaughter-House Cases, 83 US (16 Wall.) 36 (1873)
[8] Constitution of the United States of America, Amendment XIX (1920).
I love your articulation of this history of the USA.
Seems we are currently divided between conservatives and progressives and no one knows why.
It has been stated that “where one stands depends on where they sit.” Doing what you know in your heart is the right thing to do takes courage and a strong belief in God. Mainly, the Republican constitution was written from the perspective of being a superior race. “Roger B Taney, the fifth Chief Justice of the United States Supreme Court, famously declared in the Dred Scott v. Sandford decision (1857) that Black Americans, (note he called them Americans), whether enslaved or free, were not and could never become citizens of the United States. ”
“His ruling stated that Black Americans (note again the term Americans used ) were considered “being of an inferior order” who were not meant to associate with white people in social or political contexts. Taney argued that the Declaration of Independence’s statement “all men are created equal” did not apply to Black people.
Although this horrendous decision was eventually overturned by the 13th and 14th Amendments to the Constitution. However the majority’s mindset based on legal precedent had been instilled and institutionalized.
Just imagine the possibilities for our country had his ruling been just the opposite.
Thank you so much for the comment. I am going to answer as I believe the author would answer. Dredd Scott is universally regarded as the worst decision in US Supreme Court history. Roger Tawney was a democrat committed to a majoritarian interpretation that was overreaching (voiding the Missouri Compromise and the Kansas Nebraska Act). As such, he was not taking the “republican” constitutional tact of protecting miniorities but the “democratic” (majoritarian) tact of “the will of the majority shall prevail.” You are correct, I think, that history would have been different if the court had ruled differently. We cannot be sure the Civil War would have been avoided (I don’t think so), but we can be sure that there would have been the opportunity for Congress to find a solution. Dred Scott. Next week, I will deal with Plessy vs. Ferguson, which created the “seperate but equal” doctrine also roundly critizcied and also a violoaiton of the princple for which Barnett is arguing in his book. I hope this is helpful. I need to be sure and make clear, which I have not, that the terms “republican” and “democratic” constitutions do not refer to the current political parties.