The Freeman 1972 - The Ludwig von Mises Institute

744 THE FREEMAN DecemberCurbing the MajorityThe other main limitation inthe Constitution was the tacitlimitation on the powers of thepeople. There was much concernexpressed both in the constitutionalconvention and in the stateratifying conventions about limitson the people. The Founders perceivedthat a majority may betyrannical; it may work its wayso as to intrude on the rights ofindividuals, which rights wereconsidered to be the premier ones.Alexander Hamilton said: "Thevoice of the people has been saidto be the voice of God; and, howevergenerally this· maxim hasbeen quoted and believed, it is nottrue to fact. The people are turbulentand changing; they seldomjudge or determine right."14 MosesAmes, speaking in the Massachusettsconvention which wasconsidering the ratification of theConstitution, said: "It has beensaid that a pure democracy is thebest government for a small peoplewho assemble in person.... Itmay be of some use in this argument... to consider, that it wouldbe very burdensome, subject to factionand violence; decisions wouldoften be made by surprise, in theprecipitancy of passion, by menwho either understand nothing orcare nothing about the subject; orby interested· men, or those whovote for their own indemnity. Itwould be a government not bylaws, but by men."15 James Madisondeclared that "on a candidexamination of history. we shallfind that turbulence, violence, andabuse of power, by the majoritytrampling on the rights of theminority, have produced factionsand commotions, which, in republics,have more frequently thanany other cause, produced despotism."16The people were limited by theoriginal Constitution in that theycould act only through representatives,that except for the Houseof Representatives the brancheswere indirectly chosen, and thatthe courts were most remote frompopular control. Both the governmentand the people are limited bythe vesting of effective negativepowers on any legislation in eachof the houses, of a veto in thePresident, and the establishmentof a Supreme Court which, it wasunderstood, would have a finalnegative. Positive action requiresa concurrence of the branches;while several of them have thepower of negation. The directpower of the people is also limited'by the staggering of the terms ofoffices. The House of Representativesis chosen every two years.The terms of Senators are for sixyears, and approximately one-thirdof them are chosen every twoyearS. The President's term is for