The peaceful and orderly inauguration of George W. Bush, as 43rd President of the United States, after the closest election in American history, is an event deserving thoughtful and thankful reflection. There were present on the inaugural platform former presidents of both parties, as well as the gracious loser in the contest just ended. They were testimony to the prizing above all political differences, of the rule of law under the Constitution. We are accustomed—now—to resolving our differences with ballots and not bullets. We are accustomed—now—when we lose an election to look to the next election to advance our political fortunes. But few of us today are aware of how recent in human experience—and how fragile—is this phenomenon.

In his inaugural address, President Bush alluded to 1800. He might have said that the national election of that year was—what we believe it to be—the first time in human history that the offices of a national government were peacefully surrendered by the incumbents to their bitterest political rivals, on the basis of a free election. The party contests of the 1790’s were the most intense and bitter in our history, more so even than those of the 1850’s. In the end however, the offices changed hands, and no one was executed, or exiled, or had his property confiscated, as had happened in ancient Rome and 17th century England.

Before the Revolution—in the Summary View of the Rights of British America—and in the Revolution—in the Declaration of Independence—Jefferson had seen the rights of the people safeguarded only when the people had violently overthrown their rulers. After the Revolution, and even after the adoption of the Constitution, in the Kentucky Resolutions of 1798, he denounced as tyrants the Congress and President elected under the new Constitution, almost as if they had been the King and Parliament of Great Britain. In passing the Alien and Sedition Acts they had, he said, usurped powers not granted by the Constitution, and violated rights of speech and association intrinsic to free government. In 1798 he held out the threat of revolution as in 1776. In the election of 1800 however Jefferson saw the rights of the people vindicated by the electoral process itself, without violence.

The precedent of 1800 held until 1860 when 11 states refused to accept the election of Abraham Lincoln. They did not however appeal to the right of revolution, but to an allegedly constitutional right of “secession.” Lincoln’s response was clear. Each state had, in ratifying the Constitution, agreed to abide by the results of elections held under rules of the Constitution. Lincoln had been elected under the rules of the Constitution, and he had solemnly sworn to govern within the boundaries of those rules. If, he argued, those who lose an election can break up the government rather than accept its results, then free government, becomes an impossibility. It was Lincoln who first insisted that ballots must prevail over bullets. Unfortunately it took a great many bullets for the victory of the ballots.

Plainly, the central idea of secession, is the essence of anarchy. A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinion and sentiments is the only true sovereign of free people. Whoever rejects it, does, of necessity, fly to anarchy or despotism.

A free election is a decision by a majority. But it is not a mere numerical majority. It is one restrained by “constitutional checks and limitations.” It responds to “deliberate changes of popular opinion,” not to the gusts of passion which incite to mob violence. The people, in ratifying the Constitution, speak through the Constitution. They do not have a voice independent of the Constitution, so long as the Constitution remains the supreme law of the land. We hear a great deal of loose talk these days about the powers of government being usurped by unelected judges, as if the authority of the Supreme Court is diminished because, unlike the other branches of the government, the justices hold their offices by a life time tenure. Of course, if the justices usurp powers belonging to the other branches, they are to be held at fault, just as if the Congress usurps powers not granted by the Constitution, it is to be held responsible. The Constitution has within itself remedies for the errors of courts no less than of legislatures. But the justices are unelected because the people, in their wisdom, in adopting the Constitution, believed that the balance of the Constitution required a branch free from the vicissitudes of electoral politics. They saw that in a system of majority rule and minority rights, neither the majority nor the minority could be trusted to define the rights of the other. This task, like that of umpires in competitive sports, the people have, under the Constitution, assigned to the Supreme Court. Mere numerical majorities, apart from the Constitution, have no right to prevail. Lincoln was elected with less than 40% of the popular vote, but with a decisive majority in the Electoral College. No one has ever wielded the powers of the presidency with greater force and authority, or with greater advantage to all majorities, and all minorities, then and forever.

Harry V. Jaffa

January 22, 2001