Judge Andrew Napolitano: The tyranny of the majority

“Which is better — to be ruled by one tyrant three thousand miles away, or three thousand tyrants one mile away?”
— Rev. Mather Blyes (1706-1788)

Does it actually matter if the instrument curbing liberty is a monarch or a popularly elected legislature? This conundrum, together with the witty model of it put to a Boston crowd in 1775 by the little-known colonial-era preacher with the well-known uncle — Cotton Mather, addresses the age-old query of whether or not liberty can survive in a democracy.

Blyes was a loyalist, who, together with about one-third of the American grownup white male inhabitants in 1776, opposed the American Revolution and favored continued governance by Great Britain. He didn’t struggle for the king or agitate towards George Washington’s troops, he merely warned of the risks of an excessive amount of democracy.

No liberty-minded thinker I do know of critically argues immediately in favor of a hereditary monarchy, however many of us are fearful of an out-of-control hybrid democracy, which is what now we have in America immediately. I say “hybrid” as a result of, there stays in our federal construction a couple of safeguards towards run-away democracy equivalent to, the equal state illustration in the Senate, the Electoral College, the state management of federal elections and life-tenured federal judges and justices.

Of course, the Senate as initially crafted didn’t consist of popularly elected senators. Rather, they have been appointed by state legislatures to characterize the sovereign states as states, not the folks in them. Part of James Madison’s genius was the building of the federal authorities as a three-sided desk. The first facet stood for the folks — the House of Representatives. The second facet stood for the sovereign states — the Senate. And the third facet stood for the nation-state — the presidency. The judiciary, whose outstanding position immediately was unthinkable in 1789, was not half of this combine.


In his well-known Bank Speech, Madison argued eloquently towards laws chartering a nationwide financial institution as a result of the authority to create a financial institution was not solely not current in the Constitution but in addition was retained by the states and reserved to them by the Tenth Amendment.

In that speech, he warned the creeping enlargement of the federal authorities would trample the powers of the states and in addition the unenumerated rights of the people who the Ninth Amendment — his satisfaction and pleasure as a result of it protected pure rights — prohibited the authorities from denying or disparaging.  

He gave that speech in February of 1791, eleven months earlier than the addition of the Bill of Rights — the first 10 amendments — to the Constitution. Given the fashionable fears of a brand new central authorities, Madison assumed that the Bill of Rights can be shortly ratified. He was proper.

His Bank Speech stays simply as related immediately.


Had Madison been alive throughout the presidency of the anti-Madison Woodrow Wilson — who gave us World War I, the Federal Reserve, the administrative state and the federal earnings tax — he would have recoiled at a president destroying the three-sided desk. Wilson did that by main the marketing campaign to amend the Constitution in order to offer for the direct fashionable election of senators. Nor would Madison have stomached the efforts immediately by liberal Democrats to amend the Constitution to offer for the direct fashionable election of the president.

Part of Madison’s genius was to craft anti-democratic parts into the Constitution. And some of them — like retaining state sovereignty — created laboratories of liberty. Ronald Reagan reminded the American public in his first inaugural handle that the states shaped the federal authorities, not the different means round.

Had I been the scrivener of that speech, I’d have begged him so as to add: “And the powers that the states gave to the feds, they can take back.”

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Reagan additionally famously stated that we might vote with our toes. If you don’t like the over-the-top rules in Massachusetts, you’ll be able to transfer to New Hampshire. If you’re fed up with the highest state taxes in the union in New Jersey, you’ll be able to transfer to Pennsylvania.

But the extra state sovereignty the feds take up — the extra state governance that’s federalized — the fewer variations there are amongst the regulatory and taxing buildings of the states. This has occurred as a result of Congress — sensing a well-liked majority — has develop into a basic legislature with out regard for the constitutional limits imposed on it.

If Congress desires to manage an space of human conduct that’s clearly past its constitutional competence, it bribes the states to take action with borrowed or Federal Reserve-created money. Thus, it provided tons of of hundreds of thousands of {dollars} to the states to decrease their pace limits on highways and to decrease the acceptable blood alcohol stage in peoples’ veins — this would actually have set Madison off — earlier than a presumption of DWI could also be argued, in return for money to pave state-maintained highways.

The states are partly guilty for this as nicely. They take no matter money Congress gives they usually settle for the strings that include it. And they, too, are tyrants.

The states mandated the unconstitutional and crippling lockdowns of 2020, not the feds. The states needs to be paying the political and monetary penalties for his or her misdeeds, not the feds. They took property and liberty with out paying for it as the Constitution requires them to do, not the feds.


Blyes feared a authorities of 3,000. Today, the feds make use of shut to three million. Thomas Jefferson warned that when the federal treasury turns into a federal trough, and the folks acknowledge it as such, they’d solely ship to Washington politicians — faithless to the Constitution — who promise to deliver dwelling the most money.

And the majority will take no matter it desires from the minority that cherishes restricted authorities, non-public property and private liberty.


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