Should legislators adhere to the will of the people or should they adhere to the best interests of the people? This has been a popular question lately as public opinion favoring health care reform crumbles. Arguing that legislators must adhere to the will of the people seems reasonable on it's face. As Will's quote and op-ed show, ignoring the will of the people seems paternalistic. But, if legislators are driven by the will of the people, what happens when the will of the people is morally reprehensible or detrimental to the best interests of the people?
This seems misguided to me if for no other reason than it has little foundation in law or history.
U.S. Congressmen take an oath of office that broadly outlines their duties:
"At the start of each new U.S. Congress, in January of every odd-numbered year, those newly elected or re-elected Congressmen - the entire House of Representatives and one-third of the Senate - must recite an oath:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
The Constitution itself, makes no mention of a duty to serve the will of the people. Neither the Preamble, or Article I - which lays out the powers of Congress, the following Articles II through VII, or the Amendments, mention legislators' duty to serve the will of the people.
Some have argued that the Federalist Papers, specifically, James Madison's Federalist #10, advocate a "representative democracy" of elected officials representing the will of the people. This argument fails at the outset, however, because we do not follow the law of the Federalist Papers in this country; we (ostensibly) follow the Constitution. More important though, is the fact that Federalist #10 doesn't necessarily advocate following the will of the people as explicitly as some believe. In fact, Madison, in Federalist #10, argues for the need to neuter majority and minority factions:
"By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."
(hmmm . . . sounds familiar)
"AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it.
The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected.
Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other.
These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations."
Madison goes on to argue that a republic is superior to democracy in controling factions that might damage the United States:
"Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it.
Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security.
Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage."
Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments.
Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security.
Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage."
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