The Real Backsliding Isn’t Democratic—It’s Constitutional

You hear the phrase everywhere now: democratic backsliding. It gets attached to populist election wins, voter ID laws, originalist judges, and any serious attempt to move power out of Washington. But the entire framework rests on a mistake-and not a small one.

America was never designed to be a democracy. It was designed to be a constitutional republic, and the backsliding we should actually worry about runs in the opposite direction: away from constitutional limits and toward rule by unaccountable experts, activist judges, and transient majorities.

This is the angle almost nobody in the democratic backsliding industry wants to discuss, because it exposes their own project.

Most commentators treat the word democracy as a synonym for freedom. The Founders understood something those commentators have forgotten: a majority can be every bit as dangerous to liberty as a king. That is why they built a republic with checks, balances, and a Bill of Rights. That is why they did not give us a system in which fifty-one percent may vote away the rights of the other forty-nine. And that is why the term democratic backsliding is so misleading-it measures the health of the country against the wrong standard.

What the Founders Actually Built

The Founders did not create a system for majority rule. They created a system to protect liberty against majority rule. That distinction is not a technicality; it is the whole point of the American experiment.

James Madison put it plainly in Federalist 10. A pure democracy, he wrote, can admit of no cure for the mischiefs of faction. A republic, on the other hand-a government of representation, checks, and divided power-opens a different prospect, and promises the cure for which we are seeking. He went further: democracies have ever been spectacles of turbulence and contention, and are incompatible with personal security or the rights of property. Those are not the words of a man who thought majority rule was the highest good.

That is why the Constitution is full of what today's critics call undemocratic features: the Senate, the Electoral College, the Bill of Rights, federalism, the separation of powers. These were not flaws to be overcome. They were the architecture.

So when I hear someone say that the Senate or the Electoral College is democratic backsliding, I hear someone who does not understand-or does not accept-the government the Founders actually established.

Consider the Electoral College. Its critics call it an anachronism that thwarts the popular will. In reality, it is the mechanism that forces presidential candidates to win broad, cross-regional support rather than running up massive margins in a few coastal cities. Abolishing it would not make America more democratic in any meaningful sense. It would make America less of a republic, concentrating power in the hands of the largest states while telling everyone else their votes matter less. That is not progress toward liberty. It is a step toward the very factionalism Madison warned about.

The same is true of the Senate. The House represents the people by population; the Senate represents the states as co-equal members of the union. That arrangement was part of the Great Compromise, and without it there would have been no Constitution. It was not a bug. It was a deliberate design to prevent the large states from swallowing the small ones. Calling it minority rule ignores the fact that the United States is a federation of states, not a single undifferentiated mass.

The Erosion Nobody Wants to Name

If anything is backsliding in America today, it is the erosion of constitutional restraint-not the absence of majority will.

Look at the administrative state. Congress routinely delegates its lawmaking power to federal agencies. Those agencies then write rules, enforce them, and adjudicate disputes under them-combining legislative, executive, and judicial power in one unelected body. That is not democracy. It is rule by regulators. And it is a direct assault on the separation of powers the Constitution requires.

The Founders understood that liberty depends on keeping these three powers separate. Madison wrote in Federalist 51 that the accumulation of all powers, legislative, executive, and judiciary, in the same hands may justly be pronounced the very definition of tyranny. Yet for decades we have watched the administrative state accumulate exactly that power. The Environmental Protection Agency writes rules that function as laws. The Federal Communications Commission decides what counts as a violation and then punishes it. Agencies interpret their own authority, often with barely a nod from Congress. That is not self-government. That is government by an unaccountable fourth branch.

The Supreme Court used to enforce the nondelegation doctrine-the principle that Congress cannot transfer its legislative power to others. It last did so in 1935. Since then, the administrative state has grown by leaps and bounds, and the separation of powers has suffered accordingly. Even the modern doctrine of Chevron deference, which told courts to defer to agencies on their own power, did enormous damage to the constitutional structure. Whether that doctrine survives in the long run, the damage has already been done.

Then there is judicial activism. When judges discover rights and duties nowhere in the text, they are not protecting democracy. They are amending the Constitution from the bench. Antonin Scalia spent his career making this point: the Constitution is a legal document, not a living organism. If you want to change it, amend it-don't ask five lawyers in robes to do it for you.

And when presidents govern by executive order because Congress will not pass their agenda, that is not democratic energy. That is precisely the kind of arbitrary rule the Founders sought to prevent. John Adams gave us the standard: a government of laws, and not of men. An executive order that rewrites immigration law, trade policy, or environmental rules by the stroke of a pen is not law. It is the president acting as a legislator. That is constitutional backsliding, no matter which party does it.

These are the real backslidings. They are constitutional, not democratic. And they have been normalized for decades, mostly by the same people who now wring their hands about populism.

Why the Alarmists Have It Backwards

Here is the part rarely said out loud: the democratic backsliding narrative is not a neutral description of reality. It is a rhetorical weapon used to delegitimize constitutional limits and to launder the power of the administrative state.

The people who warn about backsliding often celebrate the very things that cause it-when those things produce outcomes they like. They call it democracy when an agency imposes a rule Congress would never pass. They call it authoritarianism when an elected president tries to roll that rule back.

They call voter ID voter suppression, but verifying who is voting is not suppression-it is basic electoral integrity. If you need an ID to board a plane, buy alcohol, or open a bank account, you can show one to vote. The claim that this disenfranchises millions of people collapses under the slightest scrutiny.

They call originalism minority rule, but originalism simply enforces the law as written. It does not pick winners and losers. It says the Constitution means what it meant when it was adopted, and if you want a different result, you go through the amendment process. That is not authoritarianism. That is restraint.

They call federalism obstruction, but federalism keeps power close to the people. Decisions made by state and local governments can be reversed, challenged, and adapted. Decisions handed down by a distant central authority are far harder to undo.

What they mean by democracy is frequently unchecked majoritarianism-the very thing the Constitution was written to restrain. And what they call backsliding is often just the Constitution doing its job.

What Genuine Backsliding Actually Looks Like

Let me be precise, because this matters.

If a chief executive refuses to accept lawful election results, that is constitutional backsliding. If a court invents rights and duties not in the text, that is constitutional backsliding. If Congress transfers its legislative power to unelected bodies, that is constitutional backsliding. If a mob tries to pressure legislators or judges into abandoning their legal duties, that is constitutional backsliding.

The principle is rule of law and separation of powers, not partisanship. I will defend that principle no matter which side violates it. That is what being a constitutional conservative means.

But popular election wins are not backsliding. States exercising their legitimate authority over election rules are not backsliding. Judges who stick to the text are not backsliding. Those things are the system working as designed.

Friedrich Hayek warned that arbitrary discretion-government power exercised without fixed, known rules-is the enemy of liberty. Nothing distinguishes a free country from an unfree one more clearly, he argued, than the observance of the rule of law. A government that can change the rules midstream, whether through executive orders or agency rulings, has already begun to slide toward what Hayek called serfdom. That is the real danger. That is the backsliding we should fear.

A Republic, If You Can Keep It

The answer to real constitutional backsliding is not more democracy. It is more constitutionalism.

That means enforcing enumerated powers. It means originalism and textualism in the courts. It means reclaiming legislative authority from the administrative state. It means restoring federalism so that decisions are made as close to the people as possible. It means taking the Founders seriously when they said that liberty depends on structure, not sentiment.

John Adams gave us the standard: a government of laws, and not of men. Hayek warned that when government acts through arbitrary discretion rather than fixed, known rules, liberty is lost. Madison argued that the greatest challenge in designing a government is not merely controlling the governed, but obliging the government to control itself. All three were right.

The next time someone says democratic backsliding, ask them what they mean.

If they mean that a bare majority cannot instantly impose its will on the whole country, that is not backsliding. That is the Constitution working.

If they mean the erosion of law, limits, and the separation of powers, then we should be alarmed. But let's call it by its right name: constitutional backsliding.

And then let's stop pretending that the cure is more of the disease.