Randy Barnett, who is a distinguished scholar at a prestigious university, has asked for my thoughts on democracy. I don’t know why he cares what I think, but it’s sort of flattering to be asked a momentous question by a person of his stature, so I am going to answer.
His specific question is: “Does ‘Will of demos’ = preferences of a majority of electorate?”
Short answer: no. Longer answer: it depends.
The demos, properly understood, is a party. Not a formal political party, but one of the two (or three) elemental parties found in every polity. There are always a many and a few, a common people and an elite. (There is also, occasionally, a preeminent party.) “Democracy” originally meant, and still elementally means, rule by this party, or part, of the polity. Like all parties, it rules in a partisan way. That’s a problem no matter which party rules: it always tends to rule in its own partisan interests and to ignore or at least underemphasize the common good. It’s especially a problem when the demos rules because it tends to be less wise, more prone to passions, more insistent on doing what it wants to the detriment of virtue, etc. Which is why democracy is the worst of the non-elementally bad (tyrannical) regimes.
The above is basically Aristotle as simply as I could restate him. So far as I can tell, the Founders largely agreed with it, too. It’s a point made so often it long ago became a cliché, but the Founders wanted a republic, not a democracy. This is one of the reasons for the elaborate machinery of government (different ways of electing the House, Senate, and President, for example) and for the property requirements and such that they used to limit the franchise, which are now considered such a stain on them.
Basically, they sought not to let the unchecked will of the demos rule the country. Yet they wanted a government that would respond to majority opinion. How to balance those two desires?
First, realize that while they are in tension, they are not contradictory. The demos is not necessarily identical to or coterminous with the majority. It’s always more numerous than the elite, but it can have conflicting opinions and interests amongst itself and parts may even have interests in common with part of the elite.
Second and related, “extend the sphere” so as to multiply factions. Prevent the demos from acting as a party by multiplying its interests.
Third, “mix” the regime to the extent possible. That is, enact Aristotle’s solution of giving all parties a say in their rule. This is accomplished (or attempted), for instance, in having a popular House, a pseudo-aristocratic Senate, and a solo executive. Let ambition counteract ambition.
Fourth, enshrine and protect minority rights. The majority’s will may justly act only insofar as it respects minority rights.
Fifth, divide the powers of government into functions or branches—legislative, executive, judiciary—and also into levels: federal, state, local. Decide only national questions nationally and otherwise devolve rule.
Sixth and most important, enumerate—and limit—the powers of the government. The most serious danger of partisan rule in pre-American republics was the unlimited nature of governmental powers. Once the demos (or whichever party) got the reins, it could do more or less whatever it wanted. This above all the American Founders wanted to prevent.
The party system, which they did not anticipate and which most of them, at least initially, opposed, turned out to be useful in preventing a unified demos. Broadly speaking, our parties have always leaned one way or the other—more popular or less—but sectional and ideological differences have prevented a straight-up plebs versus nobles dynamic.
Therefore, the preferences of the majority mostly have transcended the few-many divide. And even when they don’t, if the machinery of government is working properly, the ability of the demos to exercise majority tyranny is curtailed.