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America has too many elections

America (and philosophy) shows us how democracy cannot protect liberty alone.

22nd August 2025

The United States of America:

Land of the free.

A nation with the right to individual liberty enshrined in its constitution.

A nation with a system of checks and balances ensuring that no bureaucrat, judge, or least of all politician is able to exercise a disproportionate level of influence.

The first truly democratic nation, with the dominance of the people over every aspect of public life.

This is the story told of America.

Which leads to the question - How then was the US Supreme Court able to grant the office of president immunity from prosecution¹? How then are congressional districts able to be redrawn to ensure victory for a particular party? Why if Government is democratic, are people so unhappy with it?

It’s exactly because of America’s system of governance, and philosophy can help us to explain how.

The Judges

On Liberty

In On Liberty, seminal liberal philosopher John Stuart Mill explains how society (and its expression in the form of the democratic state) has no right to to “compel to do or forbear because it will be better for him to do so, because, in the opinions of others, to do so would be wise, or even right” even if it is for “his own good, either physical or moral”, unless it is to prevent harm to others. It is a particularly interesting idea given the circumstances of when it was published; in 1859 England was not a democracy, and Mill recognises this (“The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions”), yet he foresaw how a future democratic representative government would have no right to interfere in the private affairs which do not harm others, fearing the harm such government could do under the veil of democracy.

John Stuart Mill’s liberal framework asserts this freedom of action which government must protect based on a logical argument:

• No one has the right to harm others, other than to prevent harm.
• Restriction of expression restricts individual liberty, and therefore does harm where restriction is not justified.
• Contrary opinions may be true for we cannot always know for certain that they are for false.
• Contrary opinions even if untrue may have elements of truth which enlighten us.
• Contrary opinions even if untrue may enlighten us by “collision with error” that provides “the clearer perception and livelier impression of the truth”.
• Therefore, all opinions are enlightening to society.
• Therefore, their expression which doesn’t incite harm provides good to society.
• Therefore, restriction of expression cannot be justified unless it incites violence as to do harm to others.

• Therefore, Freedom of expression which doesn’t incite harm to others must be protected, even if all of society was of one opinion, and only one was to the contrary.

• The aim of humankind is to find the most desirable way of living.
• Therefore, “experiments of living” (where this refers to those “things that do not primarily concern others”) are a valid form of expression.
• Therefore, by any restrictions on this sphere of action a state does harm, as it consists of a restriction of liberty.
• Therefore the state, even if democratic, even if reflecting the will of the people, does not have a right to restrict the actions of the individual so long as they don’t harm others.

Mill asserted that government has a tendency towards restricting these rights regardless of how representative its system of elections and government may be, as shown in the long history of religious persecution in England, for “so natural to mankind is intolerance in whatever they really care about”. Mill feared the continuance of state repression into the future under the guise of democracy. More than the Tyranny of the Despot, Mill feared the Tyranny of the Majority.

On ‘liberty’

It could be argued that the rights that Mill sought to protect are enshrined in the US Constitution, which asserts that no state can “deprive any person of life, liberty, or property, without due process of law”. This therefore enshrines a protection of liberty, though it is thinly defined, with only freedom of speech, freedom of the press, freedom of assembly, freedom of assembly and of property specifically protected. The protection of liberty and expression in all other regards is only protected therefore by judicial interpretation of “liberty” as contained in the constitution. This means that the wide array of liberties such as those in the scope of reproductive rights, Trans rights, LGBT rights, privacy rights, freedom from torture, and freedom from discrimination, are only protected so long as courts interpret “liberty” as to protect them.

Often, the US judicial systems does indeed protect fundamental rights in this way, as with Roe vs Wade which protected abortion rights, and Lawrence vs Texas which protected consensual same-sex activity. These cases relied on a reading of “liberty” in the US constitution which infers a right to privacy and therefore a private life, so long as it does not harm others. Such a reading makes the US Constitution protect liberty in the fuller sense described earlier.

But the case of Dobbs vs Jackson Women’s Health Organization overturned Roe vs Wade by rejecting this interpretation of liberty, leaving open cases such as Lawrence vs Texas to judicial review.

This has meant that the United States can no longer protect liberty in a meaningful way.

The US supreme court is only able to contradict itself in such a blatant way because of how the constitution aligns the judiciary with the Tyranny of the Majority that Mill feared. Under the US constitution, it is the elected Office of President that appoints justices to the Supreme Court, and so they are appointed on the basis of their political views and the extent to which they reflect the objectives of the President, elected by the people. Judges to the US Supreme Court are therefore selected on the basis of political opinion, rather than their objective merit in upholding the US Constitution.

But it is worse than a Tyranny of the Majority, for the Constitution attempts to introduce checks and balances by ensuring that the President cannot remove justices to the Supreme Court which were previously appointed. And so the Supreme Court reflects a Tyranny of Past Majorities instead, a Tyranny worse for it has no mandate. Public opinion now aligns the US public as being broadly in favour of abortion rights, yet the Supreme Court reflects an inaccurate and outdated mind of the nation.

Individual states can offer protection from the absence of federal protections of liberty. However, here the Tyranny of the Majority is even more readily apparent, with around 90% of state judges being directly elected by the people - a peculiarity internationally². Where the federal level fails to protect liberty, the state can legislate and adjudicate as to enshrine these fundamental rights. But just as states are free to protect these freedoms, they have the unique ability to infringe these rights further than on the federal level. For instance, while the federal government removed protections on abortion rights, only states have had the freedom to actively restrict them, with 17 states having total or near total abortion bans³.

The only true conception of liberty must therefore come with a true conception of justice: one where cases are judged on their legal and philosophical merit rather than political opinion. The only way this is possible is to reject all systems of election and political appointment to select judges. The US Constitution as it is now does not allow this. For the judiciary to be truly independent this must include independence from the Tyranny of the Majority - judges should always be appointed on the basis of merit alone, with this enshrined in law.

The Politicians

All democratic states depend on the consent of their people in order to govern. In order to have this consent, citizens must have trust that their politicians make the change that they want to see. Elections are a means to this end, so that politicians have a direct and accountable connection to the people. But it cannot be guaranteed that politicians make the change that citizens demand by elections alone. A nation’s constitution must allow its politicians that liberty.

On their liberty

The President can only exercise the powers conferred to them by the constitution and by congress. Congress can only confer upon the President powers not in the jurisdiction of individual states, and can only legislate with the consent of the President. These are checks and balances to prevent overreach, to protect from the Tyranny of the Majority. But this is not protection from the Tyranny of the Majority that Mill feared, for Mill’s conception was that of society unable to infringe upon individual freedoms, not society being unable to introduce universal social programmes and build infrastructure.

As such it unnecessarily restricts the ability of politicians to legislate and act as their electors expect and elected them to do. As a result, there builds a democratic deficit between what the public believe US politicians are able to do, and what they are actually able to accomplish within constitutional limits. This understandably makes the public angry at what they expect the state to achieve, and what it actually accomplishes - more often put down to the failure of politicians than a failure of the constitution as it really is.

This means that social programs of other countries are impossible in the United States, such as healthcare systems in Europe like the NHS which established healthcare as a fundamental liberty enshrined by a government that took control of municipal and private hospitals, so that they worked together free at the point of use. This is not possible in America with its constitution as it is.

And these sort of democratic deficits pose fundamental problems for the political stability of nations. Faith in democracy is declining across America and violent disorder is on the rise, as seen on January 6th. Much of this can be put down to the failure of politicians, but their failure is the failure of the constitution.

Conclusion

The US Constitution is not a perfect document. The way it is designed fails to protect freedoms despite the intentions of the founding fathers, and it fails to deliver on democratic wills - both as a result of the wrongful conception of liberty. But the US Constitution was designed to be a changing document, the founding fathers understood that nations change and the world changes, yet the constitution has remained largely unchanged for two centuries.

Constitutions are meant to provide stability, they are not designed to be unchangeable.

To protect the vulnerable, the constitution must change.

To protect democracy, the constitution must change.

Elections alone protect no one.

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1. Trump has some immunity from prosecution, Supreme Court rules, BBC News, 1 July 2024, https://www.bbc.co.uk/news/articles/czrrv8yg3nvo ↩

2. Election Briefing Series: American Judicial Elections, FPC Briefing, Michael Kang, Class of 1940 Professor of Law at Northwestern Pritzker School of Law, 27 June 2024, https://2021-2025.state.gov/briefings-foreign-press-centers/2024-elections-fpc/judicial-elections/ ↩

3. What are the abortion laws in US states?, BBC News, 30 August 2024, https://www.bbc.co.uk/news/articles/cpvvvl9zq4eo ↩