Why Is the Constitution Not Democratic?
This essay is part of RealClearPublicAffairs's 1776 Series, which explains the major themes that define the American mind.
It’s hard not to notice that in the United States, political arguments frequently turn on questions that, in other democracies, nobody talks about. What are the powers of the legislature? What may the executive do? What can the states do without begging permission from the national government? Why can’t an idea popular with the public become a law?
For these and other questions, the answer will always involve the American Constitution, a document more than two centuries old that has been amended (not counting the Bill of Rights) only 17 times. In the wake of the 2016 election—in which, not for the first time, a candidate who lost the popular election entered the White House anyway—talk about the Constitution’s “defects” has become more insistent. Why can’t America be more like other countries?
Do you worry about fracking? Boris Johnson was worried, so he banned it, because he is the Prime Minister of Great Britain and his party controls the House of Commons. He can do pretty much whatever he wants when he has a sufficient majority.
Think there are too many guns in town? Why can’t we just ban them, like Britain and Australia do?
Do you think “free health care for all” is a good idea? The British Labor Party thought so, back in 1945, and only three years later, it became a reality.
These examples seem to suggest the problem. The United States appears to have a government that makes it very difficult to accomplish anything, while other countries seem much more able to make desired changes—with a minimum of fuss and bother.
On the other hand, several countries in Europe—and we can temporarily include Great Britain in this category—have become alarmed at the way some people talk, especially about immigrants. The result: “hate crime” prosecutions in France, Great Britain, and elsewhere that show much less regard for freedom of speech than would be tolerated in the United States. In France, to take another example, no public school student may wear any article of clothing, or any jewelry, that indicates a religious affiliation. In the United States, this kind of interference with religious expression would be unthinkable, and would not survive a court challenge.
The American Constitution gives, and it takes away: it radically slows down the process of lawmaking, and it places major obstacles in the way of interfering with liberty. “Congress shall make no law”—so says the First Amendment—respecting the establishment of religion or the free exercise thereof; nor may Congress interfere with the freedom of the press, speech, assembly, or petition. As the late Supreme Court Justice Antonin Scalia once reminded us, “‘No law’ means ‘no law’.”
The Constitution’s ability to slow down and even prevent actions or policies that might be popular has frustrated some Americans since the Founding era, and it’s easy to see why. The popular branch of the legislature, the House of Representatives, can have its will thwarted by a majority of the unrepresentative Senate. And assuming a bill gets past both the House and the Senate, it may be vetoed by the president and will die unless two-thirds of each house votes to override. Even if a bill makes it through all these hurdles, it may be challenged and struck down in the federal courts. It’s a wonder we have any laws.
But, of course, we have a vast number of laws, too many, in fact. Despite the complexity of the legislative process, things do get done. Yet the popular impression is essentially correct: the passage of major pieces of legislation, especially when they aim at significant changes in the way we do things, is time-consuming and difficult. This is why so many gaze enviously across the Atlantic at the British Parliament, where legislative majorities can move mountains in a matter of weeks or even days.
The “quaintness” of the Constitution has proved a particular irritant to liberals, who, ever since the days of Teddy Roosevelt and Woodrow Wilson, have seen the Constitution as an 18th century relic in the modern world—a dinosaur, to use a favorite metaphor. This liberal critique identifies the Constitution as the source of what liberals believe to be wrong with the political and economic order that has grown up under its shelter. In Teddy’s day, the Constitution got in the way of confronting the trusts. In Franklin Roosevelt’s day, the Constitution impeded systematic economic reform. In our own time, the Electoral College has (for the second time in the new century) given us a president who lost the popular vote. The House of Representatives eventually impeached this president—but the unrepresentative Senate voted not to convict him.
Liberals criticize the anti-majoritarian framework of the Constitution—and it is unquestionably the case that the Constitution places impediments in the way of simple majority rule. This is a familiar story: each state has two senators, regardless of the state’s population; the Electoral College means that a popular vote majority is sometimes not enough to elect a president, especially if the majority is concentrated in fewer states; the Supreme Court can overturn popular legislation in the Congress and in the state legislatures. The Constitution creates a federal republic, where the national government is limited to a specific set of responsibilities, leaving the states free to adopt an array of policies on matters of public concern. This last quality sounds democratic, and one would think, therefore, that liberals would endorse it. But liberals have always had a “tactical” appreciation of federalism: they like it when states adopt liberal policies (California banned the sale of fur products), but not when states adopt policies that liberals oppose, especially if those policies are at odds with national public opinion (Alabama’s strict anti-abortion law).
Finally, the Constitution can be amended only by a complex series of deliberations, first in the Congress, and then in the states, all of which require super-majorities in order to succeed: two-thirds in each house of Congress and three-fourths of the states.
Why does the Constitution place so many obstacles in the way of majority rule? To answer this question, it is necessary to go back to the beginning, and consult the seminal defense of the Constitution, The Federalist, whose principal authors were James Madison and Alexander Hamilton, writing as “Publius.” The understanding of human nature that Publius makes explicit underpins the anti-majoritarian components of the Constitution.
The Constitution was written to correct what appeared to be a failure—the Articles of Confederation, under which American politics had taken several ugly turns. It is impossible to read The Federalist without being struck by the anxiety that these failures provoked. In the very first number, Publius asks if it were really possible for “societies of men . . . [to establish] good government from reflection and choice, or [were they] forever destined to depend for their political constitutions on accident and force.” Americans, having won a glorious victory over Great Britain during the Revolution, were inclined to think too highly of themselves, and were reluctant to admit the failures of both the state governments and the weak national government under the Articles. Americans, the Framers believed, were capable of doing better—but Americans were not saints, and The Federalist is unsparing in its description of human nature even under the best circumstances. America was blessed in many ways; the American population was far more experienced in the arts of self-government than any other people at the time, for example. And yet, even so, here is what Publius has to say, in Federalist 6, not just about people in general, but about Americans. “Has it not on the contrary invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice?” Or in Federalist 10: “The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished.” On the other hand, Publius also says (in Federalist 55) that “there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”
Americans, like everyone else, were capable of being impulsive, passionate, short-sighted, selfish, and easily misled by flatterers and demagogues. They were also capable of better things. The trick in forming a government was to minimize the opportunities for mischief, while maximizing the opportunities for the exercise of virtue, or what Publius referred to as “honorable determination.” What this means institutionally is a limited government, with numerous obstacles placed in the way of impulsive and short-sighted behavior.
What was required at the Founding was a clear understanding of the failures of the Articles of Confederation and what those failures meant. They were failures of democracy, and it was in the states that the democratic impulse was the strongest. State legislatures, in particular, were too democratic, with small districts, short terms, and frequent elections. Executives were too weak, and courts lacked independence—in many states, judges were elected. State governments interfered with their neighbors’ commerce, debased the currency, and failed to pay their debts. They passed too many laws and changed them too quickly. State legislatures acted impulsively and in ways contrary to their own long-term interests, and to the interests of the Union. These circumstances did not bode well for the future.
From the perspective of Publius and the members of the Convention, these failures revealed some of the weaknesses of popular government—some of the “ills” to which it is naturally susceptible—but also suggested some of the remedies. The central problem with the states under the Articles was that their constitutional design was incapable of either controlling for the weaknesses of popular government or of taking advantage of its strengths. The strength of popular government is that it rests on a foundation of popular consent and popular participation. The weakness is that the energy and enthusiasm generated by a democratic society often could not be channeled in constructive ways. Channeling would mean finding ways to discipline human nature, so that human frailties are kept at bay and human virtues can flourish.
The Constitution aims, therefore, to create a government strong enough to achieve its ends, while controlling for the defects to which popular government is prone. It does not merely create a stronger national government; it creates a government that is popular. The Preamble announces this very clearly in its first sentence: “We, the people” establish this Constitution. But the government thus created, while popular, is not democratic, as that word was understood in 1787. It was not a government based on majority rule. In order to tame the worst impulses of human nature, a government must be shaped so that decisive action will require more than a majority, and more, in some cases, than a single session of the Congress.
To accomplish anything under this Constitution, it will be necessary to clear several hurdles.
First, many constraints are placed on the national government. It may not establish a religion; it may not restrict the freedom of the press or the freedom to speak. It cannot arbitrarily detain people without giving them an opportunity to challenge their detention in court. In general, the Congress may not do anything not expressly stated in the list of enumerated powers in Article I.
Second, the powers that are given to the Congress cannot always be exercised with only a majority vote, and never without an affirmative vote in both houses. The most important questions—those involving an executive veto, a treaty, a constitutional amendment, or impeachment—all require super-majorities of either two-thirds or three-fourths of at least one of the two houses. And if a bill survives these legislative “speed bumps,” it still must receive the approval of the executive, whose veto can only be overturned by another supermajority. Almost everything the national government can do will require a great deal of thought, debate, and compromise. If the Constitution had a motto, it would be: “Nothing important should be easy.”
Third, much of what people understood by the word “governing” was not the business of the national government at all, but of the states. With few exceptions, the members of the Convention were determined to protect state governments, recognizing that the states already held the allegiance and the affections of the people, so that no new arrangement that ignored this reality could possibly succeed. In fact, there was near-universal agreement that the Constitution must be ratified by special conventions in at least nine of the thirteen states—meaning that the Constitution would be established with the fullest possible measure of popular approval, short of unanimity.
What the states kept under the Constitution was referred to in the language of the day as “the police power”—a term that includes law enforcement but also those powers that relate to the “health, morals, and welfare of the people”: including the still-familiar state (and local) responsibilities for education, family law, marriage and divorce, most matters relating to business, the prevention of vice, and such housekeeping responsibilities as roads, land use and zoning, trash collection, etc.
Taken together, these functions, should they be performed properly, would create a healthy atmosphere for the cultivation of local citizenship and civic virtue. No matter how well the national government performed its responsibility for national defense, or the regulation of interstate commerce, if life at the local level should become chaotic or debased, republican government could not survive.
Modern liberals might claim, in response to the Constitution’s pessimistic view of human nature, that we have evolved beyond our ancestors, many of whom were elitists, aristocrats, and slaveowners. Look, they say, at the progress we have made since the bad old days of the 18th century.
Many are tempted by this view, but it is untenable. Pretending that human nature is not what Publius says it is requires ignoring the evidence of history—and not just ancient history. Who, looking at the horrors of the 20th century, could claim that human nature is an unmixed good? Ironically, some of the harshest critics of the anti-majoritarian elements of the Constitution will, in other venues, echo Hillary Clinton’s famous complaint about the “basket of deplorables,” describing many of their fellow citizens as racists, homophobes, and “climate deniers.” How can they pretend that they have no qualms about majority rule? Are they so confident that they are the majority, or that they will always be the majority? And can they really insist that no majority, even a temporary one, would ever dream of oppressing the minority if it had the chance to do so? If the critics of the Constitution were more introspective, they might find that they have more in common with Publius than they think.
The Framers’ view of human nature explains the anti-majoritarian elements that have earned for the Constitution the label “undemocratic.” To take one example, the Electoral College chooses the president. This method originated as a way of protecting federalism—and it still does. Every state is important, especially in a close election. What this means in modern times is that no presidential candidate can afford merely to “play to his base”—candidates need to pay at least some attention to parts of the country that they might otherwise be tempted to ignore. Having to win a sufficient number of state elections requires a candidate to appreciate the regional diversity of the country and put together a tapestry of victories. This is a salutary arrangement, especially at a time when public opinion is so deeply polarized, because it forces candidates to create coalitions.
The Senate does something similar. To pass the Senate, a bill requires widespread support among senators from many kinds of states, and this necessity provides a counterweight to the House, which will normally express only the sentiment of the current majority. And given current population patterns, it’s possible to assemble a House majority out of a relatively small number of places.
All the constitutional restraints on majority rule are buttressed by the Supreme Court, whose constitutional responsibility is to say what the law means, especially the fundamental law of the Constitution. Any law that contravenes the language of the Constitution is necessarily void. This, too, is a feature of American constitutionalism that frequently frustrates one side or the other. It frustrated conservatives when the Court upheld the right to abortion; it frustrated liberals when the Court upheld the right legally to own a firearm in Chicago. The Supreme Court’s authority presents a stark contrast with parliamentary systems such as Great Britain, where there is no fundamental law to constrain the legislative majority.
To those who envy Great Britain, we have a question. Are you sure that you know what the majority wants? We have been miseducated by modern polling to believe that this is a simple question, but there is much evidence, both historical and contemporary, to suggest that majorities are often ephemeral. It is easy to find out through polling what the “majority” believes at a given moment. But a stable majority emerges only through a process of deliberation—that is, people will often change their minds about what they think when they listen to other points of view or are presented with additional facts from those with a different perspective. (This happens on juries all the time.) In democratic politics, deliberation is not a solitary activity, and it is not the work of a moment. But given time, it can lead to permanent and substantial results.
For example, what did white Americans think about black Americans in, say, 1955? Given how segregated the country was back then, white Americans probably didn’t think very much about black Americans at all, and no evidence exists that whites were deeply troubled by the racial segregation then pervasive in America, and not just in the South. A snapshot of majority opinion in 1955 would not be very reassuring. Yet think about how that fact changed: through the slow but steady influence of the civil rights movement, which made a powerful argument about human equality and the demands of the American idea. If you were around in those days, you remember the conversations about race that could not have happened without that movement. A majority was reconstructed before our eyes; the process was slow but lasting.
Something similar happened in Congress. As students of the period know, white Southern Democrats were determined to protect business as usual, at least in the South, and if possible, in the country. Their long seniority had given them important committee chairmanships, so long as Democrats held the majority, as they had in both houses for most of the time since the Depression. Overcoming their opposition to civil rights laws required the construction of a bipartisan majority in the House and in the Senate, and a lengthy debate about the importance of making the promise of equal rights a reality. It took time—too much time, as critics often claimed. But when it was done, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 had the support of both parties and passed with overwhelming majorities in both houses.
As these examples indicate, much of what transpires in American politics is a result, not of the Constitution alone, but of the quality of leadership in the political class, and the quality of deliberation among citizens generally. Recall Publius in Federalist 55, quoted above: “republican government presupposes the existence” of certain virtues “in a higher degree” than is required for less popular forms of government. Therefore, the greatest error in thinking about the Constitution is to think of it as a machine that can run by itself, or as an operating manual. The Constitution is neither a machine nor a manual. It is a framework for government that encourages a particular kind of politics—but it is not idiot-proof. At a minimum, it requires that those holding the levers of power respect the limitations that the Constitution imposes—and not just rhetorically.
The Constitution requires the same discipline from citizens. Recall Publius’s reference to “honorable determination.” Citizens need to do more than simply demand things. They need to develop the wisdom to choose wisely. The Supreme Court may have the final say on what the Constitution and the laws mean, but every citizen, and every public servant, has an obligation to think constitutionally, and to reject ideas that violate constitutional norms, even when those ideas have popular support.
Who can deny that American political life needs improvement? But to paraphrase the Bard: the fault, dear readers, is not in our Constitution but in ourselves.