How Democratic Is the American Constitution?

Great Debates
1

In another thread pantom asked about my objections to our constitution. I am opening this for him and any of the other newbies that perhaps are unfamiliar with my positions. My objection is that it is undemocratic. This objection is relative. I don’t fault it for not representing “pure democracy”. My criticism is that there are undemocratic features that I can’t justify by practicality. I intend to outline those features and rely upon the many supporters of the Constitution to provide justifications for debate.

I would like to state that I am well aware of the various reasons the document was written as it was and encourage its supporters not to assume that simply repeating this reasoning proves it reasonable. I would ask that the supporters actually support the positions they believe the Framers held. I would also like to make a distinction about “checks and balances”. I am fine with the power of some officials being checked or balanced by that of other officials. But “checking” the ability of a majority of the people to use the government to enact policy is limiting democracy and I would, and will, ask how any such restraint can be justified.

Note on thread title: I took the title from a book by Robert Dahl because it fit. The arguments I present should not be taken as those of that author nor does this thread constitute an endorsement of Mr Dahl’s work. I didn’t figure all of this out on my own of course but none of it can be blamed on that book because it is still sitting unread on my bookshelf. I haven’t had the time yet but perhaps this discussion will prompt me to open it.

Enactment and Amendment

To understand the most basic reason the Constitution is undemocratic all you have to do is ask yourself when was the last time you voted for or against it. There is some handwringing now by the American left about the fairness of imposing a constitution, even a democratic constitution, upon Iraq without letting them vote on it. This is amusing considering that our constitution has been imposed upon us. We didn’t vote for it. Nor did our parents. Or their parents. In fact, no electorate has never approved the Constitution.

Not only is it imposed upon us without our consent but we have to jump through hoops to amend the thing. A majority, via our representatives, can’t alter the document. Any amendments have to be approved by supermajorities meaning that basically any controvertial constitutional amendment won’t get passed. FDR stated that with a million dollars he could prevent any constitutional amendment.

The Senate

The most undemocratic institution created by the Constitution is, hands down, the US Senate. Indeed the very idea of bicameralism is that an upper house is needed to restrain the democratic impulses of the more popular branch of the legislature. Forcing laws to be approved by 2 different legislative bodies makes it more difficult for the people to impose their will upon the government.

Further the Senate is malaportioned. The half a million people in Wyoming are represented by the same 2 senators as the thirty two and a half million Californians. And then there is the six year term which insulates legislators from the displeasure of their constituents. A senator four or five years away from an election is free to take unpopular stands without the necessity of going to the people and convincing them the stand is principled. It makes them unaccountable.

The Electoral College

I could ( and have ) fill threads here with explanations of the bias of our system for selecting our national leader. The distilled version goes like this: there are three basic ways the EC makes Americans unequal. Between the states some people have extra electoral power because the states with smaller populations are overrepresented and the larger states are underrepresented just like ( and ultimately because of ) the malaportionment of the Senate. Within the states some people have no vote at all because of the “first past the post” or “winner take all” nature of the vote. Only those voting for the most popular candidate within that state are represented at all in the EC. Outside the states ( and DC ) there is no balloting at all so citizens are denied even the appearance of a vote.

The Judiciary

The judicial branch is free to flout the will of the majority for 2 main reasons. Judges are appointed quamdiu bene se gesserint. That is, “during good behavior”. They aren’t accountable either to the people nor to their representatives. So long as they can avoid removal via impeachment, which is pretty difficult not to do, they have a life term. Plus we have the doctrine of judicial review. Unaccountable officials sit in judgement over the laws passed by Congress. With a stroke of the pen they can nullify laws enacted by the people’s representatives that don’t fit their particular ideological preferences.

How Democratic Is the American Constitution?

As little as it can get away with, it seems to me.

2

But, you see, that’s the point, it IS a LIMITED “democracy” (or as some of our more classically conservative posters would say, it’s NOT supposed to be a democracy, only a republic.)

What if the majority of the people want to enact policy that is contrary to what is right and just?

quote*“Because this is to be asserted in general of men, that they are ungrateful, fickle, false, cowardly, covetous(…)”* —Niccolo Machiavelli
[/quote]

3

The Constitution was ratified by the leaders of the 13 existing states at the time. They held their power by whatever right the residents agreed to live under at the time.

I do agree with you, however, that there is a shocking lack of knowledge (without which consent is meaningless) about the framework of the laws every American, by virtue of living here, agrees to live under.

This notion of making the laws difficult to change comes from political philosphy of the time. The sentiments of the masses are fickle and not hard to sway, so the laws of the land should be representative of a real sea change in public opinion, not ripples. Read the essay “That a Law Received Should Not Easily Be Changed” by Montaigne and see if you don’t find reason in his arguments.

Only unaccountable to an electorate with a short attention span. The government is designed to be as stabel as the framers could imagine. I could understand your “undemocratic government” issue with this if the senate were the only national assembly, but to focus on it alone is to miss the big picture.

Electors are delegated by the notions of the state, not the feds. You have direct local control over how your electoral votes are distributed.

The whole point of the Electoral College was to create a balanced system where no one branch of the government, which included the electorate in the minds of the founding fathers, could have too much influence.

The people could vote directly for the House. They could vote for the Senate only by proxy through their state governments (done away with by a later amendment). To give electoral power of the Executive directly to the state governments or the people would have thrown off the planned balance, giving one or the other direct control over too much of the government. Hence the Electoral College.

The Court is meant to be the most stable part of the government, that is why it is not elected. Granted, the power of Judicial Review is not in the Constitution, but given that someone may sue over a passed law, what else is supposed to happen?

4

**

Because individual rights must be protected from the tyranny of the majority.

Marc

5

Unless you are advocating a direct Democracy, then your objection is nonsense. How many Laws have you ever voted for? Are you suggesting that the whole Constitution be put to a vote every year? At any rate, you are correct. We are not a direct Democracy. Should we vote on that?:slight_smile:

The Union is formed as a collection of States. The States need to know that the authority ceded to the Feds is stable, and won’t be changed willy-nilly. The Union would never have formed if the Constitution could be easily changed.

You seem to want to ignore the historical context of the Constitution. It was a compromise so that the Union could be fomred in the first place. Had it not been enacted as it is (or very close to its current form), we would be like South America-- a collection of independed countries. I think we got the better end of the deal up north here.

6

Realized it wasn’t right of me to send you off into the wild blue without a link:

The correct title is Of Custom, and That We Should Not Easily Change a Law Received

7

2sense, interesting stuff.
BTW, I’m not exactly a newbie, as you can see by when I joined.

8

Are you assuming that a 50.00000001% majority is always representitive of the “will of the people”? I’m not sure that there is much argument on the points you raised vis a vie the Constitution and “Democracy”. The mechanisms you find fault with are not “democratic” in the sense that they do not function on a 1 man 1 vote basis. The question, is why do you think that 1 man 1 vote is beter? That is, why would you want to judge the Constitution on this basis?

As I see it, the Constitution provides a context for our government. That is, it provides limits on the power of the simple majority and more directly on their representitives. It is a comprimise between a completely unconnected oligarchy, and institutionalized mob rule.

9

It should be noted that even parliamentary systems have built-in checks.
I was just reading today that the Italian president vetoed a law because he felt it would favor the prime minister’s business interests, the prime minister being the less-than-bashful Silvio Berlusconi. In their system the president can wield a veto, but is overridden by a simple majority of the legislature.
Not much of a check, but as the President doesn’t veto stuff very often, people snap to attention when he does.
The Senate and the Electoral College were put in place to attempt to limit the tyranny of the large states over the small states, which they’ve certainly succeeded in doing to a large extent if you just examine the distribution of taxes vs receipts, which heavily favors small states. Given both, I’d say we could safely chuck the Electoral College, especially given that the office of the President should be recognized as national, and therefore unconnected to issues of large vs small states.

10

You don’t have to be conservative to claim the American government under the Constitution was intended as a Republic and not a Democracy. That’s an historical fact. When opening the “main business” of the federal convention Governor Randolph proclaimed the need to restrain the democratic governments of the states and no one gainsaid him. I just don’t agree with those Dead White Guys that that was a good idea.

What of it? Who is the government to decide that the majority is wrong? It is supposed to be the servant of the people not our master. Or I could just ask what if what the majority wants to enact is right and just but it is prevented because the people are checked?

I could point out that the ratification of the Constitution was illegal in that it violated the original constitution of the United States: The Articles of Confederation and Perpetual Union. Or I could point out numerous other inconsistancies in its ratification but to what end? Even if what you say were true it doesn’t change the fact that we live in the shadow of the Constitution because of the actions of dead people. Necrocracy is not democracy.

Living under the rule of someone or something is not the same thing as having a choice in how you are ruled. For me the dictatorship of Saddam Hussein was not the moral equivalent of our republic even though the Iraqis “agreed” to the brutal regime by living there. YMMV

I have no intention of reading Montaigne. I am already so far behind on my reading and continuing to buy books that I have doubts I will ever even get to my copy of Rousseau. Feel free to bring any of his arguments forth into this thread if you wish, however. I would agree that it isn’t practical to change every law every time public opinion shifts but that is entirely different from denying a persistent majority the right to enact their will.

It’s not just a matter of attention span. Representatives don’t just represent us on individual issues but on every issue. What is important to people changes as time passes. Take the invasion of Iraq, for instance. It is fait accompli and 86ing a Senator four years from now for allowing it to happen would change nothing so it seems likely people will base their vote on other considerations. But if a senator faced a vote every year or every other year it is less likely that each individual act will be water under the bridge come election day. It’s hardly news that representatives are more responsive to public opinion in election years.

I haven’t focussed on it alone. It’s the 2nd of four complaints. I haven’t concentrated upon the House of Representatives because while it has undemocratic features ( gerrymandering being the most offensive ) these are not mandated by the Constitution. Lets not forget that it only takes one branch of the legislature to deny the wishes of the people.

Each state assigns their electors as they see fit, true. But there is no way for a state to unilaterally give its residents an equal vote as every other American. Unless you know of one?

Generally I find much to disagree with from the minds of the founding fathers. Here though I would say you have it slightly muddled. The people were not seen as a branch of government. That conceit was the foundation of the “virtual representation” in Parliament that Americans rejected in the Revolution. The Ancient Constitution of Britain of the day divided society into three parts: the people, the aristocrats, and the rulers with each represented in Parliament as Commons, Lords, and Crown. The House of Commons represented the people not because it was elected by them individually but because it was the natural representation of them as a whole. I recommend Gordon Wood’s Creation of the American Republic for a fuller understanding of how the colonists reinterpreted the slogan of “No Taxation Without Representation” originally coined in the 1640s.

I have studied the history and can discern no unified intent for the Electoral College. Here’s something I posted before on this topic:

“Specifically, intent is impossible to decipher when it comes to the Electoral College. To claim that it is working as designed or offering it as an example of the wisdom of its creators is just plain silly. No debate lasted longer than that over how to choose the national executive. There were many reasons to settle upon an electoral college, including a desire to just settle the matter so the delegates could get back home. Thornton Anderson ( Creating the Constitution ) argues that the nationalists didn’t expect the electors to reach a majority after Washington retired and that the Congress would chose the rest from the candidates with the most votes in the college ( which would naturally tend to come from the large states ). If he’s right, and I think he is, then that would be the most common intent for the electoral college.”

Here we again run into the difficulties of determining the original intent of the Framers. The problem is that sometimes there were as many intents as there were Framers. The original conception for the Constitution, the Virginia Plan, was inspired by the Ancient Constitution with 2 legislative branches corresponding to the Commons and Lords. The first was the popular branch and the other was to represent the better sort which were sometimes supposed to reflect wisdom but often referred to simply as “property”. James Wilson has something of a reputation as a democrat due mostly to his support in convention for a popularly elected Senate but in fact he took that position because he didn’t see how it would interfere with the Senate’s purpose of representing property. The idea of selection by state legislatures was a later compromise and only slowly did the idea of state suffrage accrete to the final plan. Madison and the nationalists were trying to disempower the states. They wanted to build a plan upon the people ( but not controlled by them ) and not upon the states. Obviously they weren’t completely sucessful.

I didn’t complain that judges are unelected. I tend to agree that electing them is problematical. Nor am I strongly concerned about judges judging a law rather than merely interpreting it. My concern is that the higher law they refer to is not democratically controlled and that they themselves are immune to popular outrage for their presumptions.

Who is to say what is tyranny? Someone must rule. Once a question is brought before government and no compromise can be found then one side or the other must prevail. I believe it is the minority that should yield. Whether the particular policy is tyrannical or not is an opinion. Any action can be assigned that appellation. Or all of them. In that case I would prefer the tyranny of the majority to the tyranny of the minority. I have seen no evidence that the latter protects individual rights any better than the former.

That’s all I have time for right now. More to follow.

11

The important point here, as I see it, is:

Limited government. No branch of government has the power to make changes easily. No majority of citizens (or congressmen, or justices) has the power to make changes easily. All parts are dependent on the others to accomplish anything.

Limiting the ease of change does not make the Constitution less democratic. It gives the system a stability that makes the democratic processes coherent. Allowing simple majorities to quickly change basic rules of the system is not democracy, it’s chaos.

If a sufficiently large number of people wants a certain change for a sufficiently long time, it will happen. That is democracy.

Or, to sum up in a sound bite: “Instant gratification of a simple majority is not a requirement for democracy.”

12

Just curious - - what would you think of a unicameral government that required a supermajority of some sort – 3/5, 2/3, 7/12, whatever – before legislation could be passed? In other words, do you view “50 percent plus one” as the most important principle of a democratic society, or could there be a fair way to skew the system toward favoring consensus?

13

But you see, this is not true. Someone must govern, but rule implies an unlimited license to make new laws and change the rules of govnernance. Certainly we don’t want a static form handed down from on high and unchangeable, but it is just as silly to suggest that we need a simple way for 50.00000000000001% of the population to enslave the rest.

I still don’t understand your fascination with majority rule. If we scrapped the constitution and instituted a direct democracy, how do you thinkg this would be better? How would it be more stable? How would it be more fair? I’m not even sure how to ask, because I can’t tell what measure you are using to complain about the lack of democracy in the Constitution. If it is not allowed to appeal to the authority of the Founding Fathers as you indicated in the OP, then how is it permissable to simply say “nope, not democratic” and therefore naughty.

Remember the purpose of the Constitution was not to provide “democracy” (whatever value of the word you are using).

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

14

GK Chesterton:

“I have never been able to understand where people got the idea that democracy was in some way opposed to tradition. It is obvious that tradition is only democracy extended through time. … Tradition may be defined as an extension of the franchise. Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.”

**

'twere not meant to be thus. Senators were to be elected by state legistures and represent the interest of the states; this would be a check on the power of the federal government and keep more power at a local, more responsive level.

I’m 10,000% in favor of repealing the 17th amendment.

15

Hey, I love the Constitution. I couldn’t have done it better myself.

It puts emphasis on freedom over tyrannical rule. It favors individuals rights and property over oppression. It should be difficult to change. If there is any doubt, then it should err on the side of caution.

I think most of the objections of the OP can be refuted by the fact that the political landscape has changed since 1776, and that back then the US was a loose alliance of states. Thus, we are the United States of America.

As far as the Electoral College and the Senate, we vote as states, therefore every state is equal. But the Constitution does recognize the corruption that can happen in high population areas skewing the vote, so the House of Representatives is there to balance that out a little. The Electoral College also works this way as well.

16

Hey, ignore the last paragraph in my last post. I got it all mixed up. Too much rum in my coffee tonight, I guess.

I’m just going to fall back on the two tried and true arguments:

“It’s the best damn system out there.”

“If you don’t like it, there are plenty of other English speaking countries to go to.”

17

** I have never voted on any law but I have voted on a constitution. The Michigan constitution faces a vote every 16 years. No, not every year. Every 16 years. If a majority asks for it a constitutional convention must be convened. The residents of Michigan are not slaves to the past. They are free men and women who control their own destiny. At least as far as the state goes.

What form of Union would or would not have been acceptable in the 18th century is of no consequence; we live in the 21st. Nor have I, or anyone else here, suggested that the laws should be changed “willy-nilly”.

I don’t ignore it. On the contrary, I find it fascinating. But I am capable of seperating the past from the present. I see no reason to allow the past to rule today. Again, necrocracy is not democracy. I don’t see why dead people deserve a vote on how the living shall live.

This is why I enjoy your posts so, pervert. You don’t let yourself be distracted by the shadows on the surface but dive right to the depths. When it comes to our venerated constitution others, even normally thoughtful posters like MGibson, content themselves with mindless platitudes or attempt to mischaractorize my criticism rather than face it head on.

I am in favor of “One Person, One Vote” because I favor equality. Instead of accepting all the prevailing political dogma without question I ask, “Why should we have less than an equal say in how we are governed?” Sometimes there are considerations I can accept as practical. Obviously the representatives of the people have more political power than regular citizens but I can accept this because I don’t see how direct democracy can ever be efficient enough to maintain our complex society. I have offered my objections because in those cases I don’t see any justification for depriving people of their equality. So yes, if more than half of the people favor a policy then yes, it is the will of the people. Everyone had an equal say and the minority lost.

What is “mob rule”? And why would we want to compromise with oligarchy?

Even granting your distinction I disagree. Someone must rule. Establishing the rules of governance is ruling. If you deny the majority the right to change the rules then what you have is minority rule. Maintaining the status quo IS a decision. There is no in between. Either the majority rules or the minority does. I see no middle to exclude.

Hopefully now that I have replied to your earlier post you understand that my yardstick is political equality.

The authority of the FF isn’t naughty, it’s just controvertial. Appeal to it doesn’t help you when arguing with me because I don’t accept them as authorities. If you don’t accept the notion that, in principle at least, everyone deserves an equal say in how they are governed then appealing to that principle doesn’t help me when arguing with you. Of course, you do accept that. The only person I have seen lately ( or hell, even remember off hand ) that was brave enough to admit they didn’t think everyone deserved political equality was RexDart. I complimented him on his honesty but didn’t bother arguing with the guy. No future in it.

** Nice addition, pantom. Now that’s a veto I can get behind! And yes, I now see that you have been here longer than I. My mistake.

**You call that limited government; I call it minority rule.

From Merriam-Webster Online:

*de·moc·ra·cy

1 a : government by the people; especially : rule of the majority b : a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections*

Limiting the ability of the people to change their form of government limits the supreme power vested in the people and exercised by them.

The 2 are not exclusive. A system can be both democratic and chaotic. I wouldn’t want to live in such a nation however so I wouldn’t propose to allow a simple majority to change things too quickly. Just quickly enough. As I have tried to explain my objections are based upon principle but are essentially practical.

If the required large number is 95% and it takes 95 years would you call that democracy? I wouldn’t. Government institutions are more or less democratic. I see no reason for these to be so far to the “less” side.

Well, if I could get 7/12 or 3/5 I would be happier than with the national legislature we have now. Especially with an Italian veto. But yes, majoritarianism is my main goal. It is the only system which preserves the principle of political equality. Equality is what is important to me.

And I disagree with your assumption that preventing majority rule favors consensus. The Right-to-Lifers are denied a straight majority vote on their key issue. Has this brought consensus on abortion? Of course not. I am all for encouraging compromise and building consensus but don’t see how giving the minority the right to deny a persistent majority helps that cause. When the few can sit there and thumb their noses at the many where is their incentive to seek common ground?

Again I have to run. Still more to follow.

18

Well, it does help prevent minorities from being systematically slaughtered, having their property seized, or a variety of other unpleasnat effects simply because the majority was angered.

Well, if you want to portray the minority position as a bunch of nose-thumbers, I guess it’s fair to portray the majority position as a mob of thugs eager to lynch any victims they can find.

Emotional appeal won’t win your arguments for you.

19

On the contrary, the majority of the country voted for it indirectly.

The state legislatures of the original thirteen colonies all ratified the U.S. Constitution. If they didn’t, they wouldn’t be states and if less than 9/13 of them did, then it wouldn’t have gone into effect at all.

In addition, every state that has entered the union has had to accept the Constitution as well as a condition of statehood.

While it’s true that no single electorate has ever directly voted for (or against) the Constitution, the same could be said for any law in the U.S at just about any level.

Zev Steinhardt

20

But you have not addressed the issue of how sovereign states merge together to form a larger union. You say you recognize practical reality, then you must see that it is contrary to historical precident to expect sovereign states to merge into a larger whole without some preservation of the state’s former sovereignty. (A perfect example is what we see going on today in the EU.)

Can you point to a successful model for how this has ever been accomplished, or do you just have a theoretical idea of how this is supposed to work? I realize that “it’s never been done before” is not a valid reason for not trying something, but I do want to make the distinction between what might be theoretically possible and what has been demonstrated to work in the real world.

Or, if there is no model for sovereign states merging and not retaining any aspects of sovereignty, how about outlining a realistic process to get from where we are today to where you think we should be?