IS AMERICA REALLY A DEMOCRACY?

Is America Really a Democracy?

Many Americans think of the United States as one of the world’s leading democracies.  In theory, here the people rule.  But in reality, the American constitution was designed in part to prevent majority rule from trampling minority rights.  So the Founders added to the Constitution a series of checks on the popular will, including the Supreme Court, the Senate, the presidential veto, and the Electoral College.  But today, these same institutions prevent the majority will from operating far more often than was originally intended.

The Supreme Court’s tenure is a good example.  Justices are appointed for life.   The longer justices live, the fewer opportunities presidents have to choose new justices, who might alter the Court’s direction.  In 1787, there were competing ideas about justices’ tenure.  Some people thought that justices should serve for twenty-five years, others that they should serve for life.  But there wasn’t much difference then, because life expectancies were far shorter than today.  If a justice was appointed in 1789 in his mid-40s, and had a twenty-five year term, the odds were relatively good that he would die before it ended, so it didn’t make much difference whether his term was twenty-five years or life.  Today, differing terms would have far different effects.  If a justice is appointed in his early 40s, it is reasonable to expect that he or she might well serve at least 40 years.   So the Supreme Court today is far less amenable to popular input than many citizens probably wanted in 1787 or now.  At the same time, in cases such as Bush v. Gore (which decided the 2000 presidential election), the Supreme Court has arrogated to itself decisions the Constitution intended Congress to make.[1]

Another example is the presidential veto.  When it was created, it would typically have taken the votes of congressmen and Senators representing about two-thirds of the American population to override a veto.  Today, political scientists think that there may be times when it would require the votes of Senators representing seventy-five percent, or even a considerably higher percentage, of the population to override a veto. Only a very small fraction of vetoes are successfully overridden.  This means that the presidential veto is now far closer to the monarchical absolute veto advocated by a few Founders rather than a substantial check on the popular will.  Yet we still elect these more powerful presidents even when they fail to receive a popular vote majority because we elect them using the Electoral College.  It becomes more anti-democratic and dangerous with every passing day (for reasons to be explored in a series of subsequent posts).[2]

Congress’ broad lawmaking powers were originally seen as the principal means of expressing the popular will.  Other government branches were given their powers primarily as a means of restraining it.   But since the mid-twentieth century, at least, Congress has increasingly abdicated its authority on issues such as military intervention abroad and control of national defense and foreign policy.  In addition, since World War II, Congress has repeatedly delegated what practically amounts to lawmaking authority to the executive branch without agreeing on clear guidelines for its use.  These developments have substantially decreased Congress’ ability to represent the popular will.  Presidential power has been expanding for decades through regulatory action to fill the vacuum left by Congress’ chronic inability to reach meaningful agreements on legislation. We have moved from congressional government toward government through an imperial presidency.

There is one Congressional institution that is more responsible than any other for Congress’ failure to govern–the Senate “filibuster rule.”  Without getting into details, the effect of the filibuster rule is that ordinary legislation cannot pass the Senate unless at least sixty Senators agree to it.  This means that legislation cannot pass unless it is watered down to make it acceptable to a significant number of Senators in the minority on a legislative issue.  On any issue where the major parties are sharply divided, this means that legislation will not move forward unless the majority permits the minority to exercise a veto on its content.  The filibuster rule can only be defended on the grounds that it is necessary to ensure that minorities are reasonably consulted on legislation.  But why should minorities be able to hamstring progress when the issue is one of legislative policy rather than one that affects fundamental rights (which can be protected in court)?  Isn’t the purpose of electing majorities to give them the authority to govern?  If they choose to do so without addressing minority interests and voters are unhappy about this, they can retaliate at the polls by making a minority into a majority. [3]

The fact that neither Democrats nor Republicans are willing to end the filibuster rule–even though both have at times had the power to do so–shows that it is more important to both parties to continue to have a stranglehold on the entire Congressional legislative process than it is to them to actually govern by passing legislation.   This means that ensuring that they have the ability to protect the status quo–to prevent change–is actually their paramount objective. This means that needless gridlock will persist.  It also means that presidents become more powerful, and so presidential elections become the focus of politics.

America was not intended to be a pure democracy, or even a pure republic.  But it was surely intended by the Founders to be more republican than it is today.  Today, on many important issues, where sixty–or seventy–or even eighty percent of the population clearly wants change to occur, the government does not respond, or responds only when a crisis forces action.  It should come as no surprise that as a result popular support for government institutions has sharply declined over the past several decades.  It is high time for our antiquated constitution to change.[4]

[1] On this, see the brilliant dissent of Mr. Justice Breyer in Bush v. Gore, 531 U.S. 98 (2000).

[2]  A very small percentage of presidential vetos have historically been overridden (about 7 percent as of 2004).  Of course, the coalitions that would sustain a veto will depend on the nature of the issue, and on whether the president is willing to trade votes for support or opposition on other legislation.  But today the Senate consists of states so disproportionate in size that if Senators from the top fifteen or so states in population, which together have about two-thirds of the nation’s population, all voted to override a veto, they would not have nearly enough votes to override it, even if their only opponents were the Senators from the seventeen smallest states, which have much less than twenty percent of the population.  Similarly, the populous states would also lose whenever they were opposed by Senators representing only twenty-five percent of the population.  For more information and background on veto procedure, see http://www.archives.gov/legislative/resources/education/veto/background.pdf (accessed 11/30/2014) and Elizabeth Rybicki, “Veto Override Procedure in the House  Senate,” Congressional Research Service report, July 19, 2010.

[3] For the history of the filibuster rule and details of its operation, see Charles Tiefer, Congressional Practice and Procedure:  A Reference, Research and Legislative Guide (Greenwood, 1989).

[4] A number of the points made in this post are discussed in broader context in Sanford Levinson’s perceptive book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press, 2006), which also considers various reforms.  For another thought-provoking analysis of various possible constitutional changes, see Larry J. Sabato, A More Perfect Constitution: Why the Constitution must be revised:  Ideas to inspire a new generation  (Walker Publishing, New York, 2008).  Note:  Reference here to these books is not intended as an endorsement of their proposed reforms.