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2.9: How Democratic is the U. S. Constitution?

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    134537
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    “The Constitution was a compromise between slaveholding interests of the South and moneyed interests of the North.”

    –Howard Zinn (1)

    “Wise as the Framers were, they were necessarily limited by their profound ignorance.”

    –Robert Dahl (2)

    The question How democratic is the Constitution? is more complicated than it initially appears. Are we talking about the Constitution as it was written prior to any amendments? Or, are we talking about the Constitution we have now? Are we talking about the authors of the Constitution and what their understanding was of democracy? Are we talking about the Constitution as a document of its own time? Or, are we going to judge it by contemporary standards of democracy? What do we mean by the word democratic anyway? If we define democracy as rule by the people—either directly or via elected representatives—and if the definition of the people has expanded over time, how are we to fairly judge the Constitution on that ground? Not so easy, is it?

    Democracy Road Sign
    Democracy Road Sign

    The Constitution in Broad Perspective

    Conduct a mental exercise and transport yourself back to the period between 1787 when the Constitutional Convention opened in Philadelphia and 1791 when the Bill of Rights was officially added to the Constitution. Float around the United States' eastern seaboard and get a feel for the nature of the government that was being created there. Next, roam around the rest of the world, examining the governments of all the countries, kingdoms, principalities, empires, and tribal societies that existed at the time. From this perspective, in the book Miracle at Philadelphia (3), Catherine Drinker Bowen concluded that the founders themselves thought it was a miracle. The men who wrote the Constitution were remarkably steeped in cutting-edge political philosophy and displayed a thoughtful kind of genius with respect to laying out a written constitution for a large republic based on popular rule. One can hardly overstate how important a step forward the U.S. Constitution was for all of humankind. Given the social norms of the time, it is difficult to imagine how the founders could have produced a document that was more democratic than the Constitution and Bill of Rights.

    Still, the founders were not angels. Nor were they divinely inspired. Nor could they divorce themselves from the time in which they lived. They were flesh and blood people with several obvious and relevant characteristics, and they represented interests not widely shared by the rest of the population. First, all the founders were men. Further, they shared a world view in which women’s interests were only channeled into the public sphere through husbands, fathers, and brothers. The founders were also white and were not concerned about the interests of slaves, free blacks, Native Americans, or other people not white. As propertied men, the founders did not represent the interests of even the majority of white men—those who did not have enough property to vote or hold office.

    In 1913, the historian Charles Beard wrote one of the most famous and contentious books on the Constitution called An Economic Interpretation of the Constitution of the United States. He asserted that the founders were merchants, people who had money on loan to others, and people who owned public bonds, and that they pushed the Constitution at the expense of farmers and debtors. Subsequent research revealed some limitations of Beard’s book, but his work forever changed the way we understand the American founding. (4) The obvious fact is that the groups of writers preferred a central government strong enough to protect those interests, and did not want to empower a popular majority to carry out radical economic policies that would damage their own elite interests.

    The Founders’ Understanding of Democracy

    It may be somewhat of a shock to realize that the American founders were not fond of democracy. As the historian Richard Hofstadter wrote of the founders, “In their minds, liberty was linked not to democracy but to property.” Further, Hofstadter argued that the founders were interested in negative liberties—the freedom of propertied interests from “fiscal uncertainty and irregularities in the currency, from trade wars among the states, from economic discrimination by more powerful foreign governments, from attacks on the creditor class or on property, from popular insurrection.” (5)

    It’s easy to see Hoftstadter's ideas in the founder’s own words. James Madison argued that “Democracies have ever been spectacles of turbulence and contention,” and that they are incompatible with “the rights of property.” Indeed, he was concerned that those “without property” and “debtors,” which constitute the majority of the population, would use their power to “kindle a flame” for “wicked projects” like “abolition of debts” and “an equal division of property.” (6) Similarly, Alexander Hamilton looked down his nose at “the idea of an actual representation of all classes of people,” and instead argued that the merchant class should be “more equal” than the others. (7)

    Instead of a “democracy,” most founders wanted to establish “popular government” or a “republican” form of government. (8) They wanted the government to be founded on the will of the people, and mediated by social customs and elite-dominated institutions that would ensure that their interests would not be jeopardized. Women’s interests would be represented by their brothers, fathers, and husbands. Poor white men’s interests would be represented by their betters in the merchant and creditor classes. Slaves’ interests were not really considered separate from those of their owners. Madison wrote, in Federalist #10—that “The public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.” Moreover, the “wisdom” of these leaders would “best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” In reality, U.S. history has shown that representatives, senators, presidents, and Supreme Court justices have repeatedly demonstrated a limited understanding of justice and an unwillingness to act in the public interest unless faced with organized majorities of ordinary people demanding that they do the right thing.

    Constitutional Features Limiting Popular Rule

    The Constitution is full of features designed to limit popular rule. The House of Representatives was the only popularly elected body. The rest of the document is a minefield of features designed to thwart the majority will and to protect the interests of elites. Consider the following:

    Separation of Powers—The separation of powers slows government down and makes it structurally unresponsive to large, sudden changes in popular will. Under the original, un-amended Constitution, such public mood swings need to be sustained over a long time to elect enough representatives to the House and to ensure that enough senators get selected by states to serve in Congress. The president also needs to agree with the policy the people support. Finally, the whole project could be shot down by Supreme Court justices when the new policy is challenged in court. In addition, it hinders the people’s ability to hold leaders accountable—even after constitutional amendments designed to make the U.S. more of a democracy. (10)

    The Senate—In the original Constitution, senators were not popularly elected. Instead, the senators were chosen by their respective state legislatures. Thus, the Senate was doubly insulated from the popular will. In 1913, the Constitution’s Seventeenth Amendment was ratified, which said that senators would henceforth be “elected by the people” of each state. Even now, however, the Senate is a profoundly undemocratic body. Each state is allotted two senators, regardless of the state’s population. Voters in smaller, rural states are more empowered, which happens to be whiter than the overall U.S. population and the large, more populous, more diverse states. As noted by Noah Feldman, “The Constitution was designed precisely so that no one would be able to do anything about the undemocratic Senate.” (11)

    The President—The American president is not elected by the people. Instead, presidents are elected by the Electoral College. Even though we have tied the electors’ choice to popular vote in each state—or in particular districts in the case of Nebraska and Maine—the basic fact is that popular vote does not determine who sits in the White House. The Electoral College vote is determinative, not that of the people. For example, George W. Bush became president in 2001 even though Al Gore received about 544,000 more votes nationwide, and this is why Donald Trump became president in 2017 even though Hillary Clinton received about 2,900,000 more votes nationwide. It is difficult to call a country’s political system fully “democratic” when majority vote does not elect the president.

    The Supreme Court—Justices who sit on the Supreme Court and make enormously significant decisions about the constitutionality of state and federal laws and regulations are insulated from the popular will. They are nominated by the president—who may or may not be in office due to the will of the people—and are approved by the undemocratic Senate. Further, they hold their seats for life, meaning that they can influence the character of the country long after they have fallen out of touch with the lives of ordinary Americans. Most justices come from upper-class backgrounds and attend elite colleges. For most—but not all—of U.S. history, a majority of conservative justices have implemented conservative ideology through their rulings, empowering corporations and putting their finger on the scales of justice in favor of a particular set of interests.

    No Positive Right to Vote—The original Constitution never articulated an affirmative right to vote to anyone, and instead, left the vote-granting privileges to states. Initially, of course, states granted voting privileges to the minority of property-owning white men. Through amendments to the Constitution, the “right to vote” was extended to people of color, to women, and to people who are eighteen years and older. However, as Garrett Epps has written, our courts still see voting as a privilege: “The ‘privilege’ over the years has been made dependent on literacy, or long residency in a community, or ability to prove identity, or lack of a criminal past. None of these conditions would be allowed to restrict free speech, or freedom from ‘unreasonable’ searches, or the right to counsel,” but they have been used to keep people from voting. (12) A truly democratic constitution would positively assert the right of all adult citizens to vote and place the burden of registering people to vote on the government rather than the individual.

    The Amendment Process—Suffice it to say that the Constitution is remarkably difficult to amend. Thomas Jefferson once wrote to James Madison that “The earth belongs…to the living…the dead have neither powers nor rights over it.” (13) And yet, we are governed by a slightly modified document written by a small number of slave-owning, wealthy white men who did not have the benefit of all we know about the world nor the appreciation we have for the dignity of all people.

    What if . . . ?

    What if you were invited to a constitutional convention today to write a new Constitution? How would you convince your colleagues that the new U.S. Constitution needs to be more structurally democratic? What features would you insist be a part of the new Constitution?

    References and Notes

    1. Howard Zinn, A People’s History of the United States 1492-Present. New York: Harper Collins, 2003. Page 98.
    2. Robert A. Dahl, How Democratic is the American Constitution? 2ndedition. New Haven: Yale University Press, 2003. Page 7.
    3. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787. Boston: Little Brown, 1986. Originally published in 1966.
    4. Charles Beard, An Economic Interpretation of the Constitution of the United States. New York: The Free Press, 2012. Originally published in 1913. Robert E. Brown, Charles Beard and the Constitution. A Critical Analysis of “An Economic Interpretation of the Constitution.”Princeton: Princeton University Press, 1956.
    5. Richard Hofstadter, The American Political Tradition and the Men Who Made It. New York: Vintage Books, 1948. Pages 10 and 11.
    6. James Madison, Federalist #10.
    7. Alexander Hamilton, Federalist #35.
    8. One could argue that Jefferson, who was not present at the Constitutional Convention, would have argued for more trust in the people.
    9. The franchise refers to the eligibility to vote.
    10. William E. Hudson, American Democracy in Peril. 6thedition. Washington, D.C.: CQ Press, 2010. Page 42.
    11. Noah Feldman, “Revamping the Senate is a Fantasy,” Bloomberg. October 10, 2018.
    12. Garrett Epps, “What Does the Constitution Actually Say About Voting Rights?” The Atlantic.August 19, 2013.
    13. Quoted in William E. Hudson, American Democracy in Peril. 6thedition. Washington, D.C.: CQ Press, 2010. Page 86.

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