Numerical Democracy or Constitutional Reality?

Did we just witness “democracy in action”? It depends on whom you ask.

In early October, Sen. Mike Lee responded to claims that the Republican-controlled Senate’s confirmation of a Supreme Court justice prior to an election was undemocratic by tweeting “We’re not a democracy.” Naturally, Twitter partisans respectfully disagreed. Accordingly, Lee wrote a short essay in First Things elaborating on his point. There, he argued that America is a constitutional republic that places firm restraints on majorities which, in turn, should require broad consensus for national action.

In response, Claremont McKenna political scientist George Thomas wrote in The Atlantic that America’s founders did intend to create a democracy, just one that takes a representative form and places limited and temporary checks on what a majority can do at any given time. Today, however, the population disparities between states get in the way of the founders’ supposed majoritarianism, allowing for what Thomas calls “minority rule,” a point also belabored in Vox seemingly every other day.

Lee is right, though. The American constitution was never constructed to reflect any form of national, numerical democracy where “50 percent plus one” of the nation’s people must eventually get its way. Rather, its design reflects a concern for political liberty and a more genuine form of consensus-based self-government reflected in the complex representative features of a federal republic. And contrary to popular opinion, we might all be a lot happier politically if we fully embraced America’s “undemocratic” republic.

The Federalist 10 Constitution?

One thing that Lee and Thomas agree on is that the American federal government is designed to promote popular rule. It’s just a matter of what that looks like.

For Lee, popular rule does not mean that the majority of the nation’s population gets its way. Rather, the federal government is designed to ensure a degree of national consensus beyond a simple majority before policy can be made. Lee suggests that the federal system is the centerpiece of American popular rule: “More homogenous polities” govern themselves according to their own beliefs and ideologies, while the national government is put into action only when there is general consensus—reflected in three different branches selected in four different ways—that a particular national policy is needed and lawful.

Thomas considers this view to be “minority rule,” since it would allow a smaller part of society, even if it cannot successfully promote its own agenda, to hold on to a share of power indefinitely and thwart the will of the majority. By Thomas’ vision (which is the mainstream one today), popular rule means that a majority of the total population must eventually get its way, even if there are prudential checks on what it can do at any given moment. He suggests the Barrett confirmation, for instance, lacks necessary democratic legitimacy because the 52 senators voting to confirm represent a smaller proportion of the population than those voting to reject.

So Thomas agrees with Lee in seeing the states as an anti-democratic force, calling them “the most significant stumbling block” in the way of the democracy intended by America’s founders. A “disparity” of population—which has grown larger since the constitution was enacted—means the national minority can now hold power in the Senate and have a “disproportionate say on who becomes president.”

Thomas’ understanding of the founding comes from what I believe is a common mistake: It focuses too heavily on a tiny handful of individuals, and even more narrowly on a handful of statements or writings by those individuals.

In this case, the individual is James Madison and the writings are Federalist 10 and 51. Thomas relies on these two essays for most of his theoretical objection to Lee. According to him, the famous teachings on the “extended republic” and “checks and balances” describe a “complex form of majority rule” in which separated departments of government and the great variety of interests in the country lead to smaller, less dangerous factions. We can, then, embrace majority rule without fear that it will amount to narrow-minded tyranny. When reading these papers in isolation, Madison and the constitution’s framers can come across as proponents of a nationalized democracy, which appears safer than a compound, federal republic of devolved power.

There is certainly nothing wrong with citing The Federalist. It is an important collection that reveals the mind of some of the constitution’s key supporters. But it is the product of only three individuals, and its theories should not necessarily be taken as the authoritative voice of the constitution or its ratifiers.

And we should at the very least read the two most famous essays in the broader context of the work. We might do well to consider Federalist 56, for instance, where Madison addresses the Antifederalist concerns about a distant national government, possessing very little local knowledge or sympathy, making our political decisions for us. Here, Madison does not resort to the “large is better” approach of no. 10. Rather, he argues that national representatives don’t need very intimate local knowledge or sympathy because they won’t be doing very many things that impact localities specifically, reflecting Lee’s vision of a state-centered popular rule.  

Is the constitution a reflection of the ideas of a philosophically-minded elite, or of the political realities (the identities, institutions, and generally accepted rights) that the people sought to preserve and protect?

Or we might look to Federalist 63. Thomas quotes this essay to note that Madison believed the “cool and deliberate sense of the community” (which he equates with a settled, long-term national majority), ought to “ultimately prevail over the views of its rulers.” But a few paragraphs later, it offers the eye-opening observation that what distinguished the ancient republics from the American one was “the total exclusion of the people in their collective capacity, from any share in the latter” (emphasis added). This is hardly the language of someone concerned that the national majority must eventually get its way. Rather, it suggests a system in which the people participate by selecting representatives in a variety of different ways, divided as they are in their states, but which never measures or consults the collective will of the people outside of constitutional forms. Perhaps this a more thorough manner in which to measure the “deliberate sense of the people.”

Indeed, it is unlikely that Madison, or most other founders, had “50 percent plus one” in mind when they expressed their admiration for “majority rule.” After all, the word majority can be understood in a less literal sense as simply “the people.” It’s quite possible that when Madison and others spoke of “majority rule” as the republican principle, they simply meant that no small part of society (like the elected leaders themselves, or the wealthy alone) could govern. In this sense, it is the rule by constitutional majorities requiring broad consensus (what Lee seemed to have in mind) that is the hallmark of republican government.

Willmoore Kendall differentiated such constitutional majorities—which reflected the process of “structured communities” working through established institutions to send particular representatives to deliberative assemblies—from the “idea of majority mandates arising out of plebiscitary [presidential] elections.” The kind of numbers game that today’s majoritiarians play, Kendall notes, was “not in the mind of the Framers at all,” because it had not even been invented yet.

Indeed, from the Federalist-Antifederalist clash through the party conflict of the 1790s, the early divisions in America were not between advocates and opponents of national democracy. Rather, they were between those who thought national democracy would be avoided primarily through an independent executive and quasi-aristocratic Senate, and those who thought it would be avoided primarily through devolved power and state-centered public participation. If we look at the institutions themselves, rather than the theories of a handful of its framers, we can see that the constitution actually avoided pure majoritarianism in both of those ways through the creation of a compound federal republic which devolved power and selected its leaders through constitutional forms rather than numerical majorities.

The Constitution as a Reality—Not a Theory

If we actually look at the content of the constitution that emerged from Philadelphia and was adopted by the universal assent of the states, we see not a trace of national majority rule, even the representative, limited majority rule that Thomas puts forward. What gets in the way? The incorporation of the states into every element of the federal government.

The Senate is the most obvious place to start. Each state, in keeping with its equal status as a pre-existing, self-governing polity, received an equal number of Senators chosen not by the majority of the people, but by the state’s legislature. Taking into account the fact that no legislation can pass without the utterly un-majoritarian Senate, Thomas’s contention falls apart. There is absolutely nothing in the constitutional structure of the Senate to suggest that a national majority—without a broader consensus across many states—will eventually prevail. And so foundational was the equality in the Senate that Article V makes it the only constitutional provision immune from the amendment process.

The presidency, of course, is selected by a body of electors, not the people. And those electors can be selected by any means the state legislature chooses, including appointment. Certainly no suggestion of eventual majority rule there. Even assuming the current practice—state-wide, majority-rule elections to choose a slate of electors—the method still reflects the equality of the states so that a national majority—as everyone now knows—does not necessarily choose the president. (It might also be worth noting that some framers, like George Mason, foresaw the selection routinely devolving to the House of Representatives voting by state, further removing it from any national majority.)

But at the very least, the House of Representatives is an element that represents the national majority, right? Not entirely. While the House can reasonably be described as the more democratic institution, it still apportions seats according to states, not across the national population simply. It therefore gives weight to small states by guaranteeing at least one seat to each—even those whose population is so small that it would not even warrant a single representative. In addition to state lines, the people are further divided by district lines, so that—even without partisan gerrymandering—there is no guarantee whatsoever that the House will be chosen by or reflect the will of a bare national majority.

Given that all three political institutions must concur in order to pass legislation, there are no grounds at all for saying the constitutional system was designed to promote a national, numerical democracy, even a limited, representative one.

Thomas recognizes that the primary barrier to rule by the national majority is the way equality among states is baked into the constitution. Yet he avoids ascribing to this any value as a fundamental constitutional principle by casually dismissing it as a mere “concession to political reality.”

This is a phrase that is quite pregnant with implications. One might even say it implies an entire political philosophy. Can one dismiss or discount the importance of an element of the constitution for being a “concession to political reality”? Here again, the implication is that the real constitution is a kind of ideal theory, sprung from the minds of a few founders, which is—to a greater or lesser extent—limited by the undesirable facts on the ground. The political philosophy underlying this view, then, is ironically elitist: The constitution is a reflection of the ideas of a philosophically-minded elite rather than a reflection of the political realities (the identities, institutions, and generally accepted rights) that the people sought to preserve and protect.

The “mere compromise” interpretation of the Senate has been around since the creation of the constitution itself. John Dickinson, writing in defense of the constitution as Fabius, refuted such a view. It was, he noted, “not a mere compromise, [but] . . . an original substantive proposition.” It reflected the reality that a territory the size of the United States “could not be safely and advantageously governed, but by a combination of republics . . . [and] that for the securer preservation of these sovereignties, they ought to be represented in a body by themselves, with equal suffrage.”

Our political rhetoric and expectations are largely shaped by what Willmoore Kendall identified as the “central ritual” of our modern politics: mass, national presidential electioneering and the corresponding expectation that a single national vote should decide everything.

Russell Kirk went so far as to describe the constitution itself as “a reflection and embodiment of political reality in America.” Its institutions were built on the pre-existing states; the national government’s scope was limited to address those real, pressing, and genuinely national necessities; the Bill of Rights—and all subsequent amendments—enshrined only those rights on which there was broad consensus across three-quarters of the states.

Viewing the constitution in this way, the states and the weight they receive in our federal politics were not simply a “compromise” that can be casually waved away. They are so thoroughly baked into the American political system that it is hard to conclude that they aren’t the most pervasive and foundational element of that system. Dickinson saw it this way. Since the national government was designed to address those concerns which touched the interests of “the whole,” he wrote in Fabius no. 3, the form of representation must allow “the whole” to govern. It did this by reflecting the will of the people not as undifferentiated individuals, but through “three different modes of representation” that captured the political reality of semi-autonomous communities combining to form a limited, compound republic.

Greater than the Sum of our Votes

Granted, Thomas and the folks at Vox seem more concerned about contemporary dynamics than a detailed analysis of the constitution and its context. Primarily, today’s majoritarians are concerned with the fact that the Republican Party continues to have a share of power despite rarely winning national majorities in presidential elections or in the sum-total of votes cast for members of Congress.

When we think in terms of parties, the constitutional structure gets simpler (and farther away from the original expectations of how it would operate). Parties make it easier to get around many of the constitution’s majoritarian checks by creating a new political identity and new incentives which make controlling the political branches easier. (Without party affiliation, would we really consider Joe Manchin and AOC as representative of the same block of citizens?) Indeed, parties represent the kind of majority-building that Thomas praises. And once that majority-building work is done by parties, the temporary limits on majority rule emerging from the separation of powers are largely overcome.

In terms of sheer numbers, the Republican Party’s coalition is not quite as large as that of the Democrats, but it is far from a parochial, monolithic minority. (Susan Collins, Chuck Grassley, and Matt Gaetz are hardly peas in a pod.) And true minority rule remains very difficult: To the extent that a party’s coalition is smaller, it is much less likely it will gain control of all three political institutions. (Republicans never had much chance of regaining the House this cycle, but should be elated about the demographic trends of the late election which show a path to an expanded national base.) But assuming the Republican coalition remains the same: is it so ridiculous for a party that can be said to represent, in some manner, between 45-50 percent of the population to exert meaningful influence on the national government?

It is only ridiculous if, contra Madison, you think of the American republic in terms of the “the people in their collective capacity.” If the right to vote is seen as a personal, private right to have an absolutely equal impact on national political outcomes, then the Republican Party as it is currently constituted probably doesn’t have any business controlling any levers of national power. (Of course, with this assumption, the constitution’s representative institutions are equally odious.) But if we see our votes as constituent parts of a complex whole, as one element of a constitutional system designed to fairly govern—nationally and locally—a complicated and divided people, then it’s not only fair that the minority party in a two-party system continue to exert real influence, it is essential to self-government and political liberty.

Can we imagine a political system in which no one would dream of calling Election Day the most stressful day of his life? In which no one felt that the loss of a single federal office could spell doom for the American way of life? In which self-government is a layered, continual process, rather than a quadrennial plebiscite resembling a death match?

Many can’t imagine this system, precisely because America has by and large embraced the vision of centralized, national democracy. We expect the winners of elections to be able to do what they want, and we demonize those who check power as “obstructionists.” We are happy to run to unilateral presidential power—that fount of every blessing—when checks and balances get in the way. We only care about meaningful, robust state authority when our party isn’t in the DC drivers’ seat. All this makes the stakes of every election extremely high.

In some ways, then, the late election was not “democracy in action” because our institutions, as they were designed, do not reflect the will of a simple majority. But in other ways, it was. While we retain our original republican forms, our political rhetoric and expectations are largely shaped by what Kendall identified as the “central ritual” of our modern politics: mass, national presidential electioneering, and the corresponding expectation that a single national vote should decide everything. And from that expectation springs partisan bitterness, fanatical political loyalty, and the sense that we must do whatever it takes to defeat our domestic “enemies” at the ballot box.

Concerned over the prospect of an undifferentiated national government, Samuel Adams wrote to Richard Henry Lee that such a government could not adequately craft laws suited to the great variety of peoples and interests within it, and would bring us only “Discontent, Mistrust, Disaffection to government and frequent Insurrections.” We most certainly have the first three. If we clamor for still more centralized democracy, we may get the fourth.

Though weakened and often forgotten, the institutions of devolved and divided power are still there. If, despite the best efforts of today’s ruthless partisans to gain complete control of the federal government, America’s polarization continues to be reflected in divided power, perhaps we would do well to appreciate once again the virtues of the compound republic.