How Democratic is the American Constitution

by Robert A. Dahl

Yale University Press, 2003, paper

WHAT THE FRAMERS COULDN'T KNOW

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Undemocratic Elements in the Framers' Constitution

It was within these limits, then, that the Framers constructed the Constitution. Not surprisingly, it fell far short of the requirements that later generations would find necessary and desirable in a democratic republic. Judged from later, more democratic perspectives, the Constitution of the Framers contained at least seven important shortcomings.

Slavery. First, it neither forbade slavery nor empowered Congress to do so. In fact, the compromise on slavery not only denied Congress the effective power to prohibit the importation of slaves before 180811 but it gave constitutional sanction to one of the most morally objectionable byproducts of a morally repulsive institution: the Fugitive Slave laws, according to which a slave who managed to escape to a free state had to be returned to the slaveholder, whose property the slave remained. 12 That it took three-quarters of a century and a sanguinary civil war before slavery was abolished should at the least make us doubt whether the document of the Framers ought to be regarded as holy writ.

Suffrage. Second, the constitution failed to guarantee the right of suffrage, leaving the qualifications of suffrage to the states. It implicitly left in place the exclusion of half the population-women-as well as African Americans and Native Americans. As we know, it took a century and a half before women were constitutionally guaranteed the right to vote, and nearly two centuries before a president and Congress could overcome the effective veto of a minority of states in order to pass legislation intended to guarantee the voting rights of African Americans.

Election of the president. Third, the executive power was vested in a president whose selection, according to the intentions and design of the Framers, was to be insulated from both popular majorities and congressional control. As we'll see, the Framers' main design for achieving that purpose-a body of presidential electors composed of men of exceptional wisdom and virtue who would choose the chief executive unswayed by popular opinion-was almost immediately cast into the dustbin of history by leaders sympathetic with the growing democratic impulses of the American people, among them James Madison himself. Probably nothing the Framers did illustrates more sharply their inability to foresee the shape that politics would assume in a democratic republic.

Choosing senators. Fourth, senators were to be chosen not by the people but by the state legislatures, for a term of six years." Although this arrangement fell short of the ambitions of delegates like Gouverneur Morris who wanted to construct an aristocratic upper house, it would help to ensure that senators would be less responsive to popular majorities and perhaps more sensitive to the needs of property holders. Members of the Senate would thus serve as a check on the Representatives, who were all subject to popular elections every two years. 16

Equal representation in the Senate. The attempt to create a Senate that would be a republican version of the aristocratic House of Lords was derailed, as we have seen, by a prolonged and bitter dispute over an entirely different question: Should the states be equally represented in Congress or should members of both houses be allocated according to population? This question not only gave rise to one of the most disruptive issues of the Convention, but it resulted in a fifth undemocratic feature of the constitution. As a consequence of the famous-or from a democratic point of view, infamous-"Connecticut Compromise" each state was, as we have seen, awarded the same number of senators, without respect to population. Although this arrangement failed to protect the fundamental rights and interests of the most deprived minorities, some strategically placed and highly privileged minorities, slaveholders, for example-gained disproportionate power over government polices at the expense of less privileged minorities.

Judicial power. Sixth, the constitution of the Framers failed to limit the powers of the judiciary to declare as unconstitutional laws that had been properly passed by Congress and signed by the president. What the delegates intended in the way of judicial review will remain forever unclear; probably many delegates were unclear in their own minds, and to the extent that they discussed the question at all, they were not in full agreement. But probably a majority accepted the view that the federal courts should rule on the constitutionality of state and federal laws in cases brought before them. Nevertheless, it is likely that a substantial majority intended that federal judges should not participate in making government laws and policies, a responsibility that clearly belonged not to the judiciary but to the legislative branch. Their opposition to any policy-making role for the judiciary is strongly indicated by their response to a proposal in the Virginia Plan that "the Executive and a convenient number of the National judiciary, ought to compose a council of revision" empowered to veto acts of the National Legislature. Though this provision was vigorously defended by Madison and Mason, it was voted down, 6 states to 3.

A judicial veto is one thing; judicial legislation is quite another. Whatever some of the delegates may have thought about the advisability of justices sharing with the executive the authority to veto laws passed by Congress, I am fairly certain that none would have given the slightest support to a proposal that judges should themselves have the power to legislate, to make national policy. However, the upshot of their work was that in the guise of reviewing the constitutionality of state and congressional actions or inactions, the federal judiciary would later engage in what in some instances could only be called judicial policymaking-or, if you like, judicial legislation.

Congressional power. Finally, the powers of Congress were limited in ways that could, and at times did, prevent the federal government from regulating or controlling the economy by means that all modern democratic governments have adopted. Without the power to tax incomes, for example, fiscal policy, not to say measures like Social Security, would be impossible. And regulatory actions-over railroad rates, air safety, food and drugs, banking, minimum wages, and many other policies-had no clear constitutional authorization. Although it would be anachronistic to charge the Framers with lack of foresight in these matters, unless the constitution could be altered by amendment or by heroic reinterpretation of its provisions-presumably by what I have just called judicial legislation-it would prevent representatives of later majorities from adopting the policies they believed were necessary to achieve efficiency, fairness, and Security in a complex post-agrarian society.

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The Bill of Rights.

... the first ten amendments to the Constitution-the Bill of Rights-cannot be attributed to the democratic revolution that followed the Convention. They resulted instead from demands within the Convention itself by delegates who generally favored a more democratic system than their colleagues could then accept. Among the most influential of these was George Mason, who wrote the Virginia constitution and its Declaration of Rights. Responding to the insistent demands of Mason and several others, as well as to similar voices outside the Convention, Mason's fellow Virginian, James Madison, drafted ten amendments that were ratified in 1789-90 by eleven states, more than a sufficient number for their adoption. Incidentally, the two laggards, Georgia and Connecticut, finally did come around-but not until 1939!) Thus, for all practical purposes the Bill of Rights was a part of the original constitution. In any case, the amendments have proved to be a veritable cornucopia of expanding rights necessary to a democratic order.

Other Amendments

... the most profound violation of human rights permitted by the original constitution, slavery, was not corrected until the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments between 1865 and 1870. In 1909 the Sixteenth Amendment in 1913 gave Congress the power to enact income taxes. The election of U. S. senators by state legislatures finally gave way to direct election with the adoption of the Seventeenth Amendment in 1913. Women were finally guaranteed the right of suffrage in federal and state elections with the passage of the Nineteenth Amendment in 1919. Although the effort to add an Equal Rights Amendment failed, the Fourteenth Amendment was later interpreted to provide a constitutional basis for eliminating discrimination against women as well as certain minorities whose members suffered from discriminatory practices. The iniquitous poll tax that had continued to bar African Americans from voting in some southern states was finally forbidden in 1964 by the Twenty-Fourth Amendment. Finally, in a move toward a more inclusive electorate, in 1971 the Twenty-Sixth Amendment reduced the voting age to eighteen.

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Many Americans appear to believe that our constitution has been a model for the rest of the democratic world.' Yet among the countries most comparable to the United States and where democratic institutions have long existed without breakdown, not one has adopted our American constitutional system. It would be fair to say that without a single exception they have all rejected it.

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Gerrymandering

If election districts are used for choosing representatives to legislative bodies, as Americans do for elections to the House of Representatives and most state legislatures and city councils, it strongly encourages gerrymandering. Designing the boundaries of a district to favor certain candidates over others is an old American practice. (The term gerrymandering goes back to 1811, when the governor of Massachusetts, Elbridge Gerry, signed a redistricting bill creating a district shaped so much like a serpent that a newspaper editor promptly announced that it was not a salamander but a Gerrymander.) The result of gerrymandering is the election of a candidate who wins overwhelmingly in a district that has been deliberately shaped to include sympathetic voters and exclude unsympathetic voters.

This rude fact generates a political dynamic:

* Elected politicians naturally have strong incentives to gerrymander the electoral districts in favor of themselves or their party.

* To do so they will, of course, engage in horse trading with elected politicians of the opposing party, thus guaranteeing that both parties end up with gerrymandered districts that are considered safe for their candidates.

* To keep control of the process of redistricting, elected politicians will try to ensure that they-not an independent commission-are entrusted with the task of designing district boundaries. In 2002 only six states provided for an independent commission. In all the rest, the state legislature had the final say, either directly (in thirty-six states) or by acting as the final authority (in eight states) (Thompson, 173, 242).

* Consequently, after each decennial census the shape of the state's districts is determined in most state legislatures by an unseemly round of partisan strong arming, bickering, bargaining, and log rolling-as anyone could have observed after the census of 2000.

* The upshot is that safe seats are created and the number of potentially competitive districts is reduced. Partisan redistricting after the 2000 census led to an election in 2002 in which only thirty-five to forty seats in the House of Representatives were competitive. Gerrymandering ensured that all the rest, nearly nine out of ten, had been rendered safe for one party or the other.

As a result, even our House of Representatives may Lot always be very representative.

*

Alternatives to Winner Take All

As I noted earlier, with only two exceptions, Britain and Canada, all the other mature democracies employ an alternative to winner take all. Because the various alternatives are too many to describe, I'll briefly mention only a few of the possibilities with which I think Americans should be more familiar.

If no candidate receives more than 50 percent of the vote, a runoff (or second round) election takes place between the two candidates with the largest number of votes. This system is used in France for elections to the parliament and the presidency. Its main disadvantage is the additional time, effort, and money it requires; in the United States, with our acute problem of campaign finance, this would be especially problematic.

This drawback could be removed, however, by preferential voting, (sometimes called an instant run-off). Although preferential voting has many variations, basically it allows or requires voters to rank the candidates in the order of their preferences. Here is one advocate's description: "If no candidate receives more than 50 percent of the initial vote, the candidate with the fewest votes is eliminated and his votes transferred to the candidates designated as the second choice on these ballots. This process of elimination and transfer goes on until one candidate receives more than 50 percent of the vote" (Thompson, 71).

A system along these lines has been used in Australia since 1901 and in Ireland since 1922.

Another alternative is proportional representation (PR), an electoral system that ensures a strong relation between the percentage of votes cast for a party and the percentage of parliamentary seats a party wins. Among the twenty-two advanced democracies, more employ PR than any other electoral system.

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