How Democratic is the American Constitution?

• Author: McGowan, Miranda Oshige
• Position: Book Review

HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? By Robert A. Dahl. (1) New Haven, CT: Yale University Press. 2001. Pp. 208. Hardcover, $19.95

"How democratic is the American constitution?" Dahl asks. Well, in 2000, for the fourth time in our history, the presidential candidate with the most votes lost. And for the second time in our history, the Supreme Court--the deliberately nondemocratic branch of our government--decided the election. (3) Within six months after the election, few seemed terribly bothered by the election's outcome. Indeed, only a tiny majority of Americans said in 2001 that they wanted to replace the Electoral College with direct, popular election of the president (4)--down from seventy-seven percent who wanted to abolish it in 1988. (5) (That's right: more people wanted to abolish the electoral college in 1988, when George H.W. Bush thrashed Michael Dukakis, than after the 2000 election.) We also seem to love our constitution. Seventy-one percent of Americans said in 1991 that "they strongly agreed with the statement that they were proud of the Constitution" (p. 122). How can this be so when our system doesn't seem to be terribly democratic?

According to Robert Dalai, the failure of democracy in the 2000 election was not just a freak occurrence or a surprise outcome of an otherwise well-functioning--though idiosyncratic--democratic system that happens every century or so, like earthquakes on the East Coast. Rather, the 2000 election was simply the most egregious outcome of what Dalai contends are fundamental democratic failures in our constitutional scheme. These defects make us the least democratic of the world's representative democracies, which provokes Dahl to ask why we have any obligation at all to follow our constitution.

WHAT OBLIGATES US TO FOLLOW A CONSTITUTION DRAFTED AND RATIFIED BY A BUNCH OF OLD, DEAD, WHITE, MALE PROPERTY OWNERS?

Social contract theory has a hard time explaining Americans' present-day obligations, and Dahl finds social contract theory implausible as a general matter (p. 2). Even at the time of the Constitution's adoption, Dahl rightly points out that social contract theory runs into problems: voters were all-white and all-male, which calls into question the extent to which the Constitution (and the governmental action taken pursuant to it) could then legitimately bind all Americans on any social contract theory.

Perhaps our common commitment to the principle of majority rule legitimizes our system. We seem to believe majority rule is the legitimate method for political decisionmaking. No lesser a light than James Madison said, "[T]he vital principle of republican government is the lex majoris parties, the will of the majority" (6) (p. 37). And if the furor in 1993 over Lani Guinier's proposal that we implement proportional voting schemes to enhance minority representation was any indication, we are incredibly hostile to alternatives. From the outrage over her nomination to head the Civil Rights Division of the Justice Department, (7) one would have thought that she'd suggested means testing for Social Security.

As it turns out, however, our system deviates from the principle of majority rule almost more than it follows it. Most of our elections for national office require a candidate only to earn a plurality, not a majority, of the votes cast to win election. (This rule is sometimes called "first past the post.") In fact, in a third of our presidential elections, the winner was elected by a plurality, rather than a majority, of voters (p. 80). It is hard to say whether a plurality winner is actually the one whom a majority of voters prefers. Had we held a run-off in the 1992 presidential election (which Bill Clinton won by a plurality) it is difficult to know whether a majority of first-round Perot voters would have preferred Clinton to Bush.

The Electoral College dashes any remaining claim presidential elections have to being majoritarian. (8) States are assigned electoral votes based on the number of Representatives and Senators each state has. Less populous states have disproportionate electoral power because every state has at least one representative and two senators regardless of population. On a per capita basis, a Wyoming voter (the least populous state) has almost four times the electoral clout as a Californian (p. 81), and the "ten smallest states each choose two to three times as many electors as they would if a state's electors were strictly in proportion to its population" (pp. 81-82). Combined with the fact that 48 states grant all of their electoral votes to the plurality winner, it's hardly surprising that the candidate with the most popular votes has lost in four elections. The only surprising thing is that it hasn't happened more frequently. (9)

Lucky for us, majority rule has little to do with democracy or legitimacy, according to Dahl (p. 37). It is neither necessary nor sufficient for democracy to exist. Democracy doesn't require that the majority rule because majority voting schemes do not necessarily reflect combined voters' preferences when there are more than two candidates. (10) Indeed, Arrow's Theorem suggests that there are no voting schemes that can produce results that accurately reflect individual preferences. (11) So a rule that the majority wins may be more one of convenience or convention. Majority rule is not a sufficient condition for democracy because a majority could rule autocratically by passing legislation that prevents minorities from voting. (12)

Dahl proposes instead that the legitimacy of any constitutional scheme depends on its "utility as an instrument of democratic government" (p. 39). This criterion needs clarification: how do we measure how well the Constitution serves us? According to Dahl, the answer is the extent to which our government is "democratic." (13) That hardly helps, because one still needs to know what democracy is and have some way to measure whether a government is more or less democratic. Dahl spends little time (too little time) defining democracy in How Democratic Is the American Constitution?, perhaps because he covered that topic extensively in his book On Democracy, which, like this book, he wrote for a general audience. (14) Because this is a crucial step in his argument, it is worth examining his definition of this term more closely. (15)

Defining democracy is no easy task. Giovanni Sartori has argued persuasively that trying to define democracy as an abstract concept produces nothing much more illuminating than statements like "democracy is the rule of the people." (16) Definitions of "democracy" and "democratic" may be best approached sidewise--by considering why democracy is sought as an ideal. (17) According to Dahl, democracy is appealing because we accept as a fundamental moral principle that "the good of every human being" ought to be considered "as intrinsically equal to that of any other." (18) By extension, governments "must" when making decisions "give equal consideration to the good and interests of every person bound by those decisions." (19) Skepticism that specially qualified guardians could be entrusted with the power of considering the good and interests of each person and implementing policies that fulfill the general good leads us to this prudential conclusion: Citizens of a state should treat each other for political purposes as if each were equally qualified to participate--"directly or indirectly through their elected representatives"--in "making the policies, rules, laws, or other decisions that citizens are expected (or required) to obey" (p. 136). A belief in the moral equality of each human therefore leads to the adoption of the principle that Dahl refers to as "political equality" (20) (p. 135). A political system in which the people govern themselves according the principle of political equality is therefore a democratic one.

Putting political equality into practice requires commitment to several other principles. (21) First, democracy requires equality in voting, with each citizen's preference taken equally into account. Second, democracy must enable citizens to participate effectively in government. That is, each citizen should have adequate, equal opportunities for expressing her preferences. Third, citizens should be able to act on enlightened understanding, which means that they ought to have sufficient time and opportunity to form considered judgments about policy preferences. Fourth, citizens should have final control of the political agenda. Citizens may delegate authority to others who make decisions in nondemocratic ways (such as regulatory agencies). But citizens must retain control over those decisionmakers' agenda. Finally, a democracy must allow all permanent residents to become citizens and participate fully in the democracy. (22) The first condition is how political equality manifests itself in operation, and it is a prerequisite for all of the other conditions to exist.

Dahl's criticism of the American constitution centers on the Constitution's failure to ensure political equality and indeed on its enshrinement of institutions designed to ensure voter inequality. These antidemocratic institutions, Dahl argues, were adopted for reasons that have no relevance for us today, and thus have no claim to legitimacy.

How has our constitution enshrined the principle of voter inequality? Well, as already noted, in presidential elections, citizens in small states have a greater say on a per-capita-basis in who becomes president than citizens of larger states (Appendix B, Figure 2, "Unequal Representation in the Electoral College"). Most dramatically, however, the Senate gives each state an equal voice in Congress regardless of its population. This too distorts democracy by giving states with small populations power completely disproportionate to their numbers--Wyoming's 493,782 people have two Senators, the same as California's thirty-four...