Constitutional Mythology

How Democratic Is the American Constitution? (Second Edition)

Robert A. Dahl, 2003, Yale University Press, 177 pp.

No American political debate is complete without the invocation of the Constitution. Wielded as a patriotic icon and a political bludgeon, our founding document can be used to justify nearly anything, at nearly any time: COVID anti-maskers and assault weapon advocates alike unify under Constitutionalism, believing their convictions to be a continuation of the freedoms generously bestowed upon us by the Founders. The Bundle of Compromises — often conflated with freedom itself — has taken on such a life of its own that simply saying the word “Constitution” is usually enough to convince voters (mostly conservative ones, themselves being scholars and defenders of the Constitution) of the rightness or wrongness of a law.

Those who worship the Constitution typically omit the slave-holding and plutocratic résumés of its Framers and the gross injustices — the unfreedoms — that were built into and have grown from the document. Examples abound, foremost its allowance of slavery. The ⅗ Compromise rejected the humanity of slaves, entrenched the institution of chattel slavery, and accepted rule without representation — the very menace that American revolutionaries had fought against. The Indian Removal Act followed in 1830, serving as the grounds for the genocidal Trail of Tears; The Dred Scott Decision, handed down from the High Court, denied a once-free man his freedom; Women could not legally vote until the 19th Amendment passed in 1920; Plessy v. Ferguson constitutionally upheld segregation; African Americans weren’t granted even limited suffrage until 1965. By modern standards, America didn’t resemble anything close to a democracy until 175 years after the ratification of the Constitution. That is, unless you happened to be a white land-owning male.

But what of the 27 amendments, which undoubtedly make America more just than it was in 1789? Aren’t we able to change the Constitution when we see fit? Antidemocratic forces are relentless, and they have a way of finding the fissures left open by the Framers.

Voting rights battles have taken on new forms. In 2013, Shelby County v. Holder eliminated much-needed voter discrimination legislation, once again leaving historically oppressed communities vulnerable to voter suppression. Convicted felons lose the right to vote (and are used for slave labor in many states, thanks to the Thirteenth Amendment). Districts are gerrymandered to reduce the strength of minority votes, and malicious registration tactics used by Republican strategists make it nearly impossible for poor and minority populations to vote en masse. In Texas, thanks to Governor Greg Abbott and a merciless court, the nearly five million voters of Harris County must share a single ballot drop box, certainly a disaster in the making. The American Constitution is, and always has been, very good at preserving liberties — so long as those liberties do not apply to the most vulnerable among us.

So, the question must be asked: Is our Constitution really that good? More fundamentally, is American democracy good democracy? Late political scientist Robert Dahl deftly dissected these questions in his short book How Democratic Is the American Constitution? (2002). Writing shortly after the antidemocratic election of George Bush and more than a decade before the minoritarian election of Donald Trump, Dahl produced a work that is brilliant not only in its cutting analysis of the American constitutional system but also in its unique simplicity.

Dahl sets to work immediately, dispelling myths about the Constitution and its Framers. No, the Framers did not set out to create a “republic” instead of a democracy; they simply used the words interchangeably. Alexander Hamilton was not a hero of the colonists but rather an outright elitist who advocated for an American monarchy. His pal, Gouverneur Morris of Pennsylvania, pushed for an aristocracy. James Madison, cited endlessly by conservatives who favor anti-majoritarian institutions like the Electoral College, actually spent the latter half of his life advocating for the exact opposite: mass democracy and “political equality among all.”

Perhaps most importantly, Dahl assures us that while the Framers were “men of exceptional talent and public virtue,” they certainly had no business dictating the terms of a 21st-century democracy. They were in uncharted territory, working with no guidance other than the British system of governance from which they had just seceded. What did this mean for the American Constitution? A scattered and incoherent array of compromises, many of which were reached simply because a failure to come up with something would have resulted in no government at all.

Equal representation in the Senate, for example, was not a product of high-brow political theory. It was, Dahl writes, “nothing more than a practical outcome of a hard bargain that its opponents finally agreed to in order to achieve a constitution.” Even less can be said for the utterly useless Electoral College. In the final days of the Constitutional Convention, after several proposals for the elected legislature to choose the president (a parliamentary system) went undecided, the Electoral College formula was voted on favorably. There is no historical record of why or how this happened, though we might speculate that the issue of slavery motivated some of the men who voted for it. In that moment, the Framers were no more than “a group of baffled and confused men who finally settle[d] on a solution more out of desperation than confidence.” O, you ingenious and divinely inspired Framers!

The story of the American Constitution is one of naivete and unintended consequences. Due to massive population growth (which the Framers surely could not have predicted), equal representation in the Senate now affords a Wyoming voter 80 times the political sway of a California voter. Desperately needed climate change legislation and amendments can be, and have been, struck down by senators that represent only 8% of the country. If those amendments were to pass, they could be vetoed by state legislatures that account for roughly 3% of Americans. Disproportionate electoral votes can ensure all too often that we end up living under the rule of a president chosen by less than 40% of Americans. How’s that for democracy?

For all the compromises the Framers made, Dahl makes clear that many of the Constitution’s checks and balances were intentionally and carefully crafted out of fear, particularly the fear of “mob rule,” or what we might call democracy. The fifty-five delegates to the Constitutional Convention, most of them slaveholders, did their best to construct a system which would insulate their interests — wealth, property, power — from the will of those they were to govern. Although the origin of the phrase “The masses are asses!” is unknown, I, for one, believe it must have been Alexander Hamilton as he made his argument for aristocratic rule. The hallmark of a good democracy is its protection of underprivileged minorities, but our founding document has time and again protected only the most powerful minorities. Slaveholders, and later southern segregationists after the Civil War, had immense power. Enough power, in fact, to guarantee the minoritarian election of Rutherford B. Hayes in 1876 after he promised to withdraw federal troops from the postbellum South, thus eliminating the last line of protection between freed slaves and racist southerners.

Today, we see our anti-democratic institutions work in new ways. The Supreme Court, itself an undemocratic branch, has played a pernicious role in American politics. Aside from upholding slavery and segregation, the high court has ensured that oil drillers in South Dakota have more of a right to be millionaires than Native Americans have to drink clean water. Thousands of voters are unknowingly removed from voting lists during elections, but thanks to Buckley v. Valeo, no billionaire CEO’s voice will ever fall on deaf ears during an election. Believe it or not, the Constitution that was crafted to favor powerful minorities over the masses has proved extremely effective in doing just that. Today we are left with a Senate, Supreme Court, and President who represent the most powerful and revanchist wealthy minorities, all the while painting themselves as “anti-establishment” friends of the people. Everyone else should do their best to avoid letting the door hit them on the way out.

Dahl cites the scholar Arend Lijphart, who found that of a dozen modern “full democracies,” America ranks nearly the worst in incarceration rates, the ratio of rich to poor, economic growth, social expenditures, energy efficiency, and citizen satisfaction with government. It is no compliment, Dahl writes, to compare America to Soviet Russia or Communist China. The real test of democracy is its comparison to the best ones. So, what do other, better democracies do that America does not? What would a more democratic American government look like?

In the courts, overturning Buckley v Valeo and its second iteration Citizens United v. FEC would be a good start to ensure that the electoral influence of the poor holds the same weight as that of the rich. Limiting wealth, conservatives will be dismayed to learn, was something that Madison warmed up to as an older man. He wrote that it would be better to deprive the wealthy of “half their share in the government” than to deprive the poor of their personal rights; in this case, the right to vote and participate equally in elections despite an ever-growing wealth gap.

Structurally, a first step would be enacting proportional representation in Congress. Our “first-past-the-post,” or “winner-take-all,” system results in an awful lot of losers. If you’re a Republican in a blue Congressional district, a Democrat in a red district, or a third-party voter in any district at all, you’re out of luck. Proportional systems, however, assign seats based on the percentage of votes for each party within each district, and these elections tend to foster healthy multi party systems. For example, if Democrats gain 30% of the votes in Wisconsin, they will achieve roughly 30% of the state’s representatives. This system has proved much better at protecting minority interests than our winner-take-all approach. Assuming third and fourth parties could gain more than 5% of the vote, they would finally have a seat at the table. Another advantage of proportional representation is its tendency for coalitions. In winner-take-all systems, a Republican- or Democrat-controlled Congress can rule (mostly) unilaterally. However, in a proportional system, if Democrats and Republicans each garnered, say, 35% representation, and the remaining 30% was split between other parties, coalitions would be necessary for a majority, thus including the voices of the less powerful factions in the population. America is only one of four full democracies that still has an upper chamber. The dismantling of equal Senate representation would allow meaningful and popular climate and healthcare legislation to pass, and Supreme Court justices would be chosen by the representatives who were elected rather than rammed into office by Mitch McConnell. What are we waiting for? Unfortunately, Dahl does not tell us how we might achieve such an ideal goal, or how we might convince our fellow Americans to rethink the Senate and our winner-take-all system.

Our presidential election methodology — which was chosen because the Framers were sweaty, cranky, and out of solutions — deserves equal scrutiny. At the time of Dahl’s writing in 2002, roughly one-third of American presidents had won office without a popular majority. In simpler terms: In one out of every three elections, more Americans come out losers than winners. Equal representation in the Senate haunts our government, giving electoral votes to small states that far outweigh their population. The Electoral College, which the Framers hoped would be a deliberative and sophisticated body, quickly turned hyper-partisan (within 11 years of the drafting of the constitution, actually), and it never looked back. A popular vote for the Oval Office is the most clear-cut path to greater democracy, but Dahl again refrains from offering a course of action. He is merely a disinterested observer.

The goal of full democracy is to establish true political equality and to guarantee rights equally for all. Rarely, if ever, would we hear “My vote doesn’t even matter” in a functioning democracy. Dahl is not optimistic about change. Our unique Constitution, after all, is the crown jewel of American exceptionalism, a sacred text of Biblical proportions. The problem, according to Dahl, is that America is so infatuated with being “unique” that it has failed to ask if “unique” actually means “better.” All revolutions, however, begin with thoughts. Dahl took the first step, challenging Constitutional consensus and encouraging us to see the Constitution for what it actually is: a wholly imperfect yet still-impressive document that can serve as a reminder of the rights to which we are all entitled. Fortunately for us, unlike the Ten Commandments, our Bundle of Compromises is not actually etched in stone. The Framers knew that Democracy does not have an end point. Perhaps that’s the most important wisdom we should take from them.

The greatest virtue of Dahl’s work is that it accomplishes exactly what it sets out to do: Start a conversation about how we think of our Constitution. It is rare for such a complex topic to be explained so simply in under 200 pages by one of the greatest scholars of democracy. Anyone with an eighth-grade reading level and a few extra hours can grasp the criticisms within this book and gain a better understanding of our Constitution than any reactionary Senator who proclaims the unconstitutionality of a universal healthcare package. A more expansive work, though, might tell us how to proceed with reforming our Constitution. Dahl is at times too aware of the limitations and brevity of his analysis, but he’s written dozens of other books that might fill the void. While Dahl certainly addresses the major shortcomings of American democracy, more concrete examples of their monstrous material consequences — poverty, pollution, state brutality, and discrimination, among others — would have served this book well. (For such specifics, I might recommend Howard Zinn’s A People’s History of the United States.)

This book will certainly endure, so long as our Constitution stands intact. Most importantly, Dahl shows us that democracy in America has never been a guarantee, nor has it been a pleasantly unfolding “moral arc.” What semblance of democracy we have today is the result of generations who have fought to make America a more just and free nation. In the midst of our current democratic backslide, perhaps the best starting point for a counter-revolution is taking the time to separate mythology from reality, and to plainly ask ourselves as Dahl has done, Are we as great as we think we are? Rather democratically, after we’ve answered that question, he leaves it up to the people to choose what’s next.