Tuesday, November 15, 2016

Our Undemocratic Constitution

By: Professor Allan Ides

This op-ed originally appeared on The Huffington Post

The election of Donald Trump, who achieved his victory through the arcane and antiquated Electoral College, but appears to have lost the popular vote, is but one example of the undemocratic character of our Constitution. In truth, the Constitution was designed to operate as an anti-democratic check on We the People. The framers saw democracy as a form of mob rule. In fact, one of the chief reasons they met in Philadelphia in 1787 was to curb the democratic excesses of state legislatures.

Let’s begin with Congress, which is composed of two legislative bodies, the Senate and the House of Representatives. Although the people elect the membership of both Houses, neither House is truly representative of the people and both are far from democratic.

The Senate is notoriously and purposefully undemocratic. Each state is awarded two Senators, regardless of the population of that state. Hence, the approximately 600,000 citizens of Wyoming are given the same power and voice in the Senate as the nearly 39 million citizens of California. As a consequence of this grossly disproportionate system of representation, a minority of the national population controls a majority of the Senate. And given the Senate’s requirement of a 60-persons super majority to bring any measure up for a vote, the anti-democratic character of the Senate is even more pronounced.

At first glance, the House of Representatives seems more representative, but the emphasis should be
on the word “more.” Membership in the House is proportioned among the states based on population. So far so good. In this sense, the House is more representative than the Senate. But the current system of congressional districting, under which the districts are re-mapped every 10 years by state legislatures, has led to endemic political gerrymandering that artificially distributes power between the two parties in accord with whichever party happens to be in power in the state at the time of the redistricting. As has often been said, the voters don’t pick their representative. Rather, the representatives pick their voters.

The membership in the House also suffers from the fact that the current method of election—i.e., district-by-district, winner-take-all—artificially enthrones the monochromatic two-party system and virtually eliminates any serious competition from third-party candidates. A proportional system of election—i.e., one that gears a party’s share of representation to its share of support as voiced in the election—is decidedly more democratic and more likely to reflect the true democratic consensus.

The anti-democratic character of Congress is further exacerbated by “bicameralism, ” which requires that both Houses approve any legislation before it becomes a law. Although neither chamber of Congress is truly representative, bicameralism imposes an additional safeguard against democracy by giving the wholly undemocratic Senate a check on any democratic impulse exhibited by the House.

The president, as we know from this most recent election, is certainly not elected democratically. Rather, the president is elected in accord with a system that gives stronger voice to persons living in less populous states—much like the composition of the Senate, but marginally less disproportionate. And even in those cases where a presidential candidate wins both the popular vote and the Electoral College vote, it does not follow that that candidate won a majority of the popular vote. In fact, in 16 presidential elections, no candidate received a majority of the popular vote. So in close presidential contests, victory goes to the candidate who can best game the system or who is simply the luckiest of the pack. Surely, we could survive a democratic system in which the victor of a presidential contest would be required to win a majority of the votes cast. And in those cases where no candidate achieves a majority in the first round, a prompt runoff between the two leading candidates could resolve the contest.

One final point on the president: Along with bicameralism, no legislation can become a law unless “presented” to the president for approval. Thus, the undemocratically elected president has the power to veto legislation that has somehow has survived the gauntlet of the Senate, the House, and bicameralism.

The judiciary is said to be the least democratic branch. The president nominates, and with the approval of the Senate, appoints the justices of the Supreme Court and all lower federal court judges. We often hear critiques of the “unelected” judiciary and of the anti-majoritarian character of judicial review—the power to declare a law unconstitutional. But although the judiciary is surely “unelected,” it is neither more nor less democratic than the decidedly undemocratic institutions that nominate, approve, and appoint the members of the judicial branch. Like all of the undemocratic obstacles listed above, the judiciary and its attendant power of judicial review are simply part of the anti-democratic constitutional arsenal.

Finally, let’s consider the Bill of Rights and those amendments to the Constitution designed to protect individual rights. In one obvious sense, these amendments are also anti-democratic in that they prevent even a true majority from taking action in violation of the protected rights. In a sense, the activities protected by those provisions are sealed from majority (or sub-majority) interference.

In a more important sense, however, the provisions protecting individual rights may be the only truly democratic provisions in the Constitution. Those rights preserve the liberty of the demos and create a platform from which the possibility of democracy might emerge. The platform is built on freedom of speech and press, the right to assemble, the right to vote, and the right to equal protection of the laws. Given the power of judicial review, one might argue that the constitutional mission of judiciary is to not to preserve the Constitution but to preserve the possibility of democracy through the enforcement of those rights. Of course, I’m being idealistic. The democratic values of the current Supreme Court are far from evident. But it would be a delicious irony if the unelected judiciary became the vehicle through which a true democracy could emerge.

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