We Had to Force the Constitution to Accommodate Democracy, and It Shows
Damon Winter/The New York Times
In August, President Biden met with several historians at the White House to discuss the threats facing American democracy.
Most of the conversation, according to a report in The Washington Post, was about “the larger context of the contest between democratic values and institutions and the trends toward autocracy globally.” Those present were people who had “been outspoken in recent months about the threat they see to the American democratic project, after the attack on the Capitol on Jan. 6, the continued denial by some Republicans of the 2020 election results and the efforts of election deniers to seek state office.”
Now, I was obviously not at this meeting. But I have been thinking about what I would say to Biden about the threats to American democracy. The most acute threat, it’s true, comes from election deniers and the authoritarian mass movement led by the previous president, Donald Trump. But the long-term threat is less an imposition from bad actors and more a constitutive part of our political system. It is, in fact, the Constitution. Specifically, it is a set of fundamental problems with the structure of our government that flow directly from the Constitution as it currently exists.
We tend to equate American democracy with the Constitution, as if the two were synonymous with each other. To defend one is to protect the other and vice versa. But our history makes clear that the two are in tension with each other — and always have been. The Constitution, as I’ve written before, was as much a reaction to the populist enthusiasms and democratic experimentation of the 1780s as it was to the failures of the Articles of Confederation.
The framers meant to force national majorities through an overlapping system of fractured authority; they meant to mediate, and even stymie, the popular will as much as possible and force the government to act with as much consensus as possible.
Unfortunately for the framers, this plan did not work as well as they hoped. With the advent of political parties in the first decade of the new Republic — which the framers failed to anticipate in their design — Americans had essentially circumvented the careful balance of institutions and divided power. Parties could campaign to control each branch of government, and with the advent of the mass party in the 1820s, they could claim to represent “the people” themselves in all their glory.
Americans, in short, had forced the Constitution to accommodate their democratic impulses, as would be the case again and again, up to the present. The question, today, is whether there’s any room left to build a truly democratic political system within the present limits of our constitutional order.
In his new book “Two Cheers for Politics: Why Democracy is Flawed, Frightening — and Our Best Hope,” the legal scholar Jedediah Purdy says the answer is, essentially, no. “Our mainstream political language still lacks ways of saying, with unapologetic conviction and even patriotically, that the Constitution may be the enemy of the democracy it supposedly sustains,” Purdy writes.
This is true in two ways. The first (and obvious) one is that the Constitution has enabled the democratic backsliding of the past six years. Founding-era warnings against demagogues — used often to justify our indirect system of choosing a president — run headfirst into the fact that Donald Trump was selected constitutionally, not elected democratically. (Alexander Hamilton wrote, in Federalist No. 68, “The choice of several to form an intermediate body of electors will be much less apt to convulse the community with any extraordinary or violent movements than the choice of one who was himself to be the final object of the public wishes.” This, it turns out, was wrong.)
And consider this: In the 2020 presidential election, a clear majority of Americans voted against Trump in the highest turnout election of the 21st century so far. But with a few tens of thousands of additional votes in a few states, Trump would have won a second term under the Constitution. “A mechanism for selecting a chief executive among propertied elites in the late eighteenth century persists into the twenty-first,” Purdy writes, “now as a key choke point in a mass democracy.”
The Constitution subverts democracy in a second, more subtle way. As Purdy notes, the countermajoritarian structure of the American system inhibits lawmaking and slows down politics, “making meaningful initiatives hard to undertake.” One result is that political campaigns have “shifted into a symbolic and defensive mode” where the move is not to promise a better world, but to impress on voters “the urgency of keeping the other candidate and party out of power.”
“If enough people believe it is their responsibility to resist and disable any government they did not help to elect, self-rule can become impossible,” Purdy writes. “Donald Trump’s presidency,” he continues, “arose from all of these dysfunctions.”
Even if you keep MAGA Republicans out of office (including Trump himself), you’re still left with a system the basic structure of which fuels dysfunction and undermines American democracy, from how it enables minority rule to how it helps inculcate a certain kind of political chauvinism — best captured in the hard-right mantra that the United States is a “republic, not a democracy” — among some of the voters who benefit from lopsided representation in the Senate and the Electoral College.
What makes this all the worse is that it has become virtually impossible to amend the Constitution and revise the basics of the American political system. The preamble to the Constitution may begin with “We the People,” but as Purdy writes, “A constitution like the American one deserves democratic authority only if it is realistically open to amendment.” It is only then that we can “know that what has not changed in the old text still commands consent.” Silence can have meaning, he points out, “but only when it is the silence of those free to speak.”
There is much more to say about the ways that our political system has inhibited democratic life and even enabled forms of tyranny. For now, it suffices to say that a constitution that subverts majority rule, fuels authoritarian movements and renders popular sovereignty inert is not a constitution that can be said to protect, secure or even enable American democracy.
In a speech in Philadelphia last month, Biden did speak publicly on the threats to American democracy. He focused, as almost any president would, on the Constitution. “This is a nation that honors our Constitution. We do not reject it. This is a nation that believes in the rule of law. We do not repudiate it. This is a nation that respects free and fair elections. We honor the will of the people. We do not deny it.”
The problem, and what this country must confront if it ever hopes to turn its deepest democratic aspirations into reality, is that we don’t actually honor the will of the people. We deny it. And it’s this denial that sits at the root of our troubles.