How Democratic is the American
by Robert A. Dahl
Yale University Press, 2003, paper
WHAT THE FRAMERS COULDN'T KNOW
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
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
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
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.
... 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.
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.
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"
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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