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Rambunctious American Democracy

1.

These three books under review do not have much in common, but what does bind them together is James Madison, the influential framer of the Constitution and the Bill of Rights and the fourth president of the United States. Today, Madison’s reputation as a Founder has never been higher. Robert A. Dahl calls him “our greatest political scientist” and the person most responsible for our constitutional system. Michael Novak rightly sees him as the crucial figure in America’s development of religious freedom. Garry Wills considers him to be the third- most-important Founder after Washington and Franklin. Indeed, because he was such an important Founder, Madison and his ideas have come to bear an extraordinary responsibility for the character of American politics and society.

But, of course, by achieving this kind of influence in the founding of the country, Madison has become the object of serious criticism as well. This is the case with all three books under review. Although all of them take for granted Madison’s great significance in the galaxy of Founders, at the same time all are critical of him in one way or another—as a constitution maker, as a political thinker, as a man of faith, and as a president.

Of the three, Robert A. Dahl’s short book is clearly the hardest on Madison and on the constitutional system he more than anyone helped to create. Since Dahl, who is Sterling Professor Emeritus of Political Science at Yale University, doesn’t like our Constitution, his book is very critical of the man considered most responsible for it. His criticism is well directed, for, as Garry Wills points out, Madison, more than any other Founder, was radically opposed to the very sort of direct democracy that Dahl most admires. Madison wanted to refine the voice of the people in government, not replicate it, as Dahl would like to do. In his new book, which originated as the Castle Lectures at Yale, Dahl has brought together his long-existing criticism of Madison’s attempts to restrain majority rule into a devastating attack on the undemocratic character of the American Constitution. Perhaps not since Progressive scholars such as J. Allen Smith wrote at the beginning of the twentieth century has anyone condemned the Constitution so harshly.

Dahl wants us to change the way we think about the Constitution. We should stop assuming it to be a national icon that is superior to the constitutional structures of other democratic countries and begin to consider ways of reforming it in order to make it more compatible with democratic standards and values. Although Dahl has no hope whatever that we will make any substantial democratic changes in our constitutional system in the immediate future, he nonetheless wants to open up discussion of the Constitution and its shortcomings, a discussion that he hopes may, in time, lead to something.

These shortcomings are serious, and many of them can be traced to the mistakes of Madison and the other members of the Philadelphia Convention who drew up the Constitution. Of course, says Dahl, some of the undemocratic features of our constitutional system, such as the extraordinary power over social policy that has come to be wielded by the Supreme Court, were not really the fault of the Framers. But many others were. The most egregious of their mistakes (apart from their failure to abolish slavery, of course) involved their acceptance of political inequality, most notably in the equal representation of the states in the Senate and in the use of electors in the election of the president. Whatever justification there was for the so-called “Connecticut Compromise” at the convention, which entitled each state to two senators, it has led, says Dahl, to “a profound violation of the democratic idea of political equality among all citizens.” That Wyoming, with a half-million people, has the same two senators as California, with nearly 34 million, is in Dahl’s opinion an absurdity. Other established democratic states have federal systems and bicameral legislatures with one house representing geographical units, but none of them has such a gross degree of unequal representation as the United States.

Exactly whom or whose interests is a second chamber supposed to represent?” Dahl asks. Certainly the Framers provided “no rationally convincing answer.” As far as Dahl is concerned, the only reason second chambers exist “in all federal systems is to preserve and protect unequal representation. That is, they exist primarily to ensure that the representatives of small units cannot be readily outvoted by the representatives of large units. In a word, they are designed to construct a barrier to majority rule at the national level.”

Dahl admits that individual and minority rights have to be protected in a democratic system. But the Bill of Rights and some subsequent amendments together with judicial practice provide sufficient constitutional guarantees that certain fundamental rights are protected. Why do people in less-populated states like Wyoming, Dahl asks, need additional safeguards for their concerns? “Why should geographical location endow a citizen or group with special rights and interests…?” Dahl remains “baffled” by these violations of political equality. (Of course, it is important to remember that, according to Article V of the Constitution, this violation of political equality is the only part of the Constitution that is unamendable.)

Even more absurd, says Dahl, is our presidential system of government and especially our method of electing the president through the electoral college. Nearly all of the twenty-two advanced democracies with which Dahl compares the United States have rejected our presidential system in favor of a parliamentary system. Not only does our Constitution permit divided government, that is, with the presidency held by a different party from the Congress, “it cannot prevent divided government.” Our presidential system, in which the president is both the chief executive and the ceremonial head of state, is unique in the democratic world. And it is unique with good reason, says Dahl: no democratic state in its right mind would ever try to copy it. Of course, Dahl doesn’t mention that many of the advanced democracies he praises are in fact mon-archies. At any rate he can’t find much good to say about the American presidency. He dismisses the claim that the president is the only real representative of all the people as “little more than a myth created to serve the political purposes of ambitious presidents.”

If the office of the presidency is inane, it is no more so than the means by which the president is elected. Of course, there is not much one can say for the anachronism of the electoral college, which after 1796 never really worked as the Constitutional Con-vention expected it would. But Dahl doesn’t have much sympathy at all with the eighteenth-century Framers’ attempts to find a practical method of electing the president. Indeed, he comes close to accusing them of a failure of imagination for not coming up with a system “that would prove acceptable to a democratic people.”

Contrary to Dahl’s conventional wisdom, the Framers dismissed direct popular election of the president not because they feared the people, but because in the absence of political parties and a modern press they did not think the people would know whom to vote for outside of their own state, at least not after Washington passed from the scene. They rejected election by the Congress because they did not want the president dependent on the legislature. Dahl wishes they had selected this method because it would have created something akin to a parliamentary system of responsible government. But of course, as Article I, Section 6 indicates, the Framers were intent on preventing members of the legislature from simultaneously holding office in the executive, which is the prerequisite for the development of the modern cabinet government of Britain and the other parliamentary democracies. In the end, says Dahl, the “baffled and confused” Framers settled on the electoral college “more out of desperation than confidence.” Actually, in 1787 it seemed like a brilliant solution to the problem, for the electoral college is in fact an alternative Congress (except for the electoral votes accorded the District of Columbia in 1961 by Amendment XXIII).

The electoral college began to reveal its flaws almost immediately. By 1800 the development of political parties and party loyalties, which the Framers had not desired or anticipated, soon turned the elaborate machinery of the electoral college into simply a system of counting votes, a defective and unequal system, says Dahl, that has proved to be an “undemocratic blemish” on America’s constitutional structure. Several times, including the election of 2000, this electoral system has resulted in the candidate with fewer popular votes than his opponent becoming president. What, says Dahl, could be a greater violation of democracy?

Our electoral system in general does not help matters any. Especially irritating to Dahl is the Anglo-American first-past-the-post method of elections, where the winning candidate takes all no matter how many votes the other candidates may have received; this method of voting tends to favor a two-party system. He prefers proportional representation, where all candidates are awarded seats in proportion to the votes they received; this method tends to favor multiparty systems and seems to Dahl to better serve democratic ends. It is fairer to citizens than what he labels two-party “majoritarianism.” It is more inclusive, and it is more apt to lead to consensus in governing. He believes that proportionality results in fewer losers and more satisfied voters than majoritarianism.

Unfortunately, says Dahl, the American system is neither; it is a hybrid that possesses the defects of both proportionality and majoritarianism and the virtues of neither. Even when the same party wins the presidency and the two houses of Congress, he says, three different majorities are at work, and they usually do not agree with one another. Consequently, voters have difficulty knowing what part of the government to hold accountable for the success or failure of national policies. “Compared with the political systems of the other advanced democratic countries, ours is among the most opaque, complex, confusing, and difficult to understand,” he writes. It is unfair, unequal, and undemocratic and ought to be changed, says Dahl, but because of the difficulty of amendment and the power of the least-populated states it probably won’t be.

Contrary to Dahl’s suggestion, however, it is not simply constitutional restraints and the opposition of “some geographical minorities” that have kept Americans from changing their system of government. Apparently most Americans really don’t want to change it (except perhaps for the electoral college), and seem much happier with our democratic politics than he is. And where they are unhappy, as, for example, with campaign financing, they tend to blame not the Constitution but the politicians. Precisely because the Constitution has become a sacred icon—giving our politics a stability it otherwise might not have—Dahl’s powerful indictment of our constitutional structure seems unduly pessimistic and overwrought and sometimes limited as well. In his criticism of our party system in contrast to that of most other advanced democratic systems, for example, he never deals with our unusual practice of relying on primary elections for the selection of party candidates. Although no European party could ever imagine losing control of the nomination of its candidates as the American parties have done, we have come to believe that primaries make our system more democratic. Are we wrong? Dahl doesn’t even raise the question. Ultimately, he never presents convincing evidence that our constitutional system, however structurally absurd it may be, is unworkable or has led to absurd and grossly undemocratic results, results that at least would justify our trying radically to change it.

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