Stop Blaming the Framers for Everything
America's institutions are undemocratic but only some of them are a product of the Constitution.
On a Presidents Day where our most recent ex-president was just acquitted of inciting an insurrection pretty much all agree he at least fomented, David Frum argues it’s time to rethink our democracy. Alas, he begins by reciting a schoolboy civics misunderstanding of our institutions.
If there was one idea shared by just about every author of the Constitution, it was the one articulated by James Madison at the convention on June 26, 1787.
The mass of the people would be susceptible to “fickleness and passion,” he warned. They would suffer from “want of information as to their true interest.” Those who must “labour under all the hardships of life” would “secretly sigh for a more equal distribution of its blessings.” Over time, as the population expanded and crowded into cities, the risk would only worsen that “the major interest might under sudden impulses be tempted to commit injustice on the minority.”
To protect property from the people—and ultimately, the people from themselves—the Framers would have to erect “a necessary fence” against “impetuous councils.” A Senate to counterbalance the House of Representatives, selected from a more elite few and serving for longer terms, would be one such fence. The indirect election of the president through an Electoral College would be another. A federal judiciary confirmed by the Senate and serving for life would provide one more. And so on through the constitutional design.
It’s certainly true that the Framers, who were almost universally wealthy aristocrats with property, shared their class’s suspicion of rule by the mob. And, indeed, a strain of conservatism that fears the masses voting themselves a share of other people’s money persists.
But most if not all of the institutional safeguards against the fleeting whims of the majority were compromises to deal with the political realities of 1787, not some genius exercise in political science. While we tend to look to the Federalist Papers to get a sense of what the Framers intended, we need to remember that they were propaganda documents offering post hoc justifications of these compromises in order to secure their ratification.
By far the most prolific author of these papers, Alexander Hamilton, was a monarchist who wanted to indirectly elect a kinglike figure for life. The contributor of the bulk of the remainder, James Madison, was a bitter rival of Hamilton’s, agreeing with him on very little, and the architect of the Virginia Plan, which would have had representation in both Houses of Congress based solely on population.
Frum is certainly right when he declares,
In no other comparably developed society is voting as difficult; in no peer society are votes weighted as unequally; in no peer society is there a legislative chamber where 41 percent of the lawmakers can routinely outvote 59 percent, as happens in the U.S. Senate.
But none of that has much to do with the design of the Constitution.
Voting is difficult because state legislatures have made it that way. Certainly, a lot of that has to do with keeping Black people from exercising the franchise. But, more broadly, the rules have been written by elites to their own advantage.
The so-called Connecticut Compromise made the Senate unrepresentative and that was exacerbated by westward expansion and unpredictably unequal settlement patterns. But the phenomenon of 41 outvoting 59 is a function of the filibuster, which is a Senate rule that could be overturned by the body itself, not something that a bunch of dudes in powdered wigs sitting around a small room in Philadelphia came up with 230 years ago.
After several paragraphs about particular Congressional standoffs in recent years, Frum gets to this:
The architects of the Electoral College imagined that indirect election would ensure a careful and thoughtful decision “by men most capable of analyzing the qualities adapted to the station [of the presidency], and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice,” as Alexander Hamilton wrote in “Federalist No. 68.” The mass of the people might be distracted by a lying, vulgar, criminal demagogue, but the select few of the Electoral College would be undeceived by such wiles. They would choose the candidate of dignity and worth over the candidate who crudely appealed to rancor and resentment.
Except, of course, that’s precisely the opposite of what happened in 2016, when the plurality of ordinary citizens made the sensible choice, and the anti-majoritarian Electoral College installed a flimflam man in the Oval Office.
The problem with this is that it’s an appeal to consequences rather that to principle. We both agree that the Electoral College is a terrible way to elect a President and that Trump was a terrible President. But while it’s true that Trump wouldn’t have been elected—or come as seemingly close to being reelected—in a simple majoritarian contest, one could certainly conceive of a popular demagogue winning the majority and the Electoral College saving us from that fate.
Frum follows this with some recent examples of policies defeated by filibuster despite being favored by slight majorities of the public, enacted by Presidents via Executive Order, and then litigated through the courts for years. But his examples are only persuasive to those who support the policies in question. Otherwise, they’re examples of the system’s design being circumvented, not of its failure.
It’s hard, though, the argue against this:
In key states such as Michigan, Pennsylvania, and Wisconsin, Democrats won more votes in 2020, but Republicans won more seats in the state legislatures. Those gerrymandered results provided the basis for Trump’s plot to overturn the presidential election. If he could relocate control over the election from the Democratic-voting people to the Republican-controlled state legislatures, he could win a state’s electoral votes despite losing that state’s popular vote.
If those states’ legislatures had more accurately reflected the state vote, Trump’s scheme to overturn the election in the states would have been doomed before it started.
In some states, aggrieved minorities are turning to more and more extreme forms of antidemocratic action to thwart the popular majority, including threats of violence.
In 2018, Democrats won an outright majority of the vote in Michigan. That sufficed to carry Gretchen Whitmer to the governor’s mansion, but not to overcome Michigan’s deep pro-Republican gerrymander. When the coronavirus struck, the Michigan government was divided between a majority-rule governor who favored aggressive action, and a minority-rule legislature skeptical of lockdowns and masking. This divide is what brought armed men into the Michigan legislature last April seeking to intimidate Democratic lawmakers—and what ultimately inspired the plot to kidnap Whitmer.
Again, the persuasiveness of the particulars very much depends on one’s views on Trump and Whitmer. But it’s hard, indeed, to come up with an intellectually consistent defense of legislatures subverting the will of the people by rigging elections.
Regardless, though, I don’t think we can blame the Framers for that. It’s true that the Constitution gives near-plenary power to state legislatures over the conduct of elections. But doing otherwise would have seemed bizarre, indeed, at the time. And it was very much intended as a democratic measure—putting the power closest to the people. That we have inverted our system over time so that more people know the names and faces Senators from other states than their own majors and state legislators was unforeseeable from the vantagepoint of 1787.
James Madison and his colleagues believed that by deviating from theoretical majority-rules principles, the American republic would benefit from more stability, a better protection of rights, and generally a higher quality of person in positions of authority. But ironically, it is precisely where minority rule bites deepest that this promise is revealed to be most false.
Instead of upholding law and order in the states, gerrymandering has proliferated terroristic armed gangs that try to impose their will by intimidation. The Senate filibuster, as it has evolved over time, leads to wilder gyrations of public policy than would Senate majority rule. And the Electoral College elevated the most corrupt demagogue in the history of the presidency—who was installed not by the unpropertied urban mobs feared by the founders, but by wealthier voters in more rural places. (People who earned more than $100,000 a year were likelier to vote for Trump than for Hillary Clinton in 2016, and they swung even further toward Trump in 2020.)
Again, none of that has anything to do with Madison and company. Even the Electoral College, as Steven Taylor has detailed here many times, functions nothing like it was intended. Indeed, juxtaposing it with the majority vote is silly given that the Framers never intended the people to vote for President (or, for that matter, their Senators) at all.
And this is just venting against our shared former party, rather than a criticism of our governing structures:
Policy continuity, the security of public debts, the peaceful transfer of power by legal means: These are upheld by the American majority. But a political minority is pushing the country toward the evils supposedly associated with pure democracy: extreme ideologies, the normalization of violence, and the insecurity of public debts.
The American majority decisively rejects armed intimidation as a method of politics. Two-thirds of Americans believe that guns should not be allowed in government buildings. Yet a belligerent minority seems increasingly determined to brandish weapons in hopes of coercing legislators to disregard the preferences of voting majorities.
It’s the majority that has shown basic good sense on public-health measures to counter an airborne pandemic—and an overrepresented, armed, and even terroristic minority that until now has thwarted it. Most Americans accept and wear masks. But of the aggrieved and truculent anti-mask minority, a Pew survey found, 92 percent are Republican.
It’s true, I suppose, that a Westminster-style parliamentary system would produce policies more in alignment with these majoritarian preferences. But, frankly, much of the pandemic-related nonsense was a function of Trump himself; his party followed his lead in the direction of petulant stupidity but would surely have followed it in the other direction. And, unless we’re going to get rid of federalism while we’re at it, most of the other policies are really a function of states and localities with different majority preferences than the country as a whole.
There’s a lot more of this sort of thing throughout and, by and large, I share Frum’s expressed frustrations and preferences. But he offers no actual reform proposals; he simply wishes the system were more reflective of the majority’s will.
As noted in umpteen blog posts, I favor the abolition of the Electoral College in favor of a national popular vote for President. It’s not going to happen, alas, because it would require a constitutional amendment which, alas, requires a nearly-insurmountable supermajority. There are theoretical workarounds, including the National Popular Vote interstate compact but that’s been a slow process.
I favor abolishing the filibuster or at least reducing the requirement to cloture to 55 votes from 60. That may or may not happen soon, given Democrats have a rare opportunity. But, again, it’s a creature of the Senate, not the Framers or the original Constitution.
Beyond that, though, our most cynical antimajoritarian institutions are at the state and local level and even less amenable to reform than our national institutions. That’s depressing, indeed, but a reality with which we must somehow contend.