—Miguel Schor, Professor of Law and Associate Director of the Drake University Constitutional Law Center
By a happy calendrical coincidence, United Nations International Democracy Day, which falls on September 15, is observed two days before United States Constitution Day. This coincidence provides an opportunity to reflect on the linkages between democracy and our constitution. As the problems with American democracy become increasingly evident, the media is taking an explicitly pro-democracy stance in its reporting. The same cannot be said for American constitutionalists. Although many constitutionalists are deeply concerned about the state of American democracy, those fears will not play a significant role in the celebrations that occur around Constitution Day. American constitutionalists overwhelmingly focus on normative issues involving the Supreme Court and pay little attention to constitutional design. Constitutional design mattered to the framers, but its scholarly importance atrophied as the Supreme Court’s power grew. This loss of intellectual interest in constitutional design is problematic. The media is reporting on how our Constitution operates in twenty-first America and the news is troubling. The perilous state of American democracy, in short, matters to the media but does not loom large in the scholarship of most American constitutionalists.
The attitude of American constitutionalists is puzzling. Democracy and constitutions are mutually constitutive ideas. In the late eighteenth century, the United States established a representative government undergirded by a written constitution. This was a revolution in politics. The framers understood that constitutions provide the terrain around which political forces do battle. Alexander Hamilton argued in The Federalist that the way to measure the success or failure of a constitution was its propensity to produce good government. The notion that constitutions and the quality of self-government are linked became our most important intellectual export. Today, virtually all democracies have a written constitution.
Democracies around the globe are now facing considerable headwinds due to climate change, globalization, a pandemic, and new information technologies. These headwinds are blowing strongly in the United States. In 2016, the United States elected a demagogue whom former vice president Dick Cheney called “the greatest ever threat to our Republic.” Donald Trump mounted a remarkably successful misinformation campaign that has convinced the majority of the Republican party that the 2020 election was stolen. The problem runs much deeper than Trump’s lies, troubling as they may be. Polarization drives democratic breakdown. There is considerable evidence that partisan dislike of opposing parties has risen more sharply in the United States than in its peer democracies. Strong majorities of Americans express mistrust of each other and of their government. The question we should be asking is whether America’s unusual eighteenth century constitutional arrangements continue to serve our democracy well in the twenty-first century.
The United States Constitution is exceptionally undemocratic when compared to those of its peer democracies that have continuously been in operation since 1950 (and the United States did not become a full democracy until the Voting Rights Act of 1965 led to near universal adult suffrage). The exceptional features of America’s constitutional order include a political class that has the power to insulate itself from the electorate by gerrymandering and voter restrictions; staggered elections; strong bicameralism with two houses of equal strength; malapportionment in the Senate that privileges rural, small population states; the electoral college; a Supreme Court poorly constrained by checks and balances; a federal government that may lack the power to solve national problems (at least according to a majority of the Supreme Court given its current ideological makeup); and an extremely high bar to constitutional amendment. The framers crafted what the historian Richard Hofstadter aptly termed the constitution against parties.
Although contemporary American constitutionalists generally praise this system on the grounds that it protects us from the “tyranny” of the majority, they ignore two critical reasons why the framers adopted a complex machinery of government. First, the framers believed that the design of the Constitution reflected the best constitutional arrangement of their era. They examined the constitutions of other nations as well as those of the states and adopted institutions they believed would work well based on the lessons of experience and which could win popular acceptance. The Federalist pragmatically concludes that the Constitution “may not be perfect in every part,” but it is the “best that the present views and circumstances of the country will permit.”
One could not make a similar empirical argument for the United States Constitution today. There are twenty two nations that have been continuously democratic since 1950. Only one of those nations–Costa Rica–has a presidential system and all of those polities make it easier for majorities to govern than does the United States. The experience of our peer democracies provides considerable evidence that a more majoritarian form of government does not undermine liberty and works tolerably well. In the twenty-first century, one has good reason to be skeptical of the framers’ empirical claim that our Constitution reflects the best fruit of the science of politics.
The second reason the framers favored institutional complexity is that they believed it would provide a shield against the breakdown of representative government. James Madison makes this argument in Federalist 10. The vice of popular government is its propensity to break down because of the violence of faction. The “most common and durable” cause of faction, he writes, is economic. The Constitution was drafted during an era of economic depression. State constitutions in the late eighteenth century were more democratic than the proposed federal Constitution and political majorities were able to enact debt relief legislation. Madison criticized the ease with which state level majorities could enact economic legislation, believing it would facilitate the emergence of factional violence. The solution, he argued, was the proposed Federal Constitution, which would slow down and blunt the ability of majorities to govern.
Although Madison was right that constitutions should be drafted with an eye towards the lee shore, the framers’ solution to democratic erosion–institutional complexity–is having perverse consequences in the twenty-first century. There are two big issues that all polities must solve: who gets what and who we are as a people. The former has become a critical issue in democratic survival. The United States, as is true with democracies around the globe, is facing severe exogenous shocks. The Global Trends 2040 report published by the National Intelligence Council observes that nations around the globe “are likely to face persistent strains and tensions because of a growing mismatch between what publics need and expect and what governments can and will deliver.” The United States faces constitutional challenges that none of its peer democracies do in enacting legislation. Institutional complexity may have ameliorated the emergence of factions in Madison’s slave holding republic, but it is facilitating and accelerating polarization in the twenty-first century. In our current polarized political environment, it is easier to push divisive identity issues than it is to enact legislation that deals with the exogenous shocks undermining our democracy. Demagogues have an easier time than do democratic majorities in pushing their respective agendas.
One needs to take the long view in thinking about the linkages between democracy and constitutions. Democracies such as the United States have a fine long-term track record of muddling through crises. It may be that the difficulties of enacting legislation will prove beneficial much as the framers surmised. The Biden presidency, for example, recently enacted legislation that deals with climate change and health care costs in spite of razor thin legislative majorities. What is problematic though is the failure of American constitutionalists to take seriously the question whether institutions designed to blunt factional violence in a slave holding republic are up to the task of dealing with the problems facing the United States in the twenty-first century. In The Federalist, Hamilton decries as “heresy” the idea that constitutional design is irrelevant as all that matters is political leadership. The “true test” of the proposed constitution, he argues, is its “aptitude and tendency to produce a good administration.” On the conjunction of International Democracy and United States Constitution Day, American constitutionalists should take up the framers’ insistence on the importance of constitutional design in thinking about the problems our nation faces in the twenty-first century.
Suggested citation: Miguel Schor, International Democracy and United States Constitution Day: Why American Constitutionalists Should Pay More Attention to Democracy, Int’l J. Const. L. Blog, Sept. 15, 2022, at http://www.iconnectblog.com/2022/09/international-democracy-and-united-states-constitution-day-why-american-constitutionalists-should-pay-more-attention-to-democracy/