My piece in the New York Review (free registration required) has triggered a bunch of reactions (wonderfully). There’s one, in particular, I want to highlight because it evinces a real confusion about our Constitution. As one correspondent writes,
I have read your well written article in the New York Review titled , Why the US is a Failed Democratic State. It is very instructive but I find it misleading in its forgone conclusion of the definition of the US as a Democratic State. As such, and as you know, the US is a special type of Republic with the principal mandate from the Constitution to protect the minority, that is, the opposition, as well as the need for a separation of powers.
I find in your article that you seem to expressly bemoan the weakness of power for the rule of the majority.
James Madison clearly fought and won, in the articles of the US Constitution, to restrain the possibility of the tyranny of the majority. He saw, as stated in the Federalist Papers, that to allow the majority to rule, would be a mistake. For him, the separation of powers was tantamount for such a restrain. The importance of pluralism of voices and the protection of the minority in opposition was the main thrust of the efforts by Madison and the Federalists. They were critical of Democratic forms of government.
When you write that “The self-governing republic works only if it expresses the will of the majority,” it denies the specific reasons for the creation of the US Constitution by the Fathers Founders. Theirs was a revolution against the European concepts of Democratic forms of political systems .
I am most likely misunderstanding the intention and content of your article, but am I?
This betrays a confusion about our Constitution. Yes, the Framers protected (in the Contracts Clause and the Bill of Rights) “minority rights” — but the key word in that phrase is “rights.” As I wrote in my essay, “[m]y First Amendment right to speak should not depend upon whether my views are liked by a majority.” That’s because I (now) have a First Amendment protection against the will of the majority with respect to the words I want to utter. But that’s very different from saying that a minority should have the power to veto every bill passed through Congress (as the modern filibuster effectively secures to a very tiny minority). That conception of representative democracy — what I called minoritarian—is not our framers’.
It was, though, the conception of our proto-framers. America’s first constitution, the Articles of Confederation, did have a supermajority requirement for practically all important legislation (70%). That Constitution, though, was a complete failure. Its rejection was the premise behind the majoritarian Constitution that we currently live under — at least in theory.
Ned Foley’s recent book, Presidential Elections and Majority Rule (2020), digs deeper into this point (especially into the essentially majoritarian view of Madison). I recommend that book strongly. But regardless, we should treat the argument defending the status quo based on “minority rights” as we treat the argument “the United States is not a democracy, it is a republic”: Both are confusions.
