When the US Constitution was written, the people responsible had constituencies among themselves who greatly feared what a majority might do to a minority. Major among these were the slave states who feared the institution of slavery could be legislated away, and the small (low population) states who feared loss of influence to the larger (higher population) states. The Constitution tried to alleviate these concerns by creating a legislative arena, the Senate, where each state was equally represented, while slave states were granted an increased number of seats in the House of Representatives by allowing slaves to be considered three-fifths of a resident even though they had no voting rights. These acts were coupled with the creation of the Electoral College as a naïve compromise between those who wished to have the Legislative branch select the head of the Executive branch and those who wished for the two branches to be independent. None of these compromises are consistent with democracy conceived as governance by representatives of the majority. The fear of what a majority might do to a minority seems the most likely explanation for why the Constitution made amending itself so difficult, bordering now on the impossible.
The authors, Steven Levitsky and Daniel Ziblatt, have produced a book, Tyranny of the Minority: Why American Democracy Reached the Breaking Point, in which they argue that democracy works better when the majority is allowed to conduct business, and democracies can fall into autocratic states if minorities have too much power. In the process of making their argument they provided a fascinating chapter titled “America the Outlier.” The point they make is that the US started out as an inspiring example of what a people could create for themselves in building an independent nation, but over time those who had forged constitutions with similar features to those of the US Constitution had the wisdom—and the ability—to amend the constitutions as circumstances evolved over the centuries. The United States is now an outlier because it is the only democracy trying to govern with ineffective constraints that it is unable to change.
The authors present an interesting comparison of histories of the US and of Norway as constitutional democracies.
“In the spring of 1814, twenty-five years after the ratification of America’s Constitution, a group of 112 Norwegian men—civil servants, lawyers, military officials, business leaders, theologians, and even a sailor—gathered in Eidsvoll, a rural village forty miles north of Oslo. For five weeks, while meeting at the manor home of the businessman Carsten Anker, the men debated and drafted what is today the world’s second oldest written constitution.”
Both the US and Norway, on emerging from monarch-dominated systems, were leery of unleashing majority rule.
“So, Norway’s 1814 constitution, like America’s in 1789, included a range of undemocratic features. In fact, early nineteenth-century Norway was considerably less democratic than the United States.”
“Over the next two centuries, however, Norway underwent a series of far-reaching democratic reforms—all under its original constitution. Parliamentary sovereignty was established in the late nineteenth century, and Norway became a genuine constitutional democracy. A 1905 constitutional reform eliminated regional electoral colleges and established direct elections for parliament. Property restrictions on voting were eliminated in 1898, and universal (male and female) suffrage was established in 1913.”
The constitution continued to be modified as necessary up to present times.
“A 1992 constitutional amendment guaranteed Norwegians the right to a healthy environment. In 2012, the constitution was amended once again, this time to abolish Norway’s official religion and guarantee equal rights to all ‘religious and philosophical communities.’ And in 2014, Norway adopted a set of sweeping constitutional human and social rights protections, including for children to be granted ‘respect for their human dignity,’ the right to education, and the right to subsistence (through work or, for those who could not support themselves, government assistance).”
“In total, Norway’s constitution was amended 316 times between 1814 and 2014.”
Norway’s experience in democratic governance is representative of how democracies in general have evolved over time.
“In sum, the twentieth century ushered in the modern democratic era—an age in which many of the institutional fetters on popular majorities that were designed by pre-democratic monarchies and aristocracies were dismantled. Democracies all over the world abolished or weakened their most egregiously counter-majoritarian institutions. Conservative defenders of these institutions anxiously warned of impending instability, chaos, or tyranny. But that has rarely ensued since World War II. Indeed, countries like Canada, Denmark, Finland, France, Germany, New Zealand, Norway, Sweden, and the U.K. were both more stable and more democratic at the close of the twentieth century than they were at the beginning. Eliminating counter-majoritarianism helped give rise to modern democracy.”
The stage would seem to be set for the conclusion that the US must amend its constitution and follow the path of these “modern democracies.” Levitsky and Ziblatt close with a chapter dedicated to identifying the appropriate amendments that should be made, but all that was accomplished was to convince this reader that none of what was suggested could possibly happen.
Perhaps it is time to realize that the United States is a different country from Norway and other European nations. It is unique because it was formed at a time when the nation was bifurcating into slave and non-slave regions. It is not possible to enslave black-skinned people without falling victim to the allure of white supremacy and the need to create a form of religion that supports that belief. It would take a Civil War and a century later a Civil Rights Revolution to fully eliminate the legal residue of slavery. However, the socialization of white supremacy and far-right versions of Christianity still exist. Our two-party political system once worked reasonably well because there was political diversity within each party with enough overlap to make progress on compelling problems. Now, the two parties have perfectly aligned themselves into a configuration that recasts the long simmering slave versus non-slave state conflict into a modern form.
Each political party sees the other as an existential
threat. Fear of what an untethered
majority party might do is the crux of our political dilemma. Proposals to amend the Constitution to make
majoritarian decisions easier to implement will always be viewed as benefiting
one party over the other. The unhappy
party can always veto any such notion.
Instead, we are in a legal and political war with one side seeing
majoritarianism as the key to its future while the other sees
anti-majoritarianism as its path to power.
It is democracy versus autocracy.
Wars end when one side becomes unable to fight on. Who knows when or if that will ever happen.
