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.
The system of government in the United States has evolved in many important ways since 1787. But the mistrust of unpropertied majorities—especially urban unpropertied majorities—persists. 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.
This system is justified today with the same arguments as when it was established a quarter millennium ago. “We’re not a democracy,” tweeted Senator Mike Lee of Utah in October. Lee explained his meaning in a second tweet that crammed Madisonian theory into fewer than 280 characters. “Democracy isn’t the objective; liberty, peace, and [prosperity] are. We want the human condition to flourish. Rank democracy can thwart that.”
American anti-majoritarians have always promised that minority privilege will deliver positive results: stability, sobriety, the security of the public debt, and tranquil and peaceful presidential elections. But again and again, those promises have proved the exact opposite of reality. In practice, the privileged minority has shown itself to be unstable and unsober.
High—very high—on the list of Madison’s concerns about pure democracy was the risk that the unpropertied majority might vote to repudiate debts. In Madison’s single most famous piece of writing, “Federalist No. 10,” he justified the complex mechanism of the Constitution as a safeguard against debt repudiation and other such “improper or wicked [projects].”
In July 2011, Madison’s fears almost came true. The United States was pushed to the verge of a debt default. But the would-be repudiators were not representatives of the poor or the urban dwellers. They were representatives of the party of the wealthy and the rural dwellers; Republicans in the House and the Senate pushed the country toward the gravest fiscal crisis in history. They refused to raise the debt ceiling until 48 hours before the Treasury Department exhausted its legal right to borrow, risking a default that would have capsized credit markets. The crisis sparked the most volatile week in American financial markets since the collapse of 2008—and moved Standard & Poor’s to downgrade the U.S. credit rating for the first time in the agency’s history.
The same Mike Lee who would later tweet his doubts about democracy was leading that attack on the country’s credit. Along with allies such as Senator Rand Paul of Kentucky, the newly elected Lee sought to force a stark choice upon the Obama administration: Either accept a balanced-budget amendment that would institutionalize permanent minority rule over the nation’s finances, or face national bankruptcy. (Under Lee’s version of such an amendment, three-fifths of both the House and the Senate would be required to approve any budget that incurred a deficit.)
After the 2016 election, the whole world would see the bad faith of the Republican professions about spending and debt in 2011. But what was sincere in 2011 was the effort to impose yet another layer of minority rule upon the finances of the United States—so urgently sincere, in fact, that the anti-Democrats in Congress were willing to repudiate the faith and credit of the United States to get their way.
Fast-forward to the Trump administration. Donald Trump gained the presidency with only 46.1 percent of the national vote, substantially less than Al Gore, John Kerry, and Mitt Romney garnered on their way to defeat—and barely more than the landslide losers John McCain and Michael Dukakis in 2008 and 1988, respectively. Trump was elected not by the preferences of the American people, but by the anti-majoritarian mechanics of the Electoral College.
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.
Removing the presidency from majority control was also supposed to create elections that would “afford as little opportunity as possible to tumult and disorder,” Hamilton wrote in “Federalist No. 68.”
This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
In 2020, Trump lost the presidency by more than 7 million votes, an even larger margin than the nearly 3-million-vote deficit he suffered in 2016. In a “rank democracy,” to borrow Lee’s language, that would have been the end of the ball game. But the mechanics of the Electoral College allowed the defeated president to incite his followers into mounting the first attempt in U.S. history to seize the presidency by violence. Far from preventing them, the anti-majoritarian mechanisms of presidential elections were the crucial culprit in creating the “tumult and disorder” and the “heats and ferments” that so worried the authors of the Constitution.
Trump and his mob hoped that if they could intimidate Vice President Mike Pence into disqualifying enough electoral votes, they could cast the election into the House of Representatives. There, under the anti-majoritarian rules, the members would vote in state-by-state blocs. Although the Democrats had more total members, the Republicans had more state majorities. The scheme was for a minority of the members of one house of Congress to overrule an 7-million-person majority of the American people.
In these opening weeks of a new Congress, Republican senators—who together represent 41 million fewer people than their equal number of Democratic colleagues—have praised themselves for their allegedly superior approach to legislating. Senator John Cornyn of Texas explained in a pair of tweets why 41 senators should be allowed a veto over measures desired by an American majority.
“A practical consequence of breaking the filibuster rule is legislative whiplash. Each time a party gets a bare majority, it can jam [bills] through, only to be reversed when tides turn. The 60 vote cloture requirement (filibuster rule) requires bipartisanship and provides stability in our laws- something we should all want in a big, diverse country of 330 million people.”
But this claim by Cornyn flunks the reality test. In the real world, the filibuster is a generator of instability and unpredictability. Consider a practical example.
In 2010, President Barack Obama proposed legislation to confer a legal status upon people who had arrived illegally in the United States as children. His legislation passed the House and won 55 votes in the Senate—not enough to surmount the filibuster.
But Obama’s action was supported by a majority of public opinion. So rather than submit to a veto by 41 of 100 senators, Obama acted by executive order. In 2012, Obama implemented the policy known as DACA, or Deferred Action for Childhood Arrivals. Trump reversed that order in 2017. That reversal was challenged in the courts. Last June, the Supreme Court ruled that the Trump administration had acted illegally. The DACA population moved from an illegal status in 2010 to a legal status in 2012, back to an illegal status in 2017, and then to a legal status again in 2020. Over the course of eight years, a group numbering in the millions toggled through four different legal statuses because 55 votes out of 100 is not enough to pass laws in the United States.
However you feel about the original Obama proposal, it is radically capricious to subject people to this kind of fluctuation in their legal rights. Yet that is the practical consequence of the filibuster, which pushes policy making out of the legislature, and into the executive and judicial branches.
The filibuster stops popular laws from being enacted. Presidents instead issue rules by executive order, looking to public opinion to back them against Congress. But executive orders command less deference from the courts, and so invite the even more anti-majoritarian judiciary to assert itself. The result all around is legal uncertainty.
A similar situation occurred with climate regulation in the Obama years. In 2009 and 2010, the administration tried to pass climate-change legislation. The need to secure 60 votes in the Senate put the fate of this legislation in the hands of the small number of Republicans who had until then been broadly supportive of environmental protection, notably including John McCain.
But McCain had defected from the environmental cause to win the Republican presidential nomination in 2008. He did not resume his environmental advocacy in 2009, because he feared a right-wing primary challenge to his Senate nomination the next year. Without McCain’s support, climate-change legislation was doomed in the filibuster-crippled Senate—and so the House flinched too.
But that was not the end of the story. In 2007, the Supreme Court had agreed that the Environmental Protection Agency could regulate greenhouse gases as pollutants. When the filibuster killed efforts to legislate, the Obama administration chose instead to regulate, multiplying new rules, especially against fixed-source emissions.
But what the Obama administration did by regulation, the Trump administration could undo. Trump relaxed emissions regulations upon coal plants and automobiles. The New York Times reported last year that Trump “reversed, revoked, or rolled back” 112 Obama-era environmental regulations, 30 of them climate-related. The Biden administration can reimpose these rules. But regulation without legislation invites attack. One environmental group found that major greenhouse-gas emitters spent $1 billion on lobbying in the five years after the Obama administration joined the Paris climate agreement in 2015.
The destabilizing effects of minority rule are felt even more painfully at the state level than in national government. In a sequence of cases in the early 1960s, the Supreme Court declared that state governments must strive to weight votes equally. Yet over the past two decades, state governments have retreated to ever more blatant forms of minority rule.
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.
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.)
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.
That survey quoted how extremely some of these Republicans escalated their opposition to COVID-19 regulations.
“The total and arbitrary violation of our civil rights by stooge governors (Whitmer, Cuomo, Newsom). The frustration of listening to little Fauci who has been wrong on almost everything. The dishonesty of the media to accurately report. I refused lockdown, I refuse masks, I refuse to participate in any of this bogus crap.” — Man, 60
“I really do think this outbreak is not a big deal. We have more people dying from the flu, heart disease, overdoses, car accidents, suicides. I really believe it is a government control thing to see how far they can push us. I am here to tell you! The American veteran will not stand by and let government take away our rights!!! If they are looking for a civil war they will get one. Don’t mess with the 1st and 2nd Amendment.” — Man, 67
The United States in the 21st century has reached a point where the best way to attain the stable and solid qualities of government most valued by anti-majoritarians is, ironically, to increase the power of voting majorities wherever that is constitutionally permissible and politically feasible. States would be better governed if a majority of the voters elected a majority of the legislators. Congress would legislate more effectively—and better protect its prerogatives against the executive branch—if the filibuster were abolished. Reducing the many barriers to registration and voting faced by poorer and minority citizens would reduce the number of extremists in state and federal legislatures. Bringing the Electoral College more in line with the popular vote would better safeguard the country against another corrupt and authoritarian presidency than the present system of over-representation.
If every citizen of the United States were equally able to vote, if every legal vote counted equally, Trump would never have reached the presidency. If the majority of the seats in state legislatures and Congress reflected the majority of votes cast, Trump’s schemes to subvert the 2020 election would have been doomed from the start.
“In the United States as in other countries, the great threat to constitutional democracy has not been the demands for largesse by the many, but the fears for their property of the few.” I wrote those words at the beginning of the Trump presidency, and they have come ever more horribly true as that presidency progressed. The overprivileged minority, not the distrusted majority, tried to capsize the legal transition of power by false claims and violent attacks.
Through the second half of the 20th century, the United States evolved in ways that affirmed the equal right of all citizens to vote and pushed toward a more equal weighting of those votes. In this century, the United States has trended away from those ideals. The retreat from majority rule has not only weakened the American system’s fairness, it has also wobbled that system’s stability.
The path back to constitutional normality depends upon a reinvigoration of the majoritarian principle. “We’re not a democracy,” Senator Lee insists, correctly. But perhaps it’s time the United States resumed its long struggle to become one.