In The Frozen Republic: How the Constitution Is Paralyzing Democracy (1996), Daniel Lazare points out that the U.S. Constitution was adopted unconstitutionally. The Articles of Confederation, our first governing compact, contained a provision that any amendment would require the consent of all 13 states. Yet the Articles were supplanted without unanimous consent of the states. That's because Article VII of the new Constitution provided that it would take effect if ratified by only nine of the 13 states. Wasn't Article VII therefore in violation of the original governing document?
In Federalist 40, Madison dismissed this objection. It would be "absurd," he declared, to "subject the fate of twelve States to the perverseness or corruption of a thirteenth." Surely this was obvious to "every citizen who has felt for the wounded honor and prosperity of his country." End of discussion. So much for the original intention of those who framed the Articles of Confederation.
The new Constitution contained an equally "absurd" provision. According to Article V, "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Each state, regardless of population, was to have two senators. As a result, two centuries later half the U.S. population sends 18 senators to Washington while the other half sends 82. Twenty senators represent 54 percent of the population; another 20 represent less than 3 percent. California gets two senators; the 20 least populous states, which combined have roughly the same number of people as California, get 40 senators. Senators elected by 11 percent of the population can kill proposed legislation with a filibuster; senators elected by as little as 5 percent of the population can block a constitutional amendment. For two centuries this blatantly undemocratic institution -- "perhaps the most unrepresentative legislative body in the world," Lazare observes -- has survived without serious challenge, thanks partly to elite (especially slaveholder) self-interest and partly to popular Constitution-worship. But by the logic of Federalist 40, a people in earnest about equal representation for all, and therefore determined to reform the Senate, ought not be obstructed.
The composition of the Senate is not the only undemocratic feature of the Constitution, as Robert Dahl reminds us in How Democratic Is the American Constitution? Of the others, the most flagrant is the electoral college. There is nothing to be said for this institution. It has no other purpose or result than to frustrate equal representation for all citizens, and its effect on our political history has been calamitous. It was rejected several times at the Constitutional Convention until it slipped by on a last-minute vote. It has never functioned as intended, i.e., as a deliberative body. Within a dozen years it had caused a constitutional crisis (the deadlocked election of 1800). Several decades later, after another deadlocked election in 1876, electoral-college horse-trading resulted in the abandonment of federal efforts to enforce civil rights in the South. In four presidential elections, including the last one, the candidate with the greatest number of popular votes was not chosen as president. Overwhelming majorities regularly tell pollsters that the electoral college should be abolished. Seven hundred proposals to reform or abolish it have been introduced in the House, the most recent of which in 1989 passed with an 83 percent majority. As always, the Senate blocked any action. Quo usque tandem?
How Democratic Is the American Constitution? is a short book, not only because Dahl is a masterly expositor but also because the case against Constitution-worship is not very difficult to make. To begin with, the early republic did not worship it. The framers were a gifted and experienced group -- though some, such as Alexander Hamilton and Gouverneur Morris, were not particularly well-disposed toward democracy. But divisions among them were sharp: Even Hamilton, for example, said that giving each state the same number of senators "shocks too much the ideas of justice and every human feeling." And some of the most eminent among them, such as Elbridge Gerry and Edmund Randolph, refused to sign or signed only with grave reservations. The debate in the country over ratification was extremely vigorous (see the two splendid Library of America volumes on the subject). The decision was not made by popular vote but by elected delegates, more than a third of whom voted against ratification. In short, our forebears did not in the least regard the Constitution as an inspired deliverance from heaven.
Moreover, there were some distinguished second thoughts. Conservatives endlessly cite Madison's Federalist 10 on the dangers of faction and the need to curb popular majorities. But as Dahl points out, Madison soon reconsidered. Within a few years he was writing in an anti-Federalist journal that "in every political society, parties are unavoidable" ("a natural offspring of Freedom," as he put it still later), and that political competition could be made fairer "by withholding unnecessary opportunities from a few to increase the inequality of property by an immoderate, and especially an unmerited, accumulation of riches," and "by the silent operation of the laws, which, without violating the rights of property, reduce extreme wealth towards a state of mediocrity and raise extreme indigence towards a state of comfort." Madison the radical!
Other democracies do not particularly admire our Constitution, at least to the extent of imitating it. In a chapter titled "The Constitution as a Model: An American Illusion," Dahl notes that "among the countries most comparable to the United States" -- he lists 22 -- "and where democratic institutions have long existed without breakdown, not one has adopted our American constitutional system." Our combination of an executive branch independent of the legislature, a "first-past-the-post" electoral system that practically rules out third parties and coalition governments, extensive judicial review of federal legislative enactments, and strong bicameralism with highly unequal representation in the upper chamber is unique.
So ours is an inefficient and undemocratic system. The Senate and the electoral college merit no further discussion. First-past-the-post, or strictly majoritarian, elections are also plainly unfair. In theory, at least, a party that gained a one-vote plurality in every election district would win 100 percent of the seats in the legislature -- an obvious absurdity. In practice, voters know that a vote for any except the two major parties is likely to be "wasted," producing no representation. This is, of course, convenient for the two major parties, but it leaves some (possibly many) voters unrepresented. A proportional system in which each party's legislative membership corresponds to its percentage of votes received would reflect the popular will more accurately without, Dahl contends, any loss of effectiveness. All the established democracies except Canada and (for the time being) the United Kingdom have a proportional, or "consensus," system rather than a majoritarian one.
The steady growth of presidential powers is also an American exception, Dahl contends. Actually, the U.S. government was not designed to have such a powerful chief executive. For all the talk then and now about the separation of powers, Dahl writes, those who framed and ratified the Constitution believed that "the only legitimate representative of the popular will was the Congress, not the president." The "myth of the presidential mandate" is a subsequent creation. Policy -- including foreign policy -- was (is) supposed to issue from the deliberations of a body of elected lawmakers, not from one elected chief administrator in consultation with his appointees. No other mature democracy, Dahl points out, has a "single popularly elected chief executive with important constitutional powers."
Regardless, the main question remains: Does our constitutional system at least work well for us? Dahl is skeptical, though he has to acknowledge the uncertain relevance of political arrangements to social and economic indicators, as well as the difficulty of comparing countries that differ in size and homogeneity. There's not much data in the book, although its references are helpful on this score. From the work of Arend Lijphart and other social scientists Dahl cites, it is clear, at any rate, that majoritarian democracies such as ours do not generally outperform consensus democracies on such measures as voter satisfaction, accountability, macroeconomic management, or the control of violence.
In any case, Dahl has not come to bury the Constitution, only to undermine complacency about it. Besides, as he acknowledges in the book's sobering conclusion, there's not much we can do. The Constitution is virtually democracy-proof. A Supreme Court that promulgates and upholds a Buckley v. Valeo (not to mention a Bush v. Gore) is all too likely to find constitutional problems with any serious move in the direction of popular sovereignty. It is hard to imagine a Congress unified and determined enough to reassert its primacy over the executive branch. And however indefensible, the Senate in its present form is here to stay.
For all these reasons, Dahl avows a "measured pessimism" about the prospects for a more democratic political system any time soon. The only hope -- a long-term one -- is to help along the evolution of a more democratic political culture. How? By trying to "reduce the vast inequalities in the existing distribution of political resources." I presume that by "resources" he means information, experience, and money. Unfortunately this intriguing suggestion comes in the book's penultimate paragraph and receives no elaboration. That is disappointing; but then Dahl has spent much of his career elaborating it in other books, many of them as valuable as this one.
During that long career (he is now 87), Dahl has received nearly every accolade for which a political scientist is eligible. I can't forbear adding my mite of praise to the heap. Dahl's work seems to me an admirable, even inspiring blend of normative and analytical, citizenly and scholarly, generous and disinterested. How Democratic Is the American Constitution?, along with his other books, such as Democracy and Its Critics and A Preface to Economic Democracy, will continue for quite a while to remind the rest of us, gently but persistently, that our professed ideal of democratic equality requires a good deal more in the way of practice than we seem to have noticed.
