New Yorker
Framed Up: What the Constitution gets
wrong By Hendrik Hertzberg July 26, 2002
EXCERPT
Just as the Fourth of July orators say, America has
been an inspiration to peoples struggling for democracy. But, when
it comes to actually designing the machinery, the American model has
had no takers--not among successful democracies, at any rate. (The
Philippines, Liberia, and some Latin-American countries, which have
copied us, are not good advertisements.) Dahl surveys the twenty-two
countries that have governed themselves democratically without
interruption since 1950. Only six, including the United States, are
federal, and in every case "federalism was not so much a free choice
as a self-evident necessity imposed by history." Only four, all of
them federal, have strong bicameralism. Only the United States, the
United Kingdom, Canada, and France do not use one of the many
variants of proportional representation, a nineteenth-century
invention. We get bad marks in "democratic fairness" and
"encouraging consensus."
FULL ARTICLE
Robert A. Dahl, whose new book's title asks the
question "How Democratic Is the American Constitution?" (Yale;
$19.95), is not a crank. He is the Sterling Professor Emeritus of
Political Science at Yale, and he is about as covered with honors as
a scholar can be. He is a member of the National Academy of
Sciences, the American Philosophical Society, and the American
Academy of Arts and Sciences; a corresponding fellow of the British
Academy; a recipient of the Talcott Parsons Prize, the Woodrow
Wilson Foundation Award, and the James Madison Award of the American
Political Science Association, of which he is a past president. He
is the author of twenty-three books and textbooks, several of which
are considered definitive landmarks in the field. His peers revere
him. He has been called "the premier democratic theorist of our
time" by Fred I. Greenstein, of Princeton; "the premier analyst of
democratic theory and democratic institutions writing today" by
James S. Fishkin, of the University of Texas; and "the foremost
political theorist of this generation" by Theodore J. Lowi, of
Cornell. Robert Dahl is eighty-six years old. He knows what he is
talking about. And he thinks that the Constitution has got something
the matter with it.
Treating the Constitution as imperfect is not new. The
angrier abolitionists saw it, in William Lloyd Garrison's words, as
"a covenant with death and an agreement with hell." Walter Bagehot
(and a prominent American admirer of his, Professor Woodrow Wilson)
thought it deeply flawed. Charles A. Beard considered it mainly an
instrument for the protection of property rights, an analysis that
he did not intend as a compliment. Academic paint balls have
splattered the parchment with some regularity. But in the public
square the Constitution is beyond criticism. The American civic
religion affords it Biblical or Koranic status, even to the point of
seeing it as divinely inspired. It's the flag in prose. It's
something to be venerated. It's something to be preserved,
protected, and defended, as the President swears by God to do. In
the proper place (a marble temple in Washington), at the proper
times (the first Monday in October, et seq.), and by the proper
people (nine men and women in priestly robes), it is to be
interpreted, like the entrails of a goat. But the Constitution of
the United States is emphatically not something to be debunked,
especially in the afterglow of sole-superpower triumphalism. The few
critics to have spoken up in recent yearsDaniel Lazare, the author
of a pathbreaking 1996 book, "The Frozen Republic: How the
Constitution Is Paralyzing Democracy," is onehave tended to be
isolated and uncredentialled. Against this background, Dahl's
apostasy merits attention.
"How Democratic Is the American Constitution?" falls
somewhere between a little book and a big pamphlet--a hundred and
sixty airy pages of text, with large type and wide margins. It has
been adapted from a lecture series that Dahl gave shortly before the
most recent Presidential election. Perhaps because it was written to
be spoken, it is conversational, informal, and relaxed. Dahl's
premise is that the Constitution ought to be judged by "democratic
standards"that is, by whether it is "the best that we can design for
enabling politically equal citizens to govern themselves under laws
and government policies that have been adopted and are maintained
with their rational consent." And his purpose "is not so much to
suggest changes in the existing constitution as to encourage us to
change the way we think about it." That premise is more
controversial, and that purpose less modest, than either of them may
sound.
Dahl's main points form an argument that goes roughly
like this. Wise and great though the framers were, their vision was
circumscribed by what they knew, what they mistakenly thought they
knew, and what they lived too soon to have any way of knowing. Even
within those limits, they were hobbled by the political necessities
of a particular moment, which forced them to swallow provisions to
which the most eminent among them were strongly (and rightly)
opposed. Later, in the nineteenth and twentieth centuries, an
explosion of democratic theory, experience, and practice yielded up
an abundance of new democratic norms and mechanisms. A few of these
(such as the direct popular election of senators) were incorporated
into the formal Constitution, and a few more (such as the idea of
competing political parties and the practice of allowing citizens to
vote for Presidential electors) were jury-rigged into the informal
constitutional structure. But many others were not, and, despite
American power, the American system has not been a model for other
democracies. Although it's difficult to separate constitutional
systems from other factors affecting national well-being, there is
no reason to believe that the American system does a better job than
the democratic alternatives, and quite a few reasons to believe that
it does a worse one.
The most blatantly undemocratic feature of the
document that the framers adopted in Philadelphia in 1787 was its
acceptance indeed, its enshrinement of slavery, which in its
American form was as vicious and repugnant as any institution ever
devised by man. Article I, Section 9 forbade Congress to forbid the
slave trade (or, as the framers shamefacedly put it, "the Migration
or Importation of such Persons as any of the States now existing
shall think proper to admit") until 1808twenty long years! Article
IV, Section 2 made the citizens of the "free" states complicit in
the crime by obliging them to return any runaway "Person held to
Service or Labour in one State" to "the Party to whom such Service
or Labour may be due," even if slavery itself was unlawful within
the state to which the brave wretch had managed to escape. Most
notoriously, under Article I, Section 2, a state's allotment of
seats in the House of Representatives (and, by extension, its
Presidential electors) was determined by counting not only "free
Persons" but also "three fifths of all other Persons." This was
simply diabolical, because to the insult of defining a person held
in bondage as three-fifths of a human being it added the injury of
using that definition to augment the political power of that
person's oppressors.
It took the deaths of seven hundred thousand soldiers
to cleanse the Constitution of these obscenities. Though Dahl does
not emphasize the point, the Civil Warthe bloodiest war in recorded
history up to that periodrepresented a catastrophic failure of the
Constitution itself. The political institutions it created had
proved incapable of solving the nation's greatest problem. In the
war, North and South both claimed to be the true inheritors of the
founding generation. The South probably had the better of the
argument, but the North won the fight and, with it, the point. The
victors saw no great need to overhaul the document in whose name
they had triumphed. So the Reconstruction amendments were
substantive, not structural. The Thirteenth Amendment abolishes
slavery (and, for the first time in the Constitution's text, drops
the "such Persons" circumlocutions and finally uses the brutal
word). The Fourteenth extends to all "the equal protection of the
laws." And the Fifteenth guarantees the right to vote regardless of
"race, color, or previous condition of servitude." But nothing was
done to alter the political institutions that in 1860 had held four
million peopleone American in eightin bondage and that, for the next
century and, arguably, more, denied millions of their "free"
descendants both equal protection and the franchise.
Even so grotesque and obvious an injustice as
apartheid in the public schools was beyond the ability of the
national government to correct. And when, after ninety years,
formal, official school segregation was outlawed the deed was not
done by the elected representatives of the people. It was done
through the exercise of unelected, unaccountable, unchecked,
quasi-legislative judicial powerone of the numerous features of the
American constitutional system that the framers had no idea they
were creating. The framers wanted an independent judiciary, for
sure. They seem to have wanted some sort of judicial review,
especially of state laws or actions that might impinge on the
authority of the national government. And the language of the Bill
of Rights"Congress shall make no law respecting an establishment of
religion," and so on suggests that, even though the framers did not
explicitly authorize the Supreme Court to overturn acts of Congress
or Presidential edicts that infringed upon guaranteed civil
liberties, they would not have been scandalized by the Court's doing
just that. But no one anticipated that the Court would gather unto
itself what Dahl calls "the power to make policy decisions that
affect the lives and welfare of millions of Americans." The framers
did not create that power; the Court itself seized it, gradually and
over time. What the framers did create, by establishing a government
profoundly at odds with itself and often helpless against the veto
power of determined minorities, was the power vacuum into which the
Court was drawn. Somebody had to do something about school
segregation, after all; it was a patent injustice and an
international embarrassment, most Americans opposed it, and sooner
or later it would have led to serious civil disorder. But at least
the substance of Brown v. Board of Education (as opposed to the
power behind it) was democratic. Could one say the same of Dred
Scott v. Sandford, Buckley v. Valeo, or Bush v. Gore?
Once slavery was removed, the most undemocratic
remaining provision of the Constitution was, and is, the composition
of the Senateits so-called equality of representation, whereby each
state gets two senators regardless of population. This is often
referred to as a "concession" to the small states, but in truth it
was more like surrender to blackmail. The small states saw it as a
deal-breaker, and they would brook no compromise. Dahl notes that
Gunning Bedford, Jr., of Delaware, told his fellow-delegates to the
Constitutional Convention that, unless the big states yielded, "the
small ones will find some foreign ally of more honor and good faith,
who will take them by the hand and do them justice." The Senate was
formed less by rational argument than by threats of treason and war.
You've probably never heard of Gunning Bedford, Jr. (I
hadn't, until Dahl introduced me to him.) When it came to the
composition of the Senate, though, the Gunning Bedford types exerted
far more influence than James Madison or Alexander Hamilton, who
were then left holding the bag. It was Madison and Hamilton, along
with John Jay, who got the assignment of defending every last detail
of the various Philadelphia compromises in the series of long op-ed
pieces later collected as "The Federalist" and treasured to this day
by columnists and speechwriters composing encomiums to the
providential perfection of the framers' handiwork. Dahl points out,
amiably but sharply, that the Federalist Papers were an exercise in
spin. "If we employ a dictionary definition of propaganda as
'information or ideas methodically spread to promote or injure a
cause, nation, etc.,' then the Federalist Papers were surely
propaganda," he writes. Madison and Hamilton had a job to do. It was
a perfectly honorable job, but it obliged them to defend things they
did not believe in. Madison had been the Constitutional Convention's
most passionate advocate of giving the big states more senators than
the small ones. Hamilton had been almost as adamant. "As states are
a collection of individual men," he harangued his fellow-delegates,
"which ought we to respect most, the rights of the people composing
them, or of the artificial beings resulting from the composition?
Nothing could be more preposterous or absurd than to sacrifice the
former to the latter. It has been said that if the smaller states
renounce their equality, they renounce at the same time their
liberty. The truth is it is a contest for power, not for liberty.
Will the men composing the small states be less free than those
composing the larger?"
Even if it were true that the condition of being a
citizen of a state with a small population entails such grievous
disadvantages that, to correct for them, the very votes of such
citizens must be assigned a greater weight than the votes of other
Americans, how much is enough? Are the special needs of people who
live in small statespeople who can, after all, escape their
condition by moving somewhere elsegreater than the special needs of
people who are short, or people who are disabled, or (more to the
point of American history) people who are black? Here's a little
thought experiment, inspired by Dahl's reflections. Imagine, if you
can, that African-Americans were represented "fairly" in the Senate.
They would then have twelve senators instead of, at present, zero,
since black folk make up twelve per cent of the population. Now
imagine that the descendants of slaves were afforded the
compensatory treatment to which the Constitution entitles the
residents of small states. Suppose, in other words, that
African-Americans had as many senators to represent them as the
Constitution allots to the twelve per cent of Americans who live in
the least populous states. There would be forty-four black senators.
How's that for affirmative action?
Dahl is content, in this little book, to point out the
grotesqueness of the Senate in the light of elementary democratic
principles. There have been large historical consequences, too. At
the moment, admittedly, the Senate is not a particularly unpopular
institution. In contrast to the House, the Senate has many members
who are widely known, so it has a human face. Liberals like the way
the Senate derailed President Bush's plan to turn the Alaska
wilderness into an oil patch. Conservatives like the way it thwarted
President Clinton's health-care proposal. But, as these examples
suggest, the Senate is essentially a graveyard. Its record,
especially over the past century and a half, makes disheartening
reading. A partial list of the measures thatdespite being favored by
the sitting President, an apparent majority of the people, and, in
most cases, the House of Representatives to boothave been done to
death in the Senate would include bills to authorize federal action
against the disenfranchisement of blacks, to ban violence against
strikers by private police forces, to punish lynching, to lower
tariffs, to extend relief to the unemployed, to outlaw the poll tax,
to provide aid to education, and (under Presidents Truman, Nixon,
and Carter as well as Clinton) to provide something like the kind of
health coverage that is standard in the rest of the developed world.
The rejection of the Versailles treaty and the League of Nations
after the First World War and then of preparedness on the eve of the
Second are only the best known of the Senate's many acts of
foreign-policy sabotage, which have continued down to the present,
with its refusal to ratify international instruments on genocide,
nuclear testing, and human rights.
Some will take all this as proof that the system has
worked exactly as the framers planned. But, to believe that, one
must believe that the framers were heartless, brainless
reactionaries. They were not. They were practical, public-spirited
men who preferred the lessons of experience to the dictates of
theory. Unfortunately, since no one had ever before tried making a
republic like the American one, there was very little experimental
information to guide the designers. A generation later, Dahl thinks,
they might have come to different decisions.
An obscure provision of Article V of the Constitution,
which outlines the amending process, provides that "no State,
without its Consent, shall be deprived of its equal Suffrage in the
Senate." On its face, this appears to mean that an amendment
changing the composition of the Senate would have to be ratified by
every single state. Dahl writes, "In effect, those fifteen words end
all possibility of amending the Constitution in order to reduce the
unequal representation of citizens in the Senate." I'm not so sure.
In theory, one can imagine a Senate with, say, one senator from each
state, plus fifty more elected at large. That would preserve the
"equal Suffrage" of the states, while providing, for a change, a bit
of equal suffrage for actual people. Anyway, what if those fifteen
words were themselves amended out of the Constitution? The idea that
a constitutional amendment might itself be unconstitutional is
probably too audacious even for the Supreme Court.
It will never come to that, alas. The amending process
alone is enough to insure that the two-senators-per-state rule is
forever safe. That process (which was designed, at least in part, to
protect slavery) requires the assent of three-fourths of the states.
The politicians of the smaller states (and to a much lesser but
discernible extent the citizens thereof) would have much to lose
from a democratized Senate. So what if the thirty-seven largest
statesrepresenting ninety-five per cent of the nation's
populationratify an amendment? To kill it, all the thirteen smallest
have to do is nothing.
The Presidency is another aspect of the constitutional
system that has turned out to be quite unlike what the framers
envisioned. Parliamentary democracy was not even considered, because
it hadn't been invented yet. (The British system of an executive
beholden to a legislative majority, rather than to a monarch, did
not fully take shape until the early eighteen-thirties.) Still, as
Dahl notes, the framers came close to devising something akin to it:
not once but three times, the Constitutional Convention voted to
have the Chief Magistrate chosen by Congress outright. In the end,
the delegates, remembering their Montesquieu, drew backbut only
partly. The electoral college, they thought, would be a kind of
nominating convention. If no candidate had an outright majorityand
the framers assumed that this would be normal once George Washington
had passed from the scenethe House would choose among the top five,
later reduced to the top three, with each state delegation casting
one vote. So the President would owe his job to Congress, even if
Congress, having installed him, could remove him only with the
greatest difficulty.
The convention gave the job of picking electors to the
state legislaturesor, more precisely, to "each State," which would
do the appointing "in such Manner as the Legislature thereof may
direct." This, Dahl writes, opened a huge democratic opportunity in
the following century, as one state legislature after another, under
public pressure, yielded the power to choose electors to the voters.
But this power is on loan only, as we learned in 2000, when the
Florida legislature made clear its intention to name its own slate
of electors if the recount went forth and came out the wrong way.
Just as the Fourth of July orators say, America has
been an inspiration to peoples struggling for democracy. But, when
it comes to actually designing the machinery, the American model has
had no takersnot among successful democracies, at any rate. (The
Philippines, Liberia, and some Latin-American countries, which have
copied us, are not good advertisements.) Dahl surveys the twenty-two
countries that have governed themselves democratically without
interruption since 1950. Only six, including the United States, are
federal, and in every case "federalism was not so much a free choice
as a self-evident necessity imposed by history." Only four, all of
them federal, have strong bicameralism. Only the United States, the
United Kingdom, Canada, and France do not use one of the many
variants of proportional representation, a nineteenth-century
invention. We get bad marks in "democratic fairness" and
"encouraging consensus." In "accountability," we're flunking. "Where
are we to place responsibility for the conduct of our government?"
Dahl asks. He goes on:
When we go to the polls, whom can we hold accountable
for the successes and failures of national policies? The president?
The House? The Senate? The unelected Supreme Court? Or, given our
federal system, the states, where governments are, in their
complexity, a microcosm of the national government? . . . I, for
one, am inclined to think that compared with the political systems
of the other advanced democratic countries, ours is among the most
opaque, complex, confusing, and difficult to understand.
In short, if our system "fails to ensure the fairness
promised by the proportional vision, it also fails to provide the
clear accountability promised by the majoritarian vision." Nor is
that all. In so-called consensual democracies, polls show, voters
who are on the losing side of an election are almost as satisfied
with the political system as the winners and both are more satisfied
than citizens of majoritarian regimes like ours. Also: "When the
United States is ranked with other established democracies on such
matters as the rate of incarceration, the ratio of poor to rich,
economic growth, social expenditures, energy efficiency, foreign aid
and the like, its performance is something less than impressive." On
the other hand, we do as well as anyone in maintaining civil
libertiesthanks mainly to the Bill of Rights, one part of the
Constitution with which Dahl doesn't have a beef. And, although Dahl
doesn't mention this, we seem to be getting straight A's in world
domination.
As a practical matter, we probably won't be able to
change our constitutional system in any truly significant way. But
we can, as Dahl suggests, change the way we think about it. If we
worshipped the framers a little less, we might respect ourselves a
little more. If we kept in mind the ways in which our constitutional
arrangements distort our democracy and hobble our politics, we might
gain a deeper, more useful understanding of the sources of our
various national discontents. If we didn't assume that the system
was perfect, we wouldn't assume that everything we don't like is the
fault of bad people. We'd judge our politicians more shrewdly, and
more charitably, if we reminded ourselves regularly of the
constraints that the system imposes on them. We'd be less tempted by
lazy moralism.
Our constitutional system is loaded with perverse
incentives. To take a current example of how this plays out, many
liberals feel exasperation, or even contempt, for what they regard
as the timidity of the Democratic opposition to President Bush. Why,
they wonder, isn't the Democratic congressional leadership
full-throatedly demanding stronger environmental regulation,
meaningful gun control, and tax policies that don't simply bloat the
rich? It's not as if these positions were politically unpopularall
of them, polls show, are supported by solid majorities of the
American public. But solid majorities of the American public don't
have much to do with who wins American congressional elections. This
fall, control of the House and the Senate will be decided in a dozen
districts and a half-dozen states, and in those districts and states
the issues don't necessarily cut the way they do in the country at
large. So Democrats stick to Social Security and Medicare,
Republicans stick to terrorism and "compassionate conservatism," and
the general public wonders why "the issues" aren't being
"addressed."
"My reflections lead me to a measured pessimism about
the prospects for greater democratization of the American
Constitution," Dahl writes. He sees little or no chance for the
kinds of changes to which his analysis logically points. He does see
some unspecified hope in "a gradually expanding discussion that
begins in scholarly circles, moves outward to the media and
intellectuals more generally, and after some years begins to engage
a wider public"specifically, a discussion of how our system stacks
up against the performance of constitutional systems in other
advanced democracies and against democratic principles. Our
understand ing of those principles will evolve indefinitely. "So,
too," he writes in his final sentence, "will the implications of
those principles for our democratic political system, and its
Constitution, under which we Americans freely choose to live."
Dahl can be forgiven this one little flourish of
sentimentality. As he knows very welland has written a book to
proveour system is a lot less democratic than it should be. We
didn't choose it; it was here when we arrived. We just have to live
with it. Better we should do so with our eyes open.
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