by DAVID HARSANYI
One of the more popular grievances from the contemporary left revolves around the notion that our nation has been subverted by “minority rule.”
Here is the pollster Nate Silver:“Despite the various, very serious threats to American democracy, things would *mostly* be fine if the balance of elected power more closely reflected the popular will (e.g. Senate seats proportional to population, no Electoral College, less gerrymandering).”
Silver is confusing the inability to coerce others with minoritarianism. It is not a serious threat to American democracy that New Yorkers are unable to dictate Oklahoma’s abortion laws. Nor that Texans can’t compel Rhode Islanders to adopt their gun laws. It’s the point.
Elites like to mock the proles when they point out that we don’t live in a democracy. But the system Silver believes problematic tempers divisions. It is the core idea of American governance. If the United States is more divided than it ever has been in modern times, as a New York Times reporter recently claimed, we have even less reason to dispense with the mechanisms and institutions that diffuse power and constrain one side of the divide from lording over the other.
The anti-constitutionalist’s argument usually has two strands that (illogically) intersect. The first is to assert that the Constitution is a work of slave-owning white men who used antiquated and counterproductive ideas that undermine modernity and “democracy.” The second is to argue that we have absolutely no idea what the founders intended, anyway.
When conservative-turned-progressive Max Boot — the gulf between technocrat interventionist and Constitution-averse leftist isn’t as wide as you imagine — says that “American democracy is broken,” his plan to fix it is to effectively dispense with states. “The Founders,” notes Boot, “never envisioned such an imbalance between power and population. It undermines any pretense that we are still a democracy.”
Boot’s contention only makes sense if a person is ignorant of the founding bargain between states. As many people have already pointed out, the first American census in 1790 found that Virginia, then the most populous state, was home to around 20 percent of the population. Today, California, our largest state, makes up around 12 percent of the nation’s population. No one complained about the disparity of the Senate in 1790 — or, as far as I know, 1890 or 1990, for that matter — because the “imbalance” was literally codified in the founding document (which, incidentally, mentions “democracy” zero times).
We know that the framers “envisioned” small states having an equal say because in Federalist 62, James Madison grapples with the undemocratic nature of the Senate but comes to the conclusion that it is an “advantage” that, “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States”(emphasis mine). The Senate works exactly as it was envisioned.
Well, OK, not exactly. Senators have abdicated their constitutional and institutional responsibilities, and become partisan cheerleaders for executive abuses, whining when courts hand them back the responsibility of governing, as it did with West Virginia v. EPA (bad “democracy”). One doubts Madison envisioned Chuck Schumer, who implores the president to circumvent Congress and shows greater loyalty to the Democratic Party than he does the Constitution. Overturning the 17th Amendment was a big mistake. We need less direct democracy, not more.
Another popular way to claim we live under minority rule is to attack the Supreme Court for handing back issues unmentioned in the Constitution to voters.
[the_ad id=”157875″]
In a piece headlined “This July 4, let’s declare our independence from the Founding Fathers,” The Washington Post’s Paul Waldman offered a slew of collegiate-level gripes about the Constitution’s alleged limitations. Tucked into the piece, Waldman claims that the right believes the “Founders were essentially perfect, and only we conservatives are capable of interpreting their will.”
A person would have to aggressively avoid reading anything from or about actual textualists to type that sentence. Even during this term, even last week, “conservative” justices on the Supreme Court were disagreeing on what the Constitution means. It is not only that conservatives are capable of interpreting the will of the founders, it is that they’re the only ones willing to try.
At some point, though, the judicial branch is required to look at the Constitution as written. Otherwise, we’re left with a banana republic where capricious politicians held hostage to the vagaries of the moment abuse state power and invent “rights” on the fly, which is, of course, what Waldman wants.
Boot also claims that conservatives see the founders “as demigods.” The Supreme Court, he writes, “has just upheld abortion restrictions and struck down gun restrictions based on the dubious claim to be channeling the Constitution’s drafters.” The court didn’t “uphold abortion restrictions” or “strike down gun restrictions,” it adjudicated the constitutionality of laws. In Dobbs, the court, after 50 years of judicial decree, handed the abortion issue back to voters (also bad “democracy”). And in New York, the court found that “bearing” arms outside the home was a constitutional right — no court, incidentally, has ever found otherwise — and thus, New York bureaucrats are no longer allowed to arbitrarily stop citizens from practicing a right.