Minority rule: Why our undemocratic republic must give way to something else

The founders favored indirect democracy reflecting the will of the majority.

Previously published at WGBHNews.org.

If something can’t go on forever, then it won’t. And so it is with the current state of our democracy, which awards disproportionate power to an ever-shrinking slice of the electorate. Today the president, the Senate, and the Supreme Court reflect the will of a minority of voters. The majority is left out in the cold. At some point that has to change, even if it’s not at all clear how it’s going to happen.

Now, some of you are already sharpening your sticks and getting ready to poke holes in my argument. We’re not a democracy, you’ll say. We’re a constitutional republic. Well, you’re half-right. Living in a constitutional republic means that our democratic rights are sometimes exercised indirectly, and that there are certain protections that the majority may not take away from us. What it’s not supposed to mean is that some people’s votes counts more than others.

I’ll return to that argument later on. But first, as Kai Ryssdal says, let’s do the numbers.

The executive branch. After what happened in 2016, our undemocratic method of electing the president is well known, widely understood, and, at least among Democrats, widely reviled. The Electoral College is a vestige of the past and, as I’ve written before, an artifact of slavery: it gave slave states a louder voice in presidential elections by counting each slave as three-fifths of a person even though they had no right to vote.

That obscenity is long gone. But voters in small states still have more power than those in large ones. Why? In addition to casting an electoral vote for each House district, every state gets two bonus votes (reflecting its two senators) regardless of size. How unfair is that? In tiny Wyoming, each elector represents about 194,000 residents, whereas in giant California the number is 697,000. It is the equivalent of each Wyoming voter’s ballot being counted 3.6 times while those of California residents are counted only once.

Until George W. Bush won the presidency despite losing the popular vote in 2000, the idea that the winner of the popular vote could lose the presidency seemed like a 19th-century anachronism, conjuring up images of Rutherford B. Hayes, known to his contemporaries as “His Fraudulency.” Then came 2016, when Donald Trump won despite losing the popular vote to Hillary Clinton by the not-insubstantial margin of 2.8 million votes. With more and more Democrats and liberals moving to blue states, the gap may only get worse.

The legislative branch. The anti-democratic nature of Congress is most obvious in the Senate, which is marred by the same small-state bias as the Electoral College. Each state, as we know, elects two senators regardless of size. To use our previous example, California’s Democratic senators, Dianne Feinstein and Kamala Harris, represent more than 39 million people, whereas Wyoming’s two Republican senators, John Barrasso and Mike Enzi, represent just 580,000.

That is an absurd situation, far worse than what prevails in the Electoral College, which at least is partly based on population. One consequence of the large-state/small-state divide is that millions more Americans vote for Democratic Senate candidates than for Republicans. For instance, Dylan Matthews noted in Vox several years ago that the 46 Democratic senators who were seated in 2015 had received 20 million more votes than the 54 Republicans. (The Democratic total included two independents, Bernie Sanders of Vermont and Angus King of Maine, who caucus with the Democrats.)

As with the Electoral College, the two-senators-per-state arrangement was rooted in the need to grant greater power to the slave states in order to bring the union together. Today, given that most small states are Republican and most large states are Democratic, Republicans gain a huge advantage.

House districts, at least, are based on population. But gerrymandering by Republican-controlled governorships and legislatures has had its effect there as well. In 2016, for instance, Republicans won 241 of the 435 total House seats, beating the Democrats by 55.4 percent to 45.5 percent. Nationwide, voters favored Republican House candidates by the much slimmer margin of 49.1 percent to 48 percent. That raises the specter that, even if Democrats had received more votes, Republicans still would have won more House seats.

The judicial branch. With the confirmation of Brett Kavanaugh as the ninth justice, the Supreme Court now includes two members who were appointed by a president who lost the popular vote — that is, President Trump. (George W. Bush appointed Chief Justice John Roberts and Justice Sam Alito only after his 2004 re-election, in which he won both the popular and electoral votes.)

Moreover, both of Trump’s nominees were confirmed by senators who received far fewer votes than the senators who opposed them. Michael Tomasky recently observed in The New York Times that in the case of Trump’s first choice, Neil Gorsuch, the 54 senators who voted to confirm him received 54 million votes whereas the 45 senators who were opposed won more than 73 million. That’s a margin of 58 percent to 42 percent against confirmation. The Kavanaugh confirmation vote broke along similar lines. Indeed, Philip Bump of The Washington Post estimated that the senators who voted to confirm Kavanaugh represented just 44 percent of the population.

In other words, reproductive rights, same-sex marriage, and other liberties are now at risk because of two justices who were appointed by a president who lost the popular vote, and who were were confirmed by senators who received far fewer votes than those who were opposed. Is this any way to run a democracy in the 21st century?

And yes, let’s get back to that democracy-versus-republic argument. What does it mean to live in a constitutional republic rather than a democracy? It means that we don’t make laws directly — we let Congress do it. It means there are certain rights that even a majority can’t take away from us (except through a constitutional amendment), whether it be freedom of speech, the right to bear arms, or the right to a speedy and public trial by jury.

As Harvard Law School professor Lawrence Lessig wrote two years ago, the “we’re a republic” retort favored by defenders of the Electoral College is nonsense. The founders defined a “republic” as a representative democracy rather than a direct democracy, not as a non-democracy. James Madison, Lessig pointed out, said that “in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.” (Lessig, I should add, is the force behind an intriguing idea to reform the Electoral College.) That doesn’t mean the minority gets to rule while the majority gets to shut up. It means the majority exercises its will indirectly rather than directly.

Writing in Philly.com, columnist Will Bunch offers some useful ideas to reform our anti-majoritarian system, ranging from abolishing the Electoral College to ending the two-senators-per-state arrangement.

Bunch goes so far as to compare our current situation to the run-up to the Civil War. “Let’s once again radically fix the way America does its business — this time, before a civil war breaks out,” he writes. That strikes me as hyperbolic, but maybe he’s right. We are facing a crisis of legitimacy We do not have a government of the people or for the people when any — or, as is now the case, all — branches of government exercise power against the wishes of most Americans. Because the status quo can’t be maintained, it won’t be. The only question is how we’ll fix a system that is irredeemably broken.

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