What if the Constitution is the Source of Democratic Erosion?Historians in the News
tags: Constitution, democracy, James Madison, US Senate
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
Can our constitutional democracy withstand this troubling new reality? To hear voting-rights advocates tell it, the answer sounds as if it should be no. Partisan gerrymandering clearly contradicts the principle of one person, one vote, in which everyone’s vote has equal value. If it is now permanent, then it would seem to erode the very possibility of fair voting.
On closer examination, however, we have cause to think that constitutional democracy can survive. It’s not that partisan gerrymandering won’t continue to undermine majority rule. It will. The reason is that our democracy is, and has always been, far less predicated on majority rule than we imagine.
The U.S. Senate is an extreme departure from one person, one vote. The Supreme Court has the power to be counter-majoritarian, and exercises it. The Electoral College disempowers millions of voters in states with large partisan majorities.
Partisan gerrymandering has existed since earliest days of the Republic, even before Governor Elbridge Gerry of Massachusetts involuntarily lent his name to it in 1812. While computer-aided gerrymandering makes the partisan bias worse, it is different only in degree, not in kind.
In other words, our constitutional democracy co-exists with a pretty radical lack of respect for majority rule. We would do well to reduce that where we can. But when we fail, we shouldn’t resort to the rhetoric of existential threat. We should look in the mirror — not through Instagram filters — and recognize the truth, which is that we don’t have a majoritarian Constitution. We never did. And we never will.
We are accustomed to being told that the framers of the Constitution were suspicious of popular majorities. That’s true in some ways. Certainly the framers did not choose a popularly elected president, preferring to leave the selection of electors up to the states, which at the time relied on their legislators to choose the electors. Some framers wanted only propertied white men to vote — although, again, they left the decision of who could vote to the states.
Yet that narrative is also too simple, at least when it comes to their greatest anti-majoritarian institution, the Senate. James Madison, primary architect of what became the Constitution of 1787, wanted the Senate to be established on the basis of state populations, like the House of Representatives and the Electoral College. True, state legislatures were to choose the senators, and they were imagined as nature’s aristocrats, not men of the people. Their numbers, however, were supposed to reflect the actual distribution of the population, allowing for the morally repugnant three-fifths compromise.
Madison was therefore astonished and outraged when the small states, led by New Jersey, insisted on the equal representation in the Senate that they had in the old Congress under the Articles of Confederation, and that they also had at the Constitutional Convention. He and other large-state delegates to the convention tried to cajole, reason with and ultimately threaten the small states with inevitable war unless they relented.