Tyranny of the Minority

Alexis de Tocqueville once observed that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Had he toured America today, Tocqueville might similarly conclude that scarcely any critique of our politics fails to devolve sooner or later into a critique of our constitutional law.

That’s true even for otherwise meritorious critiques, like those offered by Harvard professors Steven Levitsky and Daniel Ziblatt in their new book, Tyranny of the Minority: Why American Democracy Reached the Breaking Point. Authors of the best-selling How Democracies Die, Levitsky and Ziblatt lay out the markers of democratic backsliding, explaining how the United States is increasingly—and distressingly—displaying worrisome signals of the same. But they place undue blame for our recent democratic failings on our centuries-old Constitution.

Supported by a rich collection of historical episodes from around the globe, Levitsky and Ziblatt pinpoint three “basic things” that politicians in a functioning democracy must do: first, respect the outcomes of free and fair elections; second, repudiate violence as a means of achieving political goals; and third, distance themselves from antidemocratic forces—particularly those on their own flank. Democratic nations run into real trouble when autocratic forces—often small yet committed minorities—are buoyed by “semi-loyal democrats” on their own side of the partisan divide. “Democracies get into trouble when mainstream parties tolerate, condone, or protect authoritarian extremists—when they become authoritarian enablers.” These semi-loyal democrat enablers are the sorts of politicians who prioritize their own short-term electoral goals and career advancement within the party over upholding basic democratic principles.

Consider Levitsky and Ziblatt’s account of a mob attack on the French parliament in 1934, that “badly weakened” French democracy. The assault’s damage ran deeper than the rummaged parliament. The real damage occurred in the aftermath of the riot as the conservative party, the Republican Federation, failed to condemn the violence. Some conservative party members “dismissed the importance of the attack,” while others openly celebrated it. Indeed, some had even been directly involved, and had then helped thwart parliament’s investigation into the attack. Not coincidentally, argue Levitsky and Ziblatt, democracy died in France within a few years with the Vichy government.

Having established this framework, Levitsky and Ziblatt turn their focus to today’s Republican Party. They argue that in the wake of January 6th the vast bulk of Republican officials have violated those three core prerequisites for maintaining a functioning democracy. According to Levitsky and Ziblatt, the GOP has devolved into a minority party, but one that can still hold onto power thanks to our system’s various anti-majoritarian political structures like the Electoral College, the malapportioned Senate, and its filibuster. The authors contend that the system creates perverse incentives: even as Republicans consistently lose popular elections, they still have a shot at holding onto sizeable amounts of political power since the political playing field is supposedly tilted in their favor.

In making this argument, the authors acknowledge that democracy requires anti-democratic checks to persist—and to protect the rights of minorities. But they distinguish such necessary and proper checks from undue constraints on majoritarian rule. That distinction is as crucial as it is difficult to draw, but the basic points are intuitive enough. First, certain topics, like basic civil liberties, must lie beyond the reach of majorities. Second, those who win elections should be able to govern. The problem is that this second point is no longer holding true in the United States. As a result, our once pioneering democracy is now “a democratic laggard.” The United States is “now more vulnerable to minority rule than any other established democracy.”

Levitsky and Ziblatt’s analysis is largely compelling up to this point. But their willingness to blame the U.S. Constitution in particular for our democratic failings—for the emergence of “fettered majorities”—seems misguided from the standpoints of both practicality and prudence.

Levitsky and Ziblatt explain that other countries have outpaced America’s democracy because their constitutions are easier to change. For example, the United States isn’t the first country to undergo a process of urbanization that leaves an upper legislative chamber disproportionately slanted in favor of rural, conservative interests. But other nations who’ve run into this problem have amended their constitutions to correct the imbalance.

What Levitsky and Ziblatt don’t recognize is that, in the aggregate, the comparative difficulty of constitutional change in the United States might be more of a feature than a bug: our Constitution actually constituted a nation. It’s the Constitution that made the United States the United States—it’s a big part of what makes us, us. Because that’s not true for most other countries, fundamentally altering their respective constitutions is not as big a deal; it doesn’t necessarily touch their national soul. Germany would still be Germany absent its Basic Law; France would still be France absent the Constitution of the Fifth Republic (indeed, this even helps to explain why the French are on republic number five). For most nations, the ties that bind run deeper than those of politics and constitutions: shared language, culture, history, and race do most of the cohesive work. Not so for the United States—and happily so: that deep-seated, thicker unity comes at a cost. Those countries are deprived of the diversity of worldviews, religions, and ideas that helps to make the United States so dynamic, so interesting, and so worth preserving.

Altering the United States Constitution is accordingly a more momentous event—it changes who we are in a more fundamental way than if we were a pre-existing, more organic nation-state. This is particularly true for changes that center on our political process, as opposed to expanding the substantive scope of legal protections to previously excluded groups. It’s not a coincidence that many of the post-founding constitutional amendments have centered on expanding civil rights as opposed to fundamentally restructuring our governing institutions. More often than not, we’ve extended the sphere of the political community to recognize more Americans as equal participants in our institutions rather than altering the underlying character of those institutions and the processes that govern them. We’ve bettered ourselves while still being ourselves; a more perfect Union, but the same Union.

Thus, Levitsky and Ziblatt are right as a general matter that we must “double down on democracy” if we’re to be a successful multiracial democracy. But we should do so at the sub-constitutional level. Their proposed constitutional reforms to the Senate, the Electoral College, and the like lack merit. Given the constancy of the structure of the U.S. Constitution and its centrality to our national identity, it seems prudent to draw a distinction between the anti-democratic pitfalls that Levitsky and Ziblatt identify: constitutional ones versus sub-constitutional ones. Altering the constitutional ones would not only require clearing the nearly insuperable requirements of Article V, but would also alter the core of our national political identity. Pragmatism and prudence counsel against such reforms.

That’s not the case when it comes to reforming our current system’s sub-constitutional pitfalls. Institutions like first past the post voting in single member districts, winner-take-all voting arrangements in the Electoral College, and the Senate filibuster are not constitutional requirements. They weren’t part of the set of compromises that the framers reached as they constituted a new nation. They aren’t core to who we are as a polity.

In fact, it’s not a coincidence that these sub-constitutional strictures are the proximate causes for so many of the democratic failings documented by Levitsky and Ziblatt. Absent the filibuster, for example, Levitsky and Ziblatt themselves lay out how many pieces of proposed legislation would have been signed into law. The Constitution’s less than democratic features are certainly an underlying cause for the frustrating and now even destabilizing inability of majorities to govern. But what we’ve overlaid atop that constitutional structure might be more to blame. The Senate alone might not be a problem; the Senate with a de facto supermajority voting requirement might be.

After all, the Constitution’s framers like James Madison were not against majority rule. They understood that the majority would ultimately govern, but they designed our constitutional structure to help slow the pace at which the majority governed, in part to ensure that it would rule reasonably and justly. When we warp the institutions that comprise that structure—like through supermajority voting requirements within the legislature—the majority’s will is thwarted rather than tempered.

Before we fundamentally alter the Constitution’s mechanisms for shaping and constraining majorities, we might do well to first reform the sub-constitutional strictures that are currently fettering those majorities. In other words, Levitsky and Ziblatt have laid out a real problem worthy of our attention, but their advocacy for constitutional change seems misguided. We are indeed at a decision point: “either America will be a multiracial democracy or it will not be a democracy at all.” But getting to the right result might not require something so great as constitutional change. Tinkering with institutions like the filibuster, the primary system, and single-member districts might be a more effective, and more realistic, path forward.

Thomas Koenig, a contributing editor of American Purpose, is a student at Harvard Law School and author of “Tom’s Takes” newsletter. Twitter: @thomaskoenig98.

Image: Trump supporters at Union Station Columbus Circle on Wednesday morning, January 6 2021. (Elvert Barnes Photography: Wikimedia Commons)