Adam Sieff, Staff Writer
Ideology: Liberal | Writing from: Columbia University

Democracy is a hot word in America. From tea-party paranoids and saber-rattling ultranationalists to gay rights activists and ACLU members, most modern political actors justify their arguments to the extent that they promote, or are consistent with, “American democracy.”

But what is American democracy? In general, American popular culture and education assert that the United States is a robust democratic nation because we are governed by laws that have been determined by majority votes. A straw poll of most Americans, save for the occasional democratic theorist, would likely confirm this vision of populist-majoritarianism.

In fact, the United States is not primarily a nation of majority votes. Indeed, the notion of “majority rule,” as most Americans understand it, is merely a Platonic illusion not unlike those intended for the kallipolis. For the most part, the critical rules of law that govern our society are derivative of two highly unmajoritarian features of our government: supermajority legislative rules and judicial review.

With regard to supermajoritarianism, the possibility of filibuster in the Senate has been particularly problematic for the majoritarian premise. Before 1917, the ability to filibuster gave a single Senator the legitimate authority to block the position of a clear majority. After Rule XXII was enacted in 1917, the sixty-seven vote requirement (later reduced to sixty) for cloture still failed to change the fact that a minority of the Senate (currently 41 members) could, in effect, determine policy outcomes.

These majoritarian imperfections would perhaps be irrelevant had minority Senators always been as disinclined to hold the majority hostage as they were in the first hundred years of the republic. But the reality is that an increased work-docket has made filibustering less costly and more successful: time pressures force Senators to submit to filibusters in order to pursue their own legislative goals.

Moreover, the increased membership and rate of member turnover may have eroded norms that restrained the inclination to filibuster. In sum, the incentives for today’s Senator to filibuster have increased while her disincentives have decreased. These developments make filibustering a serious part of the modern Senate and a substantial challenge to majoritarian conceptions of American government.

Other incidences of supermajoritarianism are more explicit, even declared, in the constitution. Among these, perhaps the most important relates to formal constitutional amendment procedures. Article V restricts amendment to a variety of supermajoritarian premises that, like filibuster, endow a minority with veto power. Yet unlike the filibuster, which had not always been so recklessly employed because of restraining norms and disincentives, vetoing a majority’s amendment has always been relatively undemanding and state legislatures, in particular, have taken advantage. Whatever the possibly valuable merits of this sort of entrenchment (such as protecting minorities), it certainly cannot be understood as majoritarian per se.
But perhaps the greatest and most blatant deviation from majoritarianism in America is the general nature of the modern Supreme Court. The reversal of majority-enacted laws via judicial review, as well as the power to issue what we might call informal “bench amendments,” has severely undermined the rule of the majority. To be clear, this is not to draw a distinction between “activist” and “constructionist” justices, but rather a suprapartisan observation about the extraordinary impact of high-court judicial decisions.
Judicial review, the process by which the Supreme Court can declare laws unconstitutional, is conceptually straightforward and, as any seventh grader could explain, has been actively used in the United States since 1803. Bench amendments, however, are more controversial. Yale Professor Bruce Ackerman notably argues that the New Deal reforms established by the Roosevelt White House constituted just such an amendment to the extent that the Supreme Court let the reforms stand.

From the populist-majoritarian’s perspective, these sorts of bench amendments are the worst of both worlds. Like judicial review, they disregard majority preferences and are established in complete isolation from the public or their direct instruments. Like formal legislative amendments, they definitively address critical issues of governance and society.

For Harvard Law Professor Mark Tushnet, the solution is to eliminate judicial review to “return all constitutional decision-making to the people.” Such a proposition, however, is as impracticable as it is perilous. Logically extended to its conclusion, Tushnet’s argument advocates some form of plebiscitary democracy which, as has been repeatedly pointed out in this space with regard to California, begs political disarray and probable collapse.

The brilliance of Lincoln’s words aside, the United States has never been a nation of or by the People, though it has more often than not been for it. America became and remains a great nation because of the prescience and virtue of its aristocracy, not the whimsical indulgences of its masses.

Majority rule, though extant insofar as popular elections functionally determine the placement of political actors, remains manifestly impotent to the extent that it has no influence on substantial decisions affecting the political community. The popularly held false-belief in its function towards those ends, however, makes it the perfect “noble lie” in the Platonic sense. Most importantly, it evinces the possibility that others can be similarly constructed.

We are fortunate to live in a nation of such useful illusions. The extent to which our nation remains great, however, is in large part dependent on how we preserve and create those useful illusions, and expunge those that are injurious. Such is the task of the modern political engineer, the burden of our generation.