How Democratic Is the American Constitution?

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How Democratic is the American Constitution? (2001, ISBN 0-300-09218-0, among others) is a book by political scientist Robert A. Dahl that discusses seven "undemocratic" elements of the United States Constitution.

The book defines "democratic" as alignment with the principle of one person, one vote, also known as majority rule. The author praises the Framers of the Constitution as "men of exceptional talent and virtue" (p. 7) who made admirable progress in the creation of their republican government. But Dahl also points out that innovation and change in democratic techniques and ideals continued even after the Constitution was codified, and the American system has not adopted all of those new ideas. He says that the Founders were partially constrained by public opinion, which included maintenance of the sovereignty of the thirteen states.

Undemocratic elements

The primary "undemocratic" aspects of the Constitution that the book sets out are:

  • Tolerance of slavery - Necessary to ensure the cooperation participation of the Southern states, and only outlawed after the American Civil War
  • Suffrage - The voting rights of women, African-Americans, and Native Americans were either not protected or specifically abridged. (In 1870, the Fifteenth Amendment prohibited denial of suffrage due to race. In 1920, the Nineteenth Amendment prohibited denial of suffrage due to sex. In 1964, the Twenty-Fourth Amendment prohibited poll taxes, which were then being used in some states to discriminate against African-Americans without explicit racial provisions.)
  • Election of the president. Article II Section 1 establishes the Electoral College, which gives each state a number of electors proportional to its representation in Congress (which, because each state has two Senators, is not proportional to population). Electors were to be appointed by whatever method the state legislatures chose, and would presumably use their own judgment in choosing a President. In modern times, most states use a "winner take all" system to allocate the votes of their electors based on the outcome of the popular vote within that state, but the allocation of votes among the states is unchanged.
  • Representation in the Senate. Each state gets two senators, regardless of population. This is known as the Connecticut Compromise, and was incorporated into the Constitution to secure the continued participation of the smaller states. (for more information see Sizing Up the Senate by Frances Lee and Bruce Oppenheimer)
  • Election of senators. Article I, Section 3 declared that senators were to be appointed directly by state legislatures. In 1913, the Seventeenth Amendment changed the system so that Senators were popularly elected in staggered statewide races.
  • Judicial power. In the United States, judge(s) have the power to rule unconstitutional any law or regulation, even if duly approved by the legislature and signed by the president. Judges are appointed (not elected) for life with a high threshold for removal, which makes them independent. Dahl feels that the judiciary has used its rather unconstrained authority to essentially make national policy through judicial fiat.
  • Limitations on Congressional power. As interpreted by the judiciary, the Constitution reserves sovereignty in many domains of regulation to the states. The powers of Congress are limited to a specific list. From 1895 until the Sixteenth Amendment was ratified in 1913, court interpretations of constitutional requirements for "direct" taxes made a federal income tax impracticable, limiting the revenue available to the federal government. During the laissez faire period, the Supreme Court interpreted the economic powers of Congress very narrowly, giving the federal government very little power to affect the economy. Modern judicial interpretation has allowed the federal government to have a much greater influence over the economy.

The Framers created a representative democracy because they were fearful of direct democracy. Dahl says this is a result of underestimating the ability of the American people as a whole to guide the country on a stable, free-market path that would have respected the property rights of land owners.

What kind of constitution is best?

Dahl considers the question of whether the details of the American Constitution, as amended and practiced in modern times, are superior or inferior to the constitutional systems of other stable democracies. His criteria for evaluation are:

  • Political stability (that is, remaining democratic)
  • Effective protection of democratic rights
  • Democratic fairness
  • Fosters consensus building
  • Promotes effective problem solving

Maintaining stability

International comparisons

Dahl finds meaningful comparisons to the American Constitution only in other countries with similar conditions. He says that there have been only 22 countries, including the United States which have been "steadily democratic" since 1950. His book identifies the following constitutional attributes as important for comparison:

  • Federalism. Is the country a federal union of strong local governments (for example, states, provinces, cantons), or a unitary state? In order to be federal, the subordinate units must be protected by constitutional law or practice, have substantial autonomy, and have substantial power to pass legislation.
  • Bicameralism. Are there two houses in the legislature, both with substantial powers?
  • "Unequal" representation in upper house. Are votes in one house of the legislature allocated by governmental subunit (for example, state, province, canton), not by population?
  • Strong judicial review of national legislation: The power to declare unconstitutional laws duly passed by parliament and/or signed by the president. (As distinct from the ability to strike down acts of subordinate governments, such as states or provinces.)
  • Electoral system

List of countries steadily democratic since at least 1950

How Democratic compares the 22 stable, wealthy democracies on these criteria, summarized as follows:

List of countries steadily democratic since at least 1950
Country Strongly federal? Strongly bicameral? Upper house with unequal repress.? Strong judicial review? Electoral system Party system Structure
 Australia Yes Yes Yes No Lower House AV; Upper House PR (STV) Two Parliamentary
 Austria Yes No No No PR (list) Multi Parliamentary
 Belgium Yes (since 1993) No No No PR (list) Multi Parliamentary
 Canada Yes No Yes Yes FPTP Multi Parliamentary
 Costa Rica No No No No PR (list) Multi Presidential
 Denmark No No No No PR (list) Multi Parliamentary
 Finland No No No No PR (list) Multi Parliamentary
 France No No No No 2 round Multi Parliamentary
 Germany Yes Yes Yes Yes PR (MMP) Multi Parliamentary
 India Yes Yes No Yes FPTP Multi Parliamentary
 Iceland No No No No PR (list) Multi Parliamentary
 Ireland No No No No PR (STV) Multi Parliamentary
 Israel No No No No PR (list) Multi Parliamentary
 Italy No Yes No No PR (MMP) Multi Parliamentary
 Japan No No No No Semi-PR Multi Parliamentary
 Luxembourg No No No No PR (list) Multi Parliamentary
 Netherlands No Yes No No PR (list) Multi Parliamentary
 New Zealand No No No No PR (MMP) since 1993 Two (until 2000) Parliamentary
 Norway No No No No PR (list) Multi Parliamentary
 Sweden No No No No PR (list) Multi Parliamentary
  Switzerland Yes Yes Yes No PR (list) Multi Parliamentary
 United Kingdom No No No No FPTP Multi Parliamentary
 United States Yes Yes Yes Yes FPTP Two Presidential
Totals Yes:8,
No:15		 Yes:7,
No:16		 Yes:5,
No:18		 Yes:4,
No:19		 FPTP:3, PR-list:13, PR-AV:1, 2-round:1 PR-MMP:3, PR:STV:1 Semi-PR:1 Two:3,
Multi:20		 Presidential:2,
Parliamentary:21
Source: R. Dahl (2000), How Democratic Is the American Constitution? - Table 1

Protecting democratic rights

Looking at Freedom House rankings, Dahl concludes that there is no discernible correlation between the seven constitutional features and ratings on political rights or civil rights among the 22 comparison countries.

Fairness and consensus

Dahl contrasts majoritarian governments, where the electoral system (for example, first-past-the-post) can grant a dominant group (or even a minority group) decisive control over the government, with proportional systems, where governmental control is more distributed. He concludes that proportional systems are more "fair".

Proportional systems also do more to promote consensus-building, he claims, because of the need to build coalitions to form a majority.

Dahl considers the American system to be a hybrid, due to its bicameral legislature and strong separation of powers, and the strong executive, which he says does not fit the mold of either category.

Problem-solving effectiveness

Data from Patterns of Democracy (Yale University Press, 1999) by Arend Lijphart is presented in an appendix, which ranks the U.S. on a best-to-worst scale among a varying number of countries. Ranked criteria include economic growth, unemployment, inflation, economic inequality, women's representation, energy efficiency, incarceration rates, social spending, voter turnout, and foreign aid. Not all analysts would agree with Dahl that all of these criteria are appropriate measures of government effectiveness, and in some cases, there are political disagreements on whether a given indicator should be higher or lower. In the rankings that are given, the United States is in the best third of one, the middle third of six, and the bottom third of eight.

Dahl states that difference in size, diversity, and economic affluence make attributing good performance on these measures to government effectiveness too difficult. He does describe American performance as "mediocre," and concludes that changing the United States Constitution to a system resembling one of the other stable democracies would not necessarily negatively impact government performance.

References

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