(This is an excerpt from an article published in The Atlantic in September 2023.)
The country’s Constitution was once the standard-bearer for the world. Despite its flaws, the U.S. Constitution was a pioneering document. America became the first large nation to rule itself without a monarchy and instead fill its most important political offices via regular elections. Over the next century, the American Constitution served as a model for republican and democratic-minded reformers across the world. [However] The United States no longer seems like a good model today. Since 2016, America has experienced what political scientists call “democratic backsliding.” The country has seen a surge in political violence; threats against election workers; efforts to make voting harder; and a campaign by the then-president to overturn the results of an election—hallmarks of a democracy in distress. Organizations that track the health of democracies around the world have captured this problem in numerical terms. Freedom House’s Global Freedom Index gives countries a score from 0 to 100 each year; 100 indicates the most democratic. In 2015, the United States received a score of 90, roughly in line with countries such as Canada, France, Germany, and Japan. But since then, America’s score has declined steadily, reaching 83 in 2021. Not only was that score lower than every established democracy in Western Europe; it was lower than new or historically troubled democracies such as Argentina, the Czech Republic, Lithuania, and Taiwan.
The causes of America’s crisis are not simply a strongman and his cult like following. They are more endemic than that. Over the past two centuries, America has undergone massive economic and demographic change—industrializing and becoming much larger, more urban, and more diverse. Yet our political institutions have largely remained frozen in place. Today, American democracy is living with the destabilizing consequences of this disjuncture.
Indeed, the problem lies in something many of us venerate: the U.S. Constitution. America’s founding document, designed in a pre-democratic era in part to protect against “tyranny of the majority,” has generated the opposite problem: Electoral majorities often cannot win power, and when they win, they often cannot govern. Unlike any other presidential democracy, U.S. leaders can become president despite losing the popular vote. The U.S. Senate, which dramatically overrepresents low-population states by giving each state equal representation regardless of population, is also frequently controlled by a party that has lost the national popular vote. And due to the Senate’s filibuster rules, majorities are routinely blocked from passing normal legislation. Finally, because the Supreme Court’s composition is determined by the president and Senate, which have often not represented electoral majorities in the 21st century, the Court has grown more and more divorced from majority public opinion. Not only does the Constitution deliver outsize advantages to partisan minorities; it has also begun to endanger American democracy. With the Republican Party’s transformation into an extremist and antidemocratic force under Donald Trump, the Constitution now protects and empowers an authoritarian minority.
America was once the standard-bearer for democratic constitutions. Today, however, it is more vulnerable to minority rule than any other established democracy. Far from being a pioneer, America has become a democratic laggard. How did this come to pass?
[E]arly political systems placed elections and parliaments beyond the reach of popular majorities, ensuring not just minority rights but outright minority rule. In that world of monarchies and aristocracies, America’s founding Constitution, even with its counter-majoritarian features, stood out as comparatively democratic. Over the course of the 20th century, however, most of the countries that are now considered established democracies dismantled their most egregiously counter-majoritarian institutions and took steps to empower majorities. They did away with suffrage restrictions. Universal male suffrage first came to France’s Third Republic in the 1870s. New Zealand, Australia, and Finland were pioneers of female enfranchisement in the late 19th and early 20th centuries. By 1920, virtually all adult men and women could vote in most of Western Europe, Australia, and New Zealand.
America also took important steps toward majority rule in the 20th century. The Nineteenth Amendment (ratified in 1920) extended voting rights to women, and the 1924 Snyder Act extended citizenship and voting rights to Native Americans—although it was not until the 1965 Voting Rights Act that the United States met minimal standards for universal suffrage. America also (partially) democratized its upper chamber. The U.S. Senate, which has been provocatively described as “an American House of Lords,” was indirectly elected prior to 1913. The Constitution endowed state legislatures, not voters, with the authority to select their states’ U.S. senators. Thus, the 1913 ratification of the Seventeenth Amendment, which mandated the direct popular election of senators, was also an important democratizing step.
Legislative elections became much fairer in the 1960s. Prior to this, rural election districts across the country contained far fewer people than urban and suburban ones. For example, Alabama’s Lowndes County, with slightly more than 15,000 people, had the same number of state senators as Jefferson County, which had more than 600,000 residents. The result was massive rural overrepresentation in legislatures. In 1960, rural counties contained 23 percent of the U.S. population but elected 52 percent of the seats in state legislatures. In state-legislative and national-congressional elections, rural minorities frequently governed urban majorities. In 1956, when the Virginia state legislature voted to close public schools rather than integrate them in the wake of the 1954 Brown v. Board of Education ruling, the 21 state senators who voted for closure represented fewer people than the 17 senators who voted for integration.
From 1962 to 1964, however, a series of Supreme Court rulings ensured that electoral majorities were represented in Congress and state legislatures. Establishing the principle of “one person, one vote,” the court rulings required all U.S. legislative districts to be roughly equal in population. Almost overnight, artificial rural majorities were wiped out in 17 states. The equalization of voting power was a major step toward ensuring a semblance of majority rule in the House of Representatives and state legislatures.
A final spurt of constitutional reforms came in the 1960s and early ’70s. The Twenty-Third Amendment (ratified in 1961) gave Washington, D.C., residents the right to vote in presidential elections; the Twenty-Fourth Amendment (1964) finally prohibited poll taxes; and the Twenty-Sixth Amendment (1971) lowered the age to vote from 21 to 18.
But America’s 20th-century reforms did not go as far as in other democracies. For example, whereas every other presidential democracy in the world did away with indirect elections during the 20th century, in America the Electoral College remains intact.
The country’s heavily malapportioned Senate also remains intact. The principle of “one person, one vote” was never applied to the U.S. Senate, so low-population states like Wyoming continue to elect as many senators as populous states like California. As a result, states representing a mere 20 percent of American voters can elect a Senate majority. America’s state-level “rotten boroughs” persist.
America also maintained a minority veto within the Senate. Much like in legislatures in France, Britain, and Canada, the absence of any cloture rule led to a marked increase in obstructionist tactics beginning in the late 19th century. And as in Canada, the filibuster problem took on added urgency in the face of German naval threats in the run-up to World War I. But Canada, like France and Britain, put in place a majoritarian 50 percent cloture rule, while the U.S. Senate adopted a nearly insurmountable super-majoritarian 67-vote cloture rule. The threshold was lowered to three-fifths in 1975, but it remains highly counter-majoritarian. America thus entered the 21st century with a “60-vote Senate.”
Finally, unlike every other established democracy, America did not introduce term limits or mandatory retirement ages for Supreme Court justices. Today, on the Supreme Court, the justices effectively serve for life. It’s an entirely different story at the state level. Of the 50 U.S. states, 46 imposed term limits on state-supreme-court justices during the 19th or 20th century. Three others adopted mandatory retirement ages. Only Rhode Island maintains lifetime tenure for its supreme-court justices. But among national democracies, America, like Rhode Island, stands alone.
The United States, once a democratic innovator, now lags behind. The persistence of our pre-democratic institutions as other democracies have dismantled theirs has made America a uniquely counter-majoritarian democracy at the dawn of the 21st century. Consider the following:
