BY STEVEN LEVITSKY AND DANEL ZIBLATT | AUTHORS, THE TYRANNY OF THE MINORITY
(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:
- America is the only presidential democracy in the world in which the president is elected via an electoral college, rather than directly by voters. Only in America, then, can a president be “elected against the majority expressed at the polls.”
- America is one of the few remaining democracies that retains a bicameral legislature with a powerful upper chamber, and it is one of an even smaller number of democracies in which a powerful upper chamber is severely malapportioned because of the “equal representation of unequal states” (only Argentina and Brazil are worse). Most important, it is the world’s only democracy with both a strong, malapportioned Senate and a legislative-minority veto (the filibuster). In no other democracy do legislative minorities routinely and permanently thwart legislative majorities.
- America is one of the few established democracies (along with Canada, India, Jamaica, and the U.K.) with first-past-the-post electoral rules that permit electoral pluralities to be manufactured into legislative majorities and, in some cases, allow parties that garner fewer votes to win legislative majorities.
- America is the only democracy in the world with lifetime tenure for Supreme Court justices. All other established democracies have either term limits, a mandatory retirement age, or both.
One reason America has become such an outlier is that, among the world’s democracies, the U.S. Constitution is the hardest to change. Of the 31 democracies examined by the political theorist Donald Lutz in his comparative study of constitutional-amendment processes, the United States stands at the top of his Index of Difficulty, exceeding the next-highest-scoring countries (Australia and Switzerland) by a wide margin. Not only do constitutional amendments require the approval of two-thirds majorities in both the House and the Senate; they must be ratified by three-quarters of the states. For this reason, the United States has one of the lowest rates of constitutional change in the world. According to the U.S. Senate, 11,848 attempts have been made to amend the U.S. Constitution. But only 27 of them have been successful. America’s Constitution has been amended only 12 times since Reconstruction, most recently in 1992—more than three decades ago.
This has important consequences. Consider the fate of the Electoral College. No other provision of the U.S. Constitution has been the target of so many reform initiatives. By one count, there have been more than 700 attempts to abolish or reform the Electoral College over the past 225 years. The most serious push during the 20th century came in the 1960s and ’70s, a period that saw three “close call” presidential elections (1960, 1968, and 1976), in which the winner of the popular vote very nearly lost the Electoral College.
Two presidents have been elected with a minority of the popular vote during the early 21st century, and yet the Electoral College still stands.
Our excessively counter-majoritarian Constitution is not just a historical curiosity. It is a source of minority rule. The Constitution has always overrepresented sparsely populated territories, favoring rural minorities, but because both major parties had urban and rural wings throughout most of American history, this rural bias had only limited partisan consequences. This changed in the 21st century. For the first time, one party (the Republicans) is based primarily in small towns and rural areas while the other party (the Democrats) is based largely in urban areas. That means that our institutions now systematically privilege the Republicans. The Republican Party won the popular vote in only one presidential election from 1992 to 2020—a span of nearly three decades. But thanks to the Electoral College, Republicans occupied the presidency for nearly half of that time.
In the U.S. Senate, Republican senators not once represented a majority of Americans from 2000 to 2022, but they nevertheless controlled the Senate for half of this period. As often as not during the 21st century, then, the party with fewer votes has controlled the Senate.
In 2016, the Democrats won the national popular vote for the presidency and the Senate, but the Republicans nonetheless won control of both institutions. A president who lost the popular vote and senators who represented a minority of Americans then proceeded to fill three Supreme Court seats, giving the Court a manufactured 6–3 conservative majority. This is minority rule.
What makes the situation so dangerous is that this privileged partisan minority has abandoned its commitment to democratic rules of the game. In other words, the Constitution is protecting and empowering an authoritarian partisan minority.
But that Constitution appears nearly impossible to reform.
To escape this predicament, we must begin to think differently about the country’s founding document and about constitutional change itself—more like the Founders thought about it and more like Norwegians think about their own constitution today. In 1787, just after the Philadelphia Convention, George Washington wrote, “The warmest friends and best supporters the Constitution has, do not contend that it is free from imperfections; but found them unavoidable.” He went on to write that the American people can, as they will have the advantage of experience on their side, decide with as much propriety on the alterations and amendments which are necessary as ourselves. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.
Born of compromise and improvisation, the U.S. Constitution is not a sacred text. It is a living embodiment of the nation. Throughout our history, from the passage of the Bill of Rights to the expansion of suffrage to the civil-rights reforms of the 1960s, Americans have worked to make our system more democratic. But that work has stalled over the last half century. It is essential to reawaken the dormant American tradition of democratic constitutional change. Doing so will enable America to realize its unfinished promise of building a democracy for all—and perhaps be a model for the world.
BigTent is honored to host Steven Levitsky and Daniel Ziblatt in a virtual conversation with Ian Bassin, Executive Director and recent MacArthur Fellowship winner on Wednesday December 13 at 7pm ET. RSVP link below.
About the authors: Steven Levitsky is the David Rockefeller Professor of Latin American Studies and Professor of Government at Harvard University. He is also Director of the David Rockefeller Center for Latin American Studies at Harvard. Daniel Ziblatt is the Eaton Professor of Government at Harvard University and director of the Transformations of Democracy group at Berlin’s Social Science Center.