A recent event in Ohio underscores a key feature of the growing conflict in the West today, as democracy struggles to push back against the throes and thrashing of authoritarianism. That authoritarianism, which is rearing up in many nations, is symptomatic of the neoliberal disinterest in democracy, which neoliberals consider anathema.
Republicans in the Ohio state legislature, wishing to reinforce its abortion restriction in the face of public dissatisfaction with its policy, sought to amend the state’s constitution to make its amendment more difficult. It tried to reset the threshold for amendment to a 60 percent supermajority, rather than a simple majority. (Mitch McConnell has jiggered Senate voting thresholds in a similar fashion in order to preserve minority Republican policy in the face of opposing majorities.)
Ohio’s voters, taking up a referendum on the issue, voted overwhelmingly to reject the GOP legislature’s attempt. The outcome was celebrated all over the nation, not just by pro-rights activists but by many observers of the democracy/autocracy struggle. Manipulations like the one attempted by the Ohio GOP legislature (and successfully deployed by McConnell) are patently anti-democratic; they amount to a minority prevailing over a majority, the imposition of the will of the few upon the many.
And yet, it’s been this way as far back as civilization goes. Since human beings invented the concept of property, dispelling our natural communalism in favor of a he-who-owns-the-gold-makes-the-rules dynamic, the few have ruled the many.
The United States, as originally conceived, appears on paper to be a pushback against just that minority-rule dynamic. The idea is that the minority cannot rule the majority, by the rules of the society and the laws in place. Our Constitution is supposedly written to prevent such a thing, and to ensure the writing of laws that support majority rule.
But here’s the thing: as well-intentioned as it may be, our Constitution is in fact full of loopholes – loopholes that we’ve seen authoritarians such as those in Ohio exploit at every turn.
Authors Steven Levitsky and Daniel Ziblatt, government scholars at Harvard University, have identified three features of Constitutionally-provisioned government in the US that enable minority rule:
an elite upper chamber
indirect election
lifetime appointment of judges
The lower chamber of the US Congress, the House of Representatives, apportions its members according to the populations of the states they represent, which gives roughly the same volume to the voices of voting citizens. The upper chamber, the Senate, gives the citizens of every state two representatives, regardless of the state’s population. This means that a voter in Wyoming has 70 times as loud a voice in the House as a voter in California.
That distinction would wash away, in terms of majorities/minorities, if political affiliations were evenly distributed across less-populous states; but those states tend to be more rural, and rural states tend to lean more heavily conservative. The Founders’ intent in creating the upper chamber had nothing to do with political affiliations; it was meant to level the playing field for smaller states, before political parties even existed in the country. The effect today is to give outsized influence to conservatives, whose numbers are far greater in rural regions.
The Electoral College is another Constitutional fixture installed by the Founders that can impart advantage to minorities. It’s the vote that counts, rather than the popular vote, in the election of a president. And it’s an all-or-nothing proposition; if the popular vote is 50.1-49.9, the 50.1 prevail over the 49.9, and all of that state’s electoral votes fall on the 50.1 side – which can distort a presidential election’s outcome, as we’ve seen repeatedly in recent decades.
The Republican candidate has only won the popular vote in a presidential election once since 1988 (Bush in 2004); in the other elections where the Republican prevailed, it was the Electoral College that delivered the presidency, not the public majority (Bush lost to Gore by 550,000 in 2000; Trump lost to Clinton by 3,000,000 in 2016).
Gerrymandering, the practice of drawing the boundaries of Congressional districts in such a way as to give one party a significant advantage by diluting the votes of its opponents, isn’t an issue the Founders anticipated, as they did not foresee crippling partisan divisions in their new nation when it was founded. Because of this, there is no Constitutional prohibition against it. It has been practiced for many decades, but never so aggressively as in the 21st century, where gerrymandered districts have resulted in minority dominance in key battleground states. In Pennsylvania in 2018, for instance, districts heavily gerrymandered by Republicans after the 2010 midterms delivered a 110-93 seat majority to the GOP in the state house despite Democrats winning 55 percent of the popular vote. In Wisconsin, the state assembly went red with Republicans taking 60 of 99 seats, despite losing the popular vote to Democrats.
The lifetime appointment of judges, who are now strategically deployed by presidents and Senate majorities according to their political biases, has likewise become a mechanism for minority dominance, as we are seeing today: three of the Supreme Court’s six conservative justices were appointed by a president who lost the popular vote, leading to “a growing gap between Supreme Court rulings and majority public opinion in the United States,” according to Levitsky and Ziblatt. This is, in the long run, even more troubling than dominant minorities in Congress; lifetime appointment of judges, combined with their partisan deployment, mean that biased rulings out of step with the public are able to persist long after those who put them in place have faded away.
What can be done about this growing problem – which, Levitsky and Ziblatt point out, is uniquely American? It turns out that other democracies – Germany, Sweden, Argentina, New Zealand, among others – have had similar issues in the past, and fixed the problems by modifying their constitutions to eliminate the loopholes that persist in our own.
Norway, for instance, realized that its regional electoral colleges, established in its own constitution, were empowering minority dominance, and instituted a constitutional reform that established direct elections for its parliament. Its constitution also contained a well-meaning “Peasant Clause”, akin to our own’s rural-state bias, which likewise skewed majority rule as urbanization swept the nation; this was eliminated in 1952.
Western Europe, Australia and New Zealand all implemented universal sufferage before the US; electoral colleges (many modeled in foreign constitutions based on our own) were phased out across Latin America in the early 20th century.
Elite upper chambers such as our own Senate were either eliminated or reformed, as in the case of Britain’s House of Lords, which was stripped of its veto power over legislation, which in turn restored the people’s power to the elected House of Commons. New Zealand, Denmark and Sweden eliminated their upper chambers altogether between 1950 and 1970.
As for the lifetime appointment of judges, most Western democracies have handled this minority-rule instance by imposing term limits and mandatory retirement ages. Canada, for instance, imposed a retirement age of 75 on its justices way back in 1927; Australia followed 50 years later with an age of 70.
This is not unusual; what is unusual is our Supreme Court. Most Americans don’t realize it, but state supreme court justices are term-limited or age-limited in 46 of our 50 states.
The US is the only remaining presidential democracy in the world where its president is indirectly elected;
The US is the one of just a handful of democracies remaining that maintains an elite upper chamber in its legislature;
The US is the only remaining democracy that appoints Supreme Court justices for life.
Following the lead of the Western democracies who have fixed their minority-rule problems would require, of course, a number of changes to our Constitution. But the US Constitution is the hardest constitution to amend in the free world, as its amendment requires supermajorities in both chambers of its legislature, as well as ratification by a supermajority of states.
But it’s not like we’re not trying. A strong movement to abolish the Electoral College emerged in the Sixties, for instance, backed by many US politicians already in place – Nixon, Ford, Mondale, Howard Baker, and even Bush I. In September 1969, the House even passed a proposal for its elimination by a vote of 338-70 – well beyond the Constitution’s two-thirds threshold. At the time, 81% of Americans were on board.
But the Senate killed it; it compromised Southern political power, which had been compromised enough, thank you very much, by the Civil Rights Act of 1964.
The bill resurfaced in 1971, 1973, 1975 and 1977, with Jimmy Carter backing it and 75% of Americans still on board – but failed each time. We are paying the price, today, for those failures.
And yet... partisan divisions have grown so toxic, so destructive, so all-pervasive that they are bringing our political institutions to their knees. The will of the minority has become a tyranny, threatening not only those institutions and the well-being of our citizenry, but the very rule of law itself. Democracy is now in danger here, and the threat of its permanent displacement by authoritarian autocracy is not an idle one. So we have a clear choice: will we keep fighting in this burning house? Or will we break out the firehoses?
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