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The Solution to the Democratic Defects of American Constitutionalism is not Less Democracy


Excellent piece by Jamelle about the precisely wrong way to respond to Trump:

Has American democracy been hijacked by the passions of its people, now a dangerous and untamable majority undermining the republic?

In a new issue of the Atlantic, Jeffrey Rosen, head of the National Constitution Center, says yes. “[James] Madison’s worst fears of mob rule have been realized—and the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken.” For Rosen, America is trapped in a nightmare of majoritarian excess: a polarized Congress, “ideological warfare between parties that directly channels the passions of their most extreme constituents and donors,” and a vulgar presidential politics rooted in “emotional appeals.” The people have the government they want, and it’s threatening our institutions.

But this story of popular excess—to be tamed by enlightened elites—doesn’t stand to scrutiny. Our current president wasn’t elected by a majority of the people, the public’s preferences across a range of issues haven’t been translated to public policy, and ideological polarization—whatever its disadvantages—isn’t responsible for the decline of congressional deliberation. Far from an excess of majority rule, American democracy has seen the rise of minority rule, with efforts to entrench it in the states. If there’s a malign actor in this drama, it’s not “the people,” it’s many of the elites currently in power. And this argument against majoritarianism is essentially a brief for those elites.

To elaborate briefly on what he goes on to say, it’s just amazing to see Trump as the problem of a lack of elitism when his becoming president was literally the result of an anti-democratic mechanism designed to — in addition to overrepresenting slaveholders –provide and elite check on democracy. To use 2016 as an example of our Great Founding Fathers being wiser than the collective judgment of the people is a non-starter.

Far from unbridled majoritarianism, Trump is president because of the Electoral College, an institution designed precisely to “prevent the rapid mobilization of passionate majorities.” Were the Electoral College not to exist or no longer favor less-populated states, those “passionate majorities” may have prevailed in the 2016 presidential election, leaving less cause for concern in the present.

Rosen cites our political parties as another Madisonian institution now undermined by democratic excess. In the 19th century, parties were a moderating influence, “uniting diverse economic and regional interests through shared constitutional visions.” But by the 20th century, these effects were diminished by “a series of populist reforms, including the direct election of senators, the popular-ballot initiative, and direct primaries in presidential elections, which became widespread in the 1970s.”

But this doesn’t hold either. Nineteenth-century American politics were notoriously raucous, with frequent violence in and around elections. And the idea that these parties sustained democratic stability is belied by recurring sectional confrontations, from the Nullification Crises of 1832 and 1833 to the increasing dispute over slavery that led to the infamous “Compromise of 1850” that merely forestalled the crisis. Under this party system, Americans suppressed and sidelined conflict over slavery through a series of bargains and concessions until it erupted into civil war. For all of its faults, the more “populist” party system of the 20th and 21st centuries has yet to produce domestic bloodshed on the scale of the slaveholders’ rebellion.

I would also add that a quick glance at 19th century presidential candidates does not exactly provide overwhelming evidence that elites have some magic ability to identify great leaders or even great political talent.

At any rate, Trump’s Republican Party is the product of some of the most indefensibly anti-democratic features of American constitutionalism, not too much democracy.

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