David Lewis Schaefer is Professor of Political Science at College of the Holy Cross in Worcester, MA. He is author of The Political Philosophy of Montaigne (Cornell University Press, 1990; rpt. 2019) and of Illiberal Justice: John Rawls vs. the American Political Tradition (University of Missouri Press, 2007). He is a three-time NEH Fellow.
In Federalist no. 49, James Madison explains why the authors of our Constitution made it difficult to amend. Human reason being fallible, yet government requiring the people’s continued respect, the Founders purposely made the Constitution hard to alter so as to enable it to acquire “that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” In other words, rules (laws) that require each individual’s obedience, even at the cost of his immediate self-interest, cannot rely (unlike, say, mathematical formulas) on purely rational considerations to dictate people’s acceptance. (Aristotle makes the same point, concisely, in response to a theorist’s proposal to facilitate political innovation: “The law has no power to command obedience except that of habit, which can be given only by time” [Politics II.8]).
Madison’s lesson is entirely lost on two Harvard government professors, Steven Levitsky and Daniel Ziblatt, for whom the answer to present-day political problems is simple: echoing the early-20th century Progressive thinkers Jane Addams and John Dewey, they proclaim that “the cure for the ills of Democracy is more Democracy.” Hence they call for radical modification of a document that is the world’s oldest continuing free Constitution, ostensibly on account of the distressing antics of Donald Trump.
Trump’s behavior, both political and personal, ever since he first ran for the Presidency in 2016, has troubled many sober-minded Americans (not just Democratic partisans). To be fair, one must acknowledge that Trump’s 2020 election denialism (which neither he nor his ardent supporters have given up on) was preceded by Democratic denials of the legitimacy of Presidential elections won by Republicans in 2000 and 2004 as well as 2016. And Republicans were rightly angered to learn how Federal officials made use of the entirely phony Steele dossier – concocted by an employee of Hillary Clinton’s campaign – to delegitimize Trump’s Presidency throughout his time in office. But no event in the history of Presidential elections comes close to the Capitol riot of January 6, 2021 that Trump’s fiery speech incited.
Moreover, informed political observers have long been troubled by the growing polarization in American politics since 2000, which has infected both houses of Congress as well as the executive branch. Nobody has come up with a practical way of resolving that problem that is likely to appeal to a combined majority of members of both parties. But Levitsky and Ziblatt they have. In their previous co-authored book, How Democracies Die (2018), obviously put together in some haste since it “was written in the early days of the Trump presidency,” Levitsky and Ziblatt offered a brief survey of democratic decline in various nations over recent centuries, all designed to justify the claim Trump’s leadership posed a similar threat. The present volume focuses on what the authors regard as a fundamental defect of America’s political institutions that, if not corrected, can only heighten that danger. The deeper problem is that our once widely-admired Constitution, as designed by the Founders and as it developed over time, has left us an “outlier” among democratic nations, since it retains limits on majoritarian rule that other countries have dispensed with. These include our mode of choosing Presidents through the Electoral College rather than through a direct popular vote, creating the risk (which has occurred four times) that a candidate who wins a majority of that vote may nonetheless lose, since he didn’t win a majority of electoral votes. Other flaws include the fact that both the Senate and the President are selected in an undemocratic way, since all states are equally represented in the former regardless of population, and less populous states also have disproportionate representation in the Electoral College; widespread gerrymandering; the filibuster; the practice of judicial review by an unelected Supreme Court whose terms in office are not limited; and the difficulty of amending the Constitution.
Levitsky and Ziblatt offer an interesting account of the development of democratic constitutions in various European countries as well as Canada and Latin America. However, they fail to demonstrate that their proposed reforms – including “dismantling spheres of undue minority protection” (with the criterion of undueness unspecified), “bringing the balance of political power more closely in line with the balance of voter preferences,” and “forcing our politicians to be more responsive and accountable to majorities of Americans” – would serve the goals the Founders aimed at: to promote the good of the entire nation (not just a popular majority), and secure the equal, inalienable rights of all citizens.
Any reading of the Federalist Papers will demonstrate that the authors of our Constitution were indeed “democrats” or “republicans,” in the sense defined by Madison in Federalist no. 39. That is, under the Constitution, all powers are “derive[d] … directly or indirectly from the great body of the people,” and which is “administered by persons holding their offices” either with the direct consent of the people or (as in the case of judges) “during good behaviour.” (In other words, the Constitution does not authorize any hereditary or permanent offices.)
But the Founders were “comparativists” in a historically broader way than Levitsky and Ziblatt. Looking at the only known examples of popular government, the ancient Greek and Roman republics (along with rare modern instances like some Italian cities), they observed how such republics (as Hamilton remarks in no. 9) “were continually agitated” by “a paid succession of revolutions” that kept them “in a state of perpetual vibration, between the extremes of tyranny and anarchy.” And, justifying the relatively long tenures that the Constitution awards to Ssenators and Presidents, Publius makes a crucial distinction between quasi-plebiscitary government, likely to succumb to imprudent, passionate popular whims which the people themselves may later regret, and the people’s “cool and deliberate sense,” which “in all free governments” must “ultimately prevail” (no. 63). He makes the same point, regarding the reasons for the President’s relatively long term of office, in no. 70). It is with this thought in mind that, partly thanks to Montesquieu’s influence, the Founders created a complex rather than simply democratic political regime. That system includes such limitations on direct majority rule as separation of powers, checks and balances, an independent judiciary, and a written Constitution that is indeed difficult to amend (for reasons spelled out in no. 49), It also is intended to promote an environment of economic freedom that (as no. 10 famously argues) would make less likely a sharp class division between rich and poor (such as troubled the ancient republics), but rather engender a multitude of interests (and of religious sects) that would prevent the achievement of power by a factious majority.
By contrast, Levitsky and Ziblatt show no interest in deliberative government, instead referring to democracy as a system in which “election outcomes reflect majority preferences” – as if governing were analogous to simply ascertaining the most-liked brand of toothpaste. (The greatest example of political deliberation in American history, of course, was the Constitutional Convention – which the authors disparage as a bundle of compromises rather the embodiment of a unified plan. Yet it nonetheless won the regard of British prime minister William Gladstone as “the most wonderful work ever struck off at a given time by the hand and purpose of man.”) While warning, implausibly, that America stands on the brink of tyranny by an unidentified minority unless something like their proposed reforms are adopted, they show none of the Federalist’s or Tocqueville’s concern about the tyranny of the majority, with which a democracy is much more likely to be threatened. (They express that concern only with regard to Viktor Orbán’s evisceration of judicial checks on his power in Hungary, and Benjamin Netanyahu’s attempt at judicial reform in Israel. They are apparently unaware that Israel lacks a written constitution, that the Israeli supreme court is partly filled through co-optation rather than by vote in the Knesset, and that Israeli judges simply seized the right to declare any laws that didn’t seem “reasonable” to them to be invalid, a form of judicial activism gone wild.)
Not only do Levitsky and Ziblatt disregard the reasons why the Founders wrote the Constitution as they did (it seems they just suffered from some antiquated, antidemocratic prejudices), the authors offer no reason to think that any of their proposed “reforms” would make the rise of a populist demagogue like Trump less likely. In fact, one element of democratization that most concerns them – the supposed need to overcome the “undemocratic” allocation of votes between more and less populous states in the Senate and Electoral College – would tend to heighten the sort of popular resentments in so-called “flyover” country that have generated the core of Trump’s base. Since at least as far back as 2008, Democratic Presidential candidates have openly exhibited their scorn for conservative voters who inhabit “the sticks.” (Obama: those who don’t support me “cling to their guns and religion” and won’t vote for me because of my skin color; Hillary: Trump supporters were “a basket of deplorables” who were “racist, sexist, homophobic, xenophobic, Islamophobic”; Biden: “if you won’t vote for me than you ain’t black.”).
Of necessity, the Founders were deeply concerned to promote national unity; our authors just take it for granted. Although they acknowledge that one essential element of peaceful transitions between the government of rival parties, such as famously occurred in 1801, is “the belief that losing power will not bring catastrophe,” they just assume that Americans who feel that their religious, moral, and patriotic concerns (to say nothing of their interest in law and order and in not being overtaxed, are simply disregarded or scorned) will tranquilly accept whatever policies a majority party free of checks will choose to impose on them. I would add here that one of the many reasons for not replacing the Electoral College with a national popular vote, as the authors advocate, is that when the numbers are close – as they were in Florida in 2000 – the result is much more likely to be a national crisis, with recounts required throughout the country, rather than confined to one state.
Despite Levitsky and Ziblatt’s charge that Trump’s (highly qualified) appointees to the Supreme Court were “radical” reactionaries bent on undermining the people’s rights (for instance, the rights to abortion and to preferences based on race), they must be aware that the policies that the Roberts court has struck down in recent years were themselves the result of innovations initiated by left-liberals, rather than being grounded in the Constitutional or legal text. Those policies made voters who took religion and traditional morality seriously, who were appalled by displays of disrespect for the flag by celebrities like Colin Kaepernick, to say nothing of urban riots by Antifa, encouraged by “de-policing,” feel that the government didn’t truly represent them. (When it comes to patriotism, the authors hold that given its history, America deserves to be “lov[ed]” only “with a broken heart,” just as Germany’s president said of his country in 2020. Are the two histories really comparable? By Levitsky’s and Ziblatt’s account, Germany is at least one of the European countries that nowadays offer a prime illustration of how to resist democratic “backsliding.” How quickly these authors forget.)
Reactions against lawless government, unacknowledged by the authors, have been generated by arbitrary executive actions and unabashedly partisan policymaking under the last two Democratic administrations. Recall, for instance, Biden’s continuing attempt to cancel student debt, Obama’s refusal to compromise with Republicans on his health-care plan, boasting (to John McCain) simply that “we won” (with only the slimmest Senatorial majority), and the antithesis of deliberative government expressed in majority leader Nancy Pelosi’s remark, apropos of the plan, that “we’ve got to pass [the bill] in order to find out what’s in it.” Additionally, there was Obama’s response, when faced with legislative opposition to his programs, “I have my pen and my phone” – meaning, I can circumvent Congress by simply issuing executive orders, whether or not they accord with the Constitution. And let’s not forget Obama’s “apology tour” of the Middle East, undertaken right after he took office, as if American policies, not religious fanatics and oppression by local despots, were responsible for its inhabitants’ suffering. Just who, here, are the political extremists?
If America suffers from excessive polarization now, imagine the situation if Levitsky and Ziblatt’s ostensible reforms were adopted. Given the concentration of population in urban districts on the East and West coasts, along with a few inland cities like Chicago and Dallas, the entire country would likely be ruled by citified “elites,” pandering to selected economic and racial minorities, at what most people in the geographic heart (but less densely populated part) of the country would regard as their expense. Just how would our authors answer them – other than dismiss them as unenlightened? (It is that very heartland that is most likely to supply volunteers for the armed forces in time of need.) To Levitsky and Ziblatt, the worst thing about America’s political system is that it is an “outlier” – what will they say about us in Paris or Milan?
Speaking of those fashionable European cities: another foreign practice our authors envy is proportional reputation, as distinguished from America’s “first past the post” system, which allows only candidates who finish in first place in their constituency to gain a legislative seat (in Congress or state legislatures), whereas under PR, minority parties are more likely to gain “representation.” They don’t mention that PR – as seen in countries like Italy, Germany, and Israel, and (to a lesser extent) France – is a recipe for political instability, or “gridlock” (allegedly an American vice). When no party gains an absolute majority, a coalition government is required – sometimes necessitating power-sharing with minor parties, giving the latter a veto or power of extortion much more severe than our Senate filibuster. (Consider the unpopular concessions that every Israeli prime minister must make to minority, ultra-Orthodox parties, such as exemptions from army service, just to preserve their support.) And the instability observed most notably in Italy is just the thing that the Founders sought to prevent (as Hamilton explains in Federalist no. 72) by giving Presidents and Senators relatively long terms in office, thereby promoting policy continuity, and a willingness to endure fleeting popular consent in pursuit of the country’s long-term good. Finally on this theme: worried about corrupt or demagogic leaders? Try Italy’s Silvio Berluscuoni or France’s Marine le Pen on for size.)
Levitsky and Ziblatt conclude their book with a call for direct popular action, modeled on the campaigns that led to the 17h and 19th Amendments and the civil rights legislation of the 1960s, to “democratiz[e] our democracy.” Note, however, that it is only groups on the Progressive Left that they favor; the Tea Partiers, rebelling against unaccountable Big Government, are dismissed as a “classic reactionary movement, constituted disproportionately by older, white and evangelical Christian Americans” animated by “anti-immigrant, anti-Muslim” hostility and resistance to “ethnic and cultural diversity.” (It is unlikely that any voter poll taken today will find a majority favoring the Biden administration’s open-borders policy, expressing no concern about Islamic radicalism, or DEI programs. At this point it would appear that the authors, as would-be democratic leaders, are losing their following. Then again, according to them, Barack Obama was a “political moderate” who aroused opposition chiefly on account of his skin color, not his policies.)
The greatest obstacle to needed reform, say the authors, is Americans’ tendency to “embrace the Constitution with an ‘almost religious devotion,’” treating its framers “as if they were endowed with almost divine” powers, and the Constitution itself as something “sacred.” Thus we ignore the facts that Constitutions are “human creations,” and “years of social science research” demonstrate the need to update institutions periodically. And besides, as the authors confidently explain, nowadays, we just “know more today about how institutions work.”
As our Constitution enters its 237th year in operation, Americans should feel fortunate that our political system was not designed by a couple of present-day Harvard professors.