J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Thursday, January 07, 2021

“None of this justified minority rule”

Back in early November, The Atlantic Monthly published an essay by Claremont McKenna College professor George Thomas titled “‘America Is a Republic, Not a Democracy’ Is a Dangerous—And Wrong—Argument.”

Thomas wrote:
When founding thinkers such as James Madison spoke of democracy, they were usually referring to direct democracy, what Madison frequently labeled “pure” democracy. Madison made the distinction between a republic and a direct democracy exquisitely clear in “Federalist No. 14”: “In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.” Both a democracy and a republic were popular forms of government: Each drew its legitimacy from the people and depended on rule by the people. The crucial difference was that a republic relied on representation, while in a “pure” democracy, the people represented themselves.

At the time of the founding, a narrow vision of the people prevailed. Black people were largely excluded from the terms of citizenship, and slavery was a reality, even when frowned upon, that existed alongside an insistence on self-government. What this generation considered either a democracy or a republic is troublesome to us insofar as it largely granted only white men the full rights of citizens, albeit with some exceptions. America could not be considered a truly popular government until the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which commanded equal citizenship for Black Americans. Yet this triumph was rooted in the founding generation’s insistence on what we would come to call democracy.

The history of democracy as grasped by the Founders, drawn largely from the ancient world, revealed that overbearing majorities could all too easily lend themselves to mob rule, dominating minorities and trampling individual rights. Democracy was also susceptible to demagogues—men of “factious tempers” and “sinister designs,” as Madison put it in “Federalist No. 10”—who relied on “vicious arts” to betray the interests of the people. Madison nevertheless sought to defend popular government—the rule of the many—rather than retreat to the rule of the few.

American constitutional design can best be understood as an effort to establish a sober form of democracy. It did so by embracing representation, the separation of powers, checks and balances, and the protection of individual rights—all concepts that were unknown in the ancient world where democracy had earned its poor reputation. . . .

while dependent on the people, the Constitution did not embrace simple majoritarian democracy. . . . But none of this justified minority rule, which was at odds with the “republican principle.” . . . The American experiment, as advanced by [Alexander] Hamilton and Madison, sought to redeem the cause of popular government against its checkered history. Given the success of the experiment by the standards of the late 18th and early 19th centuries, we would come to use the term democracy as a stand-in for representative democracy, as distinct from direct democracy.
Since 2000, some have claimed that forms of minority rule are justified because the American system is “republican,” not “democratic.” Those people never seem to be able to define the difference between those Latin- and Greek-based synonyms in a convincing way, and they always seem to come from the minority enjoying undemocratic power.

The most obvious, least defensible undemocratic aspect of the U.S. Constitution is the Electoral College. I’ve been writing against its problems on this blog since 2006. The institution never worked the way the Framers at the Constitutional Convention hoped, and it was the first part of the Constitution to be rewritten.

Without the Electoral College, Donald Trump would never have slipped into the Presidency. Without the Electoral College, his campaign last year would never have been competitive. Without the Electoral College, the Trump administration wouldn’t have dared to downplay the early Covid-19 pandemic in “blue states.” That constitutional mechanism’s unplanned opening for minority rule, for giving power to a candidate manifestly not the first choice of the American people, probably cost the U.S. of A. hundreds of thousands of shortened lives in the last year.


Dean Slone said...

I have not read your blog long enough to know your stand on the electoral college as it pertains to the election of President and Vice President of the United States but I will state mine and you may comment if you so choose.

The electoral college has outlived its usefulness and should be replaced with a modified popular vote. Modified in that the winning candidate(s) must also win a plurality of the States (presently 50) plus the District of Columbia.

If no candidate(s) win both the popular vote and a plurality of the States plus District of Columbia then the election is thrown into the combined House and Senate and the Candidate(s) receiving the most yes votes from the Representatives and Senators is(are) declared the winner(s).

J. L. Bell said...

I’m a small-d democrat, so I think all manners of choosing government officials must derive ultimately from popular elections by the broad base of citizens. I support run-offs, weighted voting, and other ways to ensure a person taking office has majority support. I think choosing electors can also be a way to provide legitimacy as long as those electors truly represent the electorate and as long as they gather and deliberate; otherwise, we’d lose the potential benefits of representative democracy.

Our geography-based system has never provided political equality for individual citizens, and that problem has grown as our population has become more concentrated in cities. Since the 1920 Census, the U.S. of A. has been a majority-urban nation. Some states, such as California and Texas, have multiple large metropolitan areas in them, and others have none. Those big states are therefore more representative of the nation as a whole, yet they have proportionally less sway in the Senate and the Electoral College. That’s a problem.

On your scheme to require the President to receive a majority of both voters and states, I see how you’re trying to provide a say for all regions. Those rules would still have rendered no clear result in the 2000 and 2016 elections, when one candidate won the electorate and the other more states. If we continue to concentrate in larger states, such results could become more likely.

It’s good to have a tie-breaker mechanism, but taking a hung election into Congress raises more questions. Would the vote go to the outgoing Congress or the incoming? Would the members of Congress vote as individuals or as state delegations? Given the Senate’s tilt toward smaller-population states, couldn’t that still produce a President chosen by a minority of the people?

In the end, I come back to what the Declaration of Independence said about government deriving its just powers from the consent of the governed.

Dean Slone said...

If the vote were thrown into the congress (both house and senate voting together as individuals) I feel the outgoing congress could arrive at a reasoned choice by doing the following.

Give each member two marbles, one red and one blue. Placing the colored marble of the party they want to win in their right hand and the color of the one they want to lose in their left hand members would individually approach a single voting box that has two chutes going down into a divided chamber. The right chute is for the right hand and the left chute for the left hand. Put the left hand over the left chute and drop the left hand marble (then repeat the procedure with the right hand over the right chute). Accommodations could be made for those with disabilities.

With marbles dropping at different times and members seeing hands open and only hearing marbles drop, secrecy of the vote is assured. Members could vote their conscience. Not just vote the party. They could even lie as to how they voted ... how would anyone know? Everyone would know that someone didn't vote "right" when the marble count was "wrong". Most colored marbles in the "right" chamber wins.

Of course you would have to believe that the members of congress would know the colors and their right hand from their left. I do sometimes wonder if any of them know their

Contrarian View said...

The Atlantic Monthly is an extremely leftist publication; one expects them to revise history to agitate for the popular vote. But their article is simply wrong in its claims.

The Electoral College and the original method of electing senators are both essential elements of limiting the federal government's power versus the liberty of the people and the rights of the states. It was never intended that the federal government would have a direct reach into the lives of individual citizens in the way it does today. Undoing that balance of power between the states and the federal government was started by the 17th Amendment, and eliminating the electoral college would complete the destruction of the fine design of the Constitution. And I believe this is the goal of the Democrat Party.

J. L. Bell said...

I don’t think a representative democracy would benefit by hiding representatives’ votes from the people they represent.

J. L. Bell said...

The comment from "Contrarian View" comes from a very narrow view indeed. Anyone who sees The Atlantic Monthly as "an extremely leftist publication" doesn't read widely in politics, or is so far on the right that anything from the left appears extreme.

"Contrarian View" then trots out the right's usual tendentious complaint that any historically based argument that comes to a conclusion they disagree with is "to revise history." But what argument does this commenter muster? No argument really, just a series of claims about what's "essential" or "fine design" without supporting evidence. That's a statement of faith, not of fact.

It's true that the Framers didn't foresee the national government having such influence in American daily life as it does today. They also didn't foresee the germ theory, railroads, and the electrical grid. They didn't foresee a black President or a female Vice President. Our society has changed, and our Constitution has changed along with it.

The claim that such change “was started by the 17th Amendment" is ludicrous. The commenter has apparently never considered the federal excise tax, the Fugitive Slave Laws, the draft laws, or many other pre-1912 federal measures that affected individual citizens and state governments. Nor the 14th Amendment guarantee of equal protection for all citizens, which came to fundamentally change the relationship between the nation, the states, and the people.

Is it ignorance or partisanship that caused the commenter to write "Democrat Party" instead of "Democratic Party"? No matter. Either way, we know that this "Contrarian View" is fogged.

Dean Slone said...

You, Mr. Bell, said "I don’t think a representative democracy would benefit by hiding representatives’ votes from the people they represent."

Sunday, 10 January, 2021

Normally I would agree with you but the situation of no clear winner for President and Vice President requires extraordinary measures. Right now we have the Electoral College which we both agree is not the perfect solution to only winning a simple majority of the national popular vote but it is better than having the winner of the popular vote as President and the 2nd place finisher as Vice President.

A vote, as I described earlier, taken by the congress in combined open session, under public scrutiny, with each individual member of the congress being duly elected by their constituents to represent their wishes in congress, is NOT A SECRET VOTE.

The only thing secret about the vote would be who (color of marble in right chute) each individual member of congress voted for. I believe there are times when the anonymity of how each voter voted must be preserved so that they may vote their conscience. I also believe I would trust a secret selection vote by individual members of a duly elected congress more so than the vote taken by persons selected as electors to the electoral college.

Would the outcome of the 2016 election have been different had this method been used rather than the Electoral College? We will never know.

Would the constituents of the losing side have accepted the selection if it had been made by their elected representatives rather than by electors personally selected by individuals not elected. We will never know.

What if history taken a different path.

J. L. Bell said...

What you’re describing, Dean Sloane, is a secret vote by representatives on a very important matter. It took a long time for us voters to get a secret (“Australian”) ballot of this sort, where people could see that we voted but not whom or what we voted for. There’s a good reason we citizens should have such privacy.

But I don’t think it serves us citizens not to know how our elected representatives vote on important issues. That’s why we have roll-call votes and official reporting of legislative sessions in public. We voters have every right to hold our elected representatives accountable, and we can’t do that if they don’t have to reveal their votes or, even worse, can claim to have voted differently from how they did.

You’ve imagined this scheme in great detail, but all that effort seems to be in service of trying to avoid following the same rules for our Presidential elections as we do for every other type of election: counting up all the votes in the area affected and putting the person who got the most votes in office.

As a rule, we the people accept the outcome of such elections. Even this year, almost nobody is complaining about the Congressional and other races decided by those rules. The only dispute is being driven by the pathology of one candidate and his followers, emboldened by how the Electoral College can overturn the popular vote.