An electoral majority and a governing majority are not the same. They are frequently confused. And that is understandable. After all, if a majority of voters supported one party over another, that party would be expected to control the distribution of government resources and transform its voters’ wishes into legislation. The losers, routed and outnumbered, would be expected to relinquish control and reconstitute for the next election. Ergo, to the victor goes the spoils.
This is the distilled essence of democracy – majority rule.
However, contrary to expectations, majority rule does not determine our politics. Far from it. Yes, superior numbers matter for elections. But they matter far less for governing.
The Constitution intentionally checks popular majorities. To exert influence, majorities must work through a tangle of challenging constitutional barriers – separation of powers, federalism, and the Bill of Rights. Combining with minority interests, and ultimately compromising, is the way majorities deliver on campaign promises. Victory on election day does not secure a direct line to power.
Like so many other matters in American politics, governing is a delicate blending of contradictory forces, a balancing of majority rule and minority rights.
But now, increasingly, people are calling for an adjustment in that balance – an equilibrium that favors majorities. Modern democratic sensibilities insist on majority rule. Year after year, winning majorities are unable to enact policies promised during the campaign. With genuine frustration people ask, “Is this democracy?”
To answer this question, let’s consider how the constitution treats majorities.
The framers feared majority rule
The framers of the Constitution were from the ruling social and economic classes, and some of the wealthiest men in the Colonies. The sources of their fortunes included substantial inheritances, vast commercial enterprises, land, and revenue from slave labor. If the nation failed, they had the most to lose. The ruling classes desired stability and envisioned a political and economic system that protected wealth.
By contrast, small farmers and merchants, artisans, day laborers, and the working poor – the ordinary folk, accumulated comparatively little wealth. If the nation failed, they had less to lose. Uncertainty was a hallmark of their everyday experience. Volatility could be exploited, or it foreshadowed major challenges. Either way, changing circumstances demanded adaptation.
While the ruling classes enjoyed immense advantages due to wealth and privilege, they were vastly outnumbered by ordinary people. If a political system distributed power based solely on citizen participation, the ruling classes didn’t stand a chance. The framer’s fears of majority rule were thus very real.
State legislatures – dangerous signs of “excess democracy”
In the post-Revolutionary war period, creditors suffered severe financial crises and lobbied government to recover lost revenues through taxation, repossession of private property, and punitive financial measures. This was ruinous to small farmers, working artisans, and laborers. They turned to state legislatures for help.
Some legislatures recognized the prestige and political power acquired by championing the popular causes of common folk. They ignored unpopular judicial decisions and sided with delinquent debtors over creditors – often farmers that faced loss of property and debtors’ prison. Thumbing their noses at the wealthy elites, legislatures extended contractual periods to pay mortgages, issued money to pay back debts, and reduced taxes.
Creditors complained bitterly. Mob rule had commandeered the legislatures, creditors claimed, reaching deep into business affairs, shaping private contracts, and dabbling in currency manipulation. This interference jeopardized the status quo, escalating tensions between creditor and debtor, between rich and poor, and between rural farmers and urban business interests. In nearly every state, there were instances of civil discord.
In this context, a violent rebellion erupted in western Massachusetts. Judges across Massachusetts had ruled for creditors and authorized seizure of delinquent properties. Daniel Shays, and thousands of veterans like him, had returned home from the war, penniless, and powerless to meet their debts and tax obligations – taxes that had increased substantially to pay off government debts accrued during the war.
Like farmers in other states, Shays petitioned the state legislature. However, the Massachusetts government was dominated by the merchant and wealthy classes. Instead of helping poor farmers, they enacted policies to repossess their land.
Daniel Shays then set his sights on debtors’ courts. Along with hundreds of armed men, Shays stopped court proceedings and blocked judges from entering the courthouses. Local militias were called to stop Shays. However, militia members refused to engage. Instead, many joined Shays.
Alarmed, Massachusetts Governor Bowdoin sought help from the federal government but to no avail. Funding for the continental army disappeared after the war and troops went home. Further Bowdoin’s own state lacked the necessary means to support a standing army. The Governor then appealed to Boston’s wealthy merchants and raised funds to support a private militia of over 3,000 men – nearly all from eastern counties of Massachusetts.
More organized, the militia crushed the rebellion. In exchange for amnesty, 4,000 of Shay’s men signed confessions of their participation in the rebellion. Shays fled to the Vermont woods and a year later was pardoned by new Massachusetts Governor John Hancock. Shays was vilified in the Boston press, labeled an anarchist. Twenty years later, Shays died a poor man
Even though it failed, Shays Rebellion galvanized the ruling classes. The uprising demonstrated the power of the people, the weaknesses of the federal government, and the dangers of majority rule.
The ruling classes needed a strong countermeasure. They needed a new constitution. A constitution that thwarted the majoritarian impulses in state legislatures. A constitution that centralized power in a federal government. A constitution that protected private property, wealth, and created economic and social stability. A constitution that limited the reach of a rebellious majority and effectively insulated ruling elites from popular opinion.
The minority of the opulent
Majority rule clearly threatened the framers. Alexander Hamilton, for example, believed that wealth established an essential distinction in political affairs. And that distinction implied a specific design for the federal legislature.
All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people…The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second…(Christensen and Kirkpatrick, 1941, p. 42).
Hamilton’s anti-democratic instincts found plenty of support. James Madison echoed Hamilton’s views, arguing the Senate should be a permanent check on democratic impulses.
“In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. Landholders ought to have a share in the government, to support these invaluable interests and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority. The senate, therefore, ought to be this body; and to answer these purposes, they ought to have permanency and stability.” (Christensen and Kirkpatrick, 1941, p.42).
To avoid popular democracy and stabilize the economic and social systems, the framers constructed a government of balances designed to prevent the majority from overwhelming “the minority of the opulent”.
There would be 4 separate units of government. A President, a House of Representatives, a Senate, and a Supreme Court. The framers avoided concentrating power. Instead, they spread power across the units. Each unit had responsibilities. But each unit also had the authority to influence the other units’ operations. All 4 units impacted law-making, for example. The phrase, “separate institutions sharing power” aptly describes the design.
By different methods of selection and at different times, the members of each unit were chosen. Elections occurred every two years for the House of Representatives. State legislatures determines who voted in those elections – at the time property owners. Senators were chosen by state legislatures. They served 6 year terms and one-third were reappointed or retired every 2 years.
An unusual institution called the Electoral College meets in the states every four years to elect the President and Vice-President. The “electors” in the college are chosen by a method determined by state legislatures – either appointed by legislatures, elected by the people, or some combination. If a majority of electors do not agree on a presidential candidate, the choice went to the House of Representatives and the Senate picked the Vice President. Finally, the president appointed judges, the Senate confirmed or denied those appointments, and judges served life terms – unless impeached and removed by the Senate.
This complex scheme of power distribution, power sharing, and different modes of election and term lengths rendered the government safe from majority domination. It also restrained government thereby protecting citizen’s liberties.
Notice, the framers chopped the legislature in two and made each branch responsible to a different constituency. Popular elections connected the House directly to the majority. But only a 1/3 of the Senate could be so influenced – and then indirectly through state legislatures. Here we can see Hamilton and Madison’s vision for the Senate – a permanent, stable, and elite institution that curbs and refines the House’s majoritarian sentiments.
At every turn, majorities are blocked
Given the arrangement, it’s improbable that popular majorities will control government. In one electoral cycle a majority could conceivably sweep the House but only 1/3 of the Senate. The electoral college effectively insulates the president from direct majority influence. And, if the college cannot reach a decision, Congress decides the matter.
Let’s say a majority of citizens do prevail – taking the House, the Senate, and the Executive – the Judiciary represents yet another barrier. On top of that stands the Bill of Rights. The first 10 Amendments guarantee citizens certain liberties and rights. Federal judges, free from majority pressures, decide the scope of those liberties and rights.
In addition, if the majority wanted to amend the constitution, it must overcome a challenging 2/3 threshold vote in the House and the Senate. Then, it must win majority support for the amendment in 3/4 of state legislatures. Finally, in the unlikely case the majority seizes control of the entire federal government, minority controlled state governments present additional obstacles. National majorities could be checked by local majorities.
At every turn, the constitutional design thwarts the majority.
Frustrated, popular majorities demand change
Recently a group of historians, political scientists and law professors addressed a letter to the Senate calling for institutional reforms – notably the Senate filibuster. They warned that Congress’s inability to act on broadly popular, majority supported policies erodes American’s faith in democracy.
“A government unable to produce results that significant majorities of the public elect their representative to deliver is no longer a representative government. The disconnect between the popular support for policies and a government’s ability to enact them ultimately erodes public trust, deepens political cynicism, and delegitimizes that system of government.”
This is strong language. It’s also patently transparent. The “disconnect” referenced is not an anomaly nor inevitably damaging. It’s the system, operating as intended; operating as it has for the past 200 years. Popular will is channeled – imperfectly and indirectly – through elected representatives that are limited by the Constitution.
In time of great need or crisis, the government does act, decisively so, and satisfies majority preferences. The unprecedented legislation enacted during the Great Depression, after 9/11, and now, throughout the pandemic, illuminates the point. At other times, government produces incremental change or nothing at all.
The system should not be mistaken for a “direct democracy”, which routes majority will straight into law – ballot initiatives and referendum, for example, that allow citizens to vote to enact or repeal laws. Rather, in a representative system – in our system, elected officials exercise political power.
There is nothing unusual about today’s circumstances. Nor is government’s legitimacy threatened – at least to a greater or lesser extent than in the past. Yet, the letter paints a dark and menacing future. The scholars claim the current political dynamic is “untenable for a democracy”.
Why publish the letter now? After all, the filibuster has been in effect for well over 100 years. Recall, in 2017, Republicans enjoyed majorities in the House, the Senate, and across most statehouses. They also claimed the presidency. At that time, scholars did not petition the Senate to remove the filibuster. Rather it was Donald Trump that desperately wanted to eliminate the filibuster and to enact popular policies. He too, ironically, argued that the Senate weakened democracy.
History is replete with examples of impulsive politicians and brooding intellectuals inspired by like-minded majorities to reform the Senate. But, after a losing election cycle, those same politicians, and those same intellectuals, reduced to minority status, backpedal quickly and cling to Senate traditions.
More relevant, the authors of the letter surely know majorities can be abusive, tyrannical, and wrong. White majorities utilization of governments – federal, state, and local – to control Black minorities is well known and continues to animate politics today.
If this group values majoritarianism, more important reforms could be targeted. The Senate itself, for example, disproportionately benefits small states with their smaller populations. The Electoral College regularly undermines majority preferences, as do state and federal court decisions. Finally, the 21st Amendment explicitly rejects majority preferences by limiting the president to two terms.
Is it the aim of government simply to accommodate majorities, acting as a conduit to augment the power of superior numbers? Or is it that government has a special interest in maintaining a specific equilibrium between majority interests and minority rights? The party that controls government will naturally seek an equilibrium in its favor. This should be addressed before tossing aside institutions that offer minorities considerable protections.
The challenge, it seems, is to recognize that there is more to governing, more to democracy, and more to government than majorities having their way.
Let’s say ten people deciding where to have dinner – restaurant A or B. They agree to a vote. Instinctively, they recognize the option that receives 6 or more votes will be the group’s choice. The four losers may be disappointed, but the group engaged in a collective, fair process and each person had an equal say in the decision. Consequently, all 10 eat at the majorities’ preferred restaurant.
We know Madison’s design makes this unlikely. Rather, the 6, after winning the vote, must negotiate with the 4 and wrangle some sort of compromise. The 4 retain power, even though they lost the vote.
And here, naturally, we return to the original question: Is this democracy?
Yes, it’s called constitutional democracy. The majority is limited by institutional means, so the rights of minorities are respected.
Elections do confer majorities with the power to shape public opinion, to influence public policy, and generally to bring about meaningful changes. Yet popular elections are only one among several means to influence government.
Shrewd politicians recognize that today’s minority may be tomorrow’s majority. It is therefore important to account for the objections of minorities before policies are crafted and laws implemented. The Senate, the Judiciary, the Electoral College, the Bill of Rights, the separation of powers, and federalism all shelter the few from the many. The constitutional blueprint certainly weakens – and can even sever – the connection between popular policies and government action.
Because of that possibility, should we proceed as critics’ demand and grant more power to the majority? That includes any or all the following reforms: Remove the filibuster and other related Senate procedures, scrap the Electoral College, cancel lifetime judicial appointments, re-imagine the separation of powers, remove powers from the states, and curtail broad interpretations of civil liberties and rights.
Alternatively, the finger of blame could point at the majority. Is the majority sincere in its efforts to reach out to minorities? Is the majority cohesive, talented, and determined enough to overcome the constitutional barriers? Success requires a coherent, tolerant, and durable majority coalition. In today’s politics, that’s clearly more difficult to manufacture than reforming the filibuster. And of course, it’s straightforward to blame the minority and fault the system.
The Constitution is thus neither undemocratic nor anti-majoritarian. It’s a balance between the ruling class and common folk, between the wealthy and the poor, between the few and the many. The framers sought to protect their status, their power, and their wealth from the majority. What else can we expect from the ruling class? The architecture of government is a tangible expression of the framers fears of majority rule and spotlights their narrow self-interest. But usefully, it also affords minorities (all minorities – demographic and political) a significant role in governing.
Whether you think this is right or think it is wrong, think it is good or bad, depends on where you sit – on the side of the minority or the side of the majority. Either way, electoral majorities are not, and have never been, governing majorities.