Anti-Democracy

It's pretty obvious to anyone who pays attention to politics that the United States Constitution, while providing for representative government, is a decidedly anti-democratic document. It was written in decidedly undemocratic times. Although the power of monarchs had been diluted over the previous century, the ruling classes represented only a small sliver of the population of any European country. The Constitution provided for the officers of the government to be elected, but did not define who would be allowed to do the electing. Individual states set the qualifications to be met by anyone who wanted to vote, and most of them restricted the franchise to white male landowners. Descendants of the original inhabitants and enslaved people were not even considered "people", let alone allowed to vote. Even that restricted electorate was not trusted fully by the founders. The Electoral College system provided a check against "the people" making the "wrong" choice when electing the president. 

The Founders were men of their time. This is not to say that it was morally right to hold the positions that they did, just that it was not unusual. It was perfectly normal in that time to look down upon non-White people as "lesser races", or to believe that it was the natural order for the élite to rule and the common folk to be ruled. 

But times changed. People changed. 

Few seriously believe that only the élite should get to make the decisions for the rest of us, that women should have no rights, that certain people were not "people" within the meaning of the law. We have, in so many ways, moved beyond the ethics and morals of eighteenth century society. So why do we still deify the men who instituted the framework of a nation based on eighteenth century ethics and morals and worship the document that they created?

The Constitution provided within itself a means to change it. In addition to the first ten amendments we collectively refer to as The Bill of Rights it has been amended seventeen times. A few of those of been procedural: changing the way the Vice President is chosen, providing for the direct election of Senators, changing the date a new presidential term begins, limiting a president to two terms; others were hugely consequential: outlawing slavery, prohibiting the denial of voting rights due to gender; and of course alcohol prohibition and its subsequent repeal. 

Changes have been made, but antidemocratic features still persist.

The equal representation of each state in the Senate, where every state, no matter its population, receives two Senate seats, gives small states a voice well out of proportion to their population. The makeup of the House of Representatives is capped at 435 members, despite the overall U.S. population continuing to rise. Since each state is guaranteed at least one representative, no matter how small the population, the population of Congressional districts vary between around 500,000 to over 900,000. This discrepancy carries over to presidential elections where a state's electoral votes equal the total number of members in the House of Representatives plus two Senators. 

In addition to Constitutional hedges against democracy, there are institutional features that have resulted in two of the last four presidents being elected despite not receiving the most votes. All but two states award all of their electoral votes to the candidate who receives the most votes in their state. Not the candidate who receives a majority of the votes. A third candidate other than those of the two major parties will cause the "winner" to have less than 50% of the votes. Nationwide, one candidate losing by a wide margin in some states while winning narrowly in others can result in the loser actually winning. Like I said, it's happened twice recently. 

There is no Constitutional requirement that it be done this way. My home state of Nebraska allocates one electoral vote for the winner in each Congressional district, and two for the statewide winner. In recent elections one electoral vote has gone to the Democrat, even though the Republican took around 60% of the total vote. Maine has a similar system. There's nothing to prevent a state allocating electoral votes this way, or even proportionally. Strict proportionality would have given the Democrat two votes in Nebraska if he had garnered 40% of the total vote. 

Primaries in most states are even worse. Statewide offices sometimes have a runoff provision, where the top two vote getters compete head-to-head, but in other states the "winner" could conceivably receive as little as 35% of the vote if there are enough candidates. This is especially true in presidential primaries. In most states the candidate with the most votes (again, not a majority) receives all or most of the delegates. Currently two small, white, rural states, Iowa and New Hampshire hold their contests first. Numerous candidates then drop out, mainly due to funding drying up for the losers. A nationwide primary day, with either ranked choice or a runoff, would give primary voters an opportunity to vote for their preference equally across the country. The way it stands now in the later primaries most of the initial candidates have dropped out. 

One way in which changing mores and societal consensus had been taken into account was the judicial doctrine of the Constitution as a living document. The opposing positions are Textualism and Originalism. These are two judicial approaches that adhere to the text itself. Textualism is the more strict and unbending version, basing court cases on what the Constitution says right in the text, no more, no less. Originalism is a slightly more flexible position, where the debates surrounding the writing of the Constitution, as well as the meaning of the words therein are used to interpret it. Living Document interpretation takes the view that evolving standards and mores should color how we view the Constitution. An example is the establishment clause of the First Amendment. A strict reading of the text indicates that establishment of religion is prohibited. An originalist might take into account that the Founders had a specific definition of "establishment" in mind and did not intend to prohibit government involvement in generic Christianity. Living Document jurists take into account that Christianity isn't the only religion observed in this country and that "establishment" in our times would include any action that privileges or endorses any religion. 

Unfortunately, due to a death and a retirement during Trump's term and the refusal of the Senate to consider a nomination during Obama's second term, there is a solid Originalist majority (or at least when it suits them) on the Supreme Court. 

For a long time the arc of progress in this country has been toward more democracy. More people enfranchised, fewer barriers to voting, less decision-making in the smoke-filled back rooms. But lately this has been reversed, at least among the White, Christian, "conservative" electorate. Realizing that their hold on the democratic process has been eroded due to demographics they now proudly champion the anti-democratic features of the system. Who hasn't heard the retort "We're a Republic, not a Democracy" from some knucklehead on social media? Or the insistence that a system like the Electoral College is a necessary feature of a republic?  Gerrymandered state legislatures pass laws that make it more difficult to register to vote and eliminate polling places in majority Democratic areas. These same legislatures pass laws that a majority of their citizens are against, and draw electoral maps that guarantee their legislative majority despite receiving a minority of the votes. 

All is not lost, but it's getting more difficult to preserve majoritarian government in the face of the tyranny of the minority.