Tyranny of the Minority: Why American Democracy Reached the Breaking Point

by Steven Levitsky

Bolivia and Ecuador have changed constitutions at a rate of about once a decade since independence in the 1820s. They have never sustained stable democracies, showing us the cost of not having a set of widely accepted rules that transcend politics. Nowhere has the Jeffersonian model given rise to a functional democracy.

Constitutions are extraordinarily counter-majoritarian; they bind generations of majorities. The problem is that constitutional framers are fallible. Even the most brilliant among them cannot see far into the future.

The founders themselves recognized this. During the Philadelphia Convention, the Virginia delegate George Mason warned that the new constitution “will certainly be defective.” So constitutions should bind future generations—but not too tightly. If the barriers to change are too cumbersome, present-day majorities risk being trapped in an “iron cage” of rules that don’t reflect society’s needs and prevailing values. When this happens, intergenerational counter-majoritarianism becomes a serious problem.

It was this problem that provoked Franklin Roosevelt’s 1937 “court packing” plan. Not only had Roosevelt just been overwhelmingly reelected with 61 percent of the popular vote, but he faced an unprecedented challenge in the Great Depression, which had prompted a reconsideration of the role of government in the economy. Roosevelt’s New Deal program, which reflected this new thinking, was initially thwarted by a conservative Supreme Court majority composed of justices who were over seventy years old and had done their legal training in the nineteenth century.

But when the justices doing the constitutional reviewing remain on the bench for decades, long after those who appointed them have left office, public policy may recede further and further beyond the reach of present-day majorities.

The U.S. constitutional system contains an unusually large number of counter-majoritarian institutions. These include the following: The Bill of Rights, which was added to the Constitution in 1791, just after the Constitutional Convention in Philadelphia. A Supreme Court with lifetime appointments for justices and power of judicial review, or the authority to strike down as unconstitutional laws passed by congressional majorities. Federalism, which devolves considerable lawmaking power to state and local governments, beyond the reach of national majorities. A bicameral Congress, which means that two legislative majorities are required to pass laws.

A severely malapportioned Senate, in which all states are given the same representation, regardless of population. The filibuster, a supermajority rule in the Senate (not in the Constitution) that allows a partisan minority to permanently block legislation backed by the majority. The Electoral College, an indirect system of electing presidents that privileges smaller states and allows losers of the popular vote to win the presidency. Extreme supermajority rules for constitutional change: a two-thirds vote of each house of Congress, plus approval by three-quarters of U.S. states.

Of these, the Bill of Rights is the most unambiguously protective of democracy. ...

Then there are the counter-majoritarian institutions that are clearly undemocratic, in that they empower partisan minorities at the expense of electoral and legislative majorities. One is the Electoral College, which allows a candidate with fewer votes to win the presidency. Another is the Senate, which dramatically overrepresents citizens of less populated states (such as Wyoming and Vermont) at the expense of populous states (such as California and Texas) and allows partisan minorities to use the filibuster to permanently block legislation backed by large majorities.

One reason is historical timing. America has the world’s oldest written constitution. It is an eighteenth-century document, a product of a pre-democratic era. Modern democracy, with equal rights and full suffrage, did not exist anywhere in the world at the time of the founding.

The founders’ ideas regarding popular sovereignty were quite radical. The constitutional order they created—a republic, rather than a monarchy, with no property requirements for officeholders, competitive elections for the presidency and the House, and, within a few decades, broad suffrage for white men—was more democratic than anything existing in Europe at the time.

Neither the right to vote nor civil liberties, two essential elements of modern democracy, were included in the original Constitution. And guided by an outsized fear of popular majorities, the founders were quick to embrace institutions that checked or constrained them.

Many Americans revere the Constitution as a virtually unassailable document. They view counter-majoritarian institutions like the Senate and the Electoral College as part of a carefully calibrated system of checks and balances designed by extraordinarily prescient leaders. This is a myth. The framers were a talented group of men who forged the world’s most enduring constitution. But our counter-majoritarian institutions were not part of a well-thought-out master plan. Indeed, two of America’s most prominent framers, Hamilton and Madison, opposed many of them.

Under intense pressure to reach an agreement, the convention’s fifty-five delegates did what leaders navigating transitions usually do: they improvised and compromised.

Founders of a new constitutional order often face an immense challenge: they must secure cooperation of diverse groups, some of which are powerful enough to “kick over the board”—and abruptly end the game—if their demands are not met.

In these cases, counter-majoritarianism is a product not of high-minded efforts to balance majority rule and minority rights but rather of a series of particular concessions aimed at placating a powerful minority that threatens to sabotage the transition. The U.S. founding was similarly fraught.

Constitution that would potentially endanger it. But southern slaveholders were a minority, both in the convention and in America. Overall, the population of the eight northern states roughly matched that of the five southern states. However, since 40 percent of the southern population were enslaved people who had no voting rights and because southern states had more restrictive voting laws, the North had a much larger voting population and would likely prevail in any national election. So representatives of the southern slave states insisted on counter-majoritarian protections, “as close to ironclad as possible,” to ensure slavery’s survival under the new republic.

Representatives of the southern slave states regarded the protection of slavery as a matter of existential importance. Their principal demand was, in the words of the historian Sean Wilentz, to “keep slavery completely outside the national government’s reach,” or, at the very least, to “make it impossible for the government to enact anything concerning slavery without the slaveholding states’ consent.”

To reach an agreement, the representatives of small states and southern slave states would have to be mollified. So they were granted various concessions. The new Constitution not only permitted slavery: it safeguarded the institution, and, as Wilentz put it, “strengthened the slaveholders’ hand in national politics.”

The biggest victory for the southern states, however, was the notorious “three-fifths clause,” which allowed them to count enslaved people as part of each state’s population (five slaves counted as three free persons) for the purposes of legislative apportionment, even though slaves had no rights.

Overall, the three-fifths clause increased the South’s representation in the House of Representatives by 25 percent. This gave the southern states control of nearly half of the House, which was enough to “thwart any national lawmaking regarding slavery that lacked their approval.”

Although the three-fifths clause became moot after the Civil War, other counter-majoritarian compromises endured. Chief among these was the structure of the U.S. Senate.

As Hamilton argued at the convention, people, not territories, deserved representation in Congress: As states are a collection of individual men[,] which ought we to respect most, the rights of the people composing them, or the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter.

Hamilton, criticizing the Articles of Confederation, argued that the equal representation of states “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.” “It may happen,” he wrote in Federalist No. 22, that a “majority of states is a small minority of the people of America.” Likewise, Madison described equal representation in the Senate as “evidently unjust” and warned that it would allow small states to “extort measures [from the House] repugnant to the wishes and interests of the majority.” James Wilson of Pennsylvania also rejected equal state representation, asking, like Hamilton, “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called states?” Wilson backed Madison’s so-called Virginia Plan, presented on the first day of deliberations. Under this proposal, representation in both the House and the Senate would be proportional to the population of each state. But the smaller

A deal was struck. Under the so-called Connecticut Compromise, the House of Representatives would be elected via a majoritarian principle, with representation proportionate to the population of the state (based, of course, on the new three-fifths clause), but the Senate would be composed of two senators per state, no matter the size.

This arrangement was not part of a well-thought-out plan. It was a “second best” solution to an intractable standoff that threatened to derail the convention and perhaps destroy the young nation.

Likewise, the Electoral College was not a product of constitutional theory or farsighted design. Rather, it was adopted by default, after all other alternatives had been rejected.

Parliamentarism eventually became a common type of democracy, but at the time many delegates feared the president would be overly beholden to Congress, so the system was rejected.

Southern delegates were particularly opposed to direct presidential elections. As Madison recognized, the South’s heavy suffrage restrictions, including the disenfranchisement of the enslaved population, left it with many fewer eligible voters than the North.

The historian Alexander Keyssar calls the Electoral College a “consensus second choice,” adopted by a convention that could not agree on an alternative. Madison personally viewed direct elections as the “fittest” method to choose a president, but he ultimately recognized that the Electoral College generated the “fewest objections,” largely because it provided additional advantages to both the southern slave states and the small states.

The Electoral College never did what it was designed to do. Hamilton expected it to be composed of highly qualified notables, or prominent elites, chosen by state legislatures, who would act independently. This proved illusory. The Electoral College immediately became an arena of party competition. As early as 1796, electors acted as strictly partisan representatives.

The framers’ decision not to impose term limits or a mandatory retirement age should not be surprising. They were not concerned about long tenures on the court. Life expectancy was shorter at the time of the founding, and importantly, the position of Supreme Court justice lacked the status and appeal that it has today.

never spelled out in the Constitution. Judicial review emerged gradually, not by design but in judicial practice during the 1790s and early years of the nineteenth century.

In Marbury v. Madison, he accommodated the new administration’s wish not to grant William Marbury his commission while simultaneously (and deftly) asserting the court’s authority to decide when a law departed the bounds of the Constitution. Judicial review then took hold gradually over the course of the nineteenth century.

Like judicial review, the Senate filibuster is not enshrined in the Constitution, even though many Americans associate it with our constitutional system of checks and balances. The filibuster is a classic counter-majoritarian institution. It allows a minority of senators (since 1975, forty of one hundred) to prevent legislation from coming to a vote, which means that in practice a supermajority of sixty votes is needed to pass most laws.

Many of the framers of the Constitution, including Hamilton and Madison, strongly opposed supermajority rules in Congress. America’s first Congress, under the Articles of Confederation, had operated under such rules and proved utterly dysfunctional.

With the exception of treaty ratification and the removal of impeached officials, the Philadelphia Convention rejected all proposals for supermajority rules in regular congressional legislation.

For a few decades, it didn’t matter. There were no organized filibusters until the 1830s (or by some accounts, 1841), and the practice was so rare that it didn’t even have a name until the 1850s.

There were only twenty successful filibusters between 1806 and 1917—fewer than two a decade.

President Wilson and Senate leaders of the need to create some mechanism to close debate. So in 1917, the Senate passed Rule 22, under which a vote of two-thirds of senators could end debate (a practice known as cloture) and force a vote on legislation. Although many senators supported a simple majority cloture rule (which would have restored the system of the original Senate), the two-thirds rule carried the day.

more than 60 percent public support). Still, filibusters remained relatively rare for much of the twentieth century—in part because they were hard work. Senators had to physically hold the floor—by speaking continuously—to sustain a filibuster. After reforms in the 1970s, however, senators only needed to signal their intent to filibuster

As filibustering became costless, what had once been rare became a routine practice.

Although the filibuster’s defenders drape it in America’s founding traditions, in reality, it emerged by accident and was little used for most of our history. The ironclad minority veto we know today is a recent invention.

When we treat our founding institutions as a coherent and fixed set of checks and balances, we lump together rules that protect civil liberties and ensure a level playing field with ones that give privileged and partisan minorities a leg up in winning elections and legislative battles. The former are necessary for democracy; the latter are antithetical to it.

The German aristocrat’s keen interest in the arcane topic of electoral boundaries was motivated by alarm: he was aware that predominantly rural-based conservative forces were swimming against the tides of history.

But the Social Democrats’ ability to win and exercise national power was limited by the country’s political institutions.

That left the national parliament (Reichstag) as the country’s most democratic institution. In 1871, before Germany’s urban boom, parliamentary districts had been drawn up in a surprisingly fair way: they were equal in size (one MP per 100,000 residents); moreover, all men had the right to vote. But as Baron von Bodelschwingh recognized in 1909, the recent mass exodus of voters from the countryside to the city benefited his conservative allies enormously. If conservatives maintained the electoral boundaries created back in 1871, they would be increasingly overrepresented.

The consequences were devastating for the political left: in 1907, Social Democrats won the most votes, with 29 percent of the national vote, but they ended up with only forty-three seats, placing them in a distant fourth place.

The electoral system was tilted in favor of conservatives, effectively locking in minority rule until the imperial political system collapsed after World War I.

When partisan minorities capture counter-majoritarian institutions, it can enable those on the losing side of history to cling to power.