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

by Steven Levitsky

Barack Obama’s election (2008) and reelection (2012) laid bare the limitations of the GOP’s southern strategy. In 1980, Ronald Reagan had won 55 percent of the white vote and translated that into a landslide forty-four-state victory. Thirty-two years later, Mitt Romney won an even more overwhelming 59 percent of the white vote but still lost the election.

The 2013 autopsy was another example of what losing parties are supposed to do in democracies: adapt to changes in the electorate. Concerned about the GOP’s mounting electoral vulnerability in the face of a changing society, national leaders like Mehlman, Steele, and Priebus tried to steer the party off the racialized path it had embarked on in the 1960s. But much of the Republican base—the local leaders, activists, and reliable primary voters who dominate the party’s grassroots organization—was radicalizing, and it was pulling the party in another direction.

This was lawfare—legislation that was ostensibly aimed at combating fraud but in reality was designed to dampen turnout among lower-income, minority, and young voters. As the former Republican strategist Stuart Stevens recognizes, the Republicans “are not where the country is. And they know that, which is why they want to change the way people vote. It’s just a variation of the poll tax and the literacy test.”

Even into the late 1980s, every single American president, vice president, House Speaker, Senate majority leader, chief justice of the Supreme Court, chairman of the Federal Reserve, and chairman of the Joint Chiefs of Staff was a white man. Every single U.S. governor was white until 1989. Every Fortune 500 CEO was white until 1987.

But the reaction went beyond nostalgia. The leveling of long-standing social hierarchies generated a sense of unfairness among many whites. When one grows up with a certain guaranteed standing in society, the loss of that special status can feel like an injustice. Indeed, many white Americans began to feel like victims. Surveys showed that whites’ perception of “anti-white bias” rose steadily beginning in the 1960s; by the early twenty-first century, a majority of white Americans believed that discrimination against whites had become at least as big a problem as discrimination against Blacks.

Loss of privilege feels like oppression

For most of the twentieth century, racial resentment wasn’t a partisan matter. Both parties counted racial conservatives—defenders of traditional racial hierarchies—among their rank and file. Indeed, many conservative southern whites remained Democrats through the 1990s. But Republican politicians spent four decades recruiting southern, conservative, and evangelical whites into a single tent, establishing the GOP as the undisputed home for white Christians who feared cultural and demographic change. According to the political scientist Alan Abramowitz, the proportion of white Republicans who scored high on survey-based “racial resentment” scores increased from 44 percent in the 1980s to 64 percent during the Obama era.

Whereas his Republican rivals were reluctant to use openly racist, nativistic, or demagogic appeals, Trump readily crossed those lines. His unique willingness to say and do things that other Republicans rejected as bigoted, racist, or cruel allowed him to dominate the market for white grievance votes. As the political scientist Ashley Jardina writes, Trump’s campaign signaled to white voters that he intended to “maintain the racial hierarchy.” Indeed, studies show that white Republicans who perceived their group’s status to be threatened were most likely to support Trump in the primaries. As Ezra Klein aptly put it, “Trump didn’t hijack the Republican Party. He understood it.”

Earlier we listed three basic principles that democratic parties must follow: they must always accept the results of fair elections, win or lose; they must unambiguously reject the use of violence to gain or hold on to power; and they must break ties to antidemocratic extremists.

Is it fair, though, to characterize the entire Republican Party as antidemocratic? Certainly, many GOP politicians are loyal democrats. The Republican Accountability Project looked into this, giving a “democracy grade” to all Republican members of Congress in 2021, based on six criteria: 1. Did they sign on to the amicus brief that accompanied Texas’s lawsuit to the Supreme Court seeking to nullify votes cast in Michigan, Wisconsin, Pennsylvania, and Georgia? 2. Did they object to the certification of Electoral College votes on January 6, 2021? 3. Did they make public statements casting doubt on the legitimacy of the 2020 election? 4. Did they seek to hold President Trump accountable for January 6 by voting to impeach or convict him? 5. Did they vote to create an independent commission to investigate the January 6 insurrection? 6. Did they vote to hold Steve Bannon in contempt of Congress for refusing to comply with a subpoena to testify before the House Select Committee to investigate the January 6 attack?

The scores are revealing. More than 60 percent (161 of 261) of Republican members of Congress adopted undemocratic positions on at least five of the six questions, earning a grade of F. Another fifty-four Republicans adopted antidemocratic positions on at least four of the questions. Only sixteen Republicans adopted consistently democratic positions and thus earned an A. By this measure, then, a large majority of Republicans in Congress adopted consistently antidemocratic positions after the 2020 election and January 6, and more than 80 percent of them adopted mostly antidemocratic positions. Only 6 percent of Republicans behaved in a consistently democratic manner, and most of them had retired or lost primaries by 2022.

The dismantling of the Voting Rights Act makes plain a simple fact: many of America’s venerated political institutions are not very democratic; indeed, they were not made for democracy. Five unelected Supreme Court justices dismantled an unmistakably democratizing law, the VRA, which had been passed and renewed on multiple occasions by bipartisan legislative majorities. In 2019, when efforts to restore the VRA were blocked by a Republican Senate majority, that majority represented seven million fewer voters than the Senate Democratic minority that backed it. In January 2022, when majorities in both houses of Congress—and more than 60 percent of Americans—backed voting rights legislation, it was blocked by a minority in the Senate. How did we get to a place where a partisan minority can wield such power?

The case eventually found its way to the Supreme Court, which ruled in 1940 in favor of Minersville, requiring the Pledge of Allegiance of everyone. In other words, the preferences of the town’s majority were given precedence over individual freedom of conscience. The court’s decision had terrible consequences: towns across America began to pass laws requiring flag saluting, which was accompanied by an outbreak of violence against Jehovah’s Witnesses. In one incident, a mob of twenty-five hundred in Kennebunk, Maine, burned a Jehovah’s Witnesses Kingdom Hall to the ground. Majorities can be abusive and dangerous. In 1943, however, the Supreme Court reversed its stance on the Minersville case, helping to lay the basis for the protection of individual rights in the United States. As Justice Jackson explained in his influential majority opinion, elected “village tyrants” may assault individual rights in the name of majorities.

In both Hungary and Israel, it was too easy for simple majorities to change the rules of democracy. In Hungary, only two-thirds of a single parliamentary chamber are required to rewrite the constitution, and first-past-the-post electoral rules allowed Orbán’s Fidesz party to capture two-thirds of parliament despite winning just 53 percent of the vote. Israel has no written constitution, so many democratic rules can be changed by a simple parliamentary majority. That’s too low a barrier.

Most democrats agree that individual liberties and the opposition’s right to fair competition must be placed beyond the reach of majorities. All democracies must therefore be tempered by a degree of counter-majoritarianism. But democracies must also empower majorities. Indeed, a political system that does not grant majorities considerable say cannot be called a democracy. This is the danger of counter-majoritarianism: rules designed to fetter majorities may allow partisan minorities to consistently thwart and even rule over majorities. As the eminent democratic theorist Robert Dahl warned, fear of “tyranny of the majority” may obscure an equally dangerous phenomenon: tyranny of the minority. So just as it is essential that some domains be placed beyond the reach of majorities, so too is it essential that other domains remain within the reach of majorities. Democracy is more than majority rule, but without majority rule there is no democracy.

key graf

Second, those who win elections should govern. Legislative majorities should be able to pass regular laws—provided, of course, that such laws do not violate civil liberties or undermine the democratic process. From a democratic standpoint, supermajority rules that allow a parliamentary minority to permanently block regular, lawful legislation backed by the majority are difficult to defend. Supermajority rules like the Senate filibuster are often cast either as essential safeguards for minority rights or as mechanisms for compromise and consensus building. But such rules provide partisan minorities with a powerful weapon: a veto. When such vetoes extend beyond the protection of civil liberties or the democratic process itself, they allow legislative minorities to impose their preferences on the majority.

The political theorist Melissa Schwartzberg adds an important observation: while supermajority rules may protect minority rights in theory, in practice they often end up advancing the interests of other, more privileged minorities. In the United States, counter-majoritarian institutions far more often protected southern slaveholders, large farming interests, and other wealthy elites than they protected vulnerable minorities such as African Americans during Jim Crow or Japanese Americans in the 1940s.

Madison and others recognized that there was value to entrenching constitutions. Indeed, the whole point of a democratic constitution is to establish a set of rights that are protected from the transient whims of present-day majorities. When it comes to the right to vote, freedom of expression, and other basic rights, we should be constrained by past generations. Madison also saw, with great prescience, that there are benefits to inheriting a stable, functioning constitution rather than having to rewrite the rules every twenty years. 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.

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.

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.

prayer. A group of delegates eventually concluded that if they wanted to preserve the union, they had to make this concession to the small states. 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. (Madison himself opposed the Connecticut Compromise and voted against it.)

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. Because the slaveholding South seemed certain to lose any national popular vote, the constitutional scholar Akhil Reed Amar writes, direct elections were a “dealbreaker” for them.

Finally, as the convention was drawing to a close in late August, the matter was handed off to its Committee on Unfinished Parts. They proposed a model that had been used to “elect” monarchs and emperors under the Holy Roman Empire, a confederation of more than a thousand semi-sovereign territories and lordships in central Europe. When the emperor died, local princes and archbishops gathered in a Council of Electors (Kurfürstenrat), usually in Frankfurt, Germany, to vote on a new emperor. This is similar to how popes have been chosen since the Middle Ages. Even today, with the passing of a pope, the Sacred College of Cardinals convenes in Rome to “elect a successor.” America’s constitutional framers deployed a variant of this “medieval relic” in a non-monarchical setting, which came to be known as the Electoral College.

The Constitution also explicitly stated that federal judges could enjoy lifetime tenure (conditional on “good behavior”)—an idea that had emerged in England in response to judges’ excessive dependence on the Crown. 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. The court didn’t even have its own building, and in the republic’s early years justices spent most of their time in inns and on the road as they traveled “the circuit.” As a result, there was little expectation that justices would stay in their positions. The first chief justice, John Jay, left his position after 5.5 years to serve as governor of New York. Indeed, the six justices of the first Supreme Court appointed by President George Washington served an average of only 8.3 years, compared with an average of 25.3 years for justices who have left the bench since 1970.

The filibuster is often viewed as an essential—even constitutional—minority right. Lyndon Johnson once called it “the fountainhead of all our freedoms.” The Texas senator Phil Gramm described it as “part of the fabric of American democracy.” They were both wrong.

It’s not unfettered majorities that threaten us today. It’s fettered majorities that are the problem.

When partisan minorities capture counter-majoritarian institutions, it can enable those on the losing side of history to cling to power. For years, Germany’s conservatives maintained their political dominance despite losing elections. They adopted policies opposed by majorities and vetoed policies backed by majorities.

In 1790, a voter in Delaware (the least populous state) had about thirteen times more influence in the U.S. Senate than a voter in the most populous state, Virginia. In 2000, by contrast, a voter in Wyoming has nearly seventy times more influence in the U.S. Senate than a voter in California.

The rise of cities fundamentally altered politics. By 1920, the most populous states were now also among the most urban (for example, New York, Illinois, Pennsylvania), while the least populous were more rural (Wyoming, Nevada, Vermont). What began as a strictly small-state bias had become a rural-state bias. This meant that rural jurisdictions were now overrepresented in three of America’s most important national political institutions: the U.S. Senate, the Electoral College, and—because presidents nominate Supreme Court justices and the Senate confirms them—the Supreme Court.

Today, then, Republicans are predominantly the party of sparsely populated regions, while Democrats are the party of the cities. As a result, the Constitution’s small-state bias, which became a rural bias in the twentieth century, has become a partisan bias in the twenty-first century. We are experiencing our own form of “creeping counter-majoritarianism.”

However, a second distortion in the Electoral College, the small-state bias, clearly favors the Republicans. Remember that the number of presidential electors allotted to each state is equal to the size of its congressional delegation: the number of representatives in the House plus the number of senators. Because the U.S. Senate heavily overrepresents sparsely populated states, the Electoral College has a modest rural bias of about twenty votes in the 538-seat college, which gives the Republicans a small but potentially decisive advantage. In 2000, for example, the small-state bias added an estimated eighteen votes to George W. Bush’s overall electoral vote. Since Bush defeated Al Gore by only five electoral votes, those eighteen votes were pivotal, turning the popular-vote loser into the president-elect.

One way in which analysts measure the Republican Party’s current advantage in the Electoral College is by identifying the state that serves as the tipping point in a national election—in other words, the state that delivers the decisive 270th electoral vote to the winning candidate. If we rank states from the largest pro-Democratic margin (Vermont) to the largest pro-Republican margin (Wyoming) in the 2020 presidential election, Wisconsin was the tipping point state. As such, we’d expect it to track the national popular vote, which Biden won by 4.4 percentage points. But he won Wisconsin by only 0.6 points, a nearly 4-point gap. This is the Electoral College bias: Biden needed to win the popular vote by around 4 points to be elected president. Like in the basketball game described above, a 3-point Biden advantage would have led to a Trump victory.

A second pillar of minority rule—one with an even more marked partisan bias—is the U.S. Senate. Sparsely populated states representing less than 20 percent of the U.S. population can produce a Senate majority. And states representing 11 percent of the population can produce enough votes to block legislation via a filibuster.

How big is the Senate’s pro-Republican bias? Consider the 2020 election. Drawing on the tipping state logic above, there is a five-point gap between the 2020 presidential election results in the median state—the one that yields a Senate majority—and the 2020 national presidential vote. This means that the Senate’s partisan bias was such that Democrats had to win the nationwide popular vote for Senate by about five points to gain control of the Senate.

Four of nine current Supreme Court justices—Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were confirmed by a Senate majority that collectively won a minority of the popular vote in Senate elections and represented less than half of the American population. And three of them—Gorsuch, Kavanaugh, and Coney Barrett—were also nominated by a president who lost the popular vote. Had majorities prevailed in presidential and Senate elections, then, three—and possibly four—of the Supreme Court’s most conservative justices would not be on the court. In all likelihood, three of these seats would have been filled by Democratic appointees.

Geographic sorting and gerrymandering have produced what one analyst has called “manufactured majorities.” Between 1968 and 2016, there were 121 instances in state legislatures in which the party that received fewer votes statewide nevertheless won a majority of seats in the state house, and there were 146 instances in which the losing party won control of state senates. Whereas in the past both parties occasionally benefited from manufactured majorities, today, thanks to the urban-rural divide, the Republicans are almost always the beneficiary.

But our counter-majoritarian institutions have untethered the views of “the people’s elected representatives” from the views of the people themselves. A June 2022 Monmouth University poll showed that only 37 percent of Americans approved of the decision to overturn Roe v. Wade. Similarly, a May 2022 Gallup poll found that 55 percent of Americans identified as “pro-choice” while only 39 percent identified as “pro-life.” According to the Pew Research Center, 61 percent of U.S. adults say abortion should be legal in all or most cases, while only 37 percent believe abortion should be illegal in all or most cases. Despite broad majority support for abortion rights, however, counter-majoritarian institutions have thwarted the attempts of Democrats in Congress to codify Roe. The Women’s Health Protection Act, which would have prevented states from restricting abortion rights, passed the House but was dead on arrival in the Senate, falling well short of the sixty-vote threshold needed to break the filibuster.

According to Grumbach and Warshaw, “This imbalance only runs one direction: There are no states where the citizenry supports an abortion ban but the state government does not.”

There is an even larger gap between public opinion and policy on the issue of gun control. A series of mass school shootings in recent decades—including those in Columbine (1999), Sandy Hook (2012), Parkland (2018), and Uvalde (2022)—generated broad public support for stricter gun laws. According to polling conducted by Morning Consult/Politico in the wake of the mass shooting in Uvalde, Texas, 65 percent of Americans support stricter gun control laws, while only 29 percent oppose them. Broad public support also emerged for specific gun safety policies. Surveys by Gallup and Pew have consistently found more than 60 percent support for a law banning the manufacture, sale, or possession of semiautomatic or “assault” weapons and more than 80 percent support for laws requiring universal background checks for gun purchases. But such legislation has consistently failed in the U.S. Senate. This is, in part, because the Senate vastly overrepresents gun owners: the twenty states with the highest rates of gun ownership contain barely a third as many people as the twenty states with the lowest rates of gun ownership. But these states are all equally represented in the Senate. Together with the filibuster, this overrepresentation has made the Senate the graveyard of gun control legislation.

Gun policy also flies in the face of public opinion at the state level. In Ohio, 2018 polling found large majorities in favor of gun control. More than 60 percent of Ohioans supported bans on semiautomatic weapons and high-capacity magazines, and more than 70 percent supported a mandatory waiting period for gun purchases. More than 75 percent did not support arming teachers. But the Republican-dominated state legislature took a different route. Instead of passing gun control legislation, it passed a bill allowing for the concealed carry of handguns without a permit, alongside Texas, Tennessee, and Montana. This, even though only 20 percent of Americans support such legislation. And in the wake of the 2022 Uvalde shooting, Ohio fast-tracked a bill designed to arm teachers.

This would be comical if it weren’t so sad

The failure to deal with stagnating wages over the past fifty years has made America an outlier in terms of both poverty and inequality. The political scientists Lane Kenworthy and Jonas Pontusson examined ten rich democracies, including the United States, that experienced rising household income inequality as they entered the twenty-first century. In nine of those ten countries, governments responded with more aggressive policies of redistribution. Only the United States did not.

It is hard to imagine such behavior in a country without excessively counter-majoritarian institutions. The GOP’s reluctance to moderate, even in the wake of successive electoral disappointments, can only be understood in light of the fact that manufactured majorities in the Senate and the Electoral College remained tantalizingly within reach.

Competitive elections create a feedback mechanism that rewards parties that are responsive to voters and punishes those who are not. Losing parties are thus compelled to moderate and broaden their appeal to win again in the future. But there is a hitch: electoral arrangements that overrepresent certain territories or groups, allowing parties to win elections without capturing the most votes, weaken the incentive to adapt. Without competitive pressure to broaden their appeal, parties may turn inward and radicalize.

The electoral crutch afforded by our institutions threatens American democracy by reinforcing Republican extremism. Since Republicans can win and exercise power without building national electoral majorities, they lack the normal incentives to adapt to the fundamental changes taking place in American society. If you can regularly win the most important offices in the land without broadening your appeal, then why do it? Republican politicians have thus fallen into a self-reinforcing spiral: their conservative base is pushing them into extremism, and the electoral protection offered by counter-majoritarian institutions has weakened their incentive to resist that push.

It could get worse. Increasingly unable to win the popular vote for president, some Republicans have come up with radical new schemes to subvert the electoral process. One of these involves a heretofore fringe legal theory called the “independent state legislature doctrine.”

Although such a scenario remains unlikely, it is clear that America’s excessively counter-majoritarian institutions have left us vulnerable to undemocratic situations in which electoral minorities prevail over majorities. As we saw in 2016, America’s counter-majoritarian institutions can manufacture authoritarian minorities into governing majorities. In other words, far from checking authoritarian power, our institutions have begun to augment it.

In the spring of 1814, twenty-five years after the ratification of America’s Constitution, a group of 112 Norwegian men—civil servants, lawyers, military officials, business leaders, theologians, and even a sailor—gathered in Eidsvoll, a rural village forty miles north of Oslo. For five weeks, while meeting at the manor home of the businessman Carsten Anker, the men debated and drafted what is today the world’s second oldest written constitution.

Norway was overwhelmingly rural in 1814: about 90 percent of the electorate lived in the countryside. Because many peasants owned land and could therefore vote, wealthy urban elites feared being overwhelmed by the peasant majority. As one Norwegian political scientist puts it, the elite viewed peasants as a “potential time bomb.” So the constitution established a fixed two-to-one ratio of rural to urban seats in parliament—a ratio that dramatically overrepresented cities, since rural residents actually outnumbered urban residents by ten to one. This was the so-called Peasant Clause.

Two centuries of reform have transformed Norway into one of the most democratic countries on earth. On Freedom House’s Global Freedom Index (which ranges from 0 to 100), most established democracies received a score above 90 in 2022. A handful of countries including Canada, Denmark, New Zealand, and Uruguay received a score above 95. Only three countries received a perfect score of 100: Finland, Sweden, and Norway. Freedom House scores countries on twenty-five separate dimensions of democracy. Norway receives a perfect score on all of them.

Parliaments everywhere thus offered excessive protection to minority interests. An extreme example was Poland’s eighteenth-century parliament (Sejm), in which each deputy in the two-hundred-member body possessed individual veto over any bill. The French political philosopher Jean-Jacques Rousseau regarded Poland’s liberum veto (Latin for “I freely object”) as, in the words of one legal analyst, a “tyranny of the minority of one.” The system’s defenders characterized it as a “privilege of our liberty.” But it brought political life to a grinding halt. Between 1720 and 1764, more than half of Poland’s parliamentary sessions were shut down by individual vetoes or filibusters before any decisions were made. Unable to conduct government business or raise public funds for defense, Poland fell prey to military interventions by neighboring Russia, Prussia, and Austria, whose armies dismembered its territory, literally erasing Poland from the map for more than a century.

Similarly, Australia established a retirement age of seventy for High Court justices in 1977, after the forty-six-year tenure of Justice Edward McTiernan came to an inglorious end. McTiernan had been appointed to the court in 1930, and by the 1970s the octogenarian’s voice was often “difficult for counsel to understand.” In 1976, McTiernan broke his hip swatting a cricket with a rolled-up newspaper at the Windsor Hotel in Melbourne. In an apparent effort to nudge him into retirement, the chief justice refused to build a wheelchair ramp in the High Court building, citing costs. McTiernan retired, and when Parliament took up the issue of establishing a retirement age, opposition was “virtually non-existent.”

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