The Constitution is Not The Problem

Two authors think the Constitution is creating tyranny. It's actually preventing it.

Yesterday in The Atlantic, writers Steven Levitsky and Daniel Ziblatt found a new boogeyman in America’s political polarization: the Constitution:

Indeed, the problem lies in something many of us venerate: the U.S. Constitution. America’s founding document, designed in a pre-democratic era in part to protect against “tyranny of the majority,” has generated the opposite problem: Electoral majorities often cannot win power, and when they win, they often cannot govern. Unlike any other presidential democracy, U.S. leaders can become president despite losing the popular vote. The U.S. Senate, which dramatically overrepresents low-population states by giving each state equal representation regardless of population, is also frequently controlled by a party that has lost the national popular vote. And due to the Senate’s filibuster rules, majorities are routinely blocked from passing normal legislation. Finally, because the Supreme Court’s composition is determined by the president and Senate, which have often not represented electoral majorities in the 21st century, the Court has grown more and more divorced from majority public opinion. Not only does the Constitution deliver outsize advantages to partisan minorities; it has also begun to endanger American democracy. With the Republican Party’s transformation into an extremist and antidemocratic force under Donald Trump, the Constitution now protects and empowers an authoritarian minority.

America was once the standard-bearer for democratic constitutions. Today, however, it is more vulnerable to minority rule than any other established democracy. Far from being a pioneer, America has become a democratic laggard.

Levitsky and Ziblatt’s problems with the Constitution seem to be that…the Constitution protects the rights of the political minority.

While I oppose the current direction of the Republican Party as much as they do, the idea that the Constitution “protects and empowers an authoritarian minority” seems to ignore the fact that Republicans control but one chamber of Congress right now. Not the Presidency, not the Senate, just the House of Representatives. Which kind of defeats the entirety of Levitsky and Ziblatt’s arguments from the get-go.

After waxing poetic about how so many racially, religiously, and politically homogenous (to an extent) countries make their democracies “fair”, Levitsky and Ziblatt go on to suggest that four things make the U.S. outdated:

• The Electoral College;

• The Senate having actual power;

• First-past-the-post elections;

• Lifetime tenure for Supreme Court Justices.

Their solution to all of this? Throwing out the Constitution and starting over. Yes, Levitsky and Ziblatt’s solution to avoiding a Republican coup is….a coup.

No word yet on how exactly the authors think they would get around the existence of the Constitution to proclaim a new one.

¹

Levitsky and Ziblatt in their article never getting around to saying exactly “what” they propose instead of the Constitution we have now. They pretty much come out in support of age limits for Supreme Court Justices, but what else? Is it abolishing the Senate? Is it the direct election of the President? Is it proportional representation? Or is this just an excuse to get people to buy their new book?

²

If that’s what they are proposing, it ends up only one way: with Gridlock. If they think that the “tyranny of the minority” is bad now, wait until they see what happens if what they seemingly propose were to come into place.

Levitsky and Ziblatt also seem to gloss over the fact that our system has not produced the chaos and disorder that you see in other countries. Britain, after all, had Prime Ministers in 45 days last year. Belgium once went 589 days without a government at all. The Weimar Republic was so disordered that Hitler came to power and created an actually evil totalitarian government.

Levitsky and Ziblatt are not creating a recipe for improvement. They are creating a recipe for disaster.

Levitsky and Ziblatt have issues with the way things are now and how the Constitution is not perfect. I could not agree more. But their solutions do not recognize that America is the most stable country in the world for the last 247 years, in large part due to the fact that we have been governed for the last 235 years by the Constitution. That the Constitution does not create radicalism or constant change is a feature, not a bug.

The authors also ignore the fact that their proposals create their own sense of tyranny. Eliminating the Senate will strip political power from less populated states and give it to larger ones. Eliminating the Electoral College strips voting power from less populated communities and gives it solely to large cities. Eliminating first-past-the-post elections will empower even more radical parties to run even more radical candidates to draw more voters.

Instead of creating a barricade against tyranny, Levitsky and Ziblatt seem to want to create one that will empower primarily big-city liberals.

Our country and our political system have its problems, no doubt. But throwing out the one thing that holds the entire country together to unilaterally implement a document that favors coastal liberal elites is a logical fallacy that would create more problems than it would solve.

1. I am very aware that this is exactly what was done when the Constitution replaced the Articles of Confederation. However, the Congress of the Confederation did vote to approve the Constitution as the new governing document and set a date under which the Constitution would come into effect. Good luck trying to figure out a way to get three-fourths of the states to pass and Amendment to the Constitution putting the Constitution out of business.

2. It’s this.