Is that what James Madison had in mind?Īnother check on democracy is the Senate, an almost comically malapportioned body that gives Wyoming’s five hundred and eighty thousand residents the same voting power as California’s thirty-nine million. Flip those states and we would have elected a man who lost the popular vote by 6.9 million. Even in 2020, when Joe Biden got seven million more votes than his opponent, he carried three states that he needed in order to win the Electoral College-Arizona, Georgia, and Pennsylvania-by a total of about a hundred thousand votes. One, obviously, is the Electoral College, which in two of the past six elections has chosen a President who did not win the popular vote. They are built into the system of government the Framers devised. Some checks on direct democracy in the United States are structural. They may also make many policies that a majority of Americans say they favor, such as a ban on assault weapons, virtually impossible to enact because of an ambiguous sentence written in an era in which pretty much the only assault weapon widely available was a musket. They underwrite a deeply rooted feature of American life, the “I have a right” syndrome. Is nude dancing covered under the First Amendment’s guarantee of the freedom of expression? (It is.) Does the Second Amendment prohibit a ban on assault weapons? (Right now, it’s anyone’s guess.) But no one proposes doing away with the first ten amendments. Americans argue about how far those commandments reach. The Bill of Rights, without which the Constitution would probably not have been ratified, is essentially a deck of counter-majoritarian trump cards, a list, directed at the federal government, of thou-shalt-nots. If we could unpack it correctly, it would show us the way. ![]() Something that Alexander Hamilton wrote in a newspaper column-the Federalist Papers are basically a collection of op-eds-is treated like a passage in the Talmud. We live in a country undergoing a severe case of ancestor worship (a symptom of insecurity and fear of the future), which is exacerbated by an absurdly unworkable and manipulable doctrine called originalism. You might think that the further we get from 1789 the easier it would be to adjust the constitutional rule book, but the opposite appears to be true. In two hundred and thirty-three years, they have been changed by amendment only nine times. (They also countenanced slavery and the disenfranchisement of women, excluding from the electorate groups whose life chances certainly might be affected by government policy.) And they made it extremely difficult to tinker with those rules. So they wrote a rule book, the Constitution, that places limits on what the government can do, regardless of what the majority wants. You can’t govern a nation by plebiscite, and true representative democracy, in which everyone who might be affected by government policy has an equal say in choosing the people who make that policy, had never been tried. It was not unreasonable for the Framers to be wary of direct democracy. Michael Kinsley’s law of scandal applies. ![]() The fundamental problem is that, as the law stands, even when the system is working the way it’s designed to work and everyone who is eligible to vote does vote, the government we get does not reflect the popular will. This is a problem, but it is not the fundamental problem. ![]() ![]() Virtually all of these “reforms” will likely make it harder for some people to vote, and thus will depress turnout-which is the not so subtle intention. In 2020, Texas limited the number of ballot-drop-off locations to one per county, insuring that Loving County, the home of fifty-seven people, has the same number of drop-off locations as Harris County, which includes Houston and has 4.7 million people. Georgia is allowing counties to eliminate voting on Sundays. In Florida, it is now illegal to offer water to someone standing in line to vote. (Trump and his allies had filed more than sixty lawsuits challenging the election results and lost all but one of them.) Last year, according to the Brennan Center for Justice, legislatures in nineteen states passed thirty-four laws imposing voting restrictions. They apparently calculate that, if fewer people had voted, Donald Trump might have carried their states. Some members of the loser’s party have concluded that a sixty-seven-per-cent turnout was too high.
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