I am presently reading Robert A. Dahl's "How Democratic is the American Constitution?" So far he has mixed several worthwhile critiques with a number of breathtaking sophistries. Being only on page 20, I cannot judge the whole work; but Dahl has already listed the chief features of the Constitution that are, by his reckoning, undemocratic:
1. Allowance of slavery, particularly the inclusion of the Fugitive Slave laws.
2. Limiting the franchise to males, not including blacks or American Indians.
3. Election of the president by an appointed Electoral College, beholden neither to the people or to Congress.
4. Senators selected by their state legislatures, not the people.
5. Equal representation by state in the Senate, not by population.
6. Failure to limit judicial power, particularly in regard to "judicial legislation" or judicial activism.
7. Limitations of Congressional power, particularly "prevent[ing] the federal government from... controlling the economy".
Dahl sweepingly declares that these flaws should keep us from thinking of the Constitution as "Holy Writ," but rather as a useful starting point. But he belittles a number of factors in his analysis. First, that mechanisms were put in place to amend the Constitution, in large part to correct the several poor compromises that were forced into the original document—for example, slavery. His first two objections, slavery and a limited franchise, were corrected by constitutional amendments, precisely as called for.
Second, that the states had mechanisms of their own to make the process more democratic, if they wished. And indeed, today almost every state has elected senators and Electoral-College delegates who are bound by the majority vote of their state. This process originated from the states themselves, with no meddling necessary from the Federal government.
Third, Dahl assumes as a given that the argument for equal representation by state has no merit. He does not bother stating his reasoning, other than to quote Hamilton who decried the additional power held by citizens of smaller states over citizens of larger ones in the Senate. Yet there is a sound basis for this, which Hamilton adamantly opposed. That is, that the different states are not merely bureaucratic subdivisions of government intended for more efficient administration, but political entities in their own right, with equal standing amongst each other and equal involvement in the Federal level.
Indeed, it is for that reason that the much-maligned Electoral College is set up as it is, so that sparsely-populated states cannot be ignored by would-be presidents, in favor of the larger states only. This is particularly urgent today, when the bulk of the population can be found in California, New York, Florida, and Texas. If the other states did not have a certain level of political power, their social integrity would be badly compromised and much of their citizens would move into the more heavily-populated states. Our present system permits the smaller states to exist as distinct entities, with their own cultures and agendas.
Of course, Dahl is a populist at heart. And though he magnanimously declares that "I do not believe that constitutional framers today would or should attempt to dissolve the existing states", he also says that "…how power is shared between the federal government and the states will persist as a subject of endless dispute." In other words, he is content that the states should exist in a mostly ceremonial function, bereft of most of their powers which would naturally pass to the federal level. This ties in very well with his economic ideas, which will be dealt with below.
The fourth factor that Dahl ignores is that the judicial activism that he deplores was not a product of anything in the Constitution, except perhaps for insufficient requirements for demonstrating a law to be unconstitutional. Rather, judicial activism mostly arose in the face of an executive and legislature unwilling to demand that the judges be held to reasonable standards. In large part this was by design; government has always wanted to disregard the strictures placed upon it. In the infamous words of Franklin Roosevelt, "The Constitution is an obstacle to be overcome." If judges do not have to conform to strict guidelines on what is genuinely unconstitutional, then they can ignore improper laws just as easily as they can malign proper laws. Note the evisceration of the Second, Fourth, and Tenth Amendments, and compare with the invention out of whole cloth of a supposed constitutional right to abortion.
Finally, Dahl astonishingly seems to equate the concentration of economic power and authority in a central government with democracy. He makes little effort to disguise this: "Without the power to tax incomes, for example, fiscal policy, not to say measures like Social Security, would be impossible." Forgive me if I do not appreciate the vast horror of such a predicament. One could argue with varying degrees of success that the Federal government needed more authority than was granted to it in order to function well; but Dahl conflates such an argument with that of the Constitution's supposed undemocratic nature. Central power is only democratic in the sense that the Hutu massacre of the Tutsis of Rwanda was democratic: it has the support of the majority of the people, with no check on what they can do to the minority.
So far, Dahl is arguing quite cleverly for replacing the Constitution with a system closer to mob rule. Just how much closer I do not yet know, but I am not hopeful. Dahl repeatedly notes that we are the only democracy with the particular structures that we have, and asks why that is so. What he does not ask is why the United States is one of the few remaining democracies that strongly respect the rights of the individual.
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