How Long Can the Constitution Hide?

Luke Pickrell reviews Steven Levitsky and Daniel Ziblatt’s Tyranny of the Minority: Why American Democracy Reached the Breaking Point.

Jan 05, 2024

Photo by David De Hart

Luke Pickrell

Three years ago, Daniel Lazare wrote an article in Cosmonaut about the U.S. Constitution's uncanny ability to obscure its contradictions and avoid public scrutiny while creating an inescapable “political playing field.”¹ But ideas can change quickly. Since Lazare’s article, the Supreme Court has expanded police powers,² gutted environmental protections,³ undermined workers’ ability to strike,⁴ dismissed student debtors, and attacked abortion access — all while shrugging off instances of blatant corruption involving Justice Clarence Thomas. Congress has eviscerated Biden’s popular Build Back Better Plan, botched the investigation of Donald Trump, and nearly shut down the government. Biden, meanwhile, can’t shake Trump and continues to enable Israel’s genocide of Palestinians despite widespread support for a ceasefire. Everything considered, it’s little surprise that Americans have an “unrelentingly negative” view of the political landscape.⁵

A new book by Steven Levitsky and Daniel Ziblatt, Tyranny of the Minority: Why American Democracy Reached the Breaking Point,⁶ sheds light on the Constitution’s shortcomings. In their last book, Levitsky and Ziblatt lauded the “guardrails” of American democracy as embodied in the Constitution’s checks and balances. But the rot at the heart of American politics has spread over the past five years. The two Harvard professors now bemoan how the Constitution “allows partisan minorities to routinely thwart majorities, and sometimes even govern them.”⁷ They conclude that the Framers “[Steered] the republic so sharply away from the Scylla of majority tyranny” that the country was left “vulnerable to the Charybdis of minority rule.”⁸

This article discusses some of the strengths and weaknesses of Tyranny of the Minority. Despite its flaws, the book contributes to the ongoing process of political activation around the Constitution. Peace, education, healthcare, wages - the vast majority of Americans don’t have a say in the decisions that impact their lives, and many people are starting to notice. The only question is how long the current Constitution will exist and what will take its place.

Everything’s on Display

Tyranny of the Minority puts most of what’s rotten about America’s political institutions on full display. Levitsky and Ziblatt aren’t the first to critique the Constitution,⁹ but the facts they present are damming nonetheless. Consider the Senate. America is one of only a few countries that “retains a bicameral legislature with a powerful upper chamber, and it is one of an even smaller number of democracies in which a powerful upper chamber is severely malapportioned due to the ‘equal representation of unequal states’ (only Argentina and Brazil are worse). Most importantly, it is the world’s only democracy with both a strong, malapportioned Senate and a legislative minority veto (the filibuster). In no other democracy do legislative minorities routinely and permanently thwart legislative majorities.”¹⁰ Our Senate allows states representing less than 20 percent of the population to produce a majority, and states representing 11 percent can kill legislation with a filibuster.¹¹

Often, the party representing a minority of the population wins a majority of Senate seats, as in the 2016 election when Republicans won a fifty-two-seat majority with senators representing only 45 percent of Americans.¹² In 2018, note Levitsky and Ziblatt, “the GOP won a fifty-three-seat majority, but again, its senators represented only a minority (48 percent) of Americans. After the 2020 election, which left the Senate evenly split, the fifty Democratic senators represented 55 percent of Americans — 41.5 million more people than the fifty Republican senators.”¹³ The same problems play out at the state level. “Between 1968 and 2016,” Levitsky and Ziblatt explain, “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.”¹⁴

The malapportioned Senate, in which each state gets two representatives regardless of population, allows a minority of the population to stop laws supported by the majority. In 2022, a minority in the Senate blocked the highly regarded Voting Rights Act. A 2014 bill to raise the minimum wage, supported by two-thirds of Americans, died in the Senate, while a popular 2013 universal background check bill was filibustered to death by 45 senators representing only 38 percent of the population. A 1969 drive to abolish the Electoral College “seemed unstoppable” until it ran into — you guessed it — the Senate.¹⁵

The selection of Supreme Court Justices who “may be nominated by presidents who lost the popular vote and confirmed by Senate majorities that represent only a minority of Americans”¹⁶ demonstrates the compounding nature of America’s undemocratic institutions. Such a scenario isn’t hypothetical, as “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.”¹⁷ Clarence Thomas, the subject of recent scandals involving a billionaire collector of Nazi memorabilia, became a lifetime Justice in 1991 with a 52-48 confirmation vote in which the 48 senators voting against him represented 52 percent of the population.¹⁸

America’s undemocratic institutions have vast consequences. “Imagine an American born in 1980 who first voted in 1998 or 2000,” propose Levitsky and Ziblatt: “The Democrats would have won the popular vote in every six-year cycle in the U.S. Senate and all but one presidential election during her adult lifetime. And yet she would have lived most of her adult life under Republican presidents, a Republican-controlled Senate, and a Supreme Court dominated by Republican appointees. How much faith should she have in our democracy?”¹⁹ This anonymous American would also have spent twenty years of her life under the shadow of the War in Afghanistan, suffered through the 2007-08 financial crisis, watched the Supreme Court overturn abortion access and block a tepid plan for student loan forgiveness, and perhaps have read about Biden’s attempt to fund Israel’s genocide of Palestinians in secret.²⁰ How much faith, indeed.

Importantly, Levitsky and Ziblatt point out how “rules enabling legislative minorities to routinely ignore the will of the majority are a powerful contributing factor”²¹ to the rise of inequality. The authors also note the connection between “radical right-wing populism in the United States'' and “the persistent failure to address problems of stagnating incomes and rising inequality.”²² In other words, the Constitution enables the far-right by blocking popular legislation to reduce inequality — a reality that throws a wrench into the idea of defeating Trump by uplifting the existing Constitution. “Trump and the steamrolling far right didn’t get to where they are despite our revered Constitution,” writes the Washington Post in its review of the book: “They got there because of it.”²³

Tied in Knots

Levitsky and Ziblatt define democracy as a “political system with regular, free, and fair elections in which adult citizens of all ethnic groups possess the right to vote and basic civil liberties such as freedom of speech, the press, assembly, and association.”²⁴ They include Adam Przeworski’s assertion that “Democracy is a system in which parties lose elections.”²⁵ But this is an impoverished and entirely insufficient definition. A democratic system is one in which the majority makes the laws. Daniel Lazare said it well in the aftermath of the Supreme Court’s infamous decision in Bush v. Gore: “Modern democracies must be understood first and foremost in terms of the positive freedom of the people as a whole to exert effective control over the whole of society. A people’s freedom to reshape their entire environment is the freedom on which all others rest. Yet a society in which an unelected judiciary lightly tosses aside the results of a popular election because it would take too much time to tally up all the votes is one in which the people’s impotence is all too apparent.”²⁶A democratic system is based on one person, one vote. In the memorable words of Thomas Paine, “The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives”; and, “To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.”²⁷

Certain freedoms and liberties exist in the United States, but freedoms and liberties don’t make a democracy. Instead, universal and equal suffrage is the essence of democracy — precisely what’s denied by a Constitution based around a bicameral legislature, unequal suffrage in the Senate, gerrymandering in House districts, immense executive powers, and judicial supremacy. By the authors’ admittance, the Constitution's numerous minoritarian checks distort what freedoms and liberties exist and render them subject to dismissal. It’s for this reason that Democrats and Republicans, quibble as they may over this or that issue, will always protect the hardwired components of the Constitution like bicameralism, a malapportioned Senate, and unelected federal judges and Supreme Court Justices.

Having presented a convincing case for American oligarchy, Levitsky and Ziblatt conclude with three proposals to “democratize our democracy.”²⁸ The first option is for Democrats and loyal Republicans to team up against Trump. However, the authors conclude this tactic could only be temporary and would soon lose public legitimacy. The second option is to challenge Trump head-on through Section Three of the 14th Amendment and ban “anti-constitutional” speech, groups, and parties. Yet, Levitsky and Ziblatt decide this option is too dangerous. The third option is to amend the Constitution through Article V to guarantee the right to vote, end the filibuster, abolish the Electoral College, establish proportional representation in the Senate, establish term limits for Supreme Court Justices, and eliminate the requirement that three-quarters of state legislatures ratify any proposed amendment.

The decisive flaw in all three proposals is the attempt to change the Constitution through the Constitution. A mere 27 of the 11,848 attempts to amend the Constitution have succeeded.²⁹ One of the authors’ (mild) proposals, allocating Senate seats proportional to a state’s population, would require amending Article V, which says that a state must “consent” to being denied equal representation in the Senate. The Electoral College multiplies the political power in the least populous states, and its abolition through Article V would thus require well more than 13 states (the minimum needed to veto an amendment) to decide against their interests. “Consequently,” explains Lazare, “small states that are overwhelmingly rural and white can be counted on to block any changes that would place their citizens on an equal footing with those in large states that are urban and multiracial. Although the Supreme Court has repeatedly declared since Baker v. Carr in 1962 that one person-one vote must prevail at the state and local level, the Constitution effectively bars it at the federal.”³⁰ A compounding flaw is the authors’ assumption that the Democratic Party will lead the movement for change. With so much attention placed on Trump and the Republicans, it’s easy to forget that the Democrats are also opponents of democracy and largely to blame for the rise of the far-right because they refuse to push for a democratic Constitution.

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The idea that the Constitution can fix itself reinforces the document’s legitimacy. Instead of clinging ever-tighter to laws made in the past, we need to think outside the Constitution’s playing field. We need a political movement for a single House of Representatives elected through universal and equal suffrage. We should agitate for a constituent assembly based on universal and equal suffrage, not a Constitutional convention based on states’ rights and the denial of one person, one vote. No minoritarian checks would mean no minoritarian power.

The Road Ahead

Joe Biden and the Democratic Party will ride toward November under the banner of the Constitution and with the voice of Nancy Pelosi during Trump’s impeachment proceedings — “He's undermining the beautiful, exquisite, brilliant, genius of the Constitution”³¹ — ringing in their ears. Biden speaks some of the language of democracy. He is correct that democracy “makes all things possible” and “means the rule of the people, not rule of monarchs, not rule of the monied, not rule of the mighty.”³² But like Levitsky and Ziblatt, Biden’s conception of democracy is distorted, partial, and false because it is confined within and defined by the parameters of the Constitution. Biden’s “democracy” is unable to stop the growth of the far-right or solve the country and the world’s most pressing issues because it doesn’t call into question the minoritarian foundation of the Constitution.

While Biden’s conception of democracy is petrified, Levitsky and Ziblatt show signs of evolution. Five years ago, The Economist called How Democracies Die the “most important work of the Trump era.”³³ Barack Obama listed it as a favorite book.³⁴ As Lazare explains, the work was well received “because it told good people what they wanted to hear, which is that they’re right, the system is sound, and everything was fine until a human wrecking ball showed up in the form of Donald Trump.”³⁵But Levitsky and Ziblatt have shifted away from a critique of American politics focused on individual choice and whether or not someone plays by the rules. Tyranny of the Minority presents the facts and asks us to question the rules themselves. Changing one’s mind can be difficult, and the authors deserve praise for their intellectual honesty. Still, Levitsky and Ziblatt botch the landing. Their conclusion is too tame and doesn't measure up to the analysis they provide. Tyranny of the Minority is valuable for its damming portrayal of the Constitution and as a historical marker in the ideological development of its two authors. However, the solution to our woes lies outside the parameters drawn by the Framers in 1787. We need a democratic Constitution and have it in our power to make that necessity a reality.

Luke Pickrell is a member of Marxist Unity Group, a caucus in Democratic Socialists of America. He is the lead writer and co-editor at the Democratic Constitution Blog. You can find more of his work at Cosmonautmag.com

The Democratic Constitution Blog

How Long Can the Constitution Hide?

Luke Pickrell reviews Steven Levitsky and Daniel Ziblatt’s Tyranny of the Minority: Why American Democracy Reached the Breaking Point.

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