How Long Can the Constitution Hide?
By Luke Pickrell
Three years ago, Daniel Lazare described how the Constitution obscures its own contradictions and evades public scrutiny while trapping the country within a rigid, inescapable “political playing field.” Since then, the Supreme Court has expanded police powers, gutted environmental protections, undermined workers’ right to strike, dismissed student debtors, and stripped away abortion rights — all while brushing aside blatant corruption involving Justice Clarence Thomas. Meanwhile, Congress shredded Biden’s once-popular Build Back Better Plan, bungled the investigation into Donald Trump, and nearly shut down the government. Biden, for his part, remains entangled with Trump and continues to bankroll Israel’s genocide of Palestinians despite overwhelming public support for a ceasefire. Small wonder Americans now view their political system with “unrelenting negativity.”
In Tyranny of the Minority: Why American Democracy Reached the Breaking Point, Steven Levitsky and Daniel Ziblatt cast a glaring light on the Constitution’s structural flaws. In their earlier work, How Democracies Die, they praised the “guardrails” of the American system — checks and balances supposedly enshrined to protect democracy. Five years later, as the rot has only deepened, they offer a far grimmer verdict: the Constitution “allows partisan minorities to routinely thwart majorities — and sometimes even govern them.” The Framers, they write, “[steered] the republic so sharply away from the Scylla of majority tyranny” that they left it vulnerable to “the Charybdis of minority rule.”
This article evaluates the strengths and weaknesses of Tyranny of the Minority. Despite its limitations, the book contributes meaningfully to a growing public reckoning with the Constitution. Americans are realizing that peace, education, healthcare, and wages — the very fabric of their lives — are determined by institutions beyond their democratic reach. The only questions are how long the Constitution can endure and what might eventually replace it.
Everything’s on Display
Tyranny of the Minority lays bare the dysfunction at the heart of U.S. political institutions. Levitsky and Ziblatt aren’t the first to criticize the Constitution, but their case is devastating. Take the Senate: the U.S. is one of only a handful of countries with a bicameral legislature where the upper chamber is both powerful and severely malapportioned. Only Argentina and Brazil are worse. But uniquely, the U.S. combines malapportionment with a minority veto — the filibuster. Nowhere else do legislative minorities so easily and routinely thwart majorities.
The math is staggering: states representing less than 20% of Americans can command a Senate majority; states representing just 11% can block legislation via filibuster. In 2016, Republicans secured a 52-seat Senate majority representing only 45% of the population. In 2018, they expanded it to 53 seats with just 48% of the vote. After 2020, the 50 Democratic senators represented 41.5 million more people than the 50 Republican senators.
The distortions don’t stop at the federal level. From 1968 to 2016, state legislatures experienced 121 instances where the party receiving fewer statewide votes still won a majority in the lower house, and 146 such cases in state senates.
This imbalance carries real-world consequences. In 2022, a Senate minority blocked voting rights legislation. In 2014, a bill to raise the minimum wage — supported by two-thirds of Americans — died in the Senate. A 2013 bill for universal background checks was filibustered by 45 senators representing just 38% of the population. Even the 1969 push to abolish the Electoral College — once considered unstoppable — was crushed by the Senate.
Supreme Court appointments reveal how undemocratic institutions reinforce each other. Presidents who lost the popular vote can nominate justices who are then confirmed by Senate minorities. This isn’t theoretical: four of today’s sitting justices — Thomas, Gorsuch, Kavanaugh, and Barrett — were confirmed by Senate majorities representing less than half the population. Three were nominated by a president who lost the popular vote. Thomas, now notorious for his ties to a billionaire Nazi memorabilia collector, was confirmed in 1991 by a 52–48 vote in which the opposing senators represented a majority.
Levitsky and Ziblatt ask us to imagine an American born in 1980 and coming of age politically in 1998 or 2000. In nearly every Senate cycle and all but one presidential election of her adult life, Democrats won the popular vote. Yet she has spent most of her life under Republican presidents, a GOP-controlled Senate, and a right-wing Supreme Court. She lived through the Afghanistan War, the 2008 crash, the rollback of abortion rights, the stalling of student debt relief — and now watches Biden bankroll a genocidal war in Gaza. How much faith should she have left in American democracy?
Minoritarian structures don’t just block popular legislation — they entrench inequality. Levitsky and Ziblatt link the rise of right-wing populism to Congress’s persistent failure to address soaring inequality. As The Washington Post notes: “Trump and the steamrolling far right didn’t get to where they are despite our revered Constitution. They got there because of it.”
Tied in Knots
Levitsky and Ziblatt define democracy as a system with regular, free, and fair elections, in which adult citizens of all ethnic groups enjoy voting rights and civil liberties. They cite Adam Przeworski’s view that “Democracy is a system in which parties lose elections.”
But this definition is shallow and insufficient. True democracy means that the majority governs. Daniel Lazare put it sharply after the Supreme Court intervened 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.
A democratic system rests on one person, one vote. Tom Paine said it plainly: “The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more.” To deny this right, Paine warned, was to reduce a person to slavery.
While the U.S. boasts certain liberties, liberties alone do not make a democracy. Universal and equal suffrage is democracy’s essence — precisely what the U.S. Constitution denies through bicameralism, unequal Senate representation, gerrymandered House districts, sweeping executive power, and judicial review. Even Levitsky and Ziblatt acknowledge that the Constitution’s minoritarian structures hollow out whatever liberties exist, making them subject to nullification.
This is why both Democrats and Republicans, for all their bickering, remain loyal to the Constitution’s minoritarian architecture — bicameralism, a malapportioned Senate, and unelected federal judges — at its core.
After presenting a convincing case for American oligarchy, Levitsky and Ziblatt propose three paths to “democratize our democracy.” First, Democrats and “loyal Republicans” could unite against Trump, though the authors admit this alliance would quickly lose legitimacy. Second, they suggest challenging Trump through Section Three of the 14th Amendment and banning “anti-constitutional” speech and parties — an option they find too dangerous. Third, they propose constitutional amendments to guarantee voting rights, abolish the filibuster and the Electoral College, reform Senate representation, and establish Supreme Court term limits.
The fatal flaw in all three strategies is their reliance on changing the Constitution through the Constitution. Out of more than 11,800 proposed amendments, only 27 have succeeded. Amending Senate representation would require amending Article V itself, which requires unanimous state consent — a political impossibility. Similarly, abolishing the Electoral College would require many small states to vote against their own inflated power. As Lazare notes, while the Supreme Court has insisted since Baker v. Carr (1962) that “one person, one vote” must prevail at the state level, the Constitution bars it at the federal level.
Another flaw is the authors’ naive belief that the Democratic Party will lead the democratic movement. In truth, Democrats are just as committed to the current system as Republicans. They have consistently refused to challenge the Constitution’s minoritarian foundations — and in doing so, helped pave the way for Trump’s rise.
The idea that the Constitution can fix itself only reinforces its legitimacy. Instead of clinging to the past, we need to escape the Constitution’s playing field altogether. We should fight for a new system: a single, proportionally elected body chosen through universal and equal suffrage. We need a constituent assembly, not a constitutional convention dominated by states’ rights, to finally enshrine one person, one vote.
The Road Ahead
Joe Biden and the Democratic Party will ride into November under the banner of the Constitution, with the voice of Nancy Pelosi — who during Trump’s impeachment gushed that he was “undermining the beautiful, exquisite, brilliant, genius of the Constitution” — echoing in their ears.
Biden speaks the language of democracy. He claims that it “makes all things possible” and is “the rule of the people.” But like Levitsky and Ziblatt, Biden’s vision of democracy is deformed because it is confined by, and defined by, the existing Constitution.
Biden’s democracy cannot halt Trump or solve the country’s mounting crises, because it never questions the system’s minoritarian foundations.
While Biden’s conception of democracy is petrified, Levitsky and Ziblatt show signs of evolution. Years ago, The Economist called How Democracies Die the “most important work of the Trump era.” Barack Obama listed it as a favorite book. 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.”
But 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 completely outside the parameters drawn by the Framers in 1787.