The only thing Madison feared more than tyranny of the majority was tyranny of the minority. Madison wrote the bill of rights to address the former. He wanted to ensure that 50 percent plus 1 could not trample over the rights of individuals. He did a lot less to combat the latter, assuming minority factions would simply be outvoted. If he were alive today, he would wish that he had.
A tyrannical minority is currently ruling us, and most of us are not even aware of it. It is not a large minority, either. It is not some activated 40 or 45 percent that has swung politics in its favor. Nor is it a particularly well organized minority, using crafty tactics to gain an out weighted voice in political decision-making. It is a tiny minority that is hardly even alert to its influence. I am also not talking about the wealthy class of donors, though their funding is key.
Let us consider the Senate. To be fair, the Senate was designed to be an elite institution. The whole shtick of the Senate is its imperturbability in the face of a whimsical public. Because each state elects exactly two Senators and only one-third are up for reelection in any given cycle, it is supposed to be the more serious and contemplative of the two houses. Before the 17th amendment, of course, it was even less Democratic as state legislatures chose their Senators rather than the people.
The other purpose of the Senate, besides deliberation and measured politics, is to give equal voice to all states. California has a population of 39.5 million people. North Dakota’s population is around 500,000. Both have the same number of Senators. The founders clearly never envisioned such an uneven distribution of the population. Cities where hardly even a factor in 1789 save Philadelphia, New York, and Boston. The important political unit was the state. They wanted to empower states that had a population one-half or maybe one-third the population of the largest state. It is hard to think they would have given the same nod to a state having the same representation in the Senate as another with more than 78 times its population.
This, of course, greatly advantages the rural states, which have small populations and vote reliably Republican. Fifty-one members of the United States Senate represent these rural areas, which make up 18 percent of the population. The other 49 Senators, who are much more likely to represent blue states, make up the other 82 percent of the population. Each decision that the Senate makes, even if it passes by a 51-vote threshold of Senators elected by less than one-fifth of the population, is the law of the land and must be abided by. This is the textbook definition of tyranny of the minority.
However, one might contend, that is why we have the House of Representatives as a check. It is the people’s house and a bill cannot pass unless it goes through both. There are two glaring problems with this line of argument. First, the Senate has unique and superior powers, and those responsibilities do not go through the House. The advise and consent role for all federal judiciary vacancies lies solely with the Senate. That means they are designing the third branch of government without input from the House. They also approve all Presidential cabinet nominations. This helps determine vast policy decisions related to economics, energy, and the environment. The House, again, has no say.
The second issue with considering the House a check and balance on the undemocratic Senate is gerrymandering. Since 2010, the House has been gerrymandered to favor Republicans by an estimated 6 percentage points. 83.2 million voters turned out to vote in the 2014 midterms. If turnout is the same in 2018, this means that Democrats could win the overall House vote by 4.99 million votes and still be expected to lose the House majority. If no district in the country was gerrymandered, Democrats would be virtually certain to take back the House by a huge margin. Virtually everyone agrees gerrymandering is deeply undemocratic and a perversion of popular rule.
What about the Presidency? When we reach the year 2020, a republican President will have served 12 years in the White House during the 21st century. Yet, those Presidents will have only won a single 4 year term by the popular will of the people. Thus, if we truly elected the President in a democratic fashion, a Democrat would have served for 16 of those years. Instead, they have served for 8 years. This is beginning to look like the norm rather than the exception. This envisages a dim future, wherein Democrats could continue to win the popular vote in every election cycle while a Republican President continues to be elected. The Electoral College was not a system designed to ensure an equal voice in Presidential elections, as many of its defenders continue to claim. It was a compromise with the Southern states, in the same vein as the three-fifths compromise, to count slaves towards their Presidential vote. Slaves made up 40 percent of the population of Virginia, for example, and of them Madison said the following:
“There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.”
We appear to be in the midst of an institutional crisis. Polling has consistently shown a precipitous drop in public trust in all three branches of government. Political scientists continue to write papers ad nauseam about the causes of this disillusionment. What they are missing is right in front of their eyes. The public is right! These institutions do not deserve our trust. The House is gerrymandered such that Democrats have to overcome margins of 5 million votes. If Democrats win back state houses in 2020, it will swing in the opposite direction, perhaps irreversibly considering there are more Democrats in the country than Republicans. The Senate is nakedly undemocratic to the point of not even meeting a generous interpretation of a republican institution. The President is elected by a sham Electoral College originally designed to protect the institution of slavery. The plainly illiberal Senate advises and consents with the plainly undemocratically elected President to determine who gets to sit on the unelected federal courts.
The concerns laid out above are largely concerned with domestic politics. When it comes to foreign affairs, the issue is even worse. Congress is tasked with declaring war and treaty making in Article I of the constitution. It has completely abdicated its responsibilities in war to the executive such that the President could declare war on Mexico tomorrow and nothing would stop him. Fast-track authority gives the President broad power to design trade deals and determine the direction of international commerce as he pleases. This leaves Congress as little more than a rubber stamp for some of the most important decisions we make as a country, giving the general population virtually no say in foreign affairs.
The opinion polling makes the fundamental unrepresentative nature of our political institutions clear. Americans are largely anti-war and certainly anti-interventionism. We support universal background checks at a rate around 90 percent. Around three-fourths of the country is pro-choice. We don’t want money in politics, support universal healthcare by a comfortable margin, want paid family leave and an increased minimum wage, support the legalization of recreational marijuana, back free college tuition at public universities, and oppose cutting taxes for the wealthy. Every issue I listed above polls above 60 percent in the year 2018 according to Gallup, a strong majority in a partisan age. Yet, shockingly, we see exactly zero of these policy outcomes come to fruition. The idea that our system is fundamentally democratic, or even a representative republic if you want to get technical, is laughable. Our system serves the few. The same few, in fact, who have shaped our institutions such that they have to convince the smallest number of people possible. I will reiterate 51 Senators represent 18 percent of the population.
As politicians and pundits stroke their chins over why the public is so angry and distrustful of American political institutions, they should look in the mirror. We have a system that is fundamentally corrupt and profoundly non-democratic. The media plays dumb, or in some cases legitimately buys into its own hype, in pretending that our institutions are legitimate. Both sides understand this and express it in different ways. The right justifiably blames Hillary Clinton and the crooked liberal establishment that has enshrined such an awful system. The left justifiably blames Donald Trump and the right wing propagandists who have blamed minority populations and the very idea of government for a corruption that has been cultivated and instituted by the same billionaires they say are the good guys.
Neither side is wrong except for the fact that they blame their neighbors for picking a side as if they have anything to do with this mess. This is perhaps the crowning achievement of the political class. They have us spending our time fighting with each other over a system that both hate and neither benefits from. Besides the literal lack of democracy in all of our major political institutions, this is another form of how democracy is undermined. Noam Chomsky once defined this concept quite succinctly.
“The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion, but allow very lively debate within that spectrum.”
We can see this in our national dialogue. The debate over Brett Kavanaugh became a sort of referendum on the #MeToo movement. This resulted from Democrats failing to convince the American people the Kavanaugh did not represent their politics. In a truly democratic system and uncorrupted system, Kavanaugh would never have been nominated, let alone placed on the court. He is far to the right of the American public on all the major issues. His record on guns, abortion, Presidential power, marijuana, and campaign finance just to name a small selection of issues, is way outside of the mainstream of even the Republican base. 71 percent of Americans believe the Roe v Wade should remain the law of the land, including 52 percent of Republican voters. I am, of course, not saying that Dr. Ford’s credible allegations of sexual assault against Mr. Kavanaugh were not extremely important, they certainly were. That said Kavanaugh should have never even been a consideration in the first place for his extremist judicial agenda. In a political system where people’s views were fairly represented, he certainly would not have been.
Let us recap. We have a Senate that can garner a majority by representing 18% of the population. We have a House of Representatives that is gerrymandered to give Republicans a 6-point advantage. We have a Presidency that is not determined by the popular vote. We have a nakedly partisan court system and a foreign policy that is unaccountable to the people. In the midst of all of this, our media pretends this is all a legitimate system and frames the debate narrowly and irresponsibly. It is a tyranny of the minority, and it is a ruse.
These are the institutions we are supposed to think are legitimate? This is a system we’re supposed to trust?