Is it fair to brand the U.S Constitution ‘anti-democratic’?

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Photograph: 'Statue of Liberty'/ Pexels

As citizens from around the globe are aware, the U.S Constitution is a document that Americans hold close to their heart. Indeed, it is, of course, the fundamental implement of American government, the beacon of U.S democracy.

The journey of the Constitution began over two centuries ago in Philadelphia. After four, tiring months in the summer of 1787, the eventual framers would conclude that the Confederacy, which had witnessed years of ineffective government, was structurally flawed. But of course, at this time there were still fears of an overly-repressive government that would rule at the expense of the states’ rights. 

The solution? A federal constitution, a bill of rights and a complex system of checks and balances to regulate the three established branches of government. 

Since that ‘Miracle of Philadelphia’, the US Constitution has, over the years,  proven to possess the features that encourage democracy. In order to protect the right to life, liberty, and property from the “grips of human depravity” the framers established a system of checks and balances. This would restrain the three branches and prevent a tyranny of the majority from coming to fruition. However, as the frequent disproportionality of the Electoral College demonstrates, there is justification to brand the US Constitution is largely anti-democratic.

One reason as to why the US Constitution can be viewed as anti-democratic is because it often allows for the system of checks and balances to operate to such an extent that the views of the citizenry cannot be effectively represented in Government. This has been more than apparent with the DREAM Act, which has the support of some 91% of Hispanics in the country and 54% of America as a whole but has never passed. This is largely due to Republican filibusters in the Senate which have prevented the bill from passing. The extensive checks granted by the Constitution have often meant that a bill, even despite being supported by a minority group, cannot pass due to the partisanship the process encourages. Therefore, the Constitution has produced a fairly anti-democratic form of government because the bills that the population elects their representatives to fulfill do not actually pass.

However, whilst this is true, it can be said that the extensive checks and balances made by the three branches of government actually result in increased democracy, as when one branch in promoting an un-democratic agenda, then the other can counter that. For instance, Congress had passed the Defence of Marriage Act (DOMA) in 1996, which retained the view that marriage was only between a man and woman. This arguably gave homosexual couples less importance in a democracy than heterosexual couples.  So when (DOMA) was overturned by Obergefell v Hodges in 2015 this arguably enhanced democracy because it increased the rights of Homosexuals, something liberals would argue is an important component of a modern liberal democracy.

Yet, the very nature of the Supreme Court is undemocratic.  It is made up of appointments made by the executive branch, and not of persons elected by the people.  Furthermore, the Court gave itself the controversial privilege of judicial review in Marbury v Madison which allows justices to strike down legislation even if it has been voted for in states.  This has led to many undemocratic decisions such as Plessy v Ferguson where the principle ‘Separate but Equal’ was upheld. 

A feature established by the Constitution is the use of the Electoral College system of voting. However, this form of electing the President is hugely undemocratic in the ways that it disadvantages third parties and can even result in the Presidential candidate, not with the popular vote winning. On four occasions a President has been elected without winning the popular vote. Indeed, Donald Trump won the United States presidency with 290 votes in the electoral college. Yet, Hillary Clinton won the popular vote with 62,568,373 votes, as of opposed to the Mr. Trump’s 61,336,159. The Electoral College was designed to favour. Because the Constitution allows for such an undemocratic way of electing a president it is surely fair to judge it as anti-democratic.  

However, it has been argued that the Electoral College system allows for a better form of government as it provides the incumbent with a clear mandate to govern.  This is because it allows for a two-horse race. In 2008, when Obama won the presidential election against McCain this gave him a clear mandate to implement his Affordable Healthcare Act and Economic Stimulus Package.  If he had not won the electoral college vote then perhaps his mandate to do this would be lessened.  

However, this is a vague argument, and it is clear that the constitution does not provide a very democratic way of electing a president. For instance, in Minnesota in 2012, Obama won 1.5 million of the popular vote, Romney won 1.3 million. Obama took all 9 of the Electoral College Votes (ECVs) from the state.  This is clearly a wholly distorted and undemocratic way to proportion the ECVs.  

The final feature of the constitution which highlights just how undemocratic it is, is the fact that it ridiculously hard to amend.  The need for a supermajority of 2/3rds of Congress or 2/3rds of the State Legislators in order to propose an amendment makes the likelihood of an amendment unlikely.  Since 1781, there have been just 27 amendments.  The first ten being the Bill of Rights just 10 years after the Constitution was written. The difficulty in amending the Constitution, surely emphasizes its nature as anti-democratic. After all, as B.R Ambedkar famously remarked a “Constitution is not a mere lawyers document, it is a vehicle of Life, and its spirit is always the spirit of Age because it makes it hard for values to change as society changes”. Yet, arguably this is the one area where the U.S founding document falls short. 

Overall, whilst the Constitution certainly exhibits features that do promote democracy, elements such as the Electoral College and role of the Supreme Court foreground that it is largely anti-democratic.

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Oliver Murphy 24 Articles
Oliver is currently an A-Level Politics student. He is also a contributory writer, campaigner for MakeVotesMatter and Media Manager for DARROW. His work focuses on British politics, contemporary political events and European politics. Supplementing this is a passion for Literature and History.

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