How Our Constitution Is Destroying Our Democracy

No matter where on the political spectrum you fall, you are likely unhappy with the state of American democracy. In fact, nothing seems to unite America’s divided populace more than frustration with their government. Nothing, that is, except their nearly universal reverence for their Constitution.

Oddly, Americans don’t appear to recognize a contradiction between their universal frustration with their government and their equally universal reverence for the document that establishes that government. If the government is so bad, isn’t the Constitution that establishes it likely just as bad?

Americans reconcile the contradiction by assuming that our government’s problem is that it has strayed too far from the Constitution’s core principles. If only we would get back to whatever we imagine the Constitution intended, our government would be the exceptional democracy we like to believe it is.

But what if the problem with our government isn’t that we’ve strayed from the Constitution, but that we’ve stuck with it despite its ever more apparent flaws? What if our frustration with the government really should be redirected toward the Constitution itself?

In fact, the reason government in the United States has become so dysfunctional is because it is poorly designed. The Framers of the Constitution, for all their brilliance, were inexperienced with a democracy like the one they were creating. How they presumed such a democracy would work is not how it actually works. The Constitution is built upon a flawed conception of democracy.

The primary mistake in the Framers’ thinking was their belief that faction was an existential threat to democracy. Yes, factional strife can lead to the dissolution of weak democracies. But faction is also the lifeblood of a healthy democracy. Democracy is a collective pursuit, and factions, or more accurately political parties, are essential to its proper functioning. Individuals are simply too weak to accomplish much on their own. Only by forming parties can individuals advance their shared objectives within a democratic system.

To constrain the power of factions, the Framers created a highly fragmented government. Not only do we have three independent branches of government — the legislative, executive, and judicial — but the legislature itself is split in two and all four bodies have ways to thwart, veto or override the actions of the others. A government so fractured is by nature inefficient, even to the point of dysfunction. Too many different bodies must all agree to advance legislation or policy. Even under the best of circumstances this is a rare occurrence.

But the Framers’ government is not only inefficient — it is unresponsive and unaccountable to the people. In large part this is also because of fragmentation. When power is divided, so is responsibility and accountability. If something necessary doesn’t get done or if something goes wrong, who is to blame? In the American system — unlike in a parliamentary system where the majority party or coalition is clearly in complete control of the legislative and executive functions of government — it is easy for elected officials to deflect blame onto someone else or to some other part of the government they don’t control.

Responsiveness and accountability are further limited by another feature of the Framers’ design: the fact that the different parts of the government are elected or appointed in different ways and on different schedules. In most parliamentary democracies, the entire government is chosen at once. This means that a poorly performing government can be replaced completely and quickly in a single election.

In the American system, however, Representatives are chosen every two years, Senators every six, but in staggered classes, making changing the entire Senate a slow, gradual process, and the President every four years. The Supreme Court — which plays a larger role in determining policy than is typical of courts in other democracies — is appointed and changes erratically over decades as justices retire or die. If the people are dissatisfied with the performance of their current government, there’s little they can do to change it: change simply takes far too many years.

A further limit on the responsiveness of the federal government comes from the fact that voters are not evenly represented. In the House, the district-based, first-past-the-post electoral system can give a party a quantity of seats disproportionate to the party’s support among the electorate. The problem is exacerbated in the Senate, where districts correspond to state borders and therefore are of vastly uneven size, leaving voters in less populous states better represented than those in more populous states. The Electoral College also over-represents voters in small states, but also gives voters in closely contested swing states far more influence in the selection of the President than voters in uncontested states. Of course, the Supreme Court is appointed not elected. All these distortions of representation mean that the majority may lack control of one or more of the various bodies of government necessary to advance its agenda. Not only is government fragmented, it’s also usually divided and therefore often gridlocked, with each party able to block the initiatives of the other.

There are many other flaws in the design of the American government, but one that deserves special mention is the limited domestic powers of the federal government and the ambiguous division of those powers between state and federal governments. This has always been a source of tension in the American system. The inability of the national government to assert its authority over the states is one reason a civil war was required to resolve the issue of slavery. The division of power between federal and state governments has also led to the unelected Supreme Court having an outsized influence on policy as the ambiguities of the Commerce Clause and the Tenth and Fourteenth Amendments give the Court abundant opportunity to intervene in policymaking.

The structure of the American government ensures we have a government that is fragmented, frequently divided between parties, often unrepresentative of the majority, and both unresponsive and unaccountable to the people. Ironically, rather than preventing factions, it tends to produce two — but only two — highly entrenched political parties and extremely high levels of partisanship. This is a direct result of the difficulty of a party getting anything through the government unless the party has firm control of House, Senate, and Presidency and even, in certain matters, the Supreme Court. Only the strongest parties can prevail in such a system. Parties other than the top two have no chance to hold enough seats in enough bodies of government over a long enough period of time to exert any influence at all. Even the two strongest parties struggle to secure the power they need — which is why intense partisanship between the two dominant parties has always characterized American politics. Each party must aggressively try to maximize whatever power it does have.

In addition to exacerbating partisanship, the American system corrupts the legislative process. Rather than producing clean, coherent legislation, the system generates bad compromises and produces bills loaded up with pork and special favours necessary to get the votes the bill needs to pass through both houses of Congress and secure the President’s signature. Once a bill seems likely to pass, legislators rush to load it up with unrelated items they hope can hitch a ride to passage. Donors and special interests have a field day with this process, using their access to legislators — whose power often depends more on securing funding for their campaigns than on serving the interests of the voters — to tailor the bill to their preferences.

Of course, this is what happens when legislation makes it through the obstacle course that is Congress. In many instances, legislation is so difficult to pass that the President resorts to governing by executive fiat — bypassing the legislature altogether. And of course, even if a bill passes, there’s always the possibility that a Supreme Court challenge will erase much, if not all, of what was done.

It is no wonder that Americans of all political stripes are frustrated with their government. The system is increasingly dysfunctional — and the larger and more complex the role of the federal government becomes, the more crippling the dysfunction is. At a time when good government is arguably needed more than ever, our government struggles to accomplish anything at all. What little it does accomplish is often poorly conceived, badly executed, and more likely to reflect the will of political donors than ordinary voters.

Our frustration, however, is misplaced: Our government has not corrupted our Constitutional system. Our Constitutional system has corrupted our government. Unfortunately, there is yet one more flaw in our Constitution: the Framers made it almost impossible to change. We are frustrated not just because our system of government is dysfunctional, but because we are stuck with it.