The US Constitution is anti-democratic Any reform will enrage the demagogues

However Americans just voted, they can be in absolutely no doubt that the 2024 election was the most important ever. That, after all, is what both candidates have ceaselessly been telling them. For Kamala Harris, this is “one of the most consequential elections of our lifetime”. Donald Trump would surely not disagree. “She’s a Marxist, communist, fascist, socialist,” he’s warned about his Democratic opponent. “We must stop her country-destroying liberal agenda once and for all.”

Of course, these frantic proclamations make sense electorally: what better way of rallying the troops than monstering the enemy? Nor are they entirely wrong — whatever your politics, it’s clear that Harris and Trump represent, from economics to citizenship, two vastly different visions of the nation. Yet whatever happens over the next few days, I’d nonetheless argue that these scrambling attempts to save Americans from themselves are missing the point. For amid the ceaseless howls about guns or abortion, what everyone ignores is that our very Constitution is rotting at the roots. Until we pull it out, and start again, our democracy will continue to wither.

Until recently, Americans on both sides of the aisle wallowed in US exceptionalism, the idea that we represented the greatest democracy in the history of the world. Like most national myths, that inevitably involved some fudging. Yes, American democracy excluded a lot of people in the early days. But so did every other representative political system. Sure, America had seen its fair share of demagogues, from Huey Long to Dubya. But in the immortal words of Martin Luther King, this was also the country where the right to protest was sacred.

Seen from this angle, all that hand-wringing about our democratic discontent can feel like an aberration — or even shamefully un-American. The irony here is that these fears ignore the anti-democratic strain that’s thrived in our politics since the founding. As far back as 1776, after all, John Adams argued against expanding the franchise in his native Massachusetts, warning that it would eventually “prostrate” all ranks to a single level. Heaven forbid, Adams added for good measure, that children or even women should get the chance to vote.

Nor was he alone. In Federalist 10, for instance, James Madison rejected a “pure democracy” — by which he meant direct rule by citizens, claiming that such societies become “spectacles of turbulence and contention”. Like Adams, moreover, Madison expressed particular reservations about the dangers comprehensive democracy could pose to property. “Those who hold and those who are without property,” he says, “have ever formed distinct interests in society.” Even Thomas Jefferson, arguably the most democratic of the Founding Fathers, remained confident that there was a “natural aristocracy” which the best kind of government selected for high office.

These ideas endured long after the early republic of frock coats and periwigs vanished into history. From the mid-1820s, for instance, Vice President John C. Calhoun worried that an abolitionist populous North might one day wield excessive political power over the slaveholding South. And though these fears were clearly partly motivated by grubby sociopolitical realities — a South Carolinian, Calhoun owned some 50 slaves himself — he equally couched his concerns in the high-minded constitutional principle. In his A Disquisition on Government, for instance, he warned against the dangers of an “absolute democracy” which holds that a mere “numerical majority” should rule. This, in turn, would facilitate an egalitarian push, whereby the majority would attempt to “force the front rank back to the rear, or attempt to push forward the rear into line with the front” through the “interposition of government”.

There’s a risk, of course, of slipping into anachronism here. People in earlier centuries obviously believed plenty of things we’d disagree with now. Yet similar anti-democratic arguments have consistently reemerged into modern times. In a 1957 article, for instance, William F. Buckley argued that southerners were entitled to impose restrictions on black votes even “in areas where it does not predominate numerically” — because, Buckley claimed, whites for the time being represented “the advanced race”. In Suicide of a Superpower, published in 2011, Patrick Buchanan warned about how high levels of immigration threatened the “European” and “white” American majority. This, he explained, was because the “West worships at the altar of democracy, is deeply egalitarian, and has thrown open its doors to a Third World in which ethnonationalism is embedded”.

These days, a whole array of expressly anti-democratic thinkers have continued to carry Buckley’s torch. Adrian Vermeule makes appeals to the Nazi jurist Carl Schmitt, dismissing the alleged neutrality and toleration of liberalism and calling for an overtly theocratic politics. In Common Good Constitutionalism, Vermeule urges conservative jurists to abandon even the pretence of originalist neutrality, and simply issue decisions based on their own (reactionary) values. This may produce outcomes highly contrary to majority rule, but Vermeule doesn’t care: the “common good need not justify itself before the bar of democracy”. Not to be outdone, Peter Thiel, himself an anti-democrat, has long financed the work of Curtis Yarvin. A major influence on J.D. Vance, Yarvin argues that Edmund Burke’s swinish multitude “suck” and should be replaced by something like a monarchial CEO. Yarvin hopefully means someone less silly than Elon Musk — but he will presumably take who he can get.

This intellectual tumult is bad enough. But what’s really striking is that the Constitution’s anti-democratic legacy, traced right back to Madison and Adams, continues to have a desultory impact on American politics. Consider the Senate. The Constitution apportions senators on the basis of “state sovereignty” — a legal fiction — and guarantees that small states enjoy far more legislative heft than their larger neighbours. California and Wyoming both get two senators, despite the former having 80 times more people.

No less important, the Constitution also doesn’t guarantee any American citizen the right to vote, only preventing abridgement of an entitlement to vote on the basis of race or gender. Historically, even this thin shield has been easy to circumvent. States implemented a vast array of workarounds-literacy tests. They also restricted voting based on taxes paid — even as many freed slaves still had little or no income. Just as striking, the Supreme Court has often upheld such outrages. One example here is the infamous Williams v Mississippi case, where the court unanimously found that disenfranchising black people was actually fine.

In a sense, this is unremarkable: the judiciary has anti-democratic foundations too. Belying its reputation as a body of sober judgement, the Supreme Court has more often than not exercised that power on behalf of conservative causes even when they’re deeply unpopular. In the past few years, these have included the perennially unpopular Citizens United decision, giving corporations massive power to spend money to electioneer, and the Dobbs decision rolling backs women’s reproductive rights. As Erwin Chemerinsky has noted, meanwhile, the fact that Supreme Court judges are given life tenures thrusts a stake through the country’s democratic pretensions. “No other country in the world gives its judges life tenure,” the constitutional scholar says, “and that is for a good reason: individuals should not exercise such great power for such a long period of time.” As Chemerinsky adds, when the country was founded average life expectancy was much lower than it is now. These days, of course, you can have jurists making monumental decisions about the future of the republic well into their dotage.

Then there’s the Electoral College, despised by a majority of Americans and which has a long history of producing anti-majoritarian results, with small, rural states enjoying an outsized influence on American elections. This has twice benefitted Republicans in the 21st century, when their candidates won the 2000 and 2016 elections despite losing the popular vote. But it also nearly brought John Kerry to power in 2004, when he came very close to winning Ohio, and therefore the election, despite losing the popular vote to war criminal George W. Bush.

All this has had a profound impact on the day-to-day practicalities of American democracy. Especially when dovetailed with the Constitution’s theoretical problems — and the way that promoted a reactionary intellectual tradition from Calhoun to Yarvin — America was prevented from becoming a genuine democracy well into the Sixties. Quite aside from the sufferings of African Americans, who were habitually disenfranchised right across the South, Asian and Native Americans have also battled for their rights deep into living memory. No wonder scholars have found that many foreigners now consider the US Constitution yesterday’s news, the political equivalent of Mahler in an age of brat summers.

Turning things around will mean confronting these realities directly, recognising that saving democracy will involve expanding it — and changing the existing constitutional order to eliminate its anti-democratic features. An obvious beginning would involve moving away from the electoral college towards a directly majoritarian system. This wouldn’t be easy, with smaller states unsurprisingly resenting such a move. But it isn’t impossible: several states have already aligned with the “National Popular Vote Interstate Compact” pledging to give their electors to whoever wins the popular vote. Reforming the Supreme Court wouldn’t be simple either. But legislative reform to impose term limits, and a popular push for the court to enact a more stringent ethics code, show that change is in the air.

It goes without saying that any reform will enrage those demagogues who exploit the constitution’s weak points, gaining power against the wishes of most voters. But two centuries on from the drafting of our anti-democratic constitution, it’s finally time to hand power to the people.