CSDS POLICY BRIEF • 25/2023
By Michael J. Williams
- The counter-majoritarian disposition of the United States (US) Constitution is leading to decreasing political legitimacy and dysfunction.
- Even if majorities of voters want to see a strong US in the world, there is no guarantee that the majority view will prevail.
- Friends and allies should consider how they would provide for security if the US were to succumb to internal political dysfunction in the next decade.
Since February 2022, the Biden Administration has done an admirable job of renewing American leadership and rallying support for Ukraine. It has overseen further NATO enlargement and thwarted Russia’s imperial ambitions, greatly reducing the power of the Russian military along the way. President Biden is fond of saying: ‘America is back. Diplomacy is back at the center of our foreign policy’. But allies should be wary, and not simply because a different president may pursue different policies – that is par for the course in a democracy. More problematic are the serious democratic deficits of a constitutional system in need of reform. Normally, one could look to the elected elite and public polling to gauge views and support for specific foreign policies, but this is increasingly not the case in the US. The American system of government is chronically crippled and in need of dire evolution. With no such possibility on the horizon, it is dangerous to assume that Washington will remain the reliable ally Europe wants or needs in the coming years. Constitutional change is possible: however, Europeans should hope for the best while preparing for the worst.
The current government shutdown is emblematic of this challenge. Majorities in both the House and the Senate would pass the required legislation, but in the Republican controlled House, the speaker is hamstrung by the “House Freedom Caucus”, which is made up of the most conservative members of the House Republican Conference. The House Freedom Caucus holds 45 seats of the 435 in Congress, but it controls the entire agenda because of concessions Kevin McCarthy made to the far-right wing of his party during his arduous vote to become speaker. The speaker could bring the bills to the floor and easily pass the legislation with overwhelming bipartisan support from mainline Republicans and Democrats, but his speakership will end. And here, in a nutshell, is the problem facing the US today: the tyranny of the minority.
The tyranny of the minority is rooted in the US Constitution, once an exceptional document of self-governance, but one that is no longer a democratic trailblazer. The constitution, as written, is biased against the majority and delivers tremendous advantage to radical minorities The threat to the country is best captured in Steven Levitsky and Daniel Ziblatt’s latest book: Tyranny of the Minority: Why American Democracy Reached the Breaking Point. The Founders were so worried about a concentration of power leading to dictatorship, that they made it very difficult to amend the constitution or pass new laws – thus giving the minority exceptional power. Other constitutions were similarly written – Norway is one case in point – but over time those constitutions have been amended, allowing those nations to grow. But not so in Washington. As Levitsky and Ziblatt put it ‘by steering the republic so sharply away from the Scylla of majority tyranny, America’s founders left it vulnerable to the Charybdis of minority rule’. Built on a mountain of comparative research into democratic political systems, and earlier work on authoritarianism and political change in Europe, this book is a wakeup call for Americans, but it should also be a warning for allies abroad. This Policy Brief shows why.
The counter-majoritarian tendences in the constitution make effective governance of the country increasingly difficult and undermine public faith. The most obvious of democratic deficits to people overseas is the use of the “electoral college”. America is the only country in the world where the president can be elected against the actual majority vote. Since 1992, Republicans have been elected to the Oval Office three times, but on only one occasion did they win a majority of votes cast by citizens. In the last eight presidential elections, voters have gone for the Democrats seven times. In 2016, 2.8 million more votes were cast for Hillary Clinton than for Donald Trump. The democratic deficit of the electoral college, which is a vestige of slavery, has been recognised as a problem for decades. After a series of close elections in the 1960s, where it seemed one could win the presidency without winning the popular vote, there was a serious push to eliminate it. Around 81% of the public supported the move and 30 state legislatures were ready to pass it – change was within reach, but it died in the Senate. The bill was re-introduced in 1971, 1973, 1975 and 1977 to no avail. That the bill died in the Senate is not surprising, as the entire institution is counter-majoritarian.
The US Senate is one of only three upper chambers of a legislature in the world that is malapportioned in the name of ‘equal representation of unequal states’. The Senate also has a minority veto called the filibuster. The filibuster requires 60 votes to pass legislation, rather than a simple majority – the filibuster that killed electoral college reform. The US is exceptional in this regard. There is no other democracy where legislative minorities systemically obstruct the elected majority. Hundreds of nominations for military officers are currently being blocked by one Senator – Tommy Tuberville (R-Alabama) – in protest at Pentagon policy that reimburses service members for abortions. Tuberville is not supported by the voters, 64% of which do not think the nominations should be blocked. Since 2000, Senate Republicans have not once represented a majority of citizens. This will only worsen. Studies indicate that by 2014, because of increasing urbanisation, two-thirds of Americans will be represented by only 30% of the Senate and they will be disenfranchised further due to the electoral college. Senate Republicans last represented a majority of the population in 1996, but they have held the majority of Senate seats in seven out of the 12 congresses since. The malapportioned nature of the Senate and the undemocratic electoral college then conspire with a third challenge – the lifetime appointment of high court judges.
America is the only country with lifetime appointments for the highest court in the land – the US Supreme Court. The result of this is that judges appointed long ago can prevent change by striking down laws favoured by the present-day majority. This problem is even worse when one considers that these judges, in recent years, have been appointed by Presidents that have won the popular vote only once out of the last eight elections and confirmed by a Senate “majority” that did not even represent 50% of the population. Life tenure is anachronistic and dangerous, especially given that the court has now been packed with “originalists” who believe that the constitution should be interpreted as it was meant by the founding fathers. This is of course non-sensical in that chief amongst the originalists are Catholics, a woman and a Black man – none of whom the founders ever intended to sit on the highest court in the land. Originalism is a political ideology dressed as legal philosophy. President Trump, who never won a majority of votes at the polls, appointed three conservative justices to the Court.
And if these counter-majoritarian vehicles in the US Constitution were not enough, the political system has been extensively gerrymandered. Gerrymandering is the political manipulation of voting district boundaries to create an undue advantage for one party. The US made a democratic stride forward in the 1960s when the Supreme Court abolished bogus rural majorities, requiring districts to be drawn based on population parity. Today, however, districts are increasingly gerrymandered to protect a minority. Both parties are guilty of gerrymandering, but the Republican Party is by far the worse. In Texas, the Republican Party has drawn linesto specifically dilute the votes of communities of colour, and Republicans in North Carolina have done the same. New York attempted to do the same, but the maps were rejected by the state court and redrawn by an independent adjudicator. No such judicial ruling has been successful in states controlled by the Republicansthat continue to use the maps, as doing so would risk rulings going up to the Republican-controlled Supreme Court, where the status quo would be upheld.
All of this adds up to a recipe for disaster.
How long can California, a state of some 39 million people and a Gross Domestic Product of US$3.71 trillion, bow to Wyoming with 578,000 people and an economy of $36 billion? In 2040, will 70% of the US population be content with holding only a third of the seats in the Senate? In exactly how many presidential elections can a party lose the popular vote and still take the White House and be seen as legitimate by voters? Yet the real threat may not come from the disenfranchised middle, but the radical right. Paradoxically, despite the power given to radical minorities in the US constitution, the right wing do not realise their inbuilt advantage. Political violence in the US is at a level not seen since the 1970s. The attacks against the US Capitol on 6 January 2022 may be a harbinger of things to come. Before you think such worries are absurd or unfounded, reflect on the fact that over half of Republicans and one-third of Democrats are worried about the risk of civil war within the US.
political dysfunction and inward preoccupation may undermine the US’ role in the world, leaving allies abandoned and enemies emboldened.
There is a grave danger in linear thinking that results in “end of history” type arguments. History does not follow a linear path of progress. Brexit, for example, was wholly unimaginable for most, yet it happened. Reform is possible, but the bar for change is high. Of the 11,848 attempts to change the constitution only 27 have succeeded. Civil war is a remote possibility, but political dysfunction and inward preoccupation may undermine the US’ role in the world, leaving allies abandoned and enemies emboldened.
Accepting civil war as a low probability does not mean that the coming years will be easy. If the US is consumed by domestic political discord, it may very well pull back from world affairs. One only needs to again look at Britain to see how much Brexit consumed Whitehall politics and eroded the United Kingdom’s international standing. But, even if the US avoids paralysing political turmoil, allies cannot assume that what a majority in the US wants will result in a specific policy.
Polling indicates that the US population is supportive of a positive US role in the world (65% in favour). And a similar number, 62%, support continued assistance to Ukraine. But right now, in the House, any further assistance to Ukraine will be blocked against the wishes of voters, as well as Republican party leaders who favour additional aid to Kyiv, by a handful of extremists. As extreme right wing House Member Marjorie Taylor Greene put it, ‘Ukraine is not the 51st state’. Pulling back and looking at Europe more broadly, an overwhelming bipartisan majority supports the US in NATO (90% of Democrats, 78% of Independents, 75% of Republicans). But in 2022, when a vote was taken to reaffirm support for NATO, 30% of the Republican caucus voted against the resolution. Even more worrisome is that Trump was looking to withdraw the US from NATO – once again, against the wishes of the majority of voters. Most Americans, and their elected representatives, also did not want a government shutdown. But again, an extremely small minority in the House is pushing the country over the precipice.
All this boils down to both practical and systemic challenges. On a systemic level, when the liberal world order is under attack, and in need of support, it becomes increasingly difficult to see a dysfunctional and divided beacon around which to rally. Polling indicates that many used to see the US as a ‘good example to follow’ but no longer do. At a practical level, it makes it more difficult for allies to anticipate how much to trust Washington. Aid to Ukraine under Operation Atlantic Resolve will continue as it is an exempted military operation, and contingency planning has been put in place to keep minimum services running, but the shutdown does not inspire confidence. As Deputy Secretary of Defense Kathleen Hicks put it, ‘a shutdown impacts our ability to outcompete the PRC [People’s Republic of China] — it costs us time as well as money, and money can’t buy back time, especially for lost training events’.
Planning for the remotest possibility
The transatlantic relationship is an institutionalised feature of international relations. It is important for both Washington and allies in Europe, not just to guarantee stability in Europe, but to project liberal democratic norms and the rule of law more globally. However, serious systemic issues in the US necessitates in Europe hard thinking and planning for the remote, but possible, “what if” scenario. What if the US becomes a “dysfunctional superpower” that fails to deter China and Russia? These questions should range from the immediate “what does the future of Ukraine in Europe look like, independent of US support?” to the long range “how could the EU organise itself militarily if the US were to withdraw from NATO?”. Planning does not always ensure success, but it is a requisite step to avoid catastrophe. The defence dependency of Europe continues despite decades of American leaders calling for Europe to do more. This situation is tenable, so long as the US remains a reliable ally, but Europe should fully appreciate the extent of the domestic challenges in the new world, to ensure the security of the old.
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