I share your outrage over partisan gerrymandering but the idea that qual representation by state in the senate is somehow an outrage on democracy seems totally misguided.

Do you think it is an outrage against democracy that the majority of US citizens who favor laws against flag burning are stymied by the first ammendment? What about the abscence of a federal initiative process?

From your other posts I know you believe in constitutional protections. Yet if you support constitutional protections even against a slim majority of the public who wants them overturned you can't believe that the a good government must always do the immediate will of the majority. In particular you have to accept the ability of past supermajorities to stipulate rules which are binding even against future majorities.

Yet the lack of proportional representation in the senate is exactly such a rule. The early citizens of the US agreed in a majoritarian fashion to certain restrictions on how future laws would be made, in particular that they required a majority of representitives both by state and by population. I don't see how you can consistantly accept other anti-majoritarian provisions like the first ammendment but not ones like the election of senators.

In fact I suspect that even now a majority of US citizens support the current electoral scheme for senators and representitives. They might do so ignorantly or merely out of conservatism (non party sense) but at the very least you need a majority of americans to desire to do away with the current state by state election of senators for your anti-democratic claim to even get off the ground.

Personally I think this whole buisness about whether a system of government is sufficently democratic is a load of bunk. The aim is to produce a government that has the best results for the people it governs. It is only the superior deciscions made by representative democracies which make that form of government better than monarchy.
 

I think if there's any crisis looming out there, it's the ever increasing tendency of the left to rationalize that any institution they don't control is illegitimate. Be they elected offices, courts, the written Constitution, media outlets...

Couple this with the inroads campaign "reform" has made against freedom of political speech, and the future of democracy in this country, which relies on the losers admitting that the winners are entitled to rule for a while, is looking pretty grim.

If Democrats retake the government in 06/08, will they permit any possiblity of their losing it again, or move with further "reforms" to make sure they can't be voted out?

If Democrats lose again in 06/08, will they even be willing to admit that they DID lose?

And Republicans aren't that far behind in this trend.

And these are rationalizations, you know. Similar doubts could have been raised in the past, about circumstances where Democrats ruled, but did you ever raise them?

Did you care that Texas, until recently, was far more blatently gerrymandered in favor of Democrats, than it is now in favor of Republicans?

I see some ugly times coming, unless the left gets over this notion that legitimacy is defined by their having prevailed. Which IS what you're doing, if you only notice the questionable aspects when YOU suffer by them.
 

I see some ugly times coming, unless the left gets over this notion that legitimacy is defined by their having prevailed.

Them ugly times are here already, and they'll stay that way until the right gets over this notion that legitimacy is defined by their having prevailed.
 

my concern about the extent of our democracy is that there is too much rather than too little. as noted by logicnazi, the senate is by design anti-democratic and the degree to which this is undesirable presumably has varied from time to time depending on the individuals comprising it. with the current senate (as well as, of course, the house) acting largely as a rubber stamp for the executive (altho less so recently), it's actions (as opposed to its composition) have been very democratic in that they have parroted the executive who (in principle, ignoring the EC anomaly of 2000) is unequivocally democratically elected.

and my assessment is that this situation is exaccerbated by the increase in poll-driven policy positions which then reflect the public's (typically ignorant) view on issues rather than the view of madison's "superior" citizens (eg, [sarcasm alert] santorum).

in short, my concern is the extreme partisanship and low quality of our representatives, not the extent to which they reflect popular opinion. to quote our current foremost political pundit jon stewart, "I want representation by someone a lot better than me, not exactly like me."
 

In response to logicnazi's post, I think there is a clear distinction between the 1A and the Senate when it comes to the issue of majority rule. As I see it, the 1A supports majority rule. The Senate contradicts it.

Let's talk about majority rule first. The principle of majority rule contains an implicit time component. By that I mean that a political system which considers itself democratic not only must make decisions on that basis today, it must preserve the ability to make such decisions into the future. Majorities can’t vote majority rule out of existence, nor can they freeze in place the particular majority of a given place and time. Democracy requires certain rules or limits, beyond a sovereign people and majority rule, in order to continue functioning as a democracy. Most of the counter-majoritarian aspects of the US system are designed specifically to prevent current majorities from undermining future ones.

The most important category of abuse is freedom of speech. By assuming sovereignty of the people, democracy requires that each citizen remain free to make decisions for himself/herself. If Congress were to limit public debate in any way, it would to that extent usurp the ability and right of each individual to make his or her own decisions regarding public matters, thus undermining the self-government without which democracy would be meaningless.

In addition, the accepted democratic way to change a present minority into a future majority is speech. If a current majority imposes limits to speech, those limits undercut the principle of majority rule in the future. They serve to freeze in place the current majority, preventing efforts to change the minds of the voters. In the words of the Virginia Resolution, restrictions on freedom of the press are “leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”

A perfect example of such abuse was the Sedition Act. Madison himself pointed out the undemocratic nature of that Act: it “repressed that information and communication among the people which is indispensable to the just exercise of their electoral rights[.]” Report of 1800, January 7, 1800. He emphasized this point at some length:

“Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen that a number of important elections will take place whilst the act is in force; although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are and those who are not members of the government; what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “Sedition Act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose pretensions they are not permitted by the act equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.” Id. Emphasis added.

The Senate could be said to serve the purpose of requiring concurrent majorities in the federal government, one (the House) of citizens and one (the Senate) of states. In fact, of course, it does not serve that function and never did.

Several factors undercut this rationale. First, Senators have always voted as individuals, not as states. Art. I, Sec. 3. Second, the practice, common in the late 18C, of "instructing" representatives, died out quickly. This meant that Senatorial votes reflected individual judgment, not state policy. Third, popular election of Senators eliminated any connection between Senators and their respective state governments as entities.

More fundamentally, though, the Senate does not protect democracy, it undercuts it. Madison vehemently protested this undemocratic compromise at the Convention:

“Mr. MADISON expressed his apprehensions that if the proper foundation of Government was destroyed, by substituting an equality in place of a proportional Representation, no proper superstructure would be raised. If the small States really wish for a Government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as on themselves he could not help thinking them extremely mistaken in their means. … It had been very properly observed by [Mr. Patterson] that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents if convened, would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? … He enumerated the objections against an equality of votes in the 2d. branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality.” Madison’s Notes of the Federal Convention, July 17, 1787. Similar, in some cases impassioned remarks, can be found Id. at June 28, 29, 30, July 5, 7, and 9.

Madison felt this strongly about it because his whole theory of Federalist 10 depended on an "expanded sphere". The impact of the unrepresentative Senate on the “republican remedy” proposed in Federalist No. 10 can hardly be overstated. Madison’s entire argument depended on an “expanded sphere” in which it would be difficult to obtain an oppressive majority. The equality of representation in the Senate infects the national legislature with the vices of small republics which Madison worked so hard to avoid. Absent a change in the representation in the Senate Madison’s “republican remedy” can never work as intended.
 

If Democrats retake the government in 06/08, will they permit any possiblity of their losing it again, or move with further "reforms" to make sure they can't be voted out?

Perhaps it's just a reflection of the fact that we have opposite politics, but I see this danger coming from Republicans, not Democrats. We've had 4 prominent examples in the last decade -- the Clinton impeachment, the 2000 election, the CA governor's recall, and the Texas mid-decade reapportionment -- in which the Republican party simply refused to accept as legitimate the results of elections and changed the accepted rules in order to change, or attempt to change, the outcome. I have to wonder how they will respond if, contrary to Prof. Levinson's pessimism, the Dems do re-take Congress this Fall.
 

Harping over Republican gerrymandering seems a bit disengenuous. No one was railing against it when Democrats did it, and schemes to remove the political impulse of gerrymandering were ignored. In fact, gerrymandering in California by Democrats makes Texas's by Republicans look tame.

Democrats should be a cakewalk this election, so unpopular are the Executive and the Legislature. Less than sixty days before election, many savants are concluding that Republicans will retain congressional control. How could this possibly be?

The thought of Nancy Pelosi as Speaker is one glaring reason. Another might be the compliciting of Democrats, still continuing, in perpetuating the Iraq War (Clinton, Lieberman, Rockefeller, et alia). The fear that Democrats will find new ways to spend monies to help their constituencies (a word they use with relish, but rubs the country wrong), plus pay for Republican mismanagement.

With 40% of the electorate claiming itself "conservative" and 20% claiming itself "liberal and progressive," the 40% "in the middle" know both demons from the Left and the Right. In an odd fashion, perhaps it is better for Republicans to waste their time on gay marriage, otherwise their porking up the deficit. But if Democrats are elected, it won't be the public's interest they'll serve, but their constituencies' interests, and most voters want nothing to do with identity, extremist, or constituent special interests. For all their foibles, Republicans still address their policies for the country, while Democrats address it for their constituents.

Don't misunderstand me. The Republican's subsidizing corporate constituents is about as contemptible as any policy could be, but they herald it as public policy that benefits the nation (smart people know better). The "bridge to nowhere" is no worse than a freeway in WV (from Senator Byrd) that benefits no one. Rather 50 people actually benefit from the bridge, who benefits from Byrd's freeway?

Just as Republicans are no longer conservatives, so too Democrats are no longer liberals. Some conservatives are quite vocal, finally, about the betrayal, but who on the Left is heralding liberalism? The only thing the Left is heralding is spending more monies to solve constituents' problems. Where was the hue and cry from Democrats, the ostensible liberals, when GWB violated the law and constitution? Trembling in their shadows. Murtha and Feingold, both of whom were right, were both left out to dry by their party and its leaders.

The bottom line is that as bad as the Republicans have become, and it is bad, Democrats are conceivably worse. In the six years of Republican hegemony where not one law, policy, or act has worked, nor have government succeeded (e.g., Katrina), people in the face of the incompetence, malfeasance, and ineptude prefer to stay the Republican course rather than vote for Democrats. They have not been an opposition party, they are led by two imbeciles (one freighteningly so), and have offered no viable alternative. For all the reasons to vote against the Republicans, all of them together are not enough to vote for Democrats. Very, very sad.
 

CTW writes of the president's being "unequivocally democratically elected." Actually, I think this is a mistaken claim (which I go into at length in Our Undemocratic Constitution). I won't rehearse all of the arguments, or even dwell on the 2000 election. I would simply note the number of president's since only WWII that did NOT receive a majority of the popular vote, including Truman, Kennedy, Nixon (1968), Clinton (both 1992 and 1996), and Bush (2000). Indeed, two of these presidents, JFK and Bush (2000) didn't even come in first. Moreover, the electoral college, with its grotesque overimoprtance accorded "battleground states" (and smaller overimportance granted small states) also works against any easy notion of a "democratically elected" president. It all depends, obviously, on what one means by "democracy." But simply repeating that ours is an acceptably "democratic system" does not make the problem of its serious "democratic deficit" go away.

I suppose I would feel happier about small state overrepresentation in Congress if beneficiaries of the rent-seeking legislation funnelling money from coastal states to small states would at least stop using the rhetoric of "rugged independence" and "opposition to government handouts" when discussing other redistributive legislation. The biggest welfare recipients in the country are the collective populations of the Rocky Mountain and upper Midwest states, plus, of course, Alaska.
 

Harping over Republican gerrymandering seems a bit disengenuous. No one was railing against it when Democrats did it, and schemes to remove the political impulse of gerrymandering were ignored. In fact, gerrymandering in California by Democrats makes Texas's by Republicans look tame.

I wasn't referring to the fact of gerrymandering -- both parties are indeed guilty as charged. I was referring to the timing. In 200 years of US history, reapportionment has been a once-per-decade abuse of power. The Republicans in Texas wouldn't accept that practice. As a result, there's now no theoretical rule against reapportionment whenever a legislature feels like it. Just what we need.

state concerns are too easily overlooked when we worry about democracy on a theoretical level. The Senate serves a different democratic purpose, not an anti-democratic one.

Those "state concerns" are precisely what Madison was arguing against in Federalist 10. I understand the benefits of them; heck, as Prof. Levinson notes, we Californians and other blue staters pay for most of them. Let's just not pretend that the "welfare states" are enhancing democracy by this process instead of lining their own pockets.
 

I delved for some demographics.
WY has 1 member of the House.[1]
CA has 53 members in the House.[1]
WY's population is 500,000. [2]

CA's Illegal Immigrant population is 2.2 million [3]

Hartford CT county population is 850,000. [4]

CT's population in 1870 was 500,000. [4 ibid]
WY population in 1870 was 0. [2 ibid]
_______
[1] Clerk of the House of Representatives.
[2] Source: NPG; Negative Population Growth is a no-growth advocacy group.
[3] Source: a Republican member of the House from a very elongated district slightly inland in CA stretching from near LA to near San Diego; Rep. G.Miller's Dictrict 42 contains 600,000 population.
[4] NPG

====
One of the interesting ways to evaluate the Senate's representation paradigm is to regard it as a strong voice in government for economic geographically coherent entities within the nation. This has bearing upon policymaking. Consider this discussion by the Center for Investigative Reporting in evaluating the worth to the nation of the lands which an Idaho attorney would be charged to protect if his re-nomination to the IX District court judgeship is approved, William Myers, who works for the mining industry but has nil experience as a judge. A link to an environment legal defense group opposed to the nomination, here.
 

"I see some ugly times coming, unless the left gets over this notion that legitimacy is defined by their having prevailed."

True enough. The democrats have to remember to fight and keep fighting. Republicans fight no matter what. By their definition there is no such thing as a mandate for the opposition.
That's what politics is about.
 

But so long as we're going to have the nation as currently constituted and talk about being democratic, we should likely protect everyone's "rights," not just those of a particular party.

I absolutely agree that we have to protect everyone's right to equal protection under the law. Other protections are also necessary (free speech being an obvious example).

But let's be clear: the "everyone" means individual citizens, whether they live in CA or WY. If the system gives extra representation to WY, that's not "being fair" to WY, it's denying to CA the equal protection of the laws. WY is entitled to its fair share, but it's taking much more.

My critique is that theoretical democracy frequently loses sight of democratic forms and norms that aren't in lockstep with the theory, and the response is "this goes against theoretical democracy."

You'll have to give me an example of what you have in mind.
 

"CTW writes of the president's being "unequivocally democratically elected." Actually, I think this is a mistaken claim"

well, I considered editing that phrase but decided that since its strict accuracy was tangential to my real point - that in the sense I outlined we have, if anything, too much democracy - I wouldn't bother. I'm happy to concede that "unequivocally" was a singularly poor choice.

as an aside, is winning by a plurality really anti-democratic? if we had a true multi-party system that would presumably be the norm. do we need a constitutional amendment limiting candidates to the two current major parties to insure real democracy?
 

It's obviously the case that the term "real democracy" is what political theorists call "essentially contested," so it would be foolish to say that there is one and only one "truly democratic" way of electing a single official, whether a mayor or a president. (With multi-member bodies, like legislatures, one can start debating the merits of proportional representation, but that's obviously a non-starter with lone officials.) I do believe that so-called Alternative Transferable Vote systems (sometimes called "instant runoffs") are more "democratic" than first-past-the-post plurality systems (which we don't even have in this country, given the ability of non-plurality winners like JFK and GWB to become president). ATV systems are said to have a bias toward centrist candidates, but do not "automatically" create two-party systems in the way that first-past-the-post systems are thought to.
 

I believe Sen. DeWine spells his name with an upper case, "W".
 

CTW (above): ". . . is unequivocally democratically elected."

You're kidding, right?
 

Sandy Levinson,

You have an interesting argument about the first ammendment somehow maximizing democracy over time. However I don't think there is any principled notion of democracy that does what you want.

If by democracy you don't just mean doing what the most people vote for but wish to include things like being able to meet and discuss about how you should vote then I'm no longer sure exactly what your concept is. In this case it seems that the word democracy borders on a feel good term, something is democratic if you think it is a fair and good way to run society. In this case you can't use the argument that the senate should be reformed because it is undemocratic because you would have already had to show it was bad to have the senate that way to show it was undemocratic.

Moreover, once you start allowing anti-majoritarian measures to be democratic because they help ensure future democracy your initial simple argument that the senate is undemocratic because it is anti-majoritarian no longer flies. Unless you have already seperately established that state by state representation is bad, in which case this discussion is pointless, you haven't ruled out the possibility that the senate helps prevent tyrannny by exercising more wisdom or by requiring a geographic as well as by population majority to pass laws.

The fact that the senators don't 'vote for the state' is irrelevant. They are likely to reflect the views of the states that voted for them. Thus it is reasonable to think the senate prevents the populous coastal states from passing laws that screw up enfranchisement for rurals (say requiring voting places to be located in population centers of a certain size). Or just as a buffer against total control by gerrymandering. These are just off the cuff examples but the point is once you allow indirect maximization of democracy their are tons of ways one could argue that disproportional representation does this.

Also unless you reject things like Griswald v. Conneticutt or the right to be free of search and seizure I don't see how you can defend most of the good constitutional protections as maximizing democracy. Even the 1A isn't so clear as the alien act happened despite it and the UK seems to do quite well without any such anti-majoritarian ammendment.

Moreover, I don't think you answered the point that whether the senate is majoritarian depends on the way you think about it. Presumably having an instutition that the majority of Americans like is actually democratic so unless you can establish a majority is against the senate's current electoral scheme.

Ultimately my worry is that you are pulling a bait and switch. People are inclined to agree with the idea that the senate's electoral system is undemocratic because it thrawts the will of the majority and they take this to be the meaning of undemocratic. However, since this isn't (at least simply) what you mean by undemocratic you need to give a more detailed explanation as to what counts as undemocratic and why the senate qualifies.
 

logicnazi, you addressed your post to Prof. Levinson, but the substance of it appears to be in response to me. I'll go ahead and reply on that assumption.

Let's start at the beginning. Today’s representative democracies differ from the direct democracy of the ancient Greeks, but they retain two essential assumptions from the Greeks: “The
people, not the government, possess the absolute sovereignty”, Madison, Report of 1800, January 7, 1800; Speech in the House of Representatives, March 2, 1796 (“On some points there could be no difference of opinion; and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people…”); and “the vital principle of republican government is the lex majoris partis, the will of the majority.” Madison to _________ [Majority Governments] [1833]. Accord, Thomas Jefferson, First Inaugural Address, March 4, 1801. For similar statements, see also Federalist 22, 37, 39, and 57.

In one sense, all else is surplusage. If we take the term “democracy” literally, a majority could decide today to elect a President and tomorrow to abolish the office. It could order the destruction of another city, then change its mind and recall the executioners by a faster ship (as the Athenians actually did). These two rules, and these two alone, make up a democracy.

As I said above, though, preservation of a democracy over time requires more rules than this. My post above didn't try to set forth all of them, it was only responding to your particular comments about the Senate and the First Amendment. Other rules are necessary, and we can discuss what they might be, including Griswold and the 4th A.

I don't see, though, that any plausible argument could be made that the Senate, as currently constructed, is one of those rules. Certainly Madison didn't think so; even in Federalist 62 he made no effort to defend the lack of proportional representation and you can almost feel his annoyance:

"The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small States, does not call for much discussion. ... A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice."

Nor could anybody argue that the Senate is consistent with the fundamental principle of majority rule. It isn't.

You suggest that the Senate may prevent abuses of citizens living in smaller, more rural states. That doesn't help much -- we can independently evaluate the impact on democracy of particular laws. For example, laws making it more difficult to vote surely undermine democracy and need to be prevented, but the current Senate is not only unnecessary to protect those rights, it is likely to do more harm than good.

Let's go back to Federalist 51. The whole point of majority rule is that it takes into account the largest number of viewpoints. Madison understood the practical effect of this:

"It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.
There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. ... The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority."

The equal representation in the Senate undercuts Madison's whole theory. The current Senate does not "expand the sphere", it contracts it. This does not lead to greater justice, on average, it leads to less. Minority rule is not, in general, more just than majority rule; quite the opposite.*

You also suggest that the majority of Americans likes the Senate, making it consistent with majority rule in that sense. Remember, though, that this is not the test. At one time, a "majority" could be found to disenfranchise blacks and women. That wasn't actually democratic, it was UNdemocratic -- white men just defined women and blacks out of the system. Women and blacks were in the classic position of having laws made for them without their consent, a condition which violated the basic premise of the American Revolution.

Similarly, current popularity isn't, by itself, enough to make the Senate "democratic". It has to meet a structural test and it can't do that. If the Constitution is ever to function as it should, we must have proportional representation in the Senate. We need other reforms as well (everybody seems to agree on gerrymandering), but all of them will be in vain "if the proper foundation of Government [is] destroyed, by substituting an equality in place of a proportional Representation, [such that] no proper superstructure would be raised." Madison, July 17, 1787.

*No system is perfect, and no system can be expected to give perfect results in every case. Our only goal is to find the best practical system, not the philosophically perfect one.
 

"We've had 4 prominent examples in the last decade -- the Clinton impeachment, the 2000 election, the CA governor's recall, and the Texas mid-decade reapportionment -- in which the Republican party simply refused to accept as legitimate the results of elections and changed the accepted rules in order to change, or attempt to change, the outcome."

Clinton impeachment: A constitutional process. If anything was improper about that, it was the use of blackmail to cut it short.

2000 election: Republicans defending against Democrats going to the courts to have election laws overturned after the fact.

Ca Governor's recall: Again, a constitutional process.

Redistricting? Eh, that one I'll give you, though I think it could be argued either way. It was a violation of tradition, anyway.
 

The problem with the Senate is that it had an important structural role to play, but was stripped of that role by the 17th amendment.
 

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