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July 30, 2002

The legacy of Gunning Bedford Our New Yorker subscription accidentally lapsed, so we missed a couple of print issues. But Hendrik Hertzberg’s review of Robert Dahl’s How Democratic Is the American Constitution? is fascinating and worth reading online.
Once slavery was removed, the most undemocratic remaining provision of the Constitution was, and is, the composition of the Senate97its so-called equality of representation, whereby each state gets two senators regardless of population. This is often referred to as a “concession” to the small states, but in truth it was more like surrender to blackmail. The small states saw it as a deal-breaker, and they would brook no compromise. Dahl notes that Gunning Bedford, Jr., of Delaware, told his fellow-delegates to the Constitutional Convention that, unless the big states yielded, “the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.” The Senate was formed less by rational argument than by threats of treason and war. […]

Even if it were true that the condition of being a citizen of a state with a small population entails such grievous disadvantages that, to correct for them, the very votes of such citizens must be assigned a greater weight than the votes of other Americans, how much is enough? Are the special needs of people who live in small states97people who can, after all, escape their condition by moving somewhere else97greater than the special needs of people who are short, or people who are disabled, or (more to the point of American history) people who are black? Here’s a little thought experiment, inspired by Dahl’s reflections. Imagine, if you can, that African-Americans were represented “fairly” in the Senate. They would then have twelve senators instead of, at present, zero, since black folk make up twelve per cent of the population. Now imagine that the descendants of slaves were afforded the compensatory treatment to which the Constitution entitles the residents of small states. Suppose, in other words, that African-Americans had as many senators to represent them as the Constitution allots to the twelve per cent of Americans who live in the least populous states. There would be forty-four black senators. How’s that for affirmative action?

Hertzberg has more to say, all of it interesting, about the several perversities of the American system. He notes just how few of the world’s other electoral democracies have adopted our federal system; and he notes, as well, that the Bill of Rights—the one part of the constitution that Dahl doesn’t criticize—has done a better-than-average job, by world standards, of protecting individual liberty.

Hertzberg’s main point isn’t that the Constitution is irredeemably flawed, or that we should be ashamed of it, but rather that we could stand to think more clearly and less cultishly about it:

If we worshipped the framers a little less, we might respect ourselves a little more. If we kept in mind the ways in which our constitutional arrangements distort our democracy and hobble our politics, we might gain a deeper, more useful understanding of the sources of our various national discontents. If we didn’t assume that the system was perfect, we wouldn’t assume that everything we don’t like is the fault of bad people. We’d judge our politicians more shrewdly, and more charitably, if we reminded ourselves regularly of the constraints that the system imposes on them. We’d be less tempted by lazy moralism.
UPDATE: Glenn Reynolds has some reasonable arguments with Hertzberg and Dahl—the Constitution isn’t an expression of unbridled majoritarianism, and rightly so—but it seems to me that Hertzberg isn’t calling for a reformist uprising against (for instance) the current arrangements for the election of Senators, so much as he’s observing that—like any product of compromise and logrolling—the Constitution has its strengths and weaknesses and we’d delude ourselves less about contemporary politics if we could avoid the mental model in which the impossibly-wise framers gifted us with a system of near-perfection, which later and lesser men and women have brought to ruin. Americans of all political stripes indulge themselves way too much in this sort of thing. Cue very small violin.

The Framers were really smart guys. The Constitution deserves respect and study. But the way we talk about it is often fuel for the worst sort of pejorism. That’s the point I found most interesting in Hertzberg’s piece. [04:36 PM]

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Comments on The legacy of Gunning Bedford:

Neel Krishnaswami ::: (view all by) ::: July 31, 2002, 02:33 PM:

I would find Hertzberg's call to pragmatism a lot more stirring if his arguments were, um, actually pragmatic. As an illustrative example, I'll examine his claim that proportional representation systems are fairer than the first-past-the-post system the US uses.

In a first-past-the-post system, the legislature is selected by dividing the country into districts, and then an election is held in each district. The winner of each election is the candidate who gets the most votes (modulo things like runoffs and primaries and so on). In a proportional representation system, there's one big election, and parties are awarded a number of seats in the legislature in proportion to their share of the total vote (modulo things like a minimum threshold of votes for a party to get any seats).

The fairness argument for proportional representation vis-a-vis is this: with proportional representation, you get a legislature whose composition closely reflects the distribution of party affiliations (political beliefs) in the country at large. In a first-past-the-post system, you get a lot of pressure for a two-party system, and the legislators will all tend very strongly to the median beliefs of the polity. This is, the story goes, unfair to people whose beliefs are far from the median -- they can't representation.

It's a nice story, but it doesn't hold up to scrutiny. In terms of actual impact on peoples' lives, the composition of a legislature matters a whole lot less than the laws it actually passes. In this respect, PR fares a lot worse than first-past-the-post. Having a lot of parties means that coalition governments will be the norm, and that gives disproportionate power to small parties that act as swing members of a coalition. That power means that their pet policies get passed at a disproportionate rate -- and the favored policies of a minority party are more likely to piss off a lot more people than the boring median policy.

Personally, I find the thought of seeing governing coalitions like Democratic/Green or Republican/Moral Majority, a whole lot less appealing than just plain old Democratic or Republican. You can call it a pragmatic attitude to the Constitution, if you like. :)

Jeff ::: (view all by) ::: July 31, 2002, 07:29 PM:

I disagree with Neel for two reasons.
1) People, for reasons incompatible with models truly based upon rational choice, care not only about policy outcomes but a sense of synbolic representation.

Hence African-Americans seem to prefer majority-minority packing of districts that reduces their political power and that of their (9-1) preferred political party in favor of the symbolic representation of minority members of the House (and no other important branch of elected government -- Senate or Governorships). Hence Perot's 19% in 1992. Hence a lot -- there is a clear desire for voting for folks whose views match their own.

2) MORE IMPORTANTLY: Policy debates are dynamic over time. The spectrum of viewpoints considered and debated, even unsuccessfully, ALTERS future debates and hence future policy. The near complete absence of true lefties, for instance, constrains what options the public considers.

[the same is less but somewhat true for true libertarians; unlike Dems (brookings is well to Tom Daschle's right), the GOP has powerful institutions like Cato, Heritage, and the Federalist Society that are more extreme than Republicans in power and tend to expand the range of issues considered on the right -- and talk radio (cf. The Nation re impact) and the rest of the right wing media (Fox, etc...) help.]

Simon Shoedecker ::: (view all by) ::: July 31, 2002, 08:21 PM:

Neel is correct that PR systems tend to give disproportionate power to swing minority groups - but does he think that doesn't happen in first-past-the-post systems too? That the US Congress has, basically, only two formal political parties doesn't mean it doesn't have coalitions and swing minority groups with disproportionate power (remember the Killer Bees and the Blue Dogs?)

Philip Shropshire ::: (view all by) ::: August 02, 2002, 08:18 AM:

I actually don't think the criticism of the constitution means very much here in the United States because as the book points out it’s almost impossible to change the constitution in the United States. Where it kind of matters is in the creation of new states, new countries and new territories—preferably in Space. Space might be way way off and this conversation might be moot. On the other hand, the very medium we’re communicating in would once have been called esoteric, bizarre and Hard to Believe. We should also thank the gods that the Internet’s creators were libertarian anarchists and not greedy capitalists, otherwise we’d probably be paying 5 cents a word just to post to this comments section. The rules matter and the rules of our constitution are hopelessly outdated.

I might also add, in kind of a friendly rebuttal to the first poster who says he’s afraid of that Moral Majority/Green Party Alliance, that most of the world’s democracies when faced with this decision—whether it’s the European Union, South Africa, or even Nicaragua—choose proportional representation. In fact, when having a heated discussion about this very topic on another message board I was able to find four countries that had adopted PR. Dahl, who’s been looking into this kind of thing for over 60 years now, actually was able to find about 20 or more countries. To me, PR is what people who believe in democracy believe in. I believe that most of the European countries use some version of PR. Europeans have better healthcare systems. Some European countries have eliminated child poverty. Europe leads the way in terms of the rights of parents (and not some hokey jingoistic patter about “The Family” but in paid family leave and vacation time…) and worker vacation times, up to six weeks in France I believe. Is the European worker smarter than the American worker? Or do European systems—which features a variety of PR and smarter runoff balloting—create the basis for a more worker friendly society? I think it’s the latter. Again, the important thing here, is that when we create new constitutions that we base them on Best Practices and Best Results. You might keep that in mind if you have a choice to decide on the Orbital Habitat near the Moon or that New Mars colony….

Philip Shropshire

Philip Shropshire ::: (view all by) ::: August 02, 2002, 08:24 AM:

By the way, as a sarcastic rejoinder to the "Boy them founders were smart fellas" comment, I actually believe that the United States constitution is horrifically outdated. And, again if you get that choice either in space or even in one of those Marshall Savage ocean habitats, the American Constitution is to Modern Democratic Best Practices as the steam engine is to working fusion drives...You should act and dream accordingly....

Philip Shropshire

Christopher Bernard ::: (view all by) ::: August 01, 2003, 02:02 PM:

I have made this prediction before (an easy one to make, to be sure, since I won't be around to confirm it), but I believe it is far more likely than many do, including, probably, Robert Dahl: and that is that by the end of this century there will be a call for a Constitutional Convention, the flaws in our present constitution having finally caught up with it and with us. Call it a Great Awakening, if you like. Either that, or there will be a civil war when the inherent injustices of the current system make people angry enough: the militias of today may be augurs of some truly horrifying movements in future. But if a Convention takes place, it may head off worse possibilities, and perhaps some sort of PR, or a modified plebscitarian (remember "participatory democracy"?) form of democratic decision making might have a chance of being codified. - Ahile we're in the mood for castles in the air, has anyone considered George F. Kennan's ideas about dividing the country into four, to make it more governable? (This is a separate issue, to be sure, but it might make sense at some point in discussions regarding a new Constitution.)