Minority Rule Does Not Have to Be Here Forever: Arguing That the Framers Intended It Is Specious and Ignorant of History

By Jamelle Bouie, Slate

15 October 18

Arguing that the Framers intended it is specious and ignorant of history.

central architect of the Constitution, James Madison was deeply sensitive to the threat majorities posed to minorities. On important social questions, “[N]o other rule exists … but the will of the majority,” he wrote in 1785 while a member of the Virginia House of Delegates, “but it is also true that the majority may trespass on the rights of the minority.” Our governing document shows this sensitivity in its structure, which diffuses powers across multiple institutions, creates opportunities for representation at each level of government, and attempts to stymie passionate majorities in favor of deliberative ones. But Madison wasn’t a minoritarian; he believed majorities, properly structured around consensus, had the right to govern.

That belief should inform our understanding of the present, where the Republican Party holds all three branches in Washington despite less-than-majority support among the public at large.

This was dramatized by the recent confirmation of Brett Kavanaugh to the Supreme Court. Kavanaugh was nominated by a minority president who lost the national popular vote by 3 million ballots. Unpopular from the start, Kavanaugh’s standing collapsed in the wake of Christine Blasey Ford’s credible allegation of sexual assault. He was confirmed by a narrow majority of the Senate representing just 44 percent of all Americans, and more Americans opposed his confirmation than supported it. Now aligned with four other conservative justices—including one nominated by his patron and two others by a president who also entered the White House with minority support—Kavanaugh will likely back jurisprudence that enables voter suppression and extreme partisan gerrymandering, allowing the Republican Party to strengthen its anti-majoritarian hold on power.

With Kavanaugh’s confirmation, an electoral minority is now essentially dictating the terms of constitutional interpretation, thanks to two institutions: the Electoral College—which favors the geographical distribution of supporters, not the total number—and the Senate, which creates huge disparities of representation. (A majority of Americans are represented by just 18 senators.) While there’s no clear relationship between partisanship and state size—some small states are heavily Democratic, some large ones are heavily Republican—the present configuration of state partisanship makes the GOP Senate majority a minority of the overall population.

Even the House of Representatives no longer conforms fully to principles of majority representation—because of gerrymandering, come November, Democrats will have to win the House by at least 7 points to claim a majority of seats. At least one report says Democrats need to win by double digits to gain a majority. By contrast, Republicans could win just 45 to 46 percent of the overall House vote and still hold on to the lower chamber.

“Minority rule” on this scale is unprecedented in recent American history, and many liberals are either concerned or angry. “I am very far from being a majoritarian or populist democrat,” wrote political theorist Jacob Levy on Twitter, “But it’s a problem for democratic government if the majority can’t gain entry anywhere.” The conservative response to this liberal discontent is to scoff. Dismissing arguments for a rethinking of the structure of American democracy, National Review provides the traditional explanation for the Senate and Electoral College: “The design of the Senate recognizes the status of the states as real governing entities with their own prerogatives under the Constitution. Like the equally hated Electoral College, the Senate ensures that flyover country isn’t ignored. It reflects the dizzying geographic diversity of a continental nation and promotes national cohesion by giving every corner of it a voice.”

Conservative writer Lyman Stone goes even further: “The thing you have to remember is that not only did the Founders fully understand the issue with lopsided state (populations), the foundations of our legislative system were specifically designed to under-represent populous states. The Senate’s malapportionment is intended.” Activist and commentator Erick Erickson writes, “The founders systematically put in place checks on the majority, which they viewed as a mob.”

Conservatives aren’t just channeling a familiar narrative—that the system was meant to stymie majority action—they are making a case that minority rule reflects the original intentions of the Framers of the Constitution. For them, minority rule is a legitimate outcome produced by a sacred process not subject to dispute. But this rests on a vision of the framing of the Constitution that ignores the fierce disagreements that rocked the Constitutional Convention of 1787.

To say, for example, that the Framers consciously built minority rule into the Senate is to ignore the actual debates around the structure of the chamber, which show fierce disagreement leading to a tepid compromise between two sides, one advocating proportional representation and the other backing equal representation of the states. Madison flatly rejected the latter. “[W]hatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign States … it must cease when a national [government] should be put into place.”

On its first vote, the committee responsible for designing the chamber agreed on proportional representation. The Senate’s “cooling function”—its ability to be more deliberative—would rest not on equal representation, but on its smaller size and longer terms of office for members. (It’s worth mentioning as well, in discussions over state sovereignty, that Madison wanted to give the Senate a veto over state legislation.)

When small state representatives pushed for equal representation—which had been a feature of the Articles of Confederation—Madison and other advocates of proportional representation in the Senate responded with sharp arguments against. Madison dismissed the fear that large states would gang up on their smaller counterparts, pointing to cultural and economic differences among large states. “In point of situation they could not have been more effectually separated from each other by the most jealous citizen of the most jealous state.” Madison even made the pointed—and to modern ears, familiar—argument that the real division between the states was North and South, free and unfree. He summarizes the point in his notes from the convention, in which he “contended that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves.”

Benjamin Franklin, another opponent of equal representation of states, pushed back against the idea that small-state citizens would be burdened under proportional representation. “The Interest of a State is made up of the interests of its individual members,” he said. “If they are not injured, the State is not injured.” Pennsylvania’s James Wilson was more prophetic: “Equality of votes among the States will subject the majority of the People & Property to be governed by a minority of each.” This, he said, was “too palpable an error, too great a Defect in the Constitution to permit the expectation of public harmony & Happiness.”

But small-state representatives wouldn’t budge, using the threat of exit to force compromise. In Federalist No. 62, Madison says it is “superfluous” to justify the Senate according to republican principles. Instead, it is the result “of a spirit of amity.” Rather than lose the small states from the union, “the advice of prudence must be to embrace the lesser evil.”

Put simply, key voices anticipated the problems the Senate might pose for governance and democratic representation. That future Americans, to whom the Framers entrusted the republic and its maintenance, might seek reform to solve those problems is not an attack on the intent of the Constitution. It is in keeping with the debates around its creation.

The same is true for those who seek a stronger majoritarianism in the operation of American governance. Conservative claims that the Framers “feared the mob” also miss the nuance in their arguments. In Federalist No. 10, Madison acknowledges—as he had in the past—that popular government is vulnerable to “an interested and overbearing majority.” But he then pivots to his crucial insight. The problem isn’t majorities per se—which are capable of acting in the interests of the whole—it’s the “factious spirit in public administration.” And what are “factions”? He defines them as citizens “who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” (By Madison’s standards, if there is a “mob” in today’s politics—a faction “adversed to the rights of other citizens,” it’s the Republican Party, caught in the grip of demographic panic, ideological extremism, and growing authoritarianism.)

Madison argues that the nation would be able to deal with minoritarian factions—the majority can just outvote them. Majoritarian factionalism is trickier. There, the solution is a large polity that includes a number of diverse interests that can diffuse the power of faction. Barring that, diversity itself acts as an obstacle to the formation of factional majorities—there are too many interests operating for their own gain for an “overbearing” majority to coalesce.

What’s key is that Madison wants majorities to govern—he believes it to be the central principle of republican government. But his concern was building sustainable majority rule, where the losers of political conflict aren’t excluded from governance, full stop.

Lurking behind arguments about “minority rule” is a more fundamental dispute about the structure of American democracy. Was it set in stone with the ratification of the Constitution, or is it subject to reform and revision, to meet the changing sensibilities and beliefs of Americans? Understanding the debates around the Constitution—of the degree to which the Framers and ratifiers struggled with complex and unanticipated questions whose answers weren’t easily forthcoming—helps us see how the process and theory behind the document suggests Americans ought to question institutional design when it conflicts with principles of majority rule and representation of the whole. Faced with a government that resolutely represents a minority of Americans, the proper response is the kind of constitutional debate that conservatives have dismissed out of hand.

Indeed, looking at the whole of American history thus far, we shouldn’t think of the “framing” as a singular event that began in 1787 and ended with ratification. The “framing” of the Constitution is continuous, an ongoing process by which Americans revise their understanding of the republic in fits, starts, and occasional moments of revolutionary action. The Reconstruction Amendments that abolished slavery, established equal protection, and gave black men the vote transformed the relationship of individual to state, of state to nation. The 17^th Amendment, which established direct election of senators, enshrined much of Madison’s vision for the chamber, making it a body for national deliberation where each member represented individual citizens, not their states per se. The 19^th and 26^th amendments expanded the electorate, greatly widening the sphere of democracy. The civil rights laws of the 1960s operated in similar ways, enshrining the principle of racial egalitarianism even as we struggle to make it a reality.

If, in the first decades of the 21^st century, partisanship, polarization, and demographic change have made our democracy increasingly unrepresentative—if millions of Americans fear the prospect of judicial supremacy in opposition to their lives and freedoms—then they’re right to take a page from the Framers and work to align our institutions with our democratic beliefs, convictions, and intuitions.

Calls to transform the Senate, or create new states, or even “pack the court” aren’t attacks on norms; they are Americans doing the hard work of crafting a democracy that works for them, of taking seriously the idea that the Constitution exists for us, not us for the Constitution.