Breaking Point

In​ 1831, a young French aristocrat, charged by his government with reporting on American prison conditions, spent the year travelling in the United States. Alexis de Tocqueville’s inquiries into the penitentiary and its ideological underpinnings led him also to think about the character of the political regime. He published his reflections as Democracy in America (1835). Tocqueville recognised that the forces driving modern development were ineluctably eroding the authority of monarchical and aristocratic regimes and was keen to identify the implications of this march towards democracy. His main concern was whether democracies would be capable of sustaining political freedom. The growing social egalitarianism that he saw as characteristic of democratic regimes involved a revolution in sensibility as well as the reform of institutions of collective decision-making. As individuals were liberated from inherited social conventions, new energies would be released. But would this generate a conformity to mass opinion that would in turn undermine freedom? The danger of democracy, he suggested, was that it would lead to a ‘tyranny of the majority’.

The democratic drive to advance the good of the greatest number would also, Tocqueville believed, increase competition and foster a preoccupation with material gain, making necessary a further concentration of power in central government. He worried that as a result countries would be reduced to ‘nothing better than a flock of timid and industrious animals, of which the government is the shepherd’. Such tendencies towards ‘soft’ despotism might be mitigated by America’s distinctive constitutional arrangements and, more important, by the manners and customs of its people. The antidote to centralisation lay in local practices of civic participation, and especially in the American habit of forming voluntary associations, civil society networks that maintained the spirit of a free people.

Tocqueville came to see the US constitution as an adjunct of this civil society, suggesting that the character of the regime had been shaped even before the 1787 constitution by the Puritan settlement in New England. Puritanism wasn’t just a religious doctrine, ‘but corresponded in many points with the most absolute democratic and republican theories’. In bringing with them to America such liberal tenets as freedom of speech, freedom of the press and trial by one’s peers, the Puritans had already created a constitution. Trial by jury, in this context, was to be admired not because of its efficiency in administering justice, but as an effective means of educating the people in the practice of self-government.

The social and political role of the legal profession was also important. In a remarkable passage, Tocqueville argued that lawyers provide powerful security against democratic excess because they are the only group in a democracy that can bind together the two great classes of society. By birth lawyers belong to the people, but by habit and taste to the aristocracy. They succeed because they acquire through their training a taste for formalities and habits of order that are repugnant to ‘the revolutionary spirit and the unreflecting passions of the multitude’. Without this ‘admixture of lawyer-like sobriety with the democratic principle’, democratic institutions could not endure. The survival of the modern republic depended on the influence of lawyers increasing in direct proportion to the growing power of the people.

In How Democracies Die (2018), Steven Levitsky and Daniel Ziblatt presented an alternative to Tocqueville’s thesis, arguing that contemporary democracies are being damaged by elected leaders’ subversion of the democratic processes through which they acquired power. Leaders win elections in accordance with constitutional rules but then often work imperceptibly to reduce the efficacy of these safeguards. The chief danger to democracies today is not the ‘tyranny of the majority’ but the authoritarianism of political leaders. Levitsky and Ziblatt’s book gave an account of how democratic regimes are being hollowed out, but went only so far in explaining why. Here it helps to follow Tocqueville, widening the analysis to include the cultural underpinnings of governing institutions. Today’s democracies are in trouble because of the growing political polarisation of increasingly diverse societies: a gulf in attitudes has emerged towards fundamental issues relating to race, identity and culture. In their new book Levitsky and Ziblatt assert that the danger is the ‘tyranny of the minority’.

Democracies implode when the authoritarian tendencies of the leaders of mainstream political parties are not reined in by constitutional mechanisms that are supposed to impose checks. These mechanisms work most effectively when competing parties accept the rules of the game, acknowledge the existence of restraints on their exercise of government prerogatives, reject the use of violence as a political weapon and respect citizens’ basic liberties. Consider for example the frequency with which presidents now seek to hold on to power beyond their constitutionally mandated term limits. Since 2000, one-third of presidents from across the world have sought to do so, most of them by trying to amend the constitution but some by appealing to the courts to quash the limitation as an unconstitutional restriction on the principle of equal participation in the democratic process. Two-thirds of these appeals have been successful and the ones that have failed were mainly blocked by popular resistance rather than judicial action.

In How Democracies Die, Levitsky and Ziblatt examined countries including Venezuela, Thailand, Turkey, Hungary and Poland, but their overriding concern was whether the American constitutional settlement could survive Donald Trump’s presidency. Tyranny of the Minority examines the prospects for democracy now. Recognising that Trump’s success lay in the exploitation of an already existing political polarisation, they begin with the changing nature of American society. They acknowledge that the sense of civility, egalitarianism and shared purpose that many liberals saw as characterising US democracy in the mid-20th century has been badly eroded. The causes of this, including growing inequality and increasing racial and cultural diversity, are shared by many advanced industrial economies, but Levitsky and Ziblatt think the US faces a particularly profound crisis.

Consider, by contrast, the case of Hungary. Viktor Orbán’s Fidesz party won a resounding electoral victory in 2010 with 53 per cent of the vote and, because of an electoral system designed to prevent political fragmentation, was rewarded with a two-thirds majority in parliament, which allowed it to make amendments to the constitution. Fidesz took the opportunity to make major changes to the judicial system, to institute stringent controls on the mass media and to pass laws that stifled dissenting views, all of which strengthened its grip on government. The impact of these changes ensured that, although its vote share dropped below half in the 2014 and 2018 elections, Fidesz was able to maintain its proportion of parliamentary seats.

Hungary, where Magyars comprise 88 per cent of the population, provides a relatively straightforward illustration of the dangers of majoritarianism. Yet Levitsky and Ziblatt argue that the situation emerging in the US is even more serious. Can Americans establish a regime which, although no longer founded on a majority ethnic group, is still able to hold free and fair elections, respect civil liberties and maintain a basic level of political and social equality? African Americans, Hispanic Americans, Asian Americans and Native Americans together make up 40 per cent of the US population and, significantly, form a majority of those under the age of eighteen. Levitsky and Ziblatt argue that this rapid increase in cultural diversity exposes the US to major divergences in political alignment. This is seen most acutely with respect to the Republican Party, which remains overwhelmingly white and Christian but must sustain itself in a country where white Christians have declined from three-quarters of the electorate in the 1990s to barely half the electorate today. Over the last two centuries the US constitution has functioned to mitigate the danger Tocqueville foresaw, not least by checking presidential power. But the constitution now works to entrench the power of partisan minorities, enabling them to frustrate the will of the majority and even to rule contrary to its expressed wishes.

The impact of polarisation on the US political system was starkly exposed after Trump lost the 2020 presidential election. Breaking the first principle of democracy, he refused to accept the result and pressed Georgia’s secretary of state to commit electoral fraud by ‘finding’ the additional 11,780 votes needed to win the vote in that state. By conspiring with an insurrectionary movement to storm the Capitol in an attempt to prevent the peaceful transfer of power, he also violated a second principle of democratic politics: the unambiguous rejection of violence. But the deeper problem arises from the fact that so many in the Republican Party have tacitly supported Trump’s actions.

After the 2020 election Democrats had control of the presidency, the House and the Senate. It seemed possible that the corrective mechanisms within the political system would be restored. But this overlooked the flaws in the US constitution. To the extent that they seek to bind future generations, constitutions are necessarily counter-majoritarian devices but, properly drafted, they can still aid democracy. Everything depends on the design. A century ago, Harold Laski wrote that the US constitution is ‘the worst instrument of government that the mind of man has so far conceived’ – a harsh verdict, but one that has been vindicated by its recent effects.

Many criticisms can be made: the Electoral College system results in candidates entering the White House even when they have lost the popular vote; there is equal representation of states in the Senate despite the largest having a population seventy times greater than the smallest; the lifetime appointment of Supreme Court justices leads to infirm octogenarians holding on to office when unable to discharge their responsibilities; the Bill of Rights includes the right to bear arms but excludes any sort of equality right; and, to top it all, the amendment procedure renders the constitution the most difficult to alter of any in the world, meaning that any significant reform to the system is impossible. Add to this list the Supreme Court’s extensive power of judicial review and the Senate’s filibuster rule (practices not specified in the constitution but which have emerged as powerful counter-majoritarian devices), and the mechanisms through which a ‘tyranny of the minority’ operates become clear.

These constitutional barriers have seriously distorted the democratic process. In 2016, Hillary Clinton won the popular vote for the presidency, gaining 2.9 million votes more than Trump, but it was Trump who won the Electoral College vote, by 304 to 227. The skew in the Electoral College in favour of small, sparsely populated states systematically works to the advantage of the Republicans. Levitsky and Ziblatt calculate that it added eighteen votes to George W. Bush’s overall tally in 2000, and since Al Gore was defeated by five votes, once again the candidate who lost the popular vote won. With the exception of 2004, the Republican Party has lost the popular vote in every presidential election since 1992 and yet during this period has held the presidency three times.

A similar story can be told about Senate elections. So far this century the Republicans have not yet won a majority of the popular vote in Senate elections. But they won a 52-48 majority in 2016 with 45 per cent of the vote, a 53-47 majority in 2018 with 48 per cent of the vote, and in 2020, when the seats were split 50-50, won only 45 per cent of the vote. This counter-majoritarian impact is reinforced by the Senate’s filibuster rule. Before the late 20th century it was rarely used, not least because it required senators to hold the floor by speaking continuously. But after reforms that allowed them merely to signal their intention to filibuster, it has become routine practice. With sixty votes now required to pass legislation, the filibuster has been converted into an entrenched supermajority rule. Today all legislation is subject to veto by a small minority of senators.

In​ the Federalist Papers, Alexander Hamilton claimed that the judiciary ‘will always be the least dangerous to the political rights of the constitution’. This is not now the case. Four of the nine US Supreme Court justices were confirmed by a Senate majority backed by a minority of the popular vote, and three justices were nominated by a president without a popular majority. One consequence is a Supreme Court increasingly out of step with public opinion, a point most prominently highlighted by the 2022 decision in Dobbs v. Jackson to overturn Roe v. Wade. This despite polling evidence indicating that a clear majority of Americans support the right to abortion, with less than 40 per cent registering as ‘pro-life’. Even more insidious was the defeat of the Women’s Health Protection Act, which would have prevented states from restricting abortion rights; introduced in Congress in 2022, it was defeated by a 49-51 vote in a Senate with a significantly skewed representation of the popular vote.

Many regimes have adopted constitutions which, influenced by Tocqueville’s concerns, include powerful counter-majoritarian provisions. As their societies have evolved, however, so too have their constitutions. Levitsky and Ziblatt cite Norway’s constitution which, when adopted in 1814, was considerably less democratic than America’s. But since then Norway has amended its constitution more than three hundred times. By contrast, the US constitution of 1787-91 has only been amended seventeen times, mostly in unimportant ways, and is now regarded as fixed and permanent. More than seven hundred attempts have been made to reform or abolish the Electoral College, all of which have failed. The Equal Rights Amendment, designed to guarantee equal rights regardless of sex, was first introduced in Congress in 1923 and has been the subject of countless campaigns and votes. A century later it has still not been ratified.

Tocqueville recognised that in the US almost all social and political questions become issues for judicial deliberation sooner or later. Lawyers now stock the legislative assemblies and run the administration. Comprising less than 0.5 per cent of the American population, they make up almost a third of the House of Representatives and a majority of the Senate. By making a fetish of the constitution, shedding their ‘lawyer-like sobriety’, reshaping political debate into an adversarial discourse of rights, promoting the destructive techniques of ‘lawfare’, and foregrounding Tocqueville’s warnings about the dangers of majoritarianism, lawyers are no longer the glue that binds together the nation. They now bolster a regime of minority rule that is in danger of tearing the country apart.

The depth of the US crisis is revealed by the extent to which Tocqueville’s bulwarks – local practices of civic participation and the tempering effects of lawyers – have been eroded. The problems coalesce around the figure of Trump, who, despite insurmountable evidence of his unsavoury character and lack of legal probity, now seems certain to win the Republican presidential nomination. This is a man who has been found to have committed rape, is caught up in a civil suit for falsifying business records which could jeopardise his entire business empire, and is a defendant in several criminal cases, ranging from electoral subversion to the unauthorised removal of national security documents. These proceedings could well result in prison sentences, yet they have done little to dent Trump’s electoral appeal. Neither did recent legal action which sought to disqualify him from the presidency because of his role in the insurrection on 6 January 2021. The 14th Amendment to the US Constitution bars a person from holding government office if, having taken an oath to uphold the constitution, they then engage in ‘insurrection or rebellion’. Yet in March the Supreme Court ruled that only Congress has the power to enforce that provision. Given the existing congressional veto points, this is an unlikely prospect. And should Trump win in the November election, we can be confident that presidential immunity from criminal prosecution will be invoked to put an end to any outstanding criminal cases.

Such developments reveal the singular inability of US lawyers to perform the mediating role that Tocqueville envisaged. The practice of constitutional law has been politicised to such an extent that, as the New York Times reported in February, scholars now despair of being able to teach the subject at all. This is a desperate state of affairs. Yet it’s here that Levitsky and Ziblatt’s analysis is weakest. They conclude with a predictable set of proposals for the institutional reforms needed to rejuvenate American democracy. But they underestimate the cultural factors that Tocqueville saw as vital and which have led to a grave loss of active civic engagement. At least the American subtitle, ‘Why American Democracy Reached Breaking Point’, is accurate, where the subtitle of the UK edition, ‘How to Reverse an Authoritarian Turn and Forge a Democracy for All’, is most surely a distortion. This may be America’s problem but in most parts of the world Levitsky and Ziblatt’s emphasis on ‘democratising our democracy’ and restoring majoritarian rule is the last thing liberal intellectuals want. Outside the US, liberals march under the banner of ‘militant democracy’. This really means ‘militant constitutionalism’, a movement that champions the need to strengthen counter-majoritarian institutions in order to protect liberal values from an apparently rampant populism. Democratising democracy – the clarion call of French post-Marxists – has been appropriated by American liberal political scientists. Who’d have thought?