The Countermajoritarian Difficulty

In my Constitutional Law class, we have just finished reading the section of cases about Article III, the federal judiciary. That reading involved taking a look at the concept of the "countermajoritarian difficulty," an argument that judicial review is problematic, or potentially invalid in a democracy, because it allows unelected judges to overturn the decisions of the people's elected representatives. At the same time, we are hurtling rapidly toward a possible showdown in January over the filibuster in the United States Senate. These two concurrent events lead me to the following train of thought.
What is democracy? Is it majoritarianism? There is certainly a majoritarian element to democracy: fundamentally, if fewer people are able to impose their will on more people time and again, it feels an awful lot like the people not ruling. The people are to govern, in a democracy, and being highly plural it is unlikely that the people will ever come particularly close to unanimity on any question; therefore, it simply makes no sense to adopt any rule for general proceedings other than that the majority wins. That does not imply that a democracy must be completely majoritarian. One could, in fact, adopt such a definition of the word "democracy," and it is likely that circa 1787 most jurists in this nation had approximately that view of democracy. Adopting that definition of democracy, however, is likely only to make very many people say they don't like democracy very much anymore. There are majoritarian difficulties, too: in particular, the majority tends to want to do what the majority tends to want to do, and is therefore a very bad guardian either of the rights of minorities or of the principle of limited government. So in this nation at least, and to varying degrees around the world, nations commonly called democracies are not purely majoritarian: there are some institutions which have the power to explicitly obstruct the "will of the majority." Most consider this to be desirable, to some degree.

There are three institutions in this country that tend toward obstructing 50% + 1 of the people from exercising untrammeled power. The first is the separation of the political powers between the three Houses, one White and two of Congress. It can be assumed that the party commanding a majority of support on the Tuesday after the first Monday of November in an even-numbered year will command the House of Representatives for the next two years; separation into winner-take-all districts introduces some amount of random variation from this direct principle, but it holds near enough. It can also be assumed that, if it is also a year divisible by four, that said majority will be able to elect the President, though for a term of four years. There are, again, complications in the counting process. The Senate, on the other hand, is elected on staggered six-year cycles; it reflects, then, some sort of sampling of majority wills from the last six years. That the political powers are so divided means that sometimes you have divided government, such as when a majority is fleeting and wins one election cycle but cannot win several in a row.

The second institution that can obstruct a majority is the Supreme Court. In theory, iff the majority passes a law that is unconstitutional, the Court will strike it down, once someone with standing challenges it etc. etc. In reality in the short run, this is basically how the Court works, most of the time, though the Court sometimes acts in a more cravenly political role. This is the institution that the idea of the countermajoritarian difficulty focuses on.

The third obstructing institution is the only one that is not in the Constitution: the filibuster. In the United States Senate, by traditional acclaim the greatest deliberative body in the world, 41 is greater than 59, and what 59 want and 41 are relentlessly opposed to cannot happen. This tactic, when used properly, can make it impossible even for a very large majority to enact a perfectly constitutional agenda, even when it, let's say, won two consecutive election cycles by massive margins and controls 59% of both Houses and the Presidency.

Now, do these institutions have sound theoretical backing? What are the reasons why they exist?

The political power is divided in this country between Senate, House, and President because, yes, the Founders wanted a degree of stickiness in the government. In particular, yes, they said that the Senate should be the saucer that would cool down the House's hot tea. The American way of allotting political power ensures both that the balance of power changes routinely and that it does typically take a few consecutive good elections before you control all three political Houses. The British way is exactly the opposite: one good election and you will probably control all the political power of the country for five years. I can see the argument in favor of the American system; I can see the argument in favor of the British system. I think I like the American system better.

The Courts have a very clear philosophical underpinning. Their job is to protect the Constitution, its limitations on government power, and individual rights from attack by the majority of the country.

And as for the filibuster? I contend that there is simply no philosophical backing to the filibuster. It protects the minority? Well, only in the sense that it protects the losing side of an election, or even several consecutive elections, from having their antagonists' agenda enacted. It does not protect the rights of the minority, or of minorities, in any way that the Courts do not. It slows the process down? It certainly does that, so much so that, with a sufficiently unscrupulous minority, even a supermajority might be made to choose between accomplishing big-ticket agenda items and performing the ordinary business of governance at all. It prevents the winners of one measly election from running roughshod over the American polity? But we have institutions that do that already, namely the separation of political power into three separate institutions.

I contend that the only thing the filibuster does is prevent the Senate from having a voice unless in the most unusual of circumstances. When the vote on a bill is 59 to 41, the Senate does not speak in favor of that bill. But surely it does not speak against it, either. It simply does not speak. It cannot speak. It is an institution devoid of an agenda, a governing body with no will to govern in any way.

My argument is as follows. I believe that the government should be somewhat countermajoritarian, but not blindly or arbitrarily so. There are some aspects of pure majority rule that are undesirable; we should craft institutions to counteract those problems. We should not construct institutions that will simply be countermajoritarian because they feel like it. When the government is anti-majoritarian, it must be so with a purpose.

In fact, I would say that countermajoritarianism is only permissible when it is properly speaking democratic. The definition of democracy that I use in that sentence is not the simplistic sense of majority-rules; rather, I use what I consider to be the supreme definition of modern democracy or republicanism: "Government of the people by the people for the people." This either means that the government must belong to, be run by, and act in the interests of the people, or just that the governing of the people must be done both by the people and for the people; I favor the latter reading, because I think it loses no content and is much more elegant. In any event, Lincoln in this brilliant phrase separates very neatly the two elements of democracy. On the one hand, it must be by the people. This is the part of democracy that we conventionally think of, entailing such things as majority rule and representation, etc. But it must also be for the people. Government by the people which is not also a government for the people is not a true democracy. This includes, most notably, the exhortation that a true democracy can never violate the fundamental rights of its citizens; no majority, even a majority of all the people in one nation except for one, can legitimately, democratically, remove from that minority their human rights. It is in this sense that Henry David Thoreau, I think, described a man who is more right than his neighbors as being a "majority of one," though I think he applies the phrase too broadly. When 310,658,081 Americans vote to take the human rights of 1, that one lonesome, persecuted American constitutes a majority of one, in terms of democratic legitimacy.

And so it is the job of the Courts to be countermajoritarian, and difficult. They are the embodiment of this most fundamental characteristic of democracy, that it is not just the will of all but is rather the general will (h/t Rousseau), that it is not simply whatever the majority want but is about securing life, liberty, and the pursuit of happiness for all. Equal justice under law for all. This is why the Courts are one-third of our government, one of the great Branches of the American Government: they are important. And they are important specifically because they do not ratify the will of the majority. They are important because of the countermajoritarian difficulty.

But I think that both government by the people and government for the people are better served by political branches that are more majoritarian and less difficult. While the courts prevent government by the people from intruding upon government for the people, the filibuster simply prevents government by the people, full stop. It does not promote limited government, it does not promote stable government, it does not promote just government; it promotes no government, and demotes all governments. The only thing it promotes in governance is incompetence and inability.

It is recognized by essentially all political philosophers, including that great champion of consensus, Rousseau, that the ordinary business of government must be able to be conducted by a simple majority. This is, perhaps, the one great allowance that political philosophy makes to the fact that, while in theory there is no difference between theory and practice, in practice there is (h/t Yogi Berra). There are all sorts of theoretical reasons for wanting consensus, and one practical one for not requiring it, namely that very often it will not occur. In fact, I believe that it is in the nature of democracies that consensus can never occur, because the electoral process will ensure that within any given sphere of consensus divisions will be highlighted. I don't think that's a bad thing, but if it is it's a necessary evil. So it must be possible for ordinary things to happen with an ordinary majority. Philosophers disagree about what kinds of extraordinary actions by the government should require an extraordinary majority; I'm inclined to think wars or constitutional amendments, while some think tax increases (a bad idea for various practical reasons; see: California) and some governments require no supermajority to change their constitutions. But there is, ironically, broad consensus that supermajorities should only be required for special things in government.

So that's my solution to the countermajoritarian difficulty. Make the Courts countermajoritarian and difficult; it is their function. In fact, we should make our state courts a good deal more countermajoritarian and difficult; most states elect their judges, and only Rhode Island (yeah!) gives its judges life tenure. But keep all vestiges of pure obstructionist countermajoritarianism away from the political branches, and specifically remove the cancer that is the filibuster. Remove it in its entirety; it was never sound as a matter of political theory, and our government functioned with it for as long as it has only because of an unstable gentleman's agreement, which has now expired. Keep no vestiges, no 55-vote threshold, no ability by a minority to delay legislation without actively debating it, nothing. Purity, that is what I argue for: purity in the apolitical branches, and purity in the political branches. Confusing that part of the government which should obey the expressed will of the electorate, meaning the majority will of the electorate, with that part of the government which must resist the majority, and vice-versa, leads only to both of these vital jobs being done half-heartedly, and two fails do not make a right.