The US is Not a Democracy. And That's a Good Thing.

Musings on governance, institutions, incentives, and constitutional law

December 2021

The US is Not a Democracy and Never Has Been

Please ban the inane thought that “the United States is a democracy” from your mind. Voting in the Conservative Party in the UK is a democracy: everyone votes and every vote is equal. Voting in ancient Athens was a democracy (if you were part of the privileged ~10% of the population, that is, the property-owning, male, citizens). Voting in referenda in California or Switzerland is democratic - there is a clear issue, any citizen can vote, and the majority wins. That is not the US federal government. Your civics teachers mis-led you. So while the recent fear-mongering in the mainstream media is that “America democracy is tottering ” or that “the US democracy is under threat”, you should read through those headlines as nonsense.

Here are two definitions of democracy, for those inclined to argue with me, from the American Heritage Dictionary (5th Edition) and Oxford English Dictionary (2nd Ed., 1989).

So if the US isn’t a democracy, what is it?

The US is a Federal, Constitutional Republic, with a Separation of Powers and Strong Protections for Minority Rights

Every concept in this sentence matters. Federal means that states are the ultimate units of power, while the national government has limited, enumerated powers. Constitutional means we have a written document (not unwritten like the UK). A republic means we are not a pure democracy, but a representative one, where we vote for others to vote for us (or often vote against what we want). This matters because in the written US constitution, it's very clear that the system does not offer one vote for each citizen. Instead, 2 votes for each state is what matters, along with the representation of the electoral college, which was one of the most debated parts of the Convention (it wasn't a side thought - it was designed to reduce “mob rule” and “factions”).

The separation of powers means that the more democratic parts of the government, the two bodies of the Congress, are strongly checked by a strong executive and a fearsome judiciary (both not democratic). These were features, not bugs. The US was designed to be a mixed form of government, mixing the best of monarchy, aristocracy, and democracy.

• Monarchy: The President, army, and Cabinet. Later the regulatory agencies.

• Aristocracy: The Senate, and the federal judges. The first was accountable to state legislatures for a long time (before direct elections), and the second are accountable to no one (ok, maybe slightly accountable to Congress, but not much). Also, the officer corps in the military was modeled after the Prussian military officers’ corps (who were aristocrats), and this is clearly anti-democratic.

• Democracy: Citizens have some democracy at the city or county level, less at the state level, and limited amounts at the federal level by electing members of the House (and added later, direct elections of Senators).

The term "trias politica" or "separation of powers" was coined by Baron de La Brède et de Montesquieu, an 18th century French social and political philosopher who influenced the US founders deeply. George Washington, in his Farewell Address of 1796, reminded Americans of the need to preserve the Founders' system, which was specifically mixed and anti-democratic. He spoke of the "love of power and proneness to abuse it which predominates in the human heart" and warned of the "necessity of reciprocal checks of political power, by dividing and distributing it into different depositories and constituting each the guardian ... against invasions by the others." Of such checks and balances through the separation of powers be concluded, "To preserve them must be as necessary as to institute them." Some serious scholars think the American separation of powers sucks, and we should switch to a parliamentary system, but I’m not sure.

Only Some Individual Rights Mattered - Most Were Added Later by Judges

The minority rights that founders most cared about were property rights. These were rich, elite men (roughly half were slaveowners), and they wanted to make sure the democratic masses could not take away their property. After property, they privileged some speech and other political rights (gun rights, sanctity of home, right to a trial, etc) - all of these again are explicitly not democratic.

The important right of all people to be free and not enslaved (no human property!), was won via the Civil War with the 13th and 14th Amendments ratified in 1865 (at the cost of 622K dead Americans, more than any other American war or disaster, till COVID-19 took the lead in 2021). Similarly, women’s rights only came with the 19th amendment, ratified in 1920. Many minority Americans didn’t even get full voting rights till 1965.

Other Structural, Anti-Democratic Parts of the American System were Designed that Way

Many college-educated Americans like to complain about these, but don’t realize they were specifically written in the constitution to be hard to overcome. They were debated at the constitutional convention as ways to reduce “mob rule” (aka democracy).

• The Electoral College: The founders debated and rejected direct voting for the President - the people couldn’t be trusted (in those days, news traveled slow, so a smaller body of informed delegates made sense).

• The US Senate: No one trusted the mob’s representatives, the House, so this was the check. Senators were elected by state legislatures. They were rich and powerful for most of US history, and that still holds true today.

• Life Appointment for Federal Judges: If both bodies of the Congress went haywire, judges could be counted on to enforce the rule of law and protect minorities. I once sat in the chambers of a federal judge, who took out a cigar to smoke. I said, “But judge, there’s no smoking, per federal law, in courthouses.” The judge replied: “In this courthouse, my word is the law.” Bah, the laws of the little people weren’t going to hold him back.

• Federal Agencies, including the Federal Reserve: These came up much later, from the Supreme Court’s jurisprudence on federal administrative law, and are properly the fourth branch of government and are an unaccountable power center by themselves. The Federal Reserve is the second most powerful institution in the US; less powerful than the President, but arguably more powerful than the military. It’s totally undemocratic, despite the show hearings these agencies give before Congress each year.

• Large Defense Budgets, and a Permanent Military-Industrial Complex: The War Department (uh, “Defense Department”) is the 2nd oldest part of the US government, a few weeks younger than the State Department. Some changes after WWII, specifically the National Security Act of 1947, gave the US military quasi-constitutional status (good luck taking away the treats from the bear - this National Security State was Gore Vidal’s bête noire).

The US Founders Specifically Designed a Mixed System to Hold Back Democracy

If you don’t believe me, here are some statements from the founders themselves:

• Alexander Hamilton stated: "The body of people … do not possess the discernment and stability necessary for systematic government. To deny that they are frequently led into the grossest errors by misinformation and passion, would be a flattery which their own good sense must despise." (Speech to the New York ratifying convention, 1788)

• “Real liberty is not found in the extremes of democracy, but in moderate governments,” Alexander Hamilton wrote. “If we incline too much to democracy we shall soon shoot into a monarchy, or some other form of a dictatorship.” (Constitutional Convention. Remarks on the Term of Office for Members of the Second Branch of the Legislature, 1787)

• John Adams concluded that democracy “never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy yet that did not commit suicide.” (Letter from From John Adams to John Taylor, 17 December 1814).

All the un-democratic parts of what I wrote above were debated for 4 months in 1787, and have been in practice for almost 250 years. These are core features of the system that were thought through carefully - that progress and freedom do not come from giving the democratic, majority "mob" control over everyone else. Democracy is limited.

Some scholars say there were two constitutional moments when the US system was reformed via popular sovereignty: the Reconstruction Republicans in the 1860s, and the New Deal Democrats in the 1930s. But it still ain’t a democracy. Sorry.

The EU is Even More Undemocratic than the US

Before my European friends get haughty and start hectoring me, let’s acknowledge the obvious. The EC, European Parliament, Rotating Presidency, ECB, and so on copy the US system but have even more un-democratic elements. Some of this is good, others are not - but it's really hard to analyze the long-term balance of different institutional frameworks. Europeans like to politely call this a “democratic deficit.”

So Why is Not Being a Democracy a Good Thing

It’s because mob rule scares the heck out of me. The US House is full of scary, half-wit, ignorant, emotionally volatile representatives (there are some good ones, but many scary ones). That is pure democracy. The Senate is better: they are more level-headed, educated, and longer-term in their thinking (but we need to eliminate the much-abused, super-majoritarian filibuster rules). I trust some federal agencies (the EPA, the Fed, NASA), but not many. While I don’t like many of these bureaucratic technocrats, they are much better than the House’s Committees (pure grandstanding and noise). Finally, the decidedly undemocratic federal judges are what hold the US together. While federal judges have made short-run and poor decisions in the past (e.g. Dred Scott v. Sanford (1857), Buck v. Bell (1927), Korematsu v. United States (1944), Plessy v. Ferguson (1896), etc) ultimately they’ve helped the country and done what’s right (e.g. Gibbons v. Ogden (1824), Abrams v. United States (1919), Brown v. Board of Education (1954), Heart of Atlanta Motel v. US (1964), Loving v. Virginia (1967), Brandenburg v. Ohio (1969), United States v. Nixon (1974), etc).

Other countries that are purer, parliamentary democracies seem more suspect: Italy, the UK, Egypt, India, and Spain don’t seem to be great systems. Those governments have been unstable and even more divided. Unicameral systems (only one “democratic” body) are even worse: China, North Korea, Cuba, Turkey, Vietnam. The purest form of “Chinese democracy” happened in the Cultural Revolution - who wants that?

Are there better systems than the current US federal system? Yes, most likely. I hope Americans can experiment at the local and state level and figure out what works and improve the US system. Switzerland, Singapore, Sweden, and New Zealand also have some interesting institutional arrangements to learn from. But until that happens, I’m glad the US is not a simple democracy. It’s something else, it’s special, and it can get better. So in conclusion, I would amend Churchill to say:

“Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy [a Federal, Constitutional Republic, with a Separation of Powers and Strong Protections for Minority Rights] is the worst form of Government except for all those other forms that have been tried from time to time.” (Winston S Churchill, 11 November 1947)

Further Reading

• Stanford Encyclopedia of Philosophy, “Democracy” (2006)

• Richard Beeman, "Plain Honest Men: The Making of the American Constitution" (2009)

• Alexander Hamilton, James Madison, and John Jay; Edited and with an Introduction by Ian Shapiro, “The Federalist Papers” (1787)

• Jack Rakove, "The Annotated U.S. Constitution and Declaration of Independence" (2012)

• Akhil Amar, "America's Constitution: A Biography" (2005)

• Berkin, “The Bill of Rights: The Fight to Secure America's Liberties” (2015)

• Kathleen M. Sullivan and Noah Feldman, “Constitutional Law” (2020)

• John McCormick, “Understanding the European Union: A Concise Introduction (The European Union Series, 8th Edition)” (2020)

• Lawrence LeDuc, Richard G. Niemi, & Pippa Nor, “Comparing Democracies: Elections and Voting in a Changing World, Fourth Edition” (2014)

• Jonathan Steinberg, “Why Switzerland? 2nd Edition” (1996)