DON'T JUST DO SOMETHING, STAND THERE:
A Review of Robert Alan Dahl's Recent Book on Democracy and the Constitution

Robert Alan Dahl, How Democratic is the American Constitution? (Yale Univ. Press 2002)

Nary a word can be found of the 2000 presidential election and the judicial decision that resolved it on the dust jacket of this book. Yet a simmering dismay at the course of that contest, and its resolution through the Supreme Court's decision, animates much of what is between the covers, and makes an occasional brief appearance on stage.

Two particular targets for Dahl's derision are the Electoral College and, in something of a twist, coming from the left, "judicial policymaking" by "unelected judges." The task Professor Dahl sets out for himself is to construct an argument grounded in the assertedly neutral principle of "democracy" that demonstrates the sins he perceives in the events of 2000 and 2001.

What is clearly for Professor Dahl a tough case - Bush v. Gore - has made for a book that is suspect in its use of history, unpersuasive as a work of comparative political science, and on occasion just plain outlandish. Indeed, while Professor Dahl steadfastly denies it, his arguments (simply taken as a whole, not taken to any extremes) well demonstrate that he values equality of participation and the empowerment of majorities over individual liberty.

Held to this rarefied and, to my view, undesirable measure, I would happily agree that our Constitution is not particularly democratic. We are lucky and should be thankful for that.

Were the Framers Ignorant of the Future Role of Political Parties?

The first portion of the book is an argument from history that proceeds from an essentially defensive stance. Professor Dahl seems to be saying, sure, the Founders were swell, but there were some things they just couldn't know about, and so we should just recognize this and should not get emotional about ripping up their handiwork in the Constitution. This has proved to be a controversial aspect of the book, and with good reason.

By way of example, Professor Dahl claims at length that the Framers wrought the Constitution in ignorance of the possibility that political parties would play a prominent role in the politics of the nation. The argument is grounded in James Madison's famous denunciation of faction in Federalist No. 10. When Madison said "faction", he meant "party", we are told, and so Madison in Philadelphia operated under the assumption that there would be no parties.

No less than Professors Elkins & McKitrick, authors of the monumental and canonical The Age of Federalism are cited as authority for the view that Madison, a mere five years post Publius, reversed directions and embraced parties in a series of articles published in the National Gazette.

Unfortunately, that is not what Elkins & McKitrick write on the pages cited by Professor Dahl. Rather, to the contrary, they make the point that Madison, like Hume before him, recognized at the time of the Convention that parties were to be expected to be a necessary feature of anything other than an edenic democracy. After all, Madison was certainly aware that he was writing from the Federalist point of view and that there was another group of people out there, the Anti-Federalists, who had a different take on things - we might even call these opposing groups parties.

The second portion of the book is an exercise in comparative political analysis, the point of which is to demonstrate that other countries have not adopted quite our system, and other countries are better off for it. The first point largely cannot be debated, but there is a critical caveat. The constitutional court, an undemocratic innovation if there ever was one, is a distinctively American innovation and has become a ubiquitous hallmark of ordered liberty.

As to the second point, I am not a political scientist, but it strikes me as odd (and maybe that is too fair; on reflection, I think it is just dead wrong) to describe, say, Italy as a stable democracy with which the United States' system compares unfavorably. While Professor Dahl cites the American Civil War as a telling sign of the shortcomings of our system, no accord at all is given to what has been going on in Italy over the past 100 years - things like a fascist dictatorship, a near-ascendant communist movement, endemic corruption and, finally, a thoroughly democratic (read, majoritarian) system that produces coalition governments with half-lives that only a dairy product could envy.

Likewise remarkable is Professor Dahl's statement that Israel is to be held up as a paragon of effective democratic government because its parliamentary system "maintain[s] internal peace, provide[s] opportunities for compromise among opponents, and produce[s] a broad consensus in favor not only of government policies but the country's political arrangements as well."

Not hardly. Indeed, I would argue that it is the very lack of mediating structures in the Israeli system - too much perfectly proportional Dahlistic democracy - that makes it difficult for that system to grapple with the grave challenges it faces.

A president of Israel might have a shot of leading that nation to a peaceful resolution of the current crisis. If she could pull it off in four years, she would be a hero, and if she could not she would be run out of office.

Under the current Israeli system, however, the prime minister is beholden every day of his term to the various groups on the extremes that are necessary participants in any coalition government. It is exceedingly difficult, as recent and tragic events have shown, to see that the current Israeli system is capable of anything other than treading water on the constant brink of war. In short, constitutional structures do matter, and more democracy is not, vel non, always the best thing.

The Problem With Dahl's Arguments, Viewed in Totality

Finally, the danger of the ideals Professor Dahl sincerely and fervently holds - and, it should be said, has held for many years - can be demonstrated conclusively with an illustration of the essential incongruity of the result when individual threads of the argument are brought together.

On the one hand, according to Dahl, constitutional courts are to be condemned as antidemocratic. At the same time, constitutional constraints such as the Bill of Rights are to be celebrated as necessary to secure the stage for the operation of democracies.

In Professor Dahl's world there is no need to worry on this point because, we are told, "differences in rights and liberties cannot be attributed to constitutional systems." Really?

Could Professor Dahl convince a reporter in the United Kingdom that the First Amendment makes no difference? I have a client who was held in France without being charged and without legal recourse for a full year. Could Professor Dahl persuade him that our Constitutional strictures on criminal process are simply superfluous window dressing? Not a chance on either count. And he cannot convince me either.

True Democracy Versus the Tyranny of the Majority

At bottom, I see in Professor Dahl's argument nothing more than an elegant prescription not for democracy, but for a frightful tyranny of the majority.

To my view, the root defect in Professor Dahl's interpretation of the works of the Framers and his radical agenda for empowering majorities is this: a blind spot for the problem of agency costs. Agency costs are the differences in perspective that exist in all human relationships where there is a separation of ownership of an asset (in this case, political power, ownership of which - sovereignty - resides with the People) and the control over the use of that asset (which is necessarily vested in an indirect democracy with the representatives elected to serve in various legislatures).

As best expounded in the works of Bruce Ackerman, Professor Dahl's colleague down the street at the Yale Law School, the true genius of Madison in particular and the Constitution in general was an appreciation for the difference between the actions of a majority of the People and the actions of a majority of any given legislature. In short, Madison well understood agency costs, though of course he would not have called them that. In his view, they implied that individual rights were invaluable and that it would be a cardinal error of constitutional design to treat legislators as if they were sovereign, rather than merely representatives of the actual sovereign.

A recognition of the need to combat the problem of agency costs demonstrates that the - to use Dahl's term - "anti-democratic" features of the American Constitution need not "befuddle" Professor Dahl and were not the product of some miscalculation by the Framers grounded, as he would have it, in blissful ignorance.

To the contrary, the "clogs and difficulties," as one observer contemporary to the Convention put it, hard wired into the Constitution (bicameralism, presentment, an independent judiciary - all targets of Dahl's reforms) were purposely built into the document to constrain the actions of legislative majorities.

The Founders appreciated that it would be simply too dangerous and unstable to equip politicians in a far off federal capital with efficient means for implementing the passions of the day. They were right, Dahl is wrong.