This article is written by Shambhavi Shrivastava, intern under Legal Vidhiya
Introduction
The political system in America in considered to be splintered. The present condition of the American democratic republic is a glaring contemplation of the evident fault in the foundational document, which is repeatedly reckoned upon for recommendations, direction, and illumination. The original American Constitution, which is often referred to as “Foundation of the USA democracy” was made in the year 1787 by the framers. The Constitution has both admirers and critics. The admirers are of the opinion that their Constitution is flawless and exemplary, on the contrary Critics over the years have opined that there are a few provisions in the Constitution which are undemocratic, which in turn highlights feeble and unjust governance structure. Nevertheless, another view is that the original Constitution was a combination of both democratic and undemocratic ideals that ultimately gave rise to utilitarian and non-utilitarian regulations and procedures. The Constitution believes enormously that equality, opportunity, and liberty are fundamental rights, the government is elected by the consent of the people and the government should not be given more powers than are necessary for its functioning, and it must respect the rights of the people. It is believed that a democratic society is one where all religions, race, gender, and ethnicity has the freedom of speech and expression without any fear. Nonetheless, the Constitution has many flaws notwithstanding the progressive premises it was based upon. The Constitution makers themselves have very little trust in the common people, they were to put simply, motivated by elitism. The United States of America was founded as a republic and not as a democracy. Though the terms republic and democracy are often thought to be synonymous to each other in reality, they both are two different concepts. Republic is often governed by a charter on the other hand democracy is a government directly elected by the people.
The United States Constitution is often celebrated as a document of democratic ideals and principles. However, a closer examination reveals several non-democratic aspects of the Constitution, particularly with regards to its original form and the way it has been interpreted over the years. This article explores some of these non-democratic aspects of the American Constitution.
Non-Democratic Aspects of the American Constitution
The Electoral College
One of the most controversial non-democratic aspects of the American Constitution is the Electoral College. The Electoral College is the mechanism through which the President of the United States is elected. Under the Electoral College, each state is given a certain number of electors based on its population. Rather than being elected by a direct popular vote, the President is chosen by electors who are chosen by the states. Each state is allocated a number of electors based on the size of its population, with the total number of electors being 538. In order to win the presidency, a candidate must win a majority of the electoral votes. Abraham Lincoln, the USA President, defined democracy as the “government of the people, for the people and by the people”. The elections have been undemocratic several times.
The problem with the Electoral College is that it can result in a candidate winning the presidency without winning the popular vote. This has happened several times in American history, most notably in 1824, when John Quincy Adams won the Presidential elections regardless of not winning the popular vote, in 1876 Rutherford B Hayes lost the popular vote to Samuel J Tilden despite having won the Presidency, in 1876 Benjamin Harrison was elected as the President despite losing by more than 90,000 votes, in 2000’s election when George W. Bush won the presidency despite losing the popular vote to Al Gore by more than 5,40,000. Recently, in 2016 Donald Trump won the election despite Hillary Clinton receiving 2.9 million more votes than him.
Critics of the Electoral College argue that it is an undemocratic system that can allow a minority of voters to decide the outcome of an election. They argue that the President of the United States should be elected by the popular vote, as is the case in most other democracies around the world.
The Senate
The United States Senate is another non-democratic aspect of the American Constitution. The Senate is the upper house of the United States Congress and is composed of two senators from each state. This means that each state, regardless of its population, has the same amount of representation in the Senate. Each state is given two Senators, regardless of its population. This means that a state with a population of just a few hundred thousand people has the same number of Senators as a state with a population of several million people. States like New York, Florida and Texas have the same number of senators as in the states of Wyoming, Maine, and Rhode Island. As per the 2021 estimates, Wyoming has a population of about 5.79 lakhs, Maine has about 13.7 lakhs and Rhode Island has about 11 lakhs on the other hand New York has a population of about 84.7 lakhs, Florida has about 2.18 crores and Texas has about 2.95 crores. The altercation here is why the state which has less population be at par with the states with having a larger population. The question which arises is whether giving two senators per state really works in a democracy.
This system can lead to a situation where a minority of the population can control the Senate. For example, in 2018, the Republicans held a majority in the Senate, despite winning fewer votes overall than the Democrats.
Critics argue that this system is undemocratic and that each citizen’s vote should carry equal weight in the Senate. It gives too much power to small, rural states at the expense of larger, more populous states. They point out that the 50 senators who represent the smallest states in the country can block legislation supported by the 50 senators who represent the largest states. Supporters of the Senate argue that it ensures that all states, regardless of their population, have an equal say in the federal government Some have called for the Senate to be abolished altogether, while others have suggested that the number of Senators assigned to each state should be proportional to its population.
The Supreme Court
The Supreme Court of the United States is another non-democratic institution. The Supreme Court is the highest court in the United States and is responsible for interpreting the Constitution and settling disputes between states. The nine justices who sit on the Supreme Court are appointed by the President and confirmed by the Senate. The Justices of the Supreme Court are appointed by the President and confirmed by the Senate. Once appointed, they serve for life, unless they resign or are impeached.
The Supreme Court has the power to strike down laws passed by Congress and to interpret the Constitution. This gives the Court immense power and influence over American politics and society.
Critics argue that the Supreme Court is undemocratic because its Justices are appointed, not elected, and serve for life. It is also argued that it is undemocratic because the justices are not elected and therefore are not accountable to the people. They also point out that the Supreme Court has the power to strike down laws passed by democratically elected officials, which can be seen as undemocratic. Supporters of the Supreme Court argue that its independence from politics ensures that it is not subject to the whims of the majority and can serve as a check on the other branches of government. They argue that the Court should be more accountable to the people and that its Justices should be subject to regular elections.
Amendment Process
The amendment process under the American Constitution is often regarded as a non-democratic aspect because it can be a slow and difficult process, requiring approval from two-thirds of both the House of Representatives and the Senate, as well as ratification by three-fourths of the states.
In order to amend the Constitution, a proposed amendment must first be passed by a two-thirds vote in both the Senate and the House of Representatives, or by a constitutional convention called for by two-thirds of state legislatures. The proposed amendment must then be ratified by three-fourths of state legislatures or conventions. This process can be seen as non-democratic because it requires such a high level of consensus and participation from multiple levels of government. It also means that minority viewpoints may struggle to gain traction, as the threshold for change is so high.
This high threshold for amending the Constitution means that it can be difficult to make changes to the fundamental structure of the government, which some argue can hinder the democratic process by making it harder to adapt to changing circumstances or respond to popular demands. Additionally, the amendment process is largely controlled by elected officials, rather than the general public. While citizens can certainly influence the process through lobbying and advocacy, they do not have direct control over the outcome.
Some argue that this high bar for constitutional change is necessary to protect the fundamental principles and values enshrined in the Constitution. Others argue that it can make it difficult for the Constitution to adapt to changing times and needs, and can limit democratic participation in the process of amending the Constitution.
Voting rights and Slavery
When the American Constitution was drafted, it did not abolish slavery, it was later on when slavery was abolished. Thurgood Marshall, former associate judge of the Supreme Court delivered a speech in 1987 in which he attacked the people who eulogized the farmers of their constitution as “genius” and pointed out that how the document was flawed and need ‘various amendments and profound societal alteration’ to attain a constitutional system of government which respects individual freedom. “We the People”, the first three words of the Preamble did not include majority of the American citizens. In terms of voting rights, negros who were considered as slaves were barred ignoring the fact that they tally up about three-fifth for the representational purpose. As a measure of increasing their revenue, the levies imposed on the slaves who moved over international territories was as high as ten dollars per slave. The American Revolutionary War was fought to defend the idea that “all men are born equal”, despite the fact the concept of equality seems to be applicable only to specific individuals. The blacks for more than a century were considered to be an inferior race and were also not regarded as important as white men. An African man i.e., a negro, was considered to be a property who was bought and sold.
To abolish slavery finally it took a major civil war and also the 13th amendment of the Constitution. To ultimately, to the reject the old ideology of “separate but equal” and relinquish the ideology that considers each individual to be treated with dignity and respect and also being treated equals in the eyes of law, regardless of the appearances and genealogical ancestry. It took them another century to possess certain basic facilities like housing, education and employment and also to be considered of some value in comparison to the whites. They were enslaved and segregated by law and lastly, they obtained equality by law.
Conclusion
We’re getting closer to different era. America is becoming a nation with many races, faiths, and socio-political ideas. It was not and is not homogenous in nature. The Constitution need to amended in favour of the changing times. In conclusion, while the US Constitution is rightly celebrated as a remarkable achievement in political history, it also has some non-democratic aspects that are worth considering. From its original design to limit democratic participation to its restrictions on voting and lifetime appointments to the Supreme Court, the Constitution contains provisions that are at odds with the democratic ideals that the country purports to uphold. The Constitution should be referred only for guidance instead of solely relying on it in the present dynamic scenario, while it should also not be completely ignored, it can undoubtedly be altered in order to rekindle the American principles of liberty, justice, and equality for everyone. Recognizing these weaknesses and working to address them may be key to ensuring that the American political system remains vibrant.
References
- Boston Review. (2022, November 14). Our Undemocratic Constitution – Boston Review, available at – https://www.bostonreview.net/articles/julie-c-suk-tk-2/
- Dahl’s Seven Undemocratic Elements. (n.d.). Politics | Tutor2u, available at – https://www.tutor2u.net/politics/reference/dahls-seven-undemocratic-elements
- Democratic and Undemocratic Elements of the Constitution. (2019, September 6). Free Essays, available at – https://ivypanda.com/essays/the-original-us-constitution-towards-evaluating-ways-in-which-the-constitution-was-democratic-and-undemocratic-functional-and-dysfunctional/
- Libretexts. (2021). 2.9: Chapter 19- How Democratic is the U. S. Constitution? Social Sci LibreTexts, available at –https://socialsci.libretexts.org/Bookshelves/Political_Science_and_Civics/Attenuated_Democracy_(Hubert)/02%3A_Constitutional_Foundations/2.09%3A_Chapter_19-_How_Democratic_is_the_U._S._Constitution
- Marshall, Thurgood. 1987 (May 6). Remarks of Thurgood Marshall.
- Non-Democratic Aspects of the American Constitution – Edubirdie. (2022, September 1). Available at – https://edubirdie.com/examples/non-democratic-aspects-of-the-american-constitution/
- OUPblog. (2013). Top 10 Reasons our Constitution is Undemocratic. OUPblog, available at – https://blog.oup.com/2006/10/top_10_reasons_/
- Us, H. B. |. U. P. S. O. L. (2022, September 2). Our Undemocratic Constitution. JURIST – Commentary – Legal News & Commentary, available at – https://www.jurist.org/commentary/2022/09/bruce-miller-our-undemocratic-constitution/
- Why Is the Constitution Not Democratic? | RealClearEducation. (2020, April 13), available at- https://www.realcleareducation.com/articles/2020/04/13/why_is_the_constitution_not_democratic_110408.html
