On the putative genius of (our) constitutional democracy

 … [L]iberalism, constitutionalism, and democracy do not per se make good societies, although they are arguably necessary part of the structure of a good society. But it is also true that merely having the psychology for or a commitment to a good society will make one. In particular, the makings of a civil society are not the makings of good government under a constitutional regime. What is generally required for a constitutional regime to work is that it serve the relative interests of major political groups in the society, that is, groups that are politically efficacious. — Russell Hardin

Capitalist democracy encourages economic calculation through the generation of conditions of material uncertainty. But economic calculation leads rationally to a rejection of more radical long-term struggles against capitalism itself. Short-term material improvement is the preferred aim of materially based conflict within a capitalist democracy because of the different requirements and competing logics of short-term pursuits and longer-term struggles, and the rational pursuit if material advantage within capitalist democracy thus leads to a less radical and less global pursuit of short-term material gain. [….] Thus the situation in which workers make their decisions leads them rationally, on the basis of their material interest, to choose not to struggle against capitalism. The long-term production of consent within capitalist democracy is based on just such short-term decisions to consent to capitalist production. The system can provide workers with short-term material satisfaction, and workers participate in the system to assure that satisfaction. And even when, as is not infrequently the case, capitalism is failing to deliver material benefits, rational calculation does not mandate a longer-term transformative conflict. Individual workers may hope that the burden of decline will not fall on them. They may calculate that protecting existing gains from further erosion is more likely to deliver benefits than engaging in a costly and in any case uncertain long-term effort. And if they are organized, their organizations, designed to deliver short-term benefits under better conditions, are likely to be ill-suited to the enterprise of radical transformation. – Joshua Cohen and Joel Rogers

The likelihood of reducing the extreme inequality of representation in the Senate is virtually zero. The chances of altering our constitutional system to make it either more clearly consensual or more definitely majoritarian are also quite low. The likelihood is very low that the Supreme Court will refrain from legislating public policies, often highly partisan ones, and instead focus its power of judicial review strictly on the protection of fundamental democratic rights and issues of federalism. The combination of chief executive and monarch in the American presidency is not likely to change. Finally, the probability that democratic changes in the electoral college will occur appear to be inversely related to their desirability, with the most desirable having the lowest probability of occurring. There is at least a modest chance that some states might require their electoral votes to be allocated in proportion to the popular votes. But a constitutional amendment that makes the number of a state’s electors proportionate to its population stands little chance of adoption. And the inequality in representation in the Senate makes a constitutional amendment providing for direct popular election of the president virtually impossible. — Robert A. Dahl

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“The genius of constitutional democracy has been that it limits what the most powerful interests are allowed to do.”—Neil H. Buchanan (in a recent post at Dorf on Law)

I beg to differ: I think it’s in fact the case that the genius of (liberal) constitutional democracy, to the extent such a thing exists, is owing to its ability to serve the mutual advantage of interests embodied in and common to a large middle class and the wealthy (the wealth here being of the kind generated by capitalism). And it is the comparative stability, ideological tenacity, and rule of such genius that is democratically distorting and disturbing. It may, on occasion (thus in an episodic not structural sense), and owing to the aspirational legitimacy of a representative democracy, constrain the exercise or morally egregious expression of the most powerful of those interests, but this is utterly contingent on those outside the circle of the (largely white) middle and upper classes having opportunities to represent their interests within the four corners of the constitution. The groups whose mutual advantage must be served are not the poor, the disenfranchised, the vulnerable, the incarcerated, and so forth; in brief, those outside the circle of the most powerful interests. De jure constitutional democracy in this instance is de facto capitalist democracy, hence political rights tend to be formal and procedural and not substantive (this is not to dismiss the value of the former, but to highlight their limits vis-à-vis a democratic society). The true genius of our constitutional democracy, therefore, is best evidenced in the fact that the welfare of workers is structurally secondary to the welfare of capitalists, the well-being of the former in the hands of the decision-making and investment practices of the latter. Capitalist or constitutional democracy does not limit the private control of investment in the hands of the wealthy (as individuals or corporations). Conditions of material insecurity inherent in a capitalist democracy (be it a liberal, corporatist or social democratic welfare state; although the choice among these types has very real consequences for the welfare and well-being of those not solidly middle class or wealthy) finds workers canalizing their general and moral (or worldview or ‘lifeworld’) interests in a myopic manner into the “rational” pursuit of material advantage or short-term material gain.

Professor Buchanan replied to my comment as follows: “I do not disagree with Patrick O’Donnell’s comments at all. I would only say that he is arguing that constitutional democracy is quite consistent with neoliberalism and thus exploitation. Again, I agree. My point was that the very nature of constitutional rules is to put some limits on what powerful interests can do. If that were not true, powerful interests would not be so eager to hire Supreme Court justices to eliminate those limits.”

References & Further Reading

• Alford, Ryan. Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law (McGill-Queen’s University Press, 2017).
• Anderson, Carol. One Person, One Vote: How Voter Suppression is Destroying Our Democracy (Bloomsbury Publishing, 2018).  
• Berman, Ari. Give Us the Ballot: The Modern Struggle for Voting Rights in America (Farrar, Straus and Giroux, 2015).
• Chang, Ja-Joon. 23 Things They Don’t Tell You about Capitalism (Bloomsbury Press, 2010).
• Cole, David and James X. Dempsey. Terrorism and the Constitution (The New Press, 3^rd ed., 2006).
• Dahl, Robert A. How Democratic Is the American Constitution? (Yale University Press, 2^nd ed., 2003).
• Fontana, Benedetto, Cary J. Nederman, and Gary Remer, eds. Talking Democracy: Historical Perspectives on Rhetoric and Democracy (Pennsylvania State University Press, 2004).
• Garsten, Bryan. Saving Persuasion: A Defense of Rhetoric and Judgment (Harvard University Press, 2006).
• Gilbert, Alan. Democratic Individuality (Cambridge University Press, 1990).
• Goodin, Robert E. Reflective Democracy (Oxford University Press, 2003).
• Greenberg, Karen J. Rogue Justice: The Making of the Security State (Crown, 2016).
• Hasen, Richard L. Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, 2016). 
• Hedges, Chris. Empire of Illusion: The End of Literacy and the Triumph of Spectacle (Nation Books, 2009).
• MacLean, Nancy. Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America (2017). 
• May, Gary. Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic Books, 2013). 
• Mayer, Jane. Dark Money (Doubleday, 2016).
• Nelson, Dana D. Bad for Democracy: How the Presidency Undermines the Power of the People (University of Minnesota Press, 2008).
• Tullis, Jeffrey K. and Stephen Macedo, eds. The Limits of Constitutional Democracy (Princeton University Press, 2010).
• Urbinati, Nadia. Representative Democracy: Principles and Genealogy (University of Chicago Press, 2006).
• Urbinati, Nadia. Democracy Disfigured: Opinion, Truth, and the People (Harvard University Press, 2014).
• Wills, Garry. Bomb Power: The Modern Presidency and the National Security State (Penguin Press, 2010).
• Wolin, Sheldon S. Democracy Incorporated: Managed Democracy and the Specter of Inverted Totalitarianism (Princeton University Press, 2008).