Why the American system of government
is an oligarchy and what can be done about it
“The first and fundamental positive law of all commonwealths. is the establishing of the legislative power.” John Locke, Second Treatise of Government, §34
Americans call their form of government or system of rule a democracy. Politicians like to brag about this, reminding other countries that the United States is “the oldest continuous democracy in the world.”[1] But after the shocking mob attack on the U.S. Capitol on January 6, 2021, there has been much talk about the “fragility” of American democracy and constant warnings that the long continuity of their cherished system of government might soon be over.[2]
I agree that there is much to like about the our form of government and there are good reasons to fear a future overthrow, but the form of government that is bragged about is not a democracy. There are so many features in the U.S. system similar to those found in oligarchies and aristocracies that it is misleading to use the word “democracy” to describe the American form of government.
Democracy is a system of government or rule in which the power to legislate is either held directly by a simple majority of the people or by representatives who have been elected by the people. It is the only system of government in which all citizens have equal power (rights) to either legislate or give their power of legislating to others of their own choosing. The former system is called direct democracy. The latter is called representative democracy. Whether democracy is either direct or representative, the agreement of a simple majority of the whole people or their elected representatives is necessary before a law can be created or changed.
For example, in a democracy if a law is proposed that mandates citizens to wear face masks during a pandemic, then the proposal becomes law only if there is a simple majority of legislators who approve. The proposal fails if there is one or more votes less than a simple majority. Any system of rule that allows a minority to pass a law would violate majority rule as a central principle of democracy. If more than a simple majority is required to create or change laws, then the minority has the power to block legislation. This requirement dissolves democracy and replaces it with another form of government that John Locke refers to as oligarchy[3], and what Jean-Jacques Rousseau and other philosophers call aristocracy[4]. What these forms of government have in common is that legislative power is given to “the few.” It is irrelevant that the governing few are corrupt or may have inherited the power to legislate by birth or were directly elected by the people for a few years or for a lifetime.[5]
The number of oligarchs or aristocrats who are rulers in a commonwealth is historically small, and permanent. When we think of an oligarchy, we usually imagine a system of government that has only a few individuals with the power to create or change laws and have this power for a lifetime. But suppose there is a country with a rule of governance that places legislative power in the hands of a temporary minority by requiring that laws can only be created or changed by the vote of a supermajority. Thus, any minority group of legislators can block laws proposed by a majority if the majority fails to meet a certain threshold, for example, sixty percent of the total number of voting legislators. If a majority of 100 legislators is 51 and it takes 60 to pass a law, then we can refer to this system of rule as a shifting oligarchy. It is an oligarchy because it is a minority with the power to block legislation. It is “shifting” because the makeup of the minority group that is doing the blocking is temporary.
The defects of democracy
1. The oligarchy of the filibuster.
First, the filibuster action or tactic used in the U.S. Senate is clearly undemocratic. It is a perfect example of what I have called the rule of a shifting oligarchy.
Filibusters are actions allowed in a legislature (such as a prolonged speech) that obstruct progress in passing a bill while not technically contravening the required procedures. Although filibusters can be overridden by the vote of a supermajority of senators (60 instead of 50 in a group of 100), this rarely happens, especially if there is an equal number of senators on both sides of an issue. In most cases, the filibuster succeeds because a supermajority to override the filibuster cannot be found, and a simple majority of senators are thereby prevented from passing the desired bill or law. The minority who opposed the law get what they want, but only because the system of rule has been transformed by the filibuster from a democracy into a shifting oligarchy.
The argument for keeping the filibuster given by Democratic senators Joe Manchin and Krysten Sinema is that the filibuster forces senators from both parties to seek a bipartisan solution. It is more important to Manchin and Sinema that a bill has bipartisan support than passing a bill proposed by a simple majority of senators of one party. In other words, for these senators, using the filibuster to prevent a simple majority of senators from one party from passing a bill is more important than adherence to rule of the majority as a foundational rule of democracy. The will of the people is only expressed through a majority. There is no requirement that the majority be composed of members of contending factions.
2. The oligarchy of the Electoral College.
The Electoral College is an undemocratic system for electing the president and vice president because it overrides the popular vote of the whole people of the United States.
The college is a group of presidential electors required by the US Constitution to meet every four years. Their only purpose is to elect the president and vice president. Each state has as many "electors" in the Electoral College as it has Representatives and Senators in the United States Congress (the District of Columbia has three electors). When voters go to the polls in a presidential election, they are voting for a slate of electors who have vowed to cast their ballots for the winning ticket in the Electoral College. Unbeknownst to most voters, when they go to the polls to cast their ballot they are not directly voting for a particular president and vice president. For those who know about and understand the process, they cast their vote hoping that the ticket that wins the popular vote will also be the ticket that the electors vote for when the Electoral College meets in Washington, D.C. two months after the election. Although the Constitution does not require electors in each state to cast their vote for the president and vice president that was chosen by popular vote, most electors will do so.
The source of inequality is to be found in the distribution of electors in each state. The distribution is not proportionate with the number of eligible voters. For example, the voting population of the state of California is over 22 million and the number of California electors is 55. Wyoming has 269 thousand voters and 3 electors. If the number of electors were proportionate to the voting population of these states, California would have 245 electors not 55.
The implication of this is that the three electors from Wyoming have much more power than the fifty-five electors representing California. Each Wyoming elector represents 90,000 voters but each California elector represents 400,000 voters, making Wyoming voters 4.4 times more powerful than California votes when the final electoral votes are cast.
In their effort to give small states like Wyoming, Vermont and Delaware more power in presidential and vice-presidential elections than they would have if electors were appointed in numbers proportionate to their voting population, the founding fathers ignored the principle of equality. If this moral principle had been employed when the Constitution was ratified, each vote would count for one and no vote would count for more than one. The first foundational principle of majority rule mentioned in part 1 of this paper is not sufficient to account for this. A voting system that gives more power to voters who live in one state than those who live in another state violates a second foundational principle of democracy: equality (one person, one vote).
3. The oligarchy of the United States Senate.
The composition of the United States Senate is undemocratic for the same reason that the Electoral College is undemocratic. The Constitution of the United States gives each state two senators, regardless of the number of voters in the state. Hence, the legislative power of the people in the state of Wyoming who elect their two senators to represent them in the Senate is much greater than the legislative power of the California citizens who also vote for two senators. The moral principle of equality is violated in the extreme in delegating senators because the delegation is modelled on the 18th century aristocratic British House of Lords. Although U.S. senators are elected by the people, not appointed as “lifetime peers” by a king, the disproportionate legislative power held by both U.S. senators and British lords is the same.
4. The oligarchy of the presidential veto.
The power of presidential veto in Article I, section 7 of the Constitution is undemocratic because it grants the president the authority to veto legislation passed by Congress. Congress can override a presidential veto but only if both the House of Representatives and the Senate can muster two-thirds of its members to approve the override.
Although the veto power of the president was approved by the founders to diminish the legislative power of Congress and thereby achieve a balance of power between the legislative, executive and judicial branches, the use of the veto is a clear assault on democracy. Congress can override a veto, but it takes a supermajority of the members to do so. This requirement is sufficient to categorize this article of the Constitution as another endorsement of oligarchy and a rejection of democratic rule.
5. The oligarchy of voter suppression.
There is no explicit right to vote in the Constitution or in its amendments. This omission is undemocratic because the concept of democracy implies that all members of the “demos” (the whole people) must have the right to vote if they are to carry out the function of ruling (legislating). If a proposed law is a product of the vote of the people or those who represent them, then we can infer from this that their form of government is a democracy.
The right to vote is implicit in the Constitution and its amendments. Section 1 of the Fourteenth Amendment comes close to making the right to vote explicit:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
A “privilege” of being a citizen is having the right to vote. If voting is a privilege of citizenship, and the exercise of the right to vote is one of the most important rights that citizens possess, then no State can make or enforce laws that would deprive citizens of the vote without due process of law and without the equal protection of the laws.
The question before the courts today is whether new laws recently passed in several states that make it more difficult for minorities, the elderly, young and poor people to vote are in violation of the 14th Amendment and the Voting Rights Act of 1956. The burden is on the states to prove that restrictions placed on how and when to vote are necessary to prevent fraud. For example, if a state has no evidence that voting by mail or voting on Sunday increases the number of fraudulent votes, then prohibiting people to vote by mail or on Sunday is an instance of voter suppression that impacts minority groups more than it impacts others.
6. The oligarchy of representation.
The 18th century Genevan philosopher Jean-Jacques Rousseau famously argued that most governments that call themselves democracies do not qualify as such. Rousseau argues that the only true democracy is direct democracy. When a proposal for a law comes up for a vote, the only persons who should be allowed to cast a vote for or against the proposed law are the citizens themselves. Anyone who claims that she is a representative of a group of citizens and is voting “in their behalf” should not be allowed to join the assembly of voters. She can cast her personal vote as a citizen but she cannot cast a vote for other citizens.
To give one’s vote to another is equivalent to not voting at all. When citizens go to the polls and vote for candidate X, they alienate their freedom to legislate by giving the power of their vote to X, the would-be representative. Once X is sworn in office, no one will have no control over representative X’s votes until the next election. For the next two, four or six years the votes cast by representatives are their votes not the votes of the citizens that they are presumed to represent.
If the only legitimate votes for new laws are the votes of representatives and not the votes of citizens, then an assembly of elected representatives is no different than an assembly of unelected aristocrats who have been given legislative power. In the spirit of Rousseau’s words, an assembly of representatives, no matter how they came to power, is an assembly of aristocrats. It is certainly not a democracy. Democracy exists only when the whole people rule. The “whole people” is a simple majority of citizen voters. To quote Rousseau, only the vote of a simple majority can express the general will.
Repairing the defects
The United States of America is an oligarchy not a democracy. If the words “oligarchy” and “aristocracy” are too much to bear, then you might call the form of government a flawed democracy. Parts of the system of government is oligarchical but not enough parts to declare the whole a true oligarchy.
Is there any way to repair the flaws? Here are a few suggestions.
First, the U.S. Senate should abolish the filibuster. The argument that the filibuster is needed to guarantee bipartisanship in the Senate is not a sufficient reason to violate the principle of majority rule and with it the heart of democracy. This justification for the filibuster is equivalent to saying that no law should be passed unless it is approved by a supermajority of senators, for example, by 75 out of 100 votes of approval. If it is argued that this would permanently enshrine a tyranny of the minority (the 25 senators who disapprove), then the same argument can be applied to the use of the filibuster.
Second, the Constitution must be amended to abolish the Electoral College. It is a remnant of aristocratic governments and it has no place in a country that aspires for democracy and hypocritically repeats the words “government of the people, by the people and for the people.”
Third, a more radical solution would be to abolish the U.S. Senate entirely. The fact that each senator does not represent the same number of citizens is sufficient to declare the composition of the Senate as undemocratic. If equal representation is made a requirement, then the membership of the Senate would be like the membership of the House of Representatives. Hence, it would be redundant legislative body.
Fourth, Congress should immediately codify the right to vote or put into action the long process of amending the U.S. Constitution to guarantee the right to vote. This latter could be done by adding new words to the First Amendment; for example, “Congress shall make no law… prohibiting the free exercise of the right to vote.” Or Congress could vote for a new amendment using these or similar words, solely dedicated to the right to vote.[6]
Fifth, the power of veto should be removed from the presidency. It is obviously in violation of the principle of majority rule. The power of the president should be entirely executive not legislative, for reasons already cited above.
Sixth, attempts to suppress the vote can be quashed by passage of a constitutional amendment that guarantees the free exercise of the right to vote, as recommended above. If an amendment cannot be passed, then Congress has the power to federalize the vote for president and vice-president. At this writing, recent attempts to pass this legislation have failed in the U.S. Senate because Republicans are convinced that practices like mail-in ballots and same day voting will increase the number of fraudulent votes, even though there no evidence that this happened in the 2020 election.
Seventh, Rousseau’s recommendation for direct democracy should be taken seriously. At the time that Rousseau wrote The Social Contract (1762), there was no practical way for most states to adopt in-person voting for proposed laws. If it is to work at all, Rousseau opined, direct democracy could only work in states with very small populations in which each citizen could travel and assemble at the designated polling place.
But times have changed. We now have the technology for people to approve or disapprove proposed laws by ballot. The recent referendum in the state of California is a prime example of direct democracy. 17.8 million residents voted for president, senators and representatives on November 6, 2020. More than 15 million ballots were cast by mail. But more to the point, citizens also voted for or against twelve proposed measures that would become law if approved by a majority. If millions of Californians can legislate, why can’t all Americans in every state of the union?
We should trust the citizens to do more legislating than they are now legally allowed to do. If we allow citizens to vote for their representatives in Congress, then there is no justification for not allowing them to vote for or against proposed federal and state law. It might be objected that the average voter is not smart enough to vote for proposed laws or they do not have the time to do this. To this I would answer that if they are smart enough to choose their representative, then with the help of educators to inform them about the content of proposed laws, they are smart enough to legislate. If some citizens don’t have the time to understand complex proposals because of the necessity to work and provide for their family, then a democratic government should make time and give compensation. What is important is not how to properly educate American voters, but to make laws that are truly the will of the people.
[1] A debatable claim. 2018. Barksdale, Nate. History. ”What is the World’s Oldest Democracy” https://www.history.com/news/what-is-the-worlds-oldest-democracy (accessed 24 December 2022)
[2] 2022, Powell, Alvin. Harvard Gazette. “Where are we going, America?” https://news.harvard.edu/gazette/story/2022/11/where-are-we-going-america/ (accessed 24 December 2022).
[3] I am using John Locke’s definition of the word “oligarchy” to mean “government by the few” although I recognize that “oligarchy” is often used to mean that the governing few exercise control “for corrupt and selfish purposes.” (Locke, Second Treatise, chapter 10).
[4] The word “aristocracy” is usually taken to mean “government by the best” (nobility, intellect, wealth) but it is also used to simply mean “government by the few.” (Merriam Webster).
[5] A system of government in which only one person has the power to legislate is called a monarchy or autocracy. The monarch (autocrat) may have inherited the power to legislate by birth or was directly elected by the people for a few years or for a lifetime. It is the placement of the power to legislate, not how a person acquires the placement that defines the meaning of monarch and autocrat.
[6] Amending the Constitution to include a right to vote would be much more difficult than getting rid of the filibuster because it would be fought by those who are currently attempting to suppress attempts to encourage new voters or make voting easier for all. Instead of trying to get new voters to join their party or faction, suppressors would rather more impediments to the process of voting.
References
Barksdale, Nate. 2018. History.com ”What is the World’s Oldest Democracy?” https://www.history.com/news/what-is-the-worlds-oldest-democracy (accessed 24 December 2022)
Houlgate, Laurence. 2017. Understanding John Locke: The Smart Student’s Guide to Locke’s Second Treatise of Government. Seattle: Kindle Direct Publishing.
Houlgate, Laurence. 2019. Understanding Jean-Jacques Rousseau: The Smart Student’s Guide to The Social Contract. Seattle: Kindle Direct Publishing.
Locke, John. 1996 [1690]. Second Treatise of Government. Ed. E.B. MacPherson. Indianapolis: Hackett Publishing.
Powell, Alvin. 2022. Harvard Gazette. “Where are we going, America?”
https://news.harvard.edu/gazette/story/2022/11/where-are-we-going-america/
(accessed 24 December 2022).
Rousseau, Jean-Jacques. 2021 [1762]. On the Social Contract (Second Edition). Trans. Donald A. Cress, Indianapolis: Hackett Publishing.
