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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.” 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.
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, and
what Jean-Jacques Rousseau and other philosophers call aristocracy.
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.
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.
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.
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).
A system of government in
which only one person has the power to legislate is called a monarchy or
autocrac. 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.
