From High to Low Stakes Politics: Should Majoritarians Embrace Countermajoritarian Constitutional Provisions?

Abstract

Robert Dahl asked, How Democratic is the United States Constitution? (2001). To address this question, Dahl embraces majoritarian democracy as his normative standard. Because the framers designed the U.S. Constitution with a wide array of constraints on majorities, Dahl’s answer is, not very. Many other scholars come to similar conclusions. This paper contributes to normative democratic theory by observing that the proponents of majoritarian constitutions ignore the problem of constitutional stability. To see the problem, notice that democracy embodies numerous prescriptions: all parties must reframe from violence to secure political ends; incumbents that lose elections must hand over power. These prescriptions are not self-implementing. Most new democracies fail to follow them, and in short order. I stipulate a constitutional desideratum: regardless of a constitution's normative contents, the constitution does no one any good if it quickly fails. My positive thesis is that all successful constitutions satisfy the limit condition: to survive constitutions must limit the stakes of power. When powerful groups feel threatened by the party holding power, they are likely to support extra-constitutional action to protect themselves. Majoritarians therefore face a fundamental tradeoff. Greater responsiveness to majorities raises the stakes of politics, imply that the more majoritarian, the less stable a constitution. Therefore, majoritarians should embrace countermajoritarian features that limit the stakes, protecting those with the power to disrupt the constitution.