by Sanford Levinson

Needless to say, I have been interested in the vigorous response provoked by my article in last week's TNR attacking the presidential veto as anti-democratic. I am truly grateful to those readers who took the argument seriously, whether or not they agreed with me, and, not surprisingly, a bit put off by those who denounced the article (and me) as simply "assinine." What strikes me as most interesting about these latter criticisms is the degree to which they simply dismiss me as either stupid or simply wilfully ignorant of the fact that "we are a republic, not a democracy, and should keep it that way." (The article is adapted from a book that Oxford is just publishing, Our Undemocratic Constitution, which offers the most systematic critique of the Constitution in many years. The veto is only one, and probably not even the worst, of its many anti-democratic or otherwise dubious features.) Older readers of the Open University will recognize the quoted language as that of the Robert Welch and the John Birch Society in the early 1960s. They were, at the time, vehement opponents of poltical liberals, especially those who supported the Civil Rights Movement in the name of furthering the development of American democracy. At one level, of course, Welch (and my contemporary critics) are absolutely correct: The founders were in fact commited to some version of a "Republican Form of Government" (to quote the Constitution's own language), not what we would today recognize as a modern democracy. The eighteenth century version of the RFG was, among other things, both racialist and patriarchal: Only white men--and, indeed, propertied white men to book, and, in addition, for many only Protestant propertied white men--were invited into the republican experiment. Everyone else was pretty much an onlooker. This is, to be sure, a bit of an exaggeration. Women actually voted in New Jersey (until 1807), and many white working men participated in the voting for the ratification conventions. That being said, it is true that it is anachronistic to describe those who wrote the Constitution as committed to modern notions of democracy. Most glaringly, for most of them there was nothing inconsistent about chattel slavery and republican government. Indeed, the slaves provided the opportunities for leisure on the part of the white ruling class (at least in the South), who could therefore devote their energies to political rule. One need not even engage in "founder-bashing" in order simply to recognize that, as inhabitants of the past, they indeed lived in a far different world than we do now. So I am obviously left to wonder what the response of my more critical interlocutors--who seem unable to say anything much beyond the point that we were never intended to be a "democracy"--would have been to earlier proposals to a) abolish slavery (the 13th Amendment); b) forbid race, gender, and ability to pay the poll tax as criteria for allocating the suffrage (the 15th, 19th, and 24th Amendment; or c) elect Senators by popular vote rather than continue to have them apponted by state legislatures (17th amendment). All of these practices were thought at the time to be the end of what might be called "republicanism" (and, therefore, civilization) as we knew it. It's altogether possible that my particular suggestions for eliminating the presidential (policy) veto, the electoral college, the equal-vote allocation of power in the Senate, etc., are not only debatable, but even out-and-out bad (though I obviously don't think so). But the one thing I am absolutely confident of is that it simply doesn't help to be reminded that "we are a republic, and not a democracy, and should keep it that way" unless one has a quite robust theory of precisely how it is that the anti-democratic (meaning anti-majoritarian) features of our Constitution serve important public values beyond smiply making it difficult for the majority in fact to rule. And if one believes that it is not important, in the United States, that, all things considered, majorities should rule--indeed, if one beliveves that it is highly desirable that one should place a plethora of barriers in the way of majority rule that go well beyond simply protecting the rights of vulnerable minorities--then perhaps this calls into some doubt the nature of the U.S.'s ostensible commitment to encouraging the spread of "democracy." I can only wonder if those who consider me "assinine" for embracing the term "democracy" prefer would prefer that the United States were supporting a project both of encouraging "republican" government abroad and actively discouraging those benighted souls who might actually embrace twentieth- and twenty-first-century notions of democracy inasmuch as many of these latter notions have yet to achieve full success in the United States itself, so locked are we into a distinctly anti-democratic eighteenth-century conception of government.