Democracy v. the Constitution

Osita Nwanevu is among the most exciting and perceptive writers covering the ill state of American democracy today. A journalist, pundit, scholar, and gadfly all at once, he is equally at home in academic discussions and popular forums. His writing and reporting, from the Guardian to the New Republic and beyond, weaves together political economic theories, political philosophy and history, and a reporter’s groundedness in actually existing politics to diagnose the root causes of our democratic malaise and plot a path forward.

Nwanevu’s new book, The Right of the People: Democracy and the Case for a New American Founding, does all this and more. I recently spoke with him about the book, the disconnect between the U.S. Constitution and national party politics, and the courage it takes to move the conversation—and our democracy writ large—from a sclerotic civic religion toward genuine political equality. The following transcript of our conversation has been edited for length and clarity.

—Jake Grumbach

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Jake Grumbach:What inspired you to write this book, and what’s the basic takeaway?

Osita Nwanevu: I’ve been covering politics for about ten years now, and democracy has been a defining theme of the way we talk about politics over the decade. I started reporting in 2016 right in the middle of campaign season, and then Donald Trump won the Electoral College but not the popular vote, so debate about democracy was right there from the outset of my career in journalism. It brought back everything I felt in second grade when the same thing happened with George W. Bush—I remember absorbing all of that and feeling really incensed for reasons I couldn’t really explain for myself. It gave me a sense of unfairness that I’ve carried with me all this time. And then, over the last five years especially, we’ve seen this explicit attack on democratic principles and values carried out by the Trump administration, symbolized by the effort to overturn the 2020 election on January 6.

“Republicans have chosen not to use the mechanisms that the Founders laid out to deal with Trump. Even on this basic level, our institutions were not designed for contemporary politics.”

But as I was writing about all this, I began to feel that we were playing fast and loose with our conception of democracy. Saying that it was under attack was often a way of capturing the feeling that all these things going on were wrong. And you’d also hear people say things like, “Well, America’s not a democracy anyway; we’re a republic.” I heard this a lot when I was covering the 2020 Democratic primary—I’d talk about how people hoped that we’d pass Medicare for All, the Green New Deal, gun control, or all these other things. I’d stress over and over again that even if Democrats win the next election, even if they have a full governing majority in Congress, these things probably aren’t going to happen for a litany of reasons inherent to our federalist system, which scrambles so many of our intuitions about democratic rule. And people would often reply, “Well, we shouldn’t have a system in which public opinion automatically determines policies anyway.”

So I thought I should write a book about what democracy meant in the first place—to try to work through why it’s desirable, and answer some of the obvious objections people have made to it.

When I started writing, Trump hadn’t won reelection, but these issues are now as urgent as ever, of course. A lot of liberals who spent the last decade talking about democracy seem to not know how to respond to the fact that Trump won the popular vote this time, even though still not a majority. You hear things like “Well, maybe there is something to skepticism of democracy” or “We can’t trust the American people to make the right decisions” and so on. That, to me, doesn’t wash. You have to have a first-order commitment to this ideal if it’s going to work, and that requires understanding what’s at stake. We’re not going to be able to defend democracy from authoritarianism if we have only a fair-weather commitment to it and don’t know what democracy actually means.

JG: How would you define it?

ON: We tend to think of democracy as electoral democracy—a system in which we go to the polls every couple years. We cast a ballot. We elect somebody who’s going to represent us in government, whether in Washington or state houses or city hall.

But that’s a very different conception of democracy from the one developed and practiced in ancient Athens—ironically so, since we tell ourselves that Athens was the cradle of democracy. Instead, the Athenian model was the assembly, where any citizen could go and directly participate in the crafting of policy that would be implemented by people who were, to a large extent, randomly selected from the citizenry. The Athenians would consider a system of elected representatives very strange, even aristocratic.

How do we reconcile this tension? Well, we can look at things that these systems have in common. And to me, the important thing they share is that the governed are the ones that are doing the governing. The task of governing isn’t handed over entirely to some alien class of people, a king or a group of aristocrats. The people have a real, authoritative role in setting policy and deciding the direction of their society. In all that I read—including a lot of academic work, especially political philosophy—I could not find a definition of democratic governance more succinct and at the same time more complete than what Abraham Lincoln says in the Gettysburg Address: “Government of the people, by the people, for the people.” That, to me, captures the core democratic idea: the governed governing.

JG: Let’s pause there, since that appeal to rule by “the people” raises a classic question: What does it mean? Does it mean, as some might hear in your references to the popular vote, rule by majorities of people?

ON: That’s a really complicated and important question, the relation between democracy and majority rule—it’s one of the things I wrestled with most in the book.

The way to sort it out, I think, is to get clear about democratic fundamentals. Implicit in Lincoln’s definition is the idea that democracy guarantees us political agency. We’re not waiting for somebody else to decide what the problems are, to decide that the problems we experience really are problems. We can decide that ourselves and do the things we need to solve those problems ourselves. There’s a dynamism in this view. Democracy has inbuilt features that allow for change, but it also provides a kind of stability, since, at least in principle, you don’t have to overthrow something or kill somebody in order to get things to work differently. Whether through elections or random selection—what political scientists now call “sortition”—you have procedures that stabilize the process of societal change.

I think these features make democracy an attractive system, at least at the level of theory. But we like to think we live in a democracy in the United States, after all, and yet many millions of ordinary Americans are having a terribly hard time getting things to work differently. So, how can we tell whether a system that gets labeled democratic is actually democratic?

“Our idea of democracy is so limited, focused on ballots rather than the way our institutions, including economic institutions, work—whether we’re actually equal within them.”

I lay out three features in the book. First, equality: roughly speaking, everybody’s voice counts the same. Second, responsiveness: you’re not just putting your vote in a suggestion box—it actually carries weight, has some kind of power to generate change. And third, majority rule.

Why that third ingredient? Of the possible decision rules for collective decision-making—ways of aggregating the views of everyone—I think majority rule is the only one consistent with the principle of equality. You’ve got unanimity, supermajority, majority, or minority rule. Now, if two people want one thing and three people want something else, and the two win out—that kind of minority rule doesn’t happen unless there’s a fundamental inequality underlying the process, or inequality in standing. Unanimity and supermajorities, by contrast, basically leave governance to the last holdouts, giving them a disproportionate degree of power. So if we accept these basic principles—and I think most people would on a casual level—we have to recognize that the American political system flouts them in fundamental ways. That’s a lot of what the book is about: how the specific institutional configuration of our system is at odds with democracy.

JG: Before we turn to those specific institutions, let’s linger on this question of majority rule. The most familiar concern, of course, is the “tyranny of the majority” objection: the majority might decide to oppress a minority.

ON: This is a problem for the idea of majority rule that I work through in different places in the book. Does it mean that people should have the right to vote other people into slavery? Does it mean that people should have the right to vote by majority to deny other people’s rights? What do you in these kinds of cases?

There’s a more theoretical edge to the question, and a more practical one. On the theory side, I talk about liberalism as a set of ideals that I think should also augment and shape democracy, but others don’t think we have to augment the democratic idea at all. Political theorist Corey Lang Brettschneider, for example, argues that things like freedom of speech and freedom of the press—universal freedoms you would hope not to be abrogated by democratic processes—should be considered fundamental democratic rights. They are central to the functioning of a democratic system itself. It’s not like we’re reaching for these principles from some other system outside of democracy; we can look within democracy to get the philosophical resources we need to defend those key freedoms.

This isn’t a totally theoretical question; ideas and values shape our political culture in all kinds of ways. Still, there’s the practical question of institutional design. It’s one thing to recognize these rights can be justified within democratic theory, without any extra philosophical basis. But how do we protect these rights in practice and ensure that people’s basic freedoms aren’t being taken away? Should we have some institution that is responsible for bounding democratic decision-making—something like a Supreme Court? And what should that look like exactly? I don’t fully resolve the question in the book; it’s really complicated and hard. What I do try to show is that there’s nothing intrinsically antidemocratic about an entity designed to ensure that people don’t use their majority power to violate the rights of minorities. I think there’s a lot wrong with the way our Supreme Court is set up, but this isn’t the thing that’s wrong with it.

So that’s one tension with majority rule that I get into. Another is which majority we’re talking about. I don’t think we can understand democracy coherently as a system in which there is one single majority that has its will play out in an election or in the policy process. There are always these overlapping majorities of people that don’t necessarily all believe in the same things. The majority of Americans who believe one thing about tax policy and the majority who believe another thing on immigration policy, the majority who believe another thing on education policy—those are not all the same group of people. And we have to take all of those concurrently existing majorities seriously when we shape policy. So I think it’s better to see democracy not as the instantiation of “the will of the majority.” It is a system in which people have the right to contest power on an egalitarian basis in which majorities matter, in the sense that you have to assemble a majority of some kind to win. Political theorist Sean Ingham, for example, has done sophisticated work on this—he has a book called Rule by Multiple Majorities.

Now, as a matter of practical politics, people do use the concept of a majority in ways that I think should trouble us—ways essentially related to domination. Take Elon Musk’s defense of Trump’s cuts to the federal government and his firing of federal workers. Since Trump won the election, he said, a majority of the American people wanted this, and their will ought to be done. J. D. Vance and others have said similar things defending the brutal immigration crackdown. First of all, this is simply wrong: Trump won by a plurality, not a majority. But leaving that aside, the idea is that there is a kind of authoritative public—the real people—that you shouldn’t contradict or go against in any way because if you do, you’re violating or rejecting democracy. Combine this with the appeals to race—to the white majority seen as the “true” American people—and you’ve basically got the idea of Herrenvolk democracy.

In addition to everything else that’s wrong with this, it’s just not a good description of democracy. Democracy is more contestatory and dynamic than that. An election is not some kind of transcendent instantiation of what people want. You can always say, “Well, this group won out today, but I think they’re wrong, and maybe we’ll make a different argument and win the next time.” That’s a healthier way of thinking about what should take place in a democracy.

JG: So we’ve wound up, as you say, at this crucial question of how our specific institutions, including our party system, translate politically equal participation into actually existing political and policy outcomes. You capture it succinctly in a Guardian piece on the Constitution from February. “All that’s happening now,” you write, “is happening in large part because the men who wrote the Constitution more than two centuries ago failed to anticipate anything like contemporary political parties, much less parties that would adopt the ironic disposition towards the document that Republicans now have. Its checks and balances simply weren’t designed to withstand the skullduggery of organized political factions willing to sacralize the document instrumentally and disregard it as necessary. . . . By now, it should be clear to all who don’t have an emotional, political or professional investment in believing or pretending to believe otherwise that the American constitutional order has developed a kind of autoimmune disease.”

ON: The point about the Founders not anticipating political parties—this is something people have talked and written about for many years now. It’s clear, from the Federalist Papers and notes from the Constitutional Convention, that the Founders thought very hard about how the system would work. But it’s also clear that they were thinking about people being motivated by their individual interests. Institutions like the House and the Senate, they thought, would have their own character, and the interplay of the various parts of the system would lead to a balancing of “factions” and a check on individual ambition. Thus the idea of “checks and balances.”

“We shouldn’t see the Founding as a perfect project that we’re now just responsible for dusting off and protecting. We should see ourselves as having as much of a right to rework our institutions.”

But nowhere do they really consider the possibility that people would organize themselves on the basis of ideology or group interest and then use all the institutions to their advantage in a conjoint fashion, which is what we’ve seen with Trump. Take the mechanism of impeachment. The Founders thought that if a figure like a Trump were to do all the things that Trump is doing—using our institutions to enrich himself and doing all these other things that so flagrantly violate the Constitution—there would be enough interest in stopping that person as an individual, so impeachment would be a sufficient safeguard.

What we’ve seen instead is that Republicans view Trump as an instrument of their policy agenda and are willing to defend him on that basis. Elected Republicans, whether in the House or the Senate, have chosen not to use the mechanisms that the Founders laid out to deal with Trump because there is a partisan interest in sustaining and defending him. Our institutions, even on this basic level, were not really designed for our contemporary politics.

And yet the problems were foreseeable—it should have been expected that the system would lead to the kind of politics that we have today. Very quickly after the Constitution was ratified, what we now understand as a party system began to develop. And the amount of power that Congress gives to rural parts of the country relative to urban parts gives politicians from those constituencies less incentive to be moderate, since the people you can depend on to win elections are not drawn from a broad segment of the American public. This kind of factional politics on the basis of region materially shapes the extremism of U.S. politics today.

JG: On the anniversary of January 6, you wrote that our institutions “helped produce that violent outburst by building a sense of entitlement to power within America’s conservative minority.”

ON: Yeah. Rural Americans look at that big map we see every presidential election and see a sea of red states because we do things state by state in the Electoral College. I think that helps to fuel their understanding of themselves as the true majority of this country, even though they aren’t. So, if you have all of that power and are used to getting your way because of it and then you lose, your interpretation of that loss can be pretty extreme. You can start reaching for conspiracy theories: people are busing in immigrants to this or that place, ballots are being thrown out, it’s only possible for Democrats to win if they’re stacking the deck—things like that. This is not something that Trump invented. People have been offering theories of voter fraud for years going back to the 2000s, even before Obama.

JG: That’s fascinating, because the views and voting behavior of more rural, older, whiter populations in the United States are often seen—especially by outsiders—as being based, most fundamentally, in racial and cultural ideology. But you’re driving home an institutional logic that contributes to this sense of political entitlement.

ON: I think it does. Republicans are used to not having represented the majority of the country since the 1990s. If you see that happen in the news every day and you understand it to be part of the background condition of American politics, your sense of what the electorate actually looks like becomes very skewed. In all three presidential elections that Trump has faced, there were more people who voted for him in New York City alone than who voted for him in the Dakotas. Meanwhile, in the Dakotas, you have thousands and thousands of people voting for Kamala Harris, Joe Biden, and Hillary Clinton. Many people have said it, but it bears repeating: the real divide isn’t between red and blue states—there’s really no such thing—but between more rural districts and more urban ones. This might be optimistic of me, but if Americans understood that there are Republican and Democratic voters everywhere, I think we’d probably see fewer conspiracy theories.

JG: The subtitle of your book is “Democracy and the Case for a New American Founding.” What does that new American founding look like? How do we pursue small-d democratic renewal more broadly?

ON: I think it’s a gradual project over a period of many years that culminates in a new constitutional arrangement—either a new document, or some kind of other constitutional order. But before that, I think there are a lot of reforms we can make within the system that will make it more democratic while putting us on a path to a fundamentally different system eventually. And I think that we’d be justified in calling that a new founding. It’s not a single revolutionary moment, but I think it has to be a kind of struggle and a gradual kind of evolution toward a more democratic country.

Historian Eric Foner has argued that the Reconstruction amendments so fundamentally changed the political order that they should be considered a “Second Founding.” What I like about that way of putting it is that it signals the possibility that we can do this again and again and again. We shouldn’t see the Founding as something that happened once two centuries ago, a kind of perfect project that we’re now just responsible for dusting off and protecting. We should see ourselves as having as much of a right—if not more—to rework our institutions in keeping with the values that we now have. We are more egalitarian than the Founders were, certainly. Political science was not really a discipline in 1787, but we’ve learned a lot about governance over almost a quarter millennium. I don’t see why we can’t tell ourselves, look, we have as much or more of a right now to fundamentally rework the system, bring it to a new place, as the Founders did in their time. What else could government of the people, by the people, and for the people mean?

JG: If you were drawing up a list of majoritarian design principles for a constitutional order grounded in equality and responsiveness, the usual list would include things like not having a Senate, which generates huge political inequality in voting power, or an unelected Supreme Court. Of course, at that level we’re talking ideals—the United States isn’t going to be straight-up abolishing the Senate, or redesigning the Supreme Court, without something like a revolution. So what are the reforms you think put us on that path to a new founding?

ON: Expanding and securing voter rights is one of the few areas on this agenda where we’ve seen a lot of actual effort and energy being dedicated by Democrats, and I think all of that is healthy. Automatic voter registration and restoring voting rights for felons also ought to be part of the picture.

But beyond the usual suspects, there are places where we can experiment. One is deliberative assemblies based on random selection, which are already being used in many places, especially in Europe. I don’t think these can replace elections, but I think they can augment our existing electoral systems. Imagine a community that wants to pursue an affordable housing or public transit project. “Democratic” input around such things often involves town halls in the middle of the day, when retirees and the wealthiest people in the community come in and say no. What if, instead of that, we randomly selected people in the community and asked them to consider an issue, hear from experts, and then talk about it? I think that could be a healthier way promoting democracy that we ought to try.

JG: In addition to these potential institutional changes, you also emphasize the importance of economic democracy. Would you consider that a necessary condition for democratic renewal?

ON: I think so, but I think it’s obviously good in its own right, too. Once you start talking about democracy as being important because it gives us political agency—some control over the way we live our lives—it becomes very hard to see why that’s a value that should be exclusive to the political realm and not the economic realm. We spend about a third of our lives at work. There ought to be some democratic entitlement on a first principles basis there too, and I spend a good portion of the book working through the theoretical debates about that.

But beyond that, economic inequality is also a threat to the stability of our political institutions, and it should be considered a threat to democracy in general. The ancients took it for granted that there was a connection between the amount of economic inequality that prevailed in society and the way that their political institutions worked, and I think they were right. We’ve just watched the wealthiest man in the world pour $250–260 million into Trump’s campaign and then get himself a position in the federal government.

“I’ve come to think of the Democratic Party as being more of a professional association for liberals than a real political party. There’s not this sense of excruciating mission that the Republicans and the right have.”

And yet, when we talk about democratic reform we often say we should repeal Citizens United or pass campaign finance reform, things like that. Why hasn’t that happened yet? One is the power of economic elites themselves. Politics and the economy are fundamentally intertwined in ways that well-meaning people who want the political system to be more democratic often don’t take seriously enough. There are plenty of books that pinpoint the democratic deficits of the Electoral College, the Senate, and other American political institutions. But it’s striking that these works don’t really address the economy at all. They don’t explain the extent to which economic inequality itself has been one of the reasons the reforms they advocate for haven’t taken place. They’ll say we should regulate political donors and not really wonder, is there something we could be doing to make it so that we don’t have as many billionaires in the first place? That’s worth talking about, especially when the world’s first trillionaire is on the horizon.

And I think it has real implications for how we govern ourselves. We ought to address power and equality in the economy in democratic ways. There are ways of getting workers more power so that the people who benefit from growth and corporate profits aren’t just executives and investors who then use that power to influence our political system. We should have workers benefiting from all that’s happening in the economy, and that would also go some way toward righting the ship politically.

JG: We’ve talked about the way our constitutional system just wasn’t set up for contemporary U.S. party politics. There’s nothing in the Constitution that says we should have two parties, but a lot of social science helps to explain why our single-member districts for the House plus the Electoral College basically leads to a two-party system. And if you look at the two parties, clearly the Democratic Party is closer to the vision you’re laying out than the GOP—it appears more opposed to authoritarian institutions and more supportive of democratic institutions. So how do you think about your argument in relation to the parties?

ON: I mean, as I write at the very beginning of the book, I think Democrats were substantively correct last year when they spent a huge proportion of the campaign talking about Trump’s threats to our system, the extent to which he’s an authoritarian, the extent to which he’s a threat to democratic values and ideals—all of that was 1,000 percent true.

JG: All those subject lines and spam emails?

ON: I think those things were true. Trump has gone beyond many people’s imagination in making authoritarianism the central guiding principle in governing this country. And yet, the Democrats’ appeal didn’t work. It didn’t work for a plurality of American voters, and it didn’t work for key constituencies you need to win the Electoral College.

That has led to a sense among some Democrats that democracy writ large is not a compelling or potent message—that it was too abstract, so they have to start focusing on kitchen-table issues. I think that’s a mistake. There is an economic dimension to democracy that is seriously underdiscussed. We don’t have to make this choice between a civics teacher or political science abstraction and our household bottom lines. That’s a false dichotomy. We can see democracy as the basis of both a just political system and a more just economy. I think this way of talking would be very resonant—for people who are rightly outraged by authoritarianism under Trump and see democracy as some already existing thing that has to be defended, as well as for people, especially working-class people, who basically experience no democracy in their lives at all, where authoritarianism has been there all along. Nobody has tried this message—”We’re working to create more democracy both in our political sphere and in our economic lives”—but I think it’s worth giving a shot.

But that requires a much more ambitious conception of what democracy means in the first place, which is why I go to first principles in this book. Our idea of democracy is so limited, focused on ballots and not on the way our institutions, including economic institutions, work—whether we’re actually equal within them. At the same time, what should be crystal clear is that a politics organized exclusively around resisting Trump and things like gerrymandering—that’s not a winning message. There’s no winning political coalition there. We have to think bigger, and we have to think broader. We have to frame democracy as an ideal that matters for reasons beyond the ways we participate in elections. It’s something deeper and more significant, something that compels us to do more.

JG: That highlights a problem for the Democratic Party at the elite level.

ON: I’ve come to think of the Democratic Party as being more of a civic or professional association for liberals than a real political party invested in achieving concrete policy goals. The GOP, by contrast, is driven by a conservative movement that has a clear outline of where it wants to go in American society. It sees that as a long-term project and a long-term goal. The GOP has its careerists too, but Republicans are generally inclined in a particular direction toward achieving certain ends for this country in a way that Democrats aren’t. There are things that Democrats hope to accomplish and constituencies that we empathize with, of course. But there’s not a driving engine in the same way that there is for Republicans—we all believe X, which is why we’re all going to prioritize Y in the hopes of accomplishing Z in the next five, ten, twenty, or however many years. The Democratic Party just doesn’t have this sense of purpose and direction.

JG: And yet the Republican Party’s congressional policy agenda since 2016—from ending the Affordable Care Act to high-end tax cuts—has set records for being so unpopular and unresponsive to even the Republican electorate. So how does this coalition still manage to hang together and remain competitive in elections?

ON: I think the answer is these structural features of the system we’ve been talking about. There are biases toward more conservative regions of the country that insulate Republicans from the electoral consequences they’d face if everybody’s votes in this country counted the same and Republicans had to win votes from people in Baltimore in order to stay in power.

And conversely, I think institutional realities also keep Democrats from achieving, or even developing, this kind of vision. As they see it, it’s all well and good that somebody on the left wing of the party wants Medicare for All or a Green New Deal or comprehensive immigration reform. But the knowledge and awareness that there are structural hurdles to these things happening, and that these policies aren’t popular within the constituencies of the country that are the most significant for winning federal power in the system we’ve got, has made the party unwilling to adopt a more ideological vision or act more on the basis of ideological principles. At best, they’ll do what they can when they can. But there’s not this sense of excruciating mission that the Republicans and the right have.

JG: Does that make reform effectively hopeless? Are these structural inequalities so powerful that they can’t be overcome by a different Democratic Party—a new coalition-building strategy, or anything else?

ON: I think they can be overcome. I think we can overcome. But it will come down to convincing Democrats that these structural hurdles are impediments to the party’s electoral future. The inequity in the Senate is only going to get worse and worse with population trends continuing as they are. We already have a judiciary that’s dominated by conservatives.

“I think the coalition exists; it’s just a matter of activating it. And I think that requires a new and ambitious conversation about what democracy means.”

We’re at a point now where things have gotten so dire that if the party wants a future, it has to take these structural inequities seriously and start addressing them. We’ve actually seen some work on this front—in the Biden administration, there were people talking about D.C. statehood, for example, though that kind of fizzled out. The plain truth is that it’s very hard to accomplish any of the other things that we hope for—a better health care system, better environmental policy, better immigration policy, reproductive rights, better union protections and a higher minimum wage—if we don’t democratically reform our institutions. I think the coalition within the Democratic Party exists; it’s just a matter of activating it. And I think that requires a new and ambitious conversation about what democracy means. Americans are not really encouraged very often to think about political philosophy or basic principles. We think about the Founders and what they wanted—that’s as far as we allow our imaginations to reach.

If we’re going to get anywhere, that has to change. I would like to see people at protests and rallies—all these Democrats who are rightfully turning out against Trump—to talk less like, “Here are five ways Trump is violating the Constitution,” and more like, “Here are the ways Trump’s actions are violating the democratic rights we are fundamentally entitled to as human beings.” That change in register could do quite a lot to motivate deeper and more far-reaching changes, I think. Too many Democrats still have this very deep and abiding sense that something essentially holy happened in 1787. Of course, Republicans have their own rhetoric of constitutional reverence too, but they deploy it in more opportunistic ways, as shown in their willingness to look the other way about Trump. But on this basis, Democrats are often not willing to do things that may seem like rejections or contradictions of that legacy, or at least indications that it was less than sacred.

That attitude has to go. The Constitution was, in reality, a political compact, forged in compromise at a particular time. We have to revive a belief in our own agency and in our own right to govern ourselves and set the direction of this country. We need to think differently about what democracy means and what democracy can do—that’s the only way we’re going to get anywhere.

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