The hallowed story Americans like to tell about our constitutional order gets it precisely backward—on that, Lisa Miller is utterly convincing. Rather than empowering democracy, our system obstructs it with layer upon layer of veto points.
But the momentous problem is how to translate majority will into policy outcomes through institutions, and on this score Miller provides little guidance. A lot of people, arguably even a majority, have long thought that public policy should reflect majority sentiment with both greater success and fewer risks than under our current scheme. And yet here we are, with Donald Trump in office again and the liberal mythology of checks and balances as potent as ever. To turn majoritarian dreams into reality, it’s clear that we advocates of majority rule and popular mobilization need a more robust theory of institutions, a different way of thinking about elites, and a political vision of the future that goes beyond merely reshaping our democratic mechanisms.
On the first point, the legislature is the traditional icon of democracy, so it might seem that our task should be to make Congress great again. The trouble is that no one knows how to do so. For the most part, legislators don’t want power, not even within our heavily circumscribed constitutional order. A whole array of perverse incentives keeps them wary of forceful governance. As a result, elites across the partisan spectrum have colluded to render the American political regime far more presidential than it used to be, touting that office—and the vast system of administrative agencies it controls—for its greater effectiveness and speed. Miller’s focus on the Affordable Care Act misses that its fate is more exception than rule. The last century of American political history is marked much more by the welcome embrace of an “unbound” executive, as Eric Posner and Adrian Vermeule put it, than by vaulting legislative ambition undone by courts or other checks.
None of this implies that the executive is the best vehicle for translating mass politics into majority rule. Many administrations before Trump show that the cure of presidentialism is often worse than the disease of legislative inaction. But if there is a better institution for channeling the mass politics that Miller rightly prizes, it has to be built or at least rebuilt. It is not just waiting in the wings on the other side of checks and balances, ready and willing to deliver majoritarianism if only our constitutional order had fewer veto points.
Second, this project will require a reckoning with the inevitability of elites, notwithstanding the danger they pose to democracy. Miller is absolutely right that the American order empowers elites to block the expression of majoritarian will. But for better or worse, the first lesson of modern political science is that oligarchy dies hard. I agree completely that it is a terrible look for elites—starting with our founders—to arrange that outcome. But elites aren’t going anywhere any time soon, and if mass democracy is going to be elitist in some sense or other, then Plato’s old dream of better elites is going to have to be our own.
It is true that the boundary between elites and masses can be shifted to spread power to more people. It is also true that we can try to make that boundary more rather than less permeable—what “meritocracy,” now under much suspicion and rightly so, was supposed to achieve. Yet for all the love that participatory institutions like citizens’ assemblies or juries may deserve, democrats also need to work harder to imagine and pursue desirable forms of elite administration and rule. Attacking checks and balances will do little to advance majority rule if it does not come with a substantial plan for organizing and collaborating with elites who will use their power to make policy responsive to majority opinion.
Finally, while so-called progressive federalism and court-centered legalism are indeed dead ends, any successful populism must subordinate matters of governance to matters of substance, both morally and strategically. The kind of country (and world) that Americans want is the most important matter. Calling for a politics of democratic empowerment without a vision for what the power is for is like setting the table without a menu.
Miller thus gets it exactly right when she calls for a proactive political agenda. She suggests what hers might be, from health care to the minimum wage. And she shows why majority rule and mass politics are not to be feared—in part because these things themselves can provide effective limits on power.
But abstract injunctions to revive politics are still a far cry from identifying what Americans should hope to achieve with democracy if they can get more of it. Without such clarity, hopes to democratize America might prove hostage to the lowering of expectations Miller rightly condemns—say, by leading us to set our sights on mere constitutional change. People rarely support changes in how they organize politics in the absence of promises of what a new politics will deliver. In critiquing the process obsessions of advocates of checks and balances, proposing new process is not enough.
