America’s so-called democracy is under serious strain these days. And not just because of the November election and its aftermath. The cracks and tensions in our democracy have been building for a long time. But some, including me, fear that the system may soon be stressed to the breaking point.

Since this summer clearly has the potential to be a long, hot one for our country, we thought we’d start out the season with a deeper look at Democracy in America. We’ve done a host of episodes over the years on the topic of democracy. We've discussed Corporations and the Future of Democracy with former Senator Russ Feingold. We've examined Democracy in Crisis with Francis Fukuyama. We’ve asked whether democracy is a universal value, with Larry Diamond. We’ve delved into The Radical Democracy Movement, John’s Dewey’s ideal of democracy, and the philosophy of John Rawls. We’ve discussed mandatory voting, the two-party system and much more.

Nor are we done examining the topic. Soon we will examine Jurgen Habermas’s vision of democracy. Because we love democracy and suspect that you do too, we invite you to take a deep dive with us into the problems and prospects of Democracy in America. To help you get started, I thought I’d offer a few thoughts of my own.  

I have grown to be deeply skeptical of the American constitution. And unlike many others, who tend to blame the dysfunctional state of our politics on what might be called “external factors” — like the role of money in politics or the cravenness and hyper partisanship or our elected officials or the laziness and stupidity of the American electorate — I tend to think that seeds of dysfunction are built into the very structure of our system by the constitution itself.

Don’t get me wrong, in many ways our constitution is a glorious document. Its protection of individual liberties is something I deeply cherish and applaud. But at the core of our constitution are many very problematic political mechaniss  and many deeply problematic assumptions about the people in relation to the state.  

Despite its protections of individual liberty, our constitution is basically an infantilizing document. That’s because our Founding Fathers, in their supposedly infinite and unquestionable wisdom, fundamentally believed that the citizens, considered as a cooperate body, are hardly fit for effective and mature political agency. Partly as a consequence, they not only designed a constitution that hardly relies on the mature and effective agency of the citizens, but one that makes such agency much harder to develop and foster.  

Think of the election of Donald Trump. One often hears it said that Trump is who “the American People” elected. But this is simply not true,  on any reasonable way of understanding what the will of the American People amounts to. After all, President Trump was elected not by a majority or even a plurality of those of our fellow citizens who bothered to vote.  He was elected by the electoral college. Whether you should approve or disapprove  of the Electoral College – I myself happen to strongly disapprove —is not the issue here. The point is that the Founding Fathers never intended that the Electoral College be a measure of the popular will. Indeed, they explicitly designed it so that it would override the popular will. And that is just what it did in the election of Donald Trump. That’s why it’s simply wrong to say that we the people elected Trump. We did no such thing.  

It’s not my aim, though, to question the legitimacy of Trump here —though I have done that elsewhere. My present point is just that, however you feel about the election of President Trump, by explicit constitutional design there is now almost nothing that we the people can do about it. In one way, this makes perfect sense. Since the president is not elected by the people, but by the electoral college, there is no obvious reason why he should be directly answerable to the popular will. That is why there are almost no mechanisms by which the people at large may hold him accountable. There are no provisions for recall elections in our constitution, as there are in many state constitutions. There are no provisions for a vote of no confidence, as there are in parliamentary systems.  In fact, except for the highly cumbersome mechanism of impeachment, there is no way at all to dissolve a problematic government.  Some think that the president cannot even be indicted for a crime, like murder or treason,  during his term in office.

This is not to say that there are absolutely no mechanisms by which a president once elected can be held accountable. There are, after all, constant elections within our system. The next midterm election is always just around the corner. And, fortunately, the president does have to stand for reelection every four years. But elections are less empowering of the people and less effective as a means of democratic accountability than you might think. Think just of the partisan gerrymandering of House districts — which is an extra-constitutional quirk of the system. Or think of  the fact that only a third of the Senate is up for reelection at one time — which is a constitutional quirk. But don’t get me started on the Senate, which is an absolute abomination, a complete affront to Democracy, since a mere 16% of the American electorate chooses 50% of the Senate. The point is that while elections are important, they are no panacea.   Indeed, there are a whole host of other reasons why elections within our system are highly imperfect mechanisms of democratic accountability.  

I believe that our 18th Century constitution has pretty much outlived its usefulness. But the problem isn’t just the constitution itself. It's also the way constitutional structures interact with extra-constitutional developments — like the advent of extreme partisanship, increasing economic inequality, and the evolution of the presidency into what I call a charismatic office.

Take extreme partisanship and the charismatic presidency. Our Founding Fathers anticipated neither of these things. But once we have these things and they are mixed with our constitutional arrangements, potential disaster lurks. That’s because the Founding Fathers assumed, wrongly it turns out, that each branch of government would be so jealous of its prerogatives that this alone would ensure the forceful operation of the elaborate system of checks and balances they designed into the system. But what they did not foresee was that when the president became a charismatic leader and the Congress became a place of intense partisanship, institutional jealously would no longer be sufficient to guard against the worst effects of the combination. And the worst effects of the combination of intense partisanship and a charismatic presidency are precisely what we are seeing now. That is why Republican Senators and Congressmen, who may secretly wish Trump gone, cannot bring themselves, out of mere institutional jealousy, to stand up to him.

Though the president is no king, the Founders’ distrust of the people means that both the President, and the government at large, are largely insulated from the will of the people. And that is part of the reason that Americans have grown accustomed to being infantilized political agents. We accept that it is right and good that we the people have precious few means by which to affect the government and its actions. One sign of this acceptance is that 45% of Americans think that the constitution was divinely inspired. Since we tend to think the Founders were divinely inspired, we tend to think of their wisdom as beyond reproach. At some point, we are going to have to wake up and come to grips with how radically inadequate our constitutional arrangements are.  

The constitution was borne of a particular time and context. It was a solution to a very time bound set of problems. In my view, Jefferson was right to insist that the constitution should have a 19 year sunset clause lest future generations be held hostage to the arrangements of the past. By ignoring his advice, and making our constitution extraordinarily hard to amend, the Founding Fathers may have made possible the temporary but fragile union between the free industrial north and the slave-holding agrarian south. But just as we saw the limits of their constitutional design in the nearly inevitable coming of the paroxysm of violence and rebellion of the Civil War, so the chickens may be once again be coming home to roost in our continuing struggle to come to grips with the complex reality of Mr. Trump.  That struggle may not be dividing us as deeply as the Civil War did, but it may well be that once the issue is decided we will need to do what we did after the Civil War — take stock of our highly imperfect constitution and add and subtract provisions from it that will help to bring about a more perfect union.