Society can be governed only by general rules. Government cannot accommodate itself to every particular case as it happens, nor to the circumstances of partlcular persons. It must establish general comprehenslve regulations for cases and persons.
The only question is, which general rule will accommodate most cases and most persons.
Depend upon it, Sir, it is dangerous to open so fruitful a source of controversy and altercatlon as would be opened by attemptlng to alter the qualiflcations of voters; there will be no end of it. New claims will arise; women will demand a vote; l
ads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state.1
As I noted at the beginning of the above quote by John Adams, a key figure in both the drafting of the Declaration of Independence and the Constitution, the United States was never intended to be a pure democracy in which society governs. Our foun
ders feared that in large diverse countries, pure democracies would likely result in anarchy. There is also the inherent logistical problem of efficiently forming and implementing valid democratic political expression over a vast and populated area. There
fore, the federalists argued in favor of--and founded--a democratic republic; individuals as a whole do not make decisions, but "generic" legislation is enacted by an elected citizenry that represents groups of numerically equal though geographically divi
ded voters. Geographic representation in a winner-take-all system of election has worked well for the originally enfranchised majority, yet it is inadequate, discouraging and oppressive for minority groups who have since gained the right to vote, such as
women, "lads and lasses" between the ages of eighteen to twenty-one, the poor, blacks, hispanics, native americans, and the like. Our democratic republic is thus flawed in that its generic legislation reflects the nature of a select majority, not the dive
rse nature of its franchised citizenry.
In 1787, the problem was clear: Many minority groups were simply
excluded from the system. Moreover, in a free society, political equality did not
and does not translate into the equalization of possessions, opportunities,
education, opinions, or passions of its free citizens.2 In the context of a democratic republic, political representation is meant to parallel and reflect as justly and democratically as possible the political expressio
n of politically equal groups of voters. The problem of valid representation today is weighty, multi-dimensional, systemic and ideological. (For example, the effects of the progressive reforms on voting behavior and the cost of modern campaigning are only
two of the many problems that cannot be addressed in this paper.) However, it is clear that though the revolution of 1776 was meant to result in a political flow of power initiating from the people, what ultimately occurred was different. In his book, Th
e Presence of the Past, Sheldon S. Wolin argues:
The Revolution of 1776 had a very different attitude toward power, one that cannot be captured by setting up a simple contrast between the "democratic" impulses in the Revolutlon and the "elitist" impulses at work in the counter reuol
ution of Philadelphia.... The revolutlon of 1776 was importantly a feudal revolt because it was a revolution against centralized power, but from a distance, and uniform principle.3
According to Wolin, Americans not only rejected feudalism, but, at the same
time, rejected the notion of strong central government as well. The political
sentiments proclaimed within the Articles of Confederation expressed not a
generic citizenry, but the rights of a diverse citizenry. This recognition of
"difference" was meant to be maintained and protected within the structure of
local governments which are themselves political systems initiated, cultivated
and constituted by the people. He suggests that these convictions were not
overlooked in the drafting of the Constitution, but "suppressed"4 by the
Federalists in a counterrevolution which, in effect, substituted a federal
government for the King. This "new" American form of feudalism, presented in
the form of the Constitution, subsequently reversed the directional flow of
political power. Society was not to govern, then, but to be governed. The
political role of individuals returned to a more passive involvement, thereby
suppressing the political expression of "difference" that was inherent in state
governments:
This meant, in effect, circumventing the political culture of the states by abstractlng the cttizen from his local culture and reconstituting him as a new kind of being, one who would be the object of national administratfon rather th
an an active subject in local self-government5
Though Tocqueville and Wolin disagree on America's feudal past, they seemingly agree in their assessments of how American democracy might affect the "soul" or the political imaginations of its citizens. Wolin writes that, unlike ancient feudalism, "the st
ate governments were firmly rooted in the affections of their citizens"6 -- "affections" used here to imply more an assumed behavior rather than a natural affinity. Tocqueville elaborates this idea more dramatical
ly and illustrates the resulting frustration more prophetically:
Monarchs had, so to speak, materialized oppression: the democratic republics of the present day have rendered it as entirely an affalr of the mind, as the will whlch it is intended to coerce.... there the body is left free
, and the soul is enslaved. The master no longer says, "you shall thlnk as I do, or you shall die"; but he says, "you are free to think differently from me, and to retain your life, your civil rlghts, but they will be useless to you, for you will never be
chosen by your fellow-citizens, if you solicit their votes; and they wlll affect to scorn you, if you ask for their esteern. You wlll remaln among men, but you will be deprived of the rights of mankind.7
Tocqueville suggests that, although there is no uniform class, there is an imposed uniformity of opinion. Our current political situation is thus depicted: Fully franchised but politically voiceless minority groups are at a geographic disadvantage in the
ir fragmentation, at an ideological disadvantage in their political "scorn," and are institutionally and systematically shunned and silenced by a majority that does not want, nor ever wanted to encourage their participation. In the very act of their disag
reement, the "American" system, unum 8 (to use Wolin's term) remains legitimized--an example of Bercovitch's "jeremiad."9 An illusion of the participation of pluris 1
0 is thus created and maintained within the winner-take-all election process. Quantitative (generic), but not necessarily qualitative legislation is produced in a system of government that is somehow sacred and above criticism.
These franchised but politically weightless voices of minority groups across the country are those addressed by Lani Guinier.11 Unlike the
Tocquevillian American, she views the electoral process not as sacred, but as
mechanical, a part of the operational end of democracy. In obvious agreement
with Wolin, she asserts that our system has evolved into a tyranny of the
majority in which difference is not encouraged and therefore has no political
means of expression but, instead, is systemically (geographically) and
culturally suppressed. Unlike Wolin, however, she finds and offers a solution
not only within the democratic system, but one which also reflects American
polity and ideology as well; she suggests that the unit of representation should
be political rather than geographic in the form of "cumulative voting":
...cumulative voting...is not only consistent wlth one-person, one-vote, but even better, it embodies one-person, one-vote, one value, in a way that districtlng systems do not. Yet, cumulatiue voting is not, in itself, the basis for a grand moral theory o
f representatlon or even a panacea for across-the-board voting problems. Instead, I use the idea of cumulative voting as a way to explore and define the unfairness and incoherence of indirect representation of geographic constituencies within winner-take-
all territorial units.12
The winner-take-all system of election predictably and securely produces
the desired generic legislation for the generic majority--"general rule[s] which
will accommodate most cases and most persons."l3 However, now that the
fundamental right to vote has been extended to minority groups, we can no
longer ignore the problem of its lack of political translation. This extended
right to vote must carry some weight in order to be meaningful. Cumulative
voting better reflects the aims of a democratic republic in that it encourages a
political representation which better parallels and reflects as justly and democratically as possible the reality of the "politically equal" by focusing the
election more on differences and the issues than on a geographically generic
candidate. For example, cumulative voting reduces the number of wasted votes
"votes [that] lose signiflcance because they are consistently cast for political
losers."l4 It is therefore more "democratic" in its representation. It also
evaporates gerrymandering, "which results from the arbitrary allocation of
disproportionate political power to one group. Districting breeds
gerrymandering . . . "15
The most controversial effect of cumulative voting is, ironically, that it
would encourage everyone's participation. We have come full circle, then, and
have arrived back to the revolution of 1776. The revolutionaries wanted a
government that ruled from the bottom up. We need only look at and compare
the political dissatisfaction and unrest in modern society with those early
revolutionaries to see the similarities between those times and our own. The
voiceless, disenfranchised and politically alienated groups grow every year, and
with them, their political frustration. Tocqueville, Wolin and Guinier invite us
to revisit our political and historical past in order to better imagine, explore,
and discuss the restructuring of our political present and future. The forming
of a more perfect Union is not an act, it is a process.
Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.16
Notes
1 John Adams, letter to James Sullivan, May 26, 1776, in ed. Adrienne Koch, The American Enlightenment: The Shaping of the American Experiment and a Free Society (New York: George Braziller, 1965) 185.
2James Madison, ed. Isaac Kramnick,
The Federalist Papers, no. 10 (New York: Penguin, 1987) 126-128.
3Sheldon S. Wolin, The Presence of the Past:
Essays on the State and the Constitution (Baltimore: John Hopkins University Press, 1989) 129.
4Wolin, 130.
5Wolin, 134.
6Wolin, 134.
7Alexis de Tocqueville, ed. Andrew Hacker,
Democracy in America, (New York: Washington Press, 1964), 97-98.
8Wolin's term
9Sacvan Bercovitch, The American Jeremiad, (Madison: The University of Wisconsin Press, 1978).
10Wolin's term
11Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York: The Free Press, 1994)
12Guinier, 119.
13Adams, in ed. Adrienne Koch, 185.
14Guinier, 121
15Guinier, 121
16Madison, ed. Isaac Kramnick, no. 51, 322.
It's election day in
the United States. Here, we are taught from early on that we live under
the world's greatest government, the greatest democracy, the free-est
society. Most of us believe it unquestioningly. But election turnouts are
always disturbingly small. We worry about apathy and dissatisfaction and
corruption and media distortion of the political process. We might do
well, especially as we cast our ballots today, to ponder some of the
decisions made by our founding fathers, to consider some of the
possibilities they thwarted as well as the ones they enabled. Is the
current version of American democracy really the best and only
possibility?
