Constitutional Stability and the Role of Countermajoritarian Rules (or How We Learned to Stop Worrying and Love our Anti-democratic Constitution)

Abstract

Advocates of strong versions of democracy and majoritarian decisionmaking in American politics have long expressed concern about constitutional rules that constrain majorities. That such countermajoritarian rules in constitutions are, broadly speaking, anti-democratic has been a central critique of American constitutionalism, and has flourished in recent scholarship. Many scholars have concluded that our Constitution is fundamentally flawed, while others have argued that these concerns can be ameliorated by approaches to constitutional architecture and to judicial review that are democracy-enhancing. We argue here that this debate suffers from a neglect of a key aspect of political strategy and of constitutional design. Critically, proponents of majoritarian constitutions ignore the problem of constitutional stability. To understand why some democracies survive, we stipulate a constitutional desideratum: regardless of a constitution’s normative contents, a constitution does no one any good if it quickly fails. Our positive thesis is that all successful constitutions satisfy the limit condition: to survive constitutions must limit the stakes of power. When powerful groups feel threatened by the party holding power, they are likely to support extra-constitutional action to protect themselves. Majoritarians therefore face a fundamental tradeoff: Greater responsiveness to majorities raises the stakes of politics; and yet this makes the constitution less stable. This view implies that majoritarians should embrace countermajoritarian features that limit the stakes: when countermajoritarian features protect constituencies with the power to disrupt the constitution, they increase a constitution’s stability and thus its longevity and its successful performance.