When Is a ‘Majority’ Not Actually a Majority?

The problem in the American system for the principle of “one person, one vote” is that our institutions are not actually set up for political equality among citizens.

Equal state representation in the Senate necessarily means that a citizen in a low-density state has greater representation — and therefore political power — than a citizen in a higher-density state. The Electoral College gives decisive political weight to the residents of the states where there is the most competition, irrespective of size or population. And the constitutional requirement that “each state shall have at least one representative” — when coupled with single-member districts and a cap on the overall size of the House — means a degree of malapportionment in the “popular” chamber as well.

The upshot of all of this, I’ve written in the past, is that it is possible to elect a government that does not represent a majority of voters, much less a majority of citizens or residents. With just the right amount of geographic, educational and racial polarization in the electorate, a party could control the White House and a majority of seats in Congress without ever winning a majority of votes in either a presidential or a congressional election.

I think that if you explained it way, many Americans would see this as a problem, even illegitimate. But there’s an argument that it is neither and that a party that held power under these conditions would have as much claim to legitimacy as one that held both power and a popular majority.

I mention this because I recently read an interview in The Atlantic with Ryan Williams, the president of the Claremont Institute, a right-wing think tank with strong ties to Donald Trump and his movement, in which he makes the argument that minority rule is as legitimate as majority rule.

What caught my eye there is Williams’s use of the term “constitutional majority,” to refer to an electoral majority that does not represent a popular majority. Williams uses it to defend — even to extoll — the legitimacy of minority government, but what’s interesting is that it was first used, as far as I can tell, in defense of majority rule.

Over the summer, I wrote about an unpublished 1834 letter from James Madison on the subject of “majority government.” It was a direct response to the nullification crisis of the early 1830s and the argument, made most trenchantly by Senator John Calhoun of South Carolina, that states had the right to nullify federal laws that abrogated their rights. In his letter, Madison argues that there’s no viable or impartial principle for self-government other than majority rule, especially in a nation of diverse, opposing interests: “The vital principle of republican government is the lex majoris partis, the will of the majority” and “if the will of a majority cannot be trusted where there are diversified and conflicting interests, it can be trusted nowhere.”

Having said that, Madison concedes that in any system of elective government, there is the chance of choosing a government that does not represent a majority of the people. This, he says, is a problem, because the popular majority might feel oppressed by the minority in power. “That this departure from the rule of equality, creating a political and constitutional majority in contradistinction to a numerical majority of the people, may be abused in various degrees oppressive to the majority of the people is certain; and in modes and degrees so oppressive as to justify ultra- or anti-constitutional resorts to adequate relief is equally certain.”

In other words, governments need popular consent for legitimacy, and when they do not have it, they run into trouble. Indeed, in Madison’s formulation, the “constitutional majority” is something of a problem to be solved, not an intended outcome of the process. And to that end, he believes the best solution to the problem of a minority government is to change the rules of the game.

“Still,” he writes, “the constitutional majority must be acquiesced in by the constitutional minority whilst the Constitution exists. The moment that arrangement is successfully frustrated, the Constitution is at an end. The only remedy therefore for the oppressed minority is in the amendments of the Constitution, or a subversion of the Constitution — this inference is unavoidable. Whilst the Constitution is in force, the power created by it whether a popular minority or majority must be the legitimate power and obeyed.”

If changes in population and the electorate have made it more likely than ever that Washington is dominated by “constitutional majorities” rather than popular majorities, then I think Madison would say it was high time to change the way we do elections and structure our institutions. Just because minority government is possible under a republican political system does not make it a desirable or intended outcome of the process.

The “constitutional majority” is a real thing, but it’s no substitute for popular legitimacy.

What I Wrote

My Tuesday column was on the secession crisis of 1860 and why it is important not to dismiss the possibility of a black swan event:

My Friday column was on majority rule in the Senate, with a big assist from Henry Cabot Lodge:

Now Reading

Randall Kennedy on the right-wing attack on “critical race theory” in The American Prospect.

Wesley Lowery on Will Smith in GQ.

Chris Hayes on internet fame in The New Yorker .

Ariel Ron on slavery and federal power in Slate .

Sue Mi Terry on how North Korea finally got a nuclear weapon and why it won’t give it up, in Foreign Affairs.

Feedback If you’re enjoying what you’re reading, please consider recommending it to your friends. They can sign up here. If you want to share your thoughts on an item in this week’s newsletter or on the newsletter in general, please email me at [email protected]. You can follow me on Twitter (@jbouie) and Instagram.

Photo of the Week

I always like a good sign, and this is a good sign.

Now Eating: Stir-Fried Butternut Squash From Madhur Jaffrey’s ‘Vegetarian Indian’

I’m a huge fan of butternut squash and this is one of my favorite preparations. It is very easy to put together and makes for a great addition to any meal, and not just an Indian one. (Although you won’t go wrong with this squash, a freshly made roti and a spinach raita.) Recipe comes from “Vegetarian Indian,” by Madhur Jaffrey.

Ingredients

• 2 tablespoons olive or peanut oil

• ¼ teaspoon urad dal (or split red lentils if you have them; otherwise, you can consider this optional)

• ¼ teaspoon whole brown mustard seeds

• 1 to 2 dried hot red chiles

• 1 small onion, peeled and chopped

• 1 pound butternut squash, cut into a ½-inch dice

• ¾ teaspoon salt

• 1 tablespoon dark brown sugar

• 1 teaspoon ground cumin

• freshly ground black pepper

Directions

Put the oil into a medium nonstick frying pan and set over medium heat. When hot, add the urad dal (if using). As soon as it starts to change color, add the mustard seeds and the red chiles. When the mustard seeds start to pop and the chiles darken, a matter of seconds, add the onions. Stir and fry for 2 minutes. Add the squash, then stir and fry for about 4 minutes or until the squash and the onions start to brown.

Add ¾ cup of water, the salt, brown sugar, cumin and black pepper. Mix well and bring to a boil. Cover, lower the heat and simmer gently for about 10 minutes or until the squash is soft enough to pierce easily with a knife. Taste for seasoning and make adjustments if needed. When you are getting ready to serve, boil away any water that remains, stirring as you do so.