1 Introduction

Americans proudly call their form of government a democracy. Politicians like to brag about this, reminding other countries that the United States is “the oldest continuous democracy in the world” (Barksdale 2018). But after the shocking mob attack on the U.S. Capitol on January 6, 2021, there has been much talk about the “fragility” of American democracy and constant warnings that the long continuity of our old and cherished system of government might soon be over (Powell 2022).

I agree that there is much to like about our government and there are good reasons to fear a future overthrow, but the form of government that is bragged about by politicians is not a true democracy. There are many features in the U.S. system similar to those found in oligarchies and aristocracy. Hence, the first task is to clarify concepts and show how they are instantiated in the government of the United States of America.

Democracy is a form of government in which the power to legislate is either held directly by a simple majority of the people or by representatives who have been elected by the people.Footnote 1 It is the only system of government in which (in theory) all citizens have equal power (rights) to either legislate or give their power of legislating to others of their choosing. The former system is called direct or true democracy. The latter is called representative democracy. Whether democracy is either direct or representative, the agreement of a simple majority of the whole people or their elected representatives is necessary before a law canbe created or changed. Finally, the democracy of the United States of America is constitutional. The government is based on a Constitution that is "supreme" in the sense that it "not only provides the framework for how the federal and state governments are structured, but also places significant limits on their powers." (U.S. Govt. Embassy) 

In a democracy, if a law is proposed that (for example) mandates citizens to wear face masks during a pandemic, then the proposal becomes law only if there is a simple majority of legislators who approve. The proposal fails if there are one or more votes less than a simple majority. Any system of rule that allows a minority to pass a law would violate majority rule as a central principle of democracy. If more than a simple majority is required to create or change laws, then the minority has been granted the power to block legislation. This requirement dissolves democracy and replaces it with another form of government that John Locke refers to as oligarchy,Footnote 2 and Jean- Jacques Rousseau and other philosophers call aristocracy.Footnote 3 What oligarchy and aristocracy have in common is that legislative power is given to “the few.” The governing few are often corrupt or have inherited their power to legislate by birth. But this is irrelevant. What makes oligarchy a threat to democracy is not how the minority got their power or what they do with their power, but that a minority has the power to create, change or prevent legislation.Footnote 4

Signs of oligarchy in governance will be discussed in Sect. 2. Repairs of the defects of oligarchy in the current American government will be explained in Sect. 3.

2 Signs of Oligarchy in Governance

2.1 The Oligarchy of the Filibuster

The filibuster is a tactic frequently used in the United States Senate. It is a perfect example of the political power of a shifting oligarchy. The number of oligarchs or aristocrats who rule in a commonwealth is historically small and permanent. When we think of an oligarchy, we usually imagine a system of government that has only a few individuals with the power to create or change laws and have this power for a lifetime. But suppose there is a country or state with a rule of governance that places legislative power in the hands of a temporary minority by requiring laws that can only be created or changed by the vote of a supermajority. Thus, any minority group of legislators can block laws proposed by a majority if the majority fails to meet a certain threshold, for example, sixty percent of the total number of voting legislators. If a majority of 100 legislators is 51 and it takes 60 to pass a law, then we can refer to this system of rule as a shifting oligarchy. It is an oligarchy because it is a minority with the power to block legislation. It is ‘shifting’ because the makeup of the minority group that is doing the blocking is temporary. A later minority group might be composed of a different group of legislators.

Filibusters are actions allowed in a legislature (such as a prolonged speech) that obstruct progress in passing a bill while not technically contravening the required procedures. Although filibusters can be overridden by the vote of a supermajority of senators (60 instead of 50 in a group of 100), this rarely happens, especially if there is an equal number of senators on both sides of an issue. In most cases, the filibuster succeeds because a supermajority to override the filibuster cannot be found, and a simple majority of senators are thereby prevented from passing the desired bill or law. The minority who opposed the law get what they want, but only because the system of rule has been transformed by the filibuster from a democracy into a shifting oligarchy.

The argument for keeping the filibuster was repeated many times by Democratic senators Joe Manchin (West Virginia) and Krysten Sinema (Arizona) in 2021–2022. They claimed that the filibuster justifiably forces senators from both parties to seek a bipartisan solution. It was more important to Manchin and Sinema that a bill had bipartisan support than passing a bill proposed by a simple majority of senators of one party. In other words, for these senators, using the filibuster to prevent a simple majority of senators from one party from passing a bill is more important than adherence to the rule of the majority as a foundational rule of democracy.

The will of the people is expressed only through a majority, not through a minority that has its own agenda to promote. There is no requirement in the U.S. Constitution that a majority must be composed of members of contending factions.

2.2 The Oligarchy of the Electoral College

The Electoral College is an oligarchical system for electing the president and vice president because the popular vote of the whole people is actually a vote for a slate of electors who have previously been appointed by the political parties in their state.

The Electoral College is composed of a group of presidential electors required by the U.S. Constitution to meet every 4 years. Their only purpose is to elect the president and vice president. Each state has as many ‘electors’ in the Electoral College as it has Representatives and Senators in the United States Congress (the District of Columbia has three electors). When voters go to the polls in a presidential election, they are voting for a slate of electors who have vowed to cast their ballots for the winning ticket in the Electoral College. Most voters ae not aware that when they go to the polls to cast their ballot they are not directly voting for a particular president or vice president. For those who know about and understand the process, they cast their vote hoping that the ticket that wins the popular vote will also be the ticket that the electors vote for when the Electoral College meets in Washington, D.C. two months after the election. Although the Constitution does not require electors in each state to cast their vote for the president and vice president that the people chose by popular vote, most electors will do so.Footnote 5

The source of inequality is to be found in the distribution of electors in each state. The distribution is not proportionate to the number of eligible voters. For example, the voting population of the state of California is over 22 million and the number of California electors is 55. Wyoming has 269,000 voters and 3 electors. If the number of electors was proportionate to the voting population of these states, California would have 245 electors, not 55.

The implication of this is that the three electors from Wyoming have much more power than the 55 electors representing California. Each Wyoming elector represents 90,000 voters but each California elector represents 400,000 voters, making each Wyoming voter 4.4 times more powerful than each California voter when the final electoral votes are cast.

In their effort to give small states like Wyoming, Vermont, and Delaware more power in presidential and vice-presidential elections than they would have if electors were appointed in numbers proportionate to the voting population, the founding fathers ignored the principle of equality. If this moral principle had been employed when the Constitution was ratified, each vote would count for one, and no vote would count for more than one. A voting system that gives more power to voters who live in one state than those who live in another state violates this foundational principle of democracy.

2.3 The Oligarchy of the United States Senate

The composition of the United States Senate is undemocratic for the same reason that the Electoral College is undemocratic. The Constitution of the United States gives each state two senators, regardless of the number of registered voters in the state. For example, the legislative power of the people in the state of Vermont who elect their two senators to represent them in the Senate is much greater than the legislative power of the two senators who represent the state of New York.Footnote 6

Vermont’s 625,000 residents have two United States senators, and so do New York’s 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line — the biggest inequality between two adjacent states. The nation’s largest gap, between Wyoming and California, is more than double that… The difference in the fortunes of Rutland (Vermont) and Washington (New York) Counties reflects the growing disparity in their citizens’ voting power, and it is not an anomaly. The Constitution has always given residents of states with small populations a lift, but the size and importance of the gap has grown markedly in recent decades, in ways the framers probably never anticipated. It affects the political dynamic of issues as varied as gun control, immigration, and campaign finance (Liptak 2013).

The principle of voter equality is expressed in the sentence, “Each person should have one vote and no person should have more than one vote.” Although it is the moral bedrock of democracy, it is violated in the extreme by the constitutional delegation of U.S. Senators (Article I, Section 3), mirroring the delegation of the eighteenth-century aristocratic British House of Lords. Although U.S. senators are elected by the people, not appointed as “lifetime peers” by a king,Footnote 7 the disproportionate legislative power held by both the U.S. senators and the eighteenth century House of Lords is the same.

A popular justification for granting each state, small and large, the same number of senators is the “stability argument.” The Framers were worried that a majority of the House of Representatives, empowered by their constituents, might pass legislation as tyrannical as the legislation they had experienced and endured under British rule. This would divide the country in ways that would make the new government unstable. The Framers’ solution, “…as reflected in Article I, Section 3, [was to design] the Senate, like they had other fixtures within the Constitution, such as the Electoral College and the judiciary, to be counter-majoritarian” (Calabresi and Gerhardt 2023). The Framers hoped that this pro-minority design would bring stability to the government and the country.

The stability argument makes two assumptions. First, it assumes that a government by the people and their representatives will create legislation so tyrannical that the country will be dissolved. Second, the argument also assumes that the only solution is to grant each state two senators, no matter what the difference in the population of each state might be in the future.

Both assumptions are questionable. There are other ways to prevent tyrannical legislation, as was proved in the passage of the first ten amendments to the Constitution (Bill of Rights). And granting each state, small and large, the same number of senators, has little or nothing to do with the effort to prevent the passage of bad laws. The Senate’s power to override bills passed by the House lies not in the equal distribution of senators but in the constitutional power granted to the whole body in Article I, Part 3.

Another argument for the two-senator per-state distribution is that this mitigates the political power of states with much larger populations. This wrongly assumes that the political power of the state is more important than the political power of the individual citizens. The smaller states get this power at the cost of the diminished effectiveness of senators in the larger states to pass legislation that will benefit their constituents. Of more importance, this dilution of power violates the moral principle of equality. It is oligarchic injustice that the Vermonter’s voting power in the U.S. Senate is now 30 times greater than the New Yorker’s voting power.

2.4 The Oligarchy of the Presidential Veto

The power of presidential veto in Article I, section 7 of the Constitution is undemocratic because it grants one person, the President of the United States, the authority to veto legislation passed by Congress. Congress can override a presidential veto but only if both the House of Representatives and the Senate can muster two-thirds of its members to approve an override.

Although the veto power of the president was approved by the Framers to diminish the legislative power of Congress and thereby achieve a balance of power between the legislative, executive, and judicial branches, the use of the veto is a clear assault on democracy. Congress can override a veto, but it takes a supermajority of the members to do so. This requirement is sufficient to categorize this article of the Constitution as another endorsement of oligarchy (minority rule) that is inconsistent with the concept of democracy and majority rule.

The objection to this is that the President will use the veto power “to prevent the misuse or abuse” of legislative power. Examples of misuse or abuse are measures that the President “finds unconstitutional, unjust, or unwise” (National Archives). My reply is that only the Supreme Court can find a legislative measure to be unconstitutional and a finding by a single person (the President) that a measure is unjust or unwise should not negate a different finding by Congress. The President is not a philosopher king blessed with special insight.

2.5 The Oligarchy of Representation

The eighteenth century Genevan philosopher Jean-Jacques Rousseau famously argued that most governments that call themselves democracies do not qualify as such because the only true democracy is direct democracy. When a proposed bill or law comes up for a vote, the only persons who should be allowed to cast a vote for or against the proposed law are the citizens themselves. The majority vote determines the general will (that is, the common good) and since legitimate laws are based only on the general will of the citizens, the minority in obeying the law after the vote is counted, are now obeying themselves as members of an organic political community.

Those who claim that they are a representative of a group of citizens and are voting “on the behalf of others” should not be allowed to join the assembly of voters. They can cast their single vote as a citizen but cannot cast a vote for other citizens. (The Social Contract II.6). To give one’s vote to another is equivalent to not voting at all. When citizens go to the polls and vote for candidate X as their representative, they alienate their right to legislate by giving the power of their vote to X. Once X is sworn in office, those who voted for X will have no control over how X votes until the next election. For the next 2, 4, or 6 years the votes cast by the representatives are their votes, not the votes of the citizens that they represent.

If the only legitimate votes for new laws are the votes of representatives and not the votes of the people, then the assembly of elected representatives in the U.S. House of Representatives is no different than an assembly of elected aristocrats who have been given legislative power. In the spirit of Rousseau’s words, an assembly of representatives, no matter how they came to power, is not an instantiation of democratic rule. Democracy exists only when the whole people rule. The ‘whole people’ is a simple majority of citizen voters. Only the vote of a majority can express the general will.

2.6 The Oligarchy of Judicial Review

On September 28, 1820, Thomas Jefferson wrote a letter to William Jarvis complaining about what Jefferson believed was a serious omission in the Constitution:

Nothing in the Constitution has given them (judges) a right to decide for the Executive, more than to the Executive to decide for them … You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the DESPOTISM of an oligarchy.

Jefferson was right about the claim that there is nothing in the Constitution that gives the Supreme Court the power to make the final interpretation of the content of the Constitution. And I should add, the framers of the Constitution left no instructions about how it should be interpreted by the judges. This gives the Supreme Court free rein to impose their interpretations, with the advice but not the command of lower courts, the president, or the legislature.

If you put these two observations together, then Jefferson’s warning is that the United States is under the rule of an oligarchy composed of a few Supreme Court judges who, in an early court decision (Marbury v Madison, 1803) gave themselves the sole right to decide what is and is not constitutional for all three branches of government.Footnote 8

Another anti-democratic sign of the Supreme Court’s power is that the justices of the Supreme Court who exercise this power are not elected by the people. They are appointed by the president on the approval of a majority of the Senate. Justices of the court have never had to face an election by the very people who must obey their rulings. Moreover, an appointment to the Supreme Court is for a life-long term.Footnote 9 By way of contrast, the president of the United States is elected by the people through the Electoral College for a 4-year term and can only be re-elected once.

“The combination of judicial review with a judiciary that is not electorally accountable is what is antidemocratic” (Altman 2001, p. 85). But is Jefferson right when he said that this combination is “a dangerous doctrine” that “place(s) us under the despotism of an oligarchy”?

An oligarchy is the rule of a minority in which only the few can make law. If Supreme Court decisions are acts of legislation then objectors could ipso facto declare that the rulings of the judicial branch of government are the rules of a few judges who together constitute an oligarchy. Laws are being made or changed, not by the people or their representatives but by an ever-shifting majority of Supreme Court judges.

One response to this charge is to deny that the Supreme Court is legislating when they decide cases that are on the docket. Judgments of the court are usually interpretations of the constitution, not acts of legislation. For example, when the current court decided to overturn the 1973 Roe v Wade decision granting women the constitutional right to abortion, the 2022 court believed that they had a better interpretation of the Constitution than the interpretation given in 1973. If the 2022 decision (Dobbs v Jackson) was legislation not interpretation, then the same thing could be (and has been) said of the 1973 decision or for that matter, any other contested decision of the Supreme Court.

What manner of interpreting the Constitution is best? When does an interpretation cease being an interpretation and become an act of legislation? These are questions that have yet to be answered to the satisfaction of a majority of philosophers of law (Altman 2001, pp. 94–107). Some philosophers are originalists. They believe that provisions of the Constitution should either be taken literally or if difficult passages require some interpretation, they should be limited to what the framers of those passages intended to say (Bassham 1992). Other originalists argue that interpretations of provisions of the Constitution should be determined by how they were understood by the people at the time of the Constitution’s adoption (Bork 1990). On the other side of the debate are non-originalists who insist that the judges of the Supreme Court should look behind the constitution’s provisions in search of “a philosophy of government” that could justify these provisions and precedents (Dworkin 1996).

When these theories are applied, each theorist often comes up with a different interpretation of a provision or amendment of the Constitution and each will often accuse their rivals of legislating, not interpreting the Constitution. This has led to a politicization of the Supreme Court, with appointees of Republican presidents generally siding with originalism and appointees of Democrats siding with non-originalist approaches to constitutional interpretation.

There is no universal support for the claim that the Supreme Court usually makes its own law instead of interpreting existing law when it decides a case. The problem is the politicization of the Court of the sort that leads to interpretations of constitutional provisions and decisions of the court that please the president who appointed them and the senators that give their consent.Footnote 10 This at least has the appearance of political interference. However, the fact that a president wants and appoints only conservative judges does not imply that appointees will consult with the president before they decide a case that has been brought before the court. If judges did this, they and the president would probably be impeached.

The fact that Supreme Court judges are appointed not elected appears to make the Court an instance of oligarchy. John Locke referred to the judiciary as a part of the executive branch of government. In the United States, the judiciary is a distinct branch of government, not a part of an existing branch. But both agree that it is the charge of the executive to appoint not only Supreme Court judges who interpret the law, but also appoint attorneys general who will investigate to determine violations of federal law, lower court federal judges who hear cases to determine guilt or innocence, and jailers who manage federal prisons where the guilty are incarcerated.

In none of the aforementioned cases is the person or persons who occupy these roles elected by the people. They are all appointees of the president. Hence, it should be no surprise that judges of the Supreme Court are appointed, and no appointment made by the executive branch is a feature of oligarchy.Footnote 11 The relevant constitutional difference between Supreme Court appointees and other executive appointees is that the former are lifetime appointments authorizing judges to overturn laws forged by Congress.

3 Repairing the Defects

The United States of America is a mix of oligarchy and democracy. If these words are too much to bear, then we can call the American form of government a flawed democracy. Parts of the system of government are democratic and other parts are undemocratic. If we are to declare that the U.S. government is a true democracy, then the defective (undemocratic) parts must be removed or repaired.

Is there any way to do this? Here are some recommendations.

3.1 Abolish the Filibuster

The U.S. Senate should abolish the filibuster. The argument that the filibuster is needed to guarantee bipartisanship in the Senate is not a sufficient reason to violate the principle of majority rule and with it the heart of democracy. This justification for the filibuster is equivalent to saying that no law should be passed unless it is approved by a supermajority of senators, for example, by 75 out of 100 votes of approval. If it is argued that this would permanently enshrine a tyranny of the minority (the 25 senators who disapprove), then the same words can be applied to the use of the filibuster.

3.2 Abolish the Electoral College

The Constitution should be amended to abolish the Electoral College. It is a remnant of aristocratic governments and it has no place in a country of people who are taught to understand and repeat the words “our government is of the people, by the people, and for the people.”

3.3 Abolish or Remake the U.S. Senate

The U.S. Senate should be abolished entirely or remade in a way that citizens of each state have equal voting power. “Remaking” means that the number of senators who represent states that have a large number of citizens (for example, California or New York) should be proportionately larger than the number of senators who represent states with much smaller populations (for example, Vermont or Montana). If equal representation is made a requirement, then the total membership of the Senate would be so large that it would rival the membership of the House of Representatives. Stripped of unequal senatorial power for small states, the U.S. Senate would become a redundant legislative body.

3.4 Abolish the Veto Power of the President

Veto power should be removed from the presidency. It is obviously in violation of the principle of majority rule. The power of the president should be entirely executive, not legislative, for reasons already cited above. Congress has the power to federalize the vote for president and vice president. At this writing, recent attempts to pass this legislation have failed in the U.S. Senate because Republicans pretend that practices like mail-in ballots and same-day voting will increase the number of fraudulent votes, even though there is no evidence that this happened in the 2020 election.

3.5 Grant Citizens the Right to Vote for Legislation

Rousseau’s recommendation for direct democracy should be taken seriously Sect. (2.5). At the time that Rousseau wrote The Social Contract (1762), there was no practical way for most states to adopt in-person voting for proposed laws. If it is to work at all, Rousseau opined, direct democracy could only work in small states with very small populations in which each citizen could easily travel and assemble at designated polling places.

But times have changed. We now have the technology for people to approve or disapprove proposed laws by ballot. The recent referendum in the state of California is a prime example of direct democracy. 17.8 million residents voted for president, senators, and representatives on November 6, 2020. More than 15 million ballots were cast by mail. But more to the point, Californians also voted for or against 12 proposed measures that would become law if approved by a majority. If millions of Californians can legislate, why can’t all Americans do the same in every state of the union?

We should trust the citizens to do more legislating than they are now legally allowed to do. If we allow citizens to vote for their representatives in Congress, then there is no justification for not allowing them to vote for or against proposed federal and state laws. It might be objected that the average voter is not smart enough to vote for proposed laws or they do not have the time to do this. To this, I would answer that if they are smart enough to choose their representatives, then with the help of educators to inform them about the content of proposed laws, they are smart enough to legislate. If some citizens don’t have the time to understand complex proposals because of the necessity to work and provide for their families, then a democratic government should make time and give compensation for lost work time. What is important is that we properly educate actual and potential voters so they can say that the laws they have made are truly the will of the people. State requirements for Civics courses in all high schools would be of great benefit to students and to an enlightened community eager to participate in the democratic process of legislation (Shapiro and Brown 2018).

The right to vote granted to all citizens for legislation implies that citizens are free to exercise this fundamental democratic right. Although suppression of the vote is not a sign of oligarchy, the right to vote means little if all they can do with their voting power is to give it away to a representatives every 2, 4 or 6 years. And if the right to vote is expanded to voting for legislation in a direct democracy, there is no guarantee that citizens can exercise this important right unsuppressed by barriers making it difficult for citizens to cast a vote, e.g. by not allowing mail-in ballots (Morgan, B. 2020), and limiting the number of polling places and voting days.

As a first step, Congress should immediately codify the right to voteFootnote 12 or put into action the long process of amending the U.S. Constitution to guarantee a right to vote. Codification would be much easier to accomplish than a constitutional amendment, although recent attempts in Congress to codify right-to-vote laws have failed.Footnote 13 The long process of constitutional change could be done by amending the First Amendment by inserting these italicized words: “Congress shall make no law…prohibiting the free exercise of the right to vote.”

3.6 Dilute Politicization of the Supreme Court

If the politicization of Supreme Court decisions is seen as a way of disguising legislation desired by political factions, then interpretive rulings of the Court are the sign of an oligarchy composed of nine judges.

One solution for reducing the politicization of the Court is to correct what the Framers failed to do when they designed the Constitution. As mentioned earlier Sect. (2.6), the Framers did not leave instructions about how the Constitution and its amendments should be interpreted. They left this up to the Supreme Court. However, instructions for interpretation could be created by a special bipartisan congressional committee composed of originalists, non-originalists, and those who are neutral about the correct way to read and interpret the Constitution. The instructions would set limits about what would constitute a valid interpretation, consistent with the ideals of liberty and equality that motivated the work of the Constitutional Convention of 1787. When finished, the instructions should be proposed as an amendment to the Constitution, asserting that the Supreme Court and other federal courts shall not interpret the Constitution in a way that exceeds the limits set by the aforesaid instructions.

The second correction for the federal judiciary is to reduce the years of appointment from a lifetime to a maximum of 12 years of judicial service. There is no good reason why unelected judges should serve more years on the Court than elected senators serve in the Senate.

But there is a good reason why unelected judges should serve no more than elected senators. This change would dilute the politicization of the Court. A conservative judge would be replaced by a liberal judge (and vice versa) more frequently than is now the case. Instead of waiting a generation for the Court to flip from majority conservative to majority liberal (and vice versa), as is now the case, reducing the term of appointment to 12 years has a greater chance of changing the impact on the Court of a single political ideology promoted by a shifting court majority.

4 Conclusion

In the epigraph to this paper, I quoted John Adams’ depressing remark about the future of democracy: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” Unfortunately, Adams did not explain what it is about democracy that “wastes, exhausts and murders itself.” Perhaps he was referring to Plato’s prediction that direct democracy would eventually devolve into tyranny (Republic, 569c). One response to this grim fate would be to replace direct democracy with representative democracy and add a few features from oligarchy that might help to prevent chaos and death. Another response is to reject oligarchic features entirely.

Whether such radical changes in governance would avoid the suicide of which Adams speaks is an empirical prediction requiring evidence from observation and experience. But prediction is a task of political science not political philosophy. What the philosopher can say is that there is a point at which the concept of democracy does not apply to the American form of governance. Perhaps that is all that Adams meant by the ‘suicide’ of democracy.