One defining characteristic of democracy for many political scientists is a constitution. Yet constitutions emerge from complex negotiations that give unequal advantages to social elites. How can democracy produce equality when those designing the governance structures have unequal advantages in wealth, education, experience negotiating, networks of allies in powerful places, and in other ways? For these reasons most constitutions are written to respond to certain interests: not the interest of the people, but specific group interests that weaken democracy as equalized political power.
The historical processes out of which constitutional agreements emerge often weaken the rule of ordinary people in order to give advantages to powerful groups. Obvious examples of these advantages include the modern British House of Lords and other parliamentary bodies beholden to wealthy social sectors, the success of wealthy elites in gaining elected office after national liberation across much of Africa and Asia, the influence of propertied white males in the early U.S. constitutional system, and the importance of wealthy merchants in nineteenth century French negotiations of constitutional reforms.
Even seemingly small factors may have outsized impacts on democratic practice. One such apparently small change was the adoption of James Madison’s proposal to enlarge U.S. House of Representative districts when the constitution was drafted in the 1780s. The enlarged districts made it unaffordable for all but a wealthy minority to afford the cost of campaigns and time away from work to travel throughout the larger districts, making it impossible for ordinary citizens to be elected to Congress.
Some of these same factors are at work in constitutional electoral democracies in our own day. Since the election of two presidents that lost the vote in the United States over the last twenty years, there has been increased discussion of reforming the electoral college, the mechanism that made their election possible. The increasing flood of corporate monies into campaign coffers in the U.S. after the Citizens United Supreme Court decision of 2010 continues the outsized influence of the wealthy that has plagued constitutional democracies since their founding.
One of the risks of democracies is the willingness to accept anti-democratic practices, political parties, groups and organizations, and individuals as part of democratic institutions. By claiming to represent the will of the people across large bodies, such as big states or nation-states, some are represented who do not share the goals of serving all members of the body politic. Many examples of political parties and individuals who have succeeded in electoral systems only to postpone, cancel, or even ignore elections and electoral mechanisms can be found as evidence.
The right has also begun implementing a new tactic known as “parliamentary coups” across Latin America. This practice is identified with impeachments of Manuel Zelaya in Honduras in 2009, Fernando Lugo in Paraguay three years later, and more recently Dilma Rousseff in Brazil, These removals of democratically elected governments, generally of administrations that are reformist, are often carried out with little evidence of wrongdoing.
The Paraguay removal of President Lugo was received negatively by other governments in the region, and Paraguay was removed from the Mercosur pact as a result. In the Brazilian case, the administration that replaced Rousseff was made up of congressional representatives that included some with openly anti-democratic positions, including one recently elected as Brazil’s new President, Jair Bolsonaro. Bolsonaro not only announced publicly that he would be willing to shut down Congress, but also that he openly advocates torture even when it was well-known that President Rousseff had been tortured as a young person.
The power of elected leaders to appoint court justices in constitutional systems is sometimes seen as an anti-democratic mechanism, since it shields the justices from recall by popular vote. Court support of voter-suppression laws and gerrymandering strengthens partisan groups that do not have the general interest in mind. Supreme court justices appointed by minority presidents also present the impression of minority rule rather than democratic rule by the will of the entire political body.
Those who believe that constitutional democracies are the pinnacle of democratic governance may find these recent developments across the Americas to be unsettling signs of a decline in the democratic spirit. Some may even find them to be morbid signs of the decline and even death of democracy in some cases. Some may hope for a resurgence in the democratic impulse of particular groups of citizens at some undetermined future date. Some may despair that ordinary citizens will ever claim full power to govern their own affairs in the unending wait for political elites to give up their stranglehold on the constitutional mechanisms of electoral power.
Yet those who design constitutions do not always have democratic rule by the people as their goal. The opening remarks at the beginning of the U.S. constitutional convention in 1787 by then governor of Virginia, Edmund Randolph, make this clear: “Our chief danger arises from the democratic parts of our constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallows up the other branches.” This statement may help us understand why the popular electoral character of the presidency and congress was balanced by a branch of government that is not popularly elected, the judicial branch.
Those who have less faith in constitutions than most political scientists may then wish to look elsewhere for stronger guarantees than those found in constitutions. There are important defense systems in democratic government that come from outside the constitutional systems. These defenses work against the narrow interests that so often gain monopoly control on the mechanisms of constitutional governance, what Derrida calls its autoimmune character.
Some of these defenses require constitutional systems but many of which do not. These defenses require an ability of democracies to defer themselves, to make a path for democracy “as the turn of a detour, as a path that is turned aside, as adjournment in the economy of the same.” They also require difference “as reference or referral to the other…as the undeniable…experience of the alterity of the other of heterogeneity, of the singular, the not-same, the different, the dissymmetric, the heteronomous.”
These developments in democracies are not abstractions, but practices. They are not theories or applications, but experiences of the other, of that which is not democracy, not governance by all, but also not oligarchy or autocracy or plutocracy or other established others of the democratic. What they mean for democracy is found only in the future, in the time when deferral comes to fruition and experience of alterity emerges. Whether electoral democracies have the flexibility and the wherewithal to successfully experience the not-same remains a standing question. Only time will tell whether those willing to experience the singular out beyond the end of the economy of the same can overcome constitutional guarantees of narrow interests and strengthen the rule of the people to carry the day.