Since the presidential election, there has been a good deal written about the resilience of American democracy, some self-congratulatory, some anxious. All concerned, however, are using the wrong term. The U.S. Constitution has democratic elements, but it does not establish a democracy in the sense of a government by majority vote. Instead, it establishes something that we Americans inherited from England, something so familiar and taken for granted that we do not even have a word for it. The Germans, who saw and envied it from afar, called it a Rechtstaat, literally a law state. We more awkwardly call it the rule of law.

The bargain struck in the Constitutional Convention prevents rule by a national majority by privileging localities. The Senate is deliberately and profoundly malapportioned in any democratic sense, yet its structure is so fundamental that the Constitution prohibits any amendment to deprive a state of its equal vote without the state’s consent. The malapportioned Senate is embedded in the Electoral College, which is how this year’s defeated presidential candidate ran up a national majority of about 1 million popular votes and still lost. While the House of Representatives is apportioned by population, the minimum of one member per state over-represents the least populous. More importantly, while the law requires substantial equality of population among House districts, it permits state legislatures to gerrymander for partisan advantage by packing the minority party’s voters into a few overwhelmingly safe seats. Measured either by absolute majority rule or by proportional representation of varying opinions, the elected branches of the federal government are at best imperfect representatives of majority will.

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