This sub-chapter continues the excerpt from Dahl. The main focus here is Dahl’s list of seven of what he calls “undemocratic elements” in the U.S. Constitution. Of these seven items, it is important to note that the last two, as Dahl explains later in the book, did not become significant issues that Americans debated until after ca. 1800, in the nineteenth century, and even, in the case of no. 7 on congressional power over the economy, with the industrial revolution of the late nineteenth and early twentieth centuries. Thus for the midterm it is really the first five items that are most relevant.

Finally, this section concludes with a brief discussion of the first few phases that Dahl distinguishes in the continuing evolution of American attitudes and practices of democracy.

Undemocratic Elements in the Framers’ Constitution

It was within these limits, then, that the Framers con­structed the Constitution. Not surprisingly, it fell far short of the requirements that later generations would find necessary and desirable in a democratic republic. Judged from later, more democratic perspectives; the Constitution of the Framers contained at least seven important shortcomings.

[1] Slavery. First, it neither forbade slavery nor em­powered Congress to do so. In fact, the compromise on slavery not only denied Congress the effective power to prohibit the importation of slaves before 1808 but it gave constitutional sanction to one of the most morally objectionable byproducts of a morally re­pulsive institution: the Fugitive Slave laws, according to which a slave who managed to escape to a free state had to be returned to the slaveholder, whose property the slave remained. That it took three-quarters of a century and a sanguinary civil war before slavery was abolished should at the least make us doubt whether the document of the Framers ought to be regarded as holy writ.

[2] Suffrage. Second, the constitution failed to guar­antee the right of suffrage, leaving the qualifications of suffrage to the states. It implicitly left in place the exclusion of half the population-women-as well as African Americans and Native Americans. As we know, it took a century and a half before women were constitutionally guaranteed the right to vote, and nearly two centuries before a president and Congress could overcome the effective veto of a minority of states in order to pass legislation intended to guarantee the voting rights of African Americans.

[3] Election of the President. Third, the executive power was vested in a president whose selection, ac­cording to the intentions and design of the Framers, was to be insulated from both popular majorities and congressional control. As we’ll see, the Framers’ main design for achieving that purpose-a body of presi­dential electors composed of men of exceptional wisdom and virtue who would choose the chief executive unswayed by popular opinion-was almost immedi­ately cast into the dustbin of history by leaders sympa­thetic with the growing democratic impulses of the American people, among them James Madison him­self. Probably nothing the Framers did illustrates more sharply their inability to foresee the shape that politics would assume in a democratic republic…

[4] Choosing senators. Fourth, senators were to be chosen not by the people but by the state legislatures, for a term of six years. Although this arrangement fell short of the ambitions of delegates like Gouver­neur Morris who wanted to construct an aristocratic upper house, it would help to ensure that senators would be less responsive to popular majorities and perhaps more sensitive to the needs of property hold­ers. Members of the Senate would thus serve as a check on the Representatives, who were all subject to popular elections every two years.

[5] Equal representation in the Senate. The attempt to create a Senate that would be a republican version of the aristocratic House of Lords was derailed, as we have seen, by a prolonged and bitter dispute over an entirely different question: Should the states be equally represented in Congress or should members of both houses be allocated according to population? This ques­tion not only gave rise to one of the most disruptive is­sues of the Convention, but it resulted in a fifth unde­mocratic feature of the constitution. As a consequence of the famous-or from a democratic point of view, in­famous – “Connecticut Compromise” each state was, as we have seen, awarded the same number of sena­tors, without respect to population.

[6] Judicial power. Sixth, the constitution of the Framers failed to limit the powers of the judiciary to declare as unconstitutional laws that had been prop­erly passed by Congress and signed by the president. What the delegates intended in the way of judicial re­view will remain forever unclear; probably many dele­gates were unclear in their own minds, and to the ex­tent that they discussed the question at all, they were not in full agreement. But probably a majority ac­cepted the view that the federal courts should rule on the constitutionality of state and federal laws in cases brought before them. Nevertheless, if. is likely that a substantial majority intended that federal judges should not participate in making government laws and policies, a responsibility that clearly belonged not to the judiciary but to the legislative branch. Their oppo­sition to any policy-making role for the judiciary is strongly indicated by their response to a proposal in the Virginia Plan that “the Executive and a convenient number of the National Judiciary, ought to compose a council of revision” empowered to veto acts of the Na­tional Legislature. Though this provision was vigor­ously defended by Madison and Mason, it was voted down, 6 states to 3.

A judicial veto is one thing; judicial legislation is quite another. Whatever some of the delegates may have thought about the advisability of justices sharing with the executive the authority to veto laws passed by Congress, I am fairly certain that none would have given the slightest support to a proposal that judges should themselves have the power to legislate, to make national policy. However, the upshot of their work was that in the guise of reviewing the constitu­tionality of state and congressional actions or inac­tions, the federal judiciary would later engage in what in some instances could only be called judicial policy­making – or, if you like, judicial legislation.

[7] Congressional power. Finally, the powers of Con­gress were limited in ways that could, and at times did, prevent the federal government from regulating or controlling the economy by means that all modern democratic governments have adopted. Without the power to tax incomes, for example, fiscal policy, not to say measures like Social Security, would be impos­sible. And regulatory actions-over railroad rates, air safety, food and drugs, banking, minimum wages, and many other policies-had no clear constitutional authorization. Although it would be anachronistic to charge the Framers with lack of foresight in these matters, unless the constitution could be altered by amendment or – by heroic reinterpretation of its provi­sions – presumably by what I have just called judicial legislation – it would prevent representatives of later majorities from adopting the policies they believed were necessary to achieve efficiency, fairness, and se­curity in a complex post-agrarian society.

Enlightened as the Framers’ constitution may have been by the standards of the eighteenth century, fu­ture generations with more democratic aspirations would find some of its undemocratic features objec­tionable-and even unacceptable. The public expres­sion of these growing democratic aspirations was not long in coming.

Even Madison did not, and probably could not, predict the peaceful democratic revolution that was about to begin. For the American revolution was soon to enter into a new and unforeseen phase.

The Framers’ Constitution Meets Emergent Democratic Beliefs

We may tend to think of the American republic and its constitution as solely the product of leaders inspired by extraordinary wisdom and virtue. Yet without a citi­zenry committed to republican principles of govern­ment and capable of governing themselves in accor­dance with those principles, the constitution would soon have been little more than a piece of paper. As historical experience would reveal, in countries where democratic beliefs were fragile or absent, constitutions did indeed become little more than pieces of paper­ – soon violated, soon forgotten.

The American democratic republic was not cre­ated nor could it have been long maintained by lead­ers alone, gifted as they may have been. It was they, to be sure, who designed a framework suitable, as they thought, for a republic. But it was the American people, and the leaders responsive to them, who ensured that the new republic would rapidly become a democratic republic.

The Proto-Republican Phase [i.e., the Colonial Period to 1776]. The ideas, practices, and political culture necessary to sustain a republican government were by no means unfamiliar to Ameri­cans. Unlike some countries that have moved almost overnight from dictatorship to democratic forms, and often soon thereafter to chaos and back to dictator­ship, by 1787 the Americans had already accumulated a century and a half of experience in the arts of gov­ernment.

The long colonial period had provided opportuni­ties to both leaders and many men of ordinary rank to become acquainted with the requirements of self­-government, both in the direct form of a town meeting and through electing representatives to the colonial legislatures. We easily forget that although in its two famous opening paragraphs the Declaration of Inde­pendence laid down some new and audacious claims, in the rest of that document – the part few people bother to read today-the authors mainly protested against the British king for violating rights that, with some exaggeration, they had previously enjoyed as Englishmen.

The Republican Phase [1776- ca. 1800]. The next phase, creating a popular republic, had begun with the astounding dec­laration on July 4, 1776, “that all Men are created equal.” The Declaration marks the beginning of a se­ries of events that went much further than simply gaining independence from Britain…

The Declaration also triggered a democratic revolution in beliefs, practices, and institutions-or better, an evolution-that has con­tinued ever since. The two decades since independ­ence had provided still more, and deeper, experience in the practices of self-government. Nor was this expe­rience limited to a tiny minority. In some of the thir­teen states, a fairly high proportion of adult males had acquired the franchise.

Toward a Democratic Republic [ca. 1800-1840]. The lengthy colo­nial and post-independence experience provided a sturdy foundation for the, efforts that Americans now undertook in the next phase of the revolution, when the new republic was transformed into a more democratic republic. To be sure, at the end of the eigh­teenth century few Americans were ready to concede that the principles of the Declaration, much less dem­ocratic citizenship, applied to everyone. It would take two more centuries of evolution in democratic beliefs before most Americans would be inclined to agree that the famous claim in the Declaration might be re­phrased: not just “all men,” but “all persons are cre­ated equal.”

Yet always keeping in mind the huge and persistent exceptions, by the standards prevailing elsewhere in the world the extent of equality among Americans was extraordinary. Alexis de Tocqueville, who observed Americans during his year’s visit in 1831-32, opened his famous work with these words:

Among the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a cer­tain tenor to the laws; by imparting new maxims to the governing powers, and peculiar habits to the governed…

The more I advanced in the study of American so­ciety, the more I perceived that the equality of condi­tion is the fundamental fact from which all others seem to be derived, and the central point at which all my ob­servations constantly terminated.