Democracy and the Law of Unintended Consequences

Howard Gross
Communicating Complexity
8 min readMar 8, 2022


National Museum of American History

There are an estimated 1,300 endangered species in the world. This is not counting the billions of people whose civil liberties are currently at risk. Nor myriad others whose freedoms are already extinct. Since 2006, the percentage of the global population living under some form of democracy has tumbled from 55% to 45.7%. Of the 167 territories surveyed by the Economist Intelligence Unit’s (EUI) Democracy Index, a mere 6.4% live in “full democracies.” Americans are not among them.

According to the EUI, the United States has been a “flawed democracy” since 2016, largely the result of a dysfunctional government and a fiercely divided political culture. The nation has also been designated a “backsliding democracy” for the first time by the Stockholm-based International Institute for Democracy and Electoral Assistance. Plus, it is one of 25 countries that have experienced dramatic declines in liberal democracy over the past decade, as measured by Freedom House, a non-partisan U.S. organization that conducts research on democracy, political freedom, and human rights.

Such assessments generate considerable angst and comparisons not only to contemporary regimes like Hungary and Turkey, but historical dystopias like Nazi Germany and fascist Italy. Yet the analogies miss the point. For just as the rise of America’s democracy was uniquely its own, so is its perceived decline.

No other nation has had a more esteemed birth than the United States of America. Having won their independence from an intolerant monarchy, the Founding Fathers were determined to form a government based on classical liberal and republican principles. Though guided by the customs of the time — such as extending the right to vote only to landed white men, excluding Quakers, Catholics, and Jews — they were still notably provident in their outlook. Even so, they could not have imagined how complex and unpredictable the world would become. Consequently, their achievements have been governed as much by the law of unintended consequences as by any statutes they enacted.

States’ Rightists

Wary of concentrating too much control in the hands of a single individual or central legislative body, the founders created a federal system that distributed power between national and state governments. To ensure such authority didn’t trample peoples’ liberties, they added ten amendments (Bill of Rights) to the Constitution to protect prerogatives such as speech, religion, and a free press. But these applied only at the national level, as the 10th Amendment gave states jurisdiction over all matters not expressly granted to the federal government nor specifically forbidden to them.

Since then, they have, at times, exploited the 10th amendment to pass laws restraining civil rights, many of which are still on the books. Lately, Republican-led states have been doing so in overdrive. As of January this year, 27 states have introduced, pre-filed, or implemented more than 250 bills suppressing voting rights. In 2021, 122 educational gag order bills were introduced or pre-filed in 33 states. Thirty-three states have also introduced a record-breaking 100+ bills restricting the rights of transgender people, particularly children and teenagers. And at least 16 states have barred access to abortion in some way.

States have introduced more than 100 bills restricting the rights of transgender people, many of them children and teenagers

These initiatives substantiate research conducted at the University of Washington, which examined the 50 states between 2000 and 2018 based on 61 indicators of democratic conduct. According to the study’s author, political science professor Jacob Grumbach: “results suggest a minimal role for all factors except Republican control of state government, which dramatically reduces states’ democratic performance during this period.”

Bad Math

Such anti-democratic assaults severely distort the founders’ commitment to citizens’ rights. But they are hardly the only examples of good intentions gone bad. The creation of a bicameral (two-chamber) congress was the product of compromise through which every state, regardless of size, would be equally represented in the Senate by two members. Members of the House of Representatives, on the other hand, would be elected based on population.

The rationale for the Senate was to prevent big states from dominating government. At the time, Virginia, the largest of the 13 original sovereignties, was barely 11 times the size of Rhode Island, the smallest. Hence, the difference seemed innocuous. But today, California is 68 times larger than Wyoming. Moreover, 25 of the most populous states are home to 84% of the population but have the same number of senators as the other 16% of the country. (Figure 1)

Source: Washington Post

As for the House, the Constitution requires membership there to be apportioned based on population. Yet every ten years states get the chance to reallocate seats. The process is officially titled “redistricting,” and simply means redrawing congressional districts based on census data. But it is more commonly known as “gerrymandering,” by which the political party in control can either consolidate opponents’ constituencies within limited numbers of districts to diminish their influence (packing) or diffuse them across multiple districts to dilute their impact (cracking).

Much the same logic went into establishing the Electoral College, in which each state’s number of electors equals the total of its senators and congressional delegation. The initial objective was to provide a degree of popular participation while compensating Southern states whose elective potency was curtailed by more than half a million slaves. Over time, the system has evolved, but less populous states still have substantial leverage. Wyoming electors, who each represent about 150,000 voters have more than three times the clout of their California counterparts who act for every 500,000 electorates. No other democratic nation chooses its president in this manner, which has allowed five men to occupy the Oval Office without winning the popular vote.

Courting Disaster

Whatever their visionary shortcomings, the Founding Fathers went to great lengths to design fundamentally progressive executive and legislative branches of government. The journey to establishing the judicial system covered less ground. Article III of the Constitution succinctly defines the role of the Supreme Court to curb any wrongful measures by the president or legislature. To that end, it has the authority to review and, if necessary, invalidate acts that violate constitutional provisions.

But from the outset, there was serious apprehension about an all-powerful judiciary. Despite Alexander Hamilton’s assurance that it was part of the “least dangerous” branch of government, the Supreme Court is the closest thing to the monarchy against which Americans rebelled: a handful of unelected individuals with lifetime tenure who can essentially overrule the will of the people. Chief Justice John Roberts articulated this concern — as it relates to healthcare — when explaining his position on South Bay United Pentecostal Church v. Newsom (2020):

“Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Roberts, who authored the landmark decision gutting the core of the Voting Rights Act (Shelby County v. Holder, 2013), is one of five sitting justices nominated by presidents who lost the popular vote. They are among the most conservative court majority in nearly a century. Reactionary, however, may a more appropriate descriptor, as they are seemingly set on turning back the clock on decades of legal precedent. To date, the court has weakened voters’ and women’s rights. In the future it can potentially upend free and fair elections, rights of LGBTQ people, federal campaign finance laws, separation of church and state, and most federal laws governing the workplace.

The majority of sitting justices were nominated by presidents who lost the popular vote

Us vs. Them

Clearly, the Founding Fathers did not anticipate how grievously their grand plans could be manipulated. But in at least one instance they did recognize potential risk. John Adams, then second president of the United States, warned that a division of the republic into two major parties was “the greatest political evil under our Constitution.” Ironically, Adams lost his bid for re-election in what was a particularly ugly partisan campaign. Thus, he would be no stranger to the current polarized climate.

Binary ideologies have long dominated American politics, and Democrats and Republicans have separated themselves along an expanding demographic spectrum of race, religion, age, income, education, and geography, with increasing hostility. The upshot is a phenomenon known as “affective polarization:” the disparity between people’s deference toward their own party and their disdain for their opponents. From an aversion to dating someone from the other side to the conviction that rivals are immoral and a threat to the nation, such animosity has become daunting. So much so, a study out of Stanford University found that the escalation of polarization in the U.S. has been more intense than in any other consolidated democracy.

Sadly, it has taken something as monstrous as the invasion of Ukraine to lessen the tension, if only temporarily. Majorities of both parties believe Russia is a serious threat to the U.S., albeit some on the extreme right have publicly applauded Putin and praised his aggression as “genius.” There is also broad bipartisan support for “no-fly zones” over Ukrainian skies and embargoing Russian oil and gas, though Republicans are less enthusiastic about the latter if it leads to substantially higher prices at the pump.

Their conflicts notwithstanding, neither party has a monopoly on supporting or suppressing democracy. Indeed, at the start of World War I, Woodrow Wilson and a Democratic congress passed the Espionage Act of 1917, which is regarded as one of the most egregious restrictions of free speech, and was imposed by Barack Obama, more times than all prior presidents combined, to constrain whistleblowers. And current attempts at voter suppression have yet to reach the scale of Jim Crow laws enacted by Southern Democrats during the past century.

The good news is that, regardless of their partisan persuasions, Americans overwhelmingly embrace democracy and favor it over all other forms of government. What is more, a study by the Public Religion Research Institute found that two-thirds (65%) of those queried believe the nation’s strength is derived from its diverse races, ethnicities, religions and backgrounds.

The bad news, however, is despite their endorsement of democracy, few think it is functioning properly. Just 16% of people polled by the Associated Press-NORC Center for Public Affairs Research said democracy is working well or extremely well. Eighty-five percent of respondents to a Pew Research Center survey say the political system needs to be significantly reformed, but less than a third are confident it can or will be.

For good reason. President Biden has been too distracted by an ongoing pandemic, spiraling inflation, and a bellicose Russia to initiate real change. Democrats are too busy fighting among themselves to pass meaningful legislation. And the GOP is not inclined to amend an arrangement that has embedded its minority rule. Perhaps then, it is time to consider the counsel of one the most respected of founding fathers, Thomas Jefferson, who advised that “whenever any form of government becomes destructive of these ends [life, liberty, and the pursuit of happiness] it is the right of the people to alter or abolish it, and to institute new government.”



Howard Gross
Communicating Complexity

Making complex ideas easier to access, understand, and use