This essay is moreover a response to political scientist Robert A. Dahl’s famous work How Democratic Is the American Constitution?, in which he points to several democratic issues in the American constitutional system.

The Constitution of the United States of America is almost a holy document in the US

Sabine Volk

How democratic is the American constitution? asks political scientist Robert A. Dahl in his famous essay. His argument does not leave much of a doubt to the answer: the American constitution is by far not the democratic model constitution that many Americans think it to be. Claiming a more critical stance towards the more than 200 years old script, Dahl discusses several questionable aspects of the American founding document. Amongst those aspects, for example, is the unique electoral system whose outcome does not always represent the will of the citizens, as in the 2000 national elections. Another fairly undemocratic feature is the unequal representation of citizens in America’s second legislative chamber, the U.S. Senate, in which the federal states are represented. Dahl defines unequal representation as a condition in which the number of members of the second chamber coming from a federal unit such as a state or province is not proportional to its population, to the number of adult citizens, or to the number of eligible voters.

“The inequality in representation,” he then finds, “is a profound violation of the democratic idea of political equality among all citizens,” since it goes against the basic democratic principle of “one person, one vote.” One cannot but wonder why unequal representation exists and on which grounds it can be justified in a democracy. 

A Recurrent Problem of Federal Systems

View of the US Senate

In fact, unequal representation in the second legislative chamber is a typical feature of federal systems. It is actually the very purpose of the existence of a second chamber, as Dahl explains:

The main reason, perhaps the only real reason, why second chambers exist in all federal systems is to preserve and protect unequal representation. That is, they exist primarily to ensure that the representatives of small units cannot be readily outvoted by the representatives of large units. In a word, they are designed to construct a barrier to majority rule at the national level.

Dahl then shows that in comparison with other federal compacts such as Austria, Germany, or Switzerland, the degree of unequal representation in the U.S. Senate is by far the highest. A polity that Dahl does not consider for comparison is the European Union (EU). Yet, taking a closer look at this political entity, that started off as an economic community and now increasingly resembles a federal state, reveals similar issues of unequal representation – as well as a set of solutions for how these can be solved for the sake of a more democratic system. In the following, these solutions will be analyzed in order to suggest them as an advancement for American democracy.

EU and U.S. – Comparing Two Federal Systems

A somewhat less grand meeting of the Council of the European Union: the EU’s Upper House

A brief digression: why it is legitimate and interesting to compare the U.S. constitutional system with the EU treaties. The EU came into being with the adoption and ratification of the Treaty on European Union in 1992. The transformation process from a purely economic community to a political union was herewith sealed. Although it might seem illegitimate to compare this very recent political entity constituted of historically grown nation-states with the oldest republican democracy in the world, the many similarities give proof of the opposite. Today’s EU practically is, just as the U.S., a federal entity with several member states and internally open borders. Some policy fields are decided on the union-level, while others are left to the member states. The EU also has a common currency, the Euro, which is managed and controlled by the European Central Bank. Moreover, the European treaties provide for two legislative organs, i.e. the European Parliament as first chamber and the Council of the EU/Council of Ministers as second, one executive organ in form of the European Commission, and one judicial organ, i.e. the European Court of Justice.

EU Court of Justice

The comparison of the American constitutional system with the EU’s institutional make-up is then interesting for the very fact the EU is so young: its political leaders had around 200 years more experience with democratic systems than the American Founding Fathers did. They were free to model the most democratic constitution one could imagine. In the process, the U.S. constitution could have provided the most applicable model for a European union, especially because since the early days of European integration, pro-European politicians and intellectuals, ranging from the Austrian Count Richard Coudenhove-Kalergi to the British prime minister Winston Churchill, have been promoting a European federation following the example of the U.S. Regardless of the fact that the European Constitutional Treaty has never been implemented due to negative referenda in France and the Netherlands in 2005, it is interesting to point out that the possible European constitution (whose content was practically adopted with the Lisbon Treaty in 2007), did not have so much in common with the U.S. constitutional system. For example, the proportionality system applied to allocate seats in the European parliament to party members seems to better represent the political will of the European voters. Most interesting for the essay at hand, however, is how the EU has been tackling the issue of unequal representation in its second chamber, the Council of the EU.

Voting Rules in the Council of Ministers

The Council of the EU, commonly called the Council of Ministers, is the legislative organ designed to protect the interests of the EU member states. It was established with the Treaty of Rome in 1958. Its members are the government ministers from each EU country, according to the policy area to be discussed. With one minister per country, the degree of unequal representation seems to be extremely high: ministers from the EU’s most populous state, Germany, represent around 80 million citizens, and ministers from the least populated state, Malta, represent only around 450,000 citizens. This would result in a ratio of over-representation of 1:177.


This map showing the population density of EU and EEA countries highlights some of the problems for ensuring voting equality in the EU

Yet, since the early days of European integration, the treaties have been preventing such high levels of inequality. Indeed, they have been allocating different voting weights, i.e. different numbers of votes, to each country, in order to prevent unequal representation. These voting weights increased logarithmically by the size of a country’s population. More precisely, the Treaty of Rome allocated four votes to France, Germany, and Italy, respectively, two votes to Belgium and the Netherlands, respectively, and one vote to the smallest of the countries, Luxembourg. For legislation to be adopted, 12 out of the total 19 votes, that is 63%, were required. In the many enlargement rounds the European Community went through, new member states were categorized into the existing clusters – a process typically leading to heated debates in membership negotiations.

In addition to that, the treaties provide the legal basis for a voting system that takes both the EU member states and the European citizens into consideration. The so-called qualified majority voting (QMV in Brussels parlance) is a voting system which requires at least two majorities, such as the majority of countries and the majority of the population. The exact rules for QMV in the Council of Ministers are decisive for voting results and have thus traditionally been subject to heated bargaining, resulting in very different interpretations of qualified majority over the course of time. The Treaty of Nice signed in 2001, for example, introduced a complex triple majority system. For legislation to be adopted it needed a) the majority of countries (50% plus one, if the proposal was made by the Commission, if not at least two thirds of the countries), b) the majority of voting weights (74%), and c) the majority of the population represented (62%). Unsatisfied with these complex rules that also involved the artificial voting weights, the Treaty of Lisbon reformed QMV by interpreting it in terms of the double majority rule. According to this procedure, to pass legislation it needs a) the majority of countries (55% if the proposal comes from the Commission, if not 72%), and b) the majority of the population represented (65%). A blocking minority is constituted by at least four countries representing 35% of the EU population.

Are the Voting Rules in the Council of Ministers Fair?


Votes per Council member post-Lisbon

The above overview of voting rules in the Council of Ministers reveals first and foremost how difficult it is to design fair voting rules in a federal system whose federal units are as diverse in size, economic and political power as in the EU. Since the beginning of EU studies, scholars have been debating the fairness of the voting rules in detail.

In the past, it was usually agreed upon that the rules were not fair since they allowed better representation for smaller member states than for large member states. Also, countries of very different sizes were clustered in the same category, such as Germany and France despite the difference in size of 20 million citizens. The issue of clustering became especially topical before the “big-bang” eastern enlargement in 2004 when ten new states, most of them smaller than the EU average, joined the union. Scholars and politicians presented innumerous solutions to make voting rules the fairest as possible, applying well-discussed scientific approaches such as Penrose’s square root, or calculating the effects of all possible dual majorities under QMV. The current double majority system is supposed to be the fairest possible since it gives weight to both small states (majority of states required) and large states (majority of population required).

eu cit.jpg
British EU Citizens on march in London in the aftermath of the British Referendum deciding to leave the EU

In the end, the question if voting rules are fair cannot be answered without defining fair for whom. This issue, in turn, directly relates to the very nature of the EU and of federal compacts in general. Is the EU an intergovernmental organization determined by the principle of “one state, one vote”? Or is it a single state in which “one person, one vote” should be the democratic norm? QMV has been designed in order to give weight to both states and citizens, herewith reflecting the federal nature of the EU. And yet, recalling U.S. Founding Father James Wilson’s famous inquiry – “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?”, the EU might still favor the needs of the European nation-states over the needs of the European citizens.

Voting Practice in the Council & the Unanimous Character of Federation

The actual voting practice of the Council of Ministers reveals how crucial the role played by the member states in EU decision-making processes traditionally has been and still is. In fact, in spite of the carefully considered voting weights and QMV rules, the Council used to always decide unanimously in the past in order to appease national governments. The threat of losing national sovereignty by giving up the unanimity principle in all Council decisions causes annoyance in the European community. It led inter alia to the first severe crisis in European integration, the so-called Empty Chair Crisis of 1965/6, which could only be overcome with the Luxembourg Compromise that assured veto power to every country and herewith basically the maintenance of the consensus rule.


Consensus is the preferred method of agreeing new policy in the Council of the EU

QMV was only advanced in 1986 with the passing of the Single European Act. At that time, both the growth of the community and the urgent need to finally launch the single market required the continuous capacity to act and to keep the institutions working through a more efficient decision-making system. Since then, QMV allowed some controversial decisions such as the MacSharry reforms to the cherished Common Agricultural Policy to be passed, as well as to seal the recent debates on the distribution of refugees over the European member states. But still today, QMV decisions in sensitive policy areas trigger a harsh backlash from opposing countries, so that the Council usually keeps seeking for unanimity.

Seeking unanimity is yet not exceptional in federations: scholars have pointed out that unanimity lies to some extent in the very nature of federal compacts. The federation aims for the maintenance of all federal units, e.g. states or provinces, within the compact, and tries to avoid rupture. In a federation such as the EU which is constituted by historically independent nation-states that have united voluntarily, officials have to be even more cautious to preserve unity between federation, member states, and citizens. The detrimental consequences of letting conflicts escalate, in turn, are revealed by the recent British referendum on EU membership that will most probably lead to Britain’s exit from the EU.

Flags of the UK and EU: The UK is set to begin negotiations on leaving the EU early next year

Lessons to Learn

Although the U.S. has been long seen as a possible model for European integration, it now becomes apparent that there are lessons to learn from the EU institutional make-up. Overcoming the disadvantageous effects of the Connecticut Compromise by introducing a voting system that requires qualified majorities, giving weight to both the states and the citizens, in the U.S. Senate could assure more just representation of American citizens in the legislative organs and herewith strengthen democracy. In addition to that, the ideal of consensus could be yet another way how to assure better governance.

Capitol Hill, Washington DC

Of course, this is not to say the EU is a democratic model student. The EU’s democratic deficit is subject to on-going discussions, and with each accession of new member states issues of representation come to the fore again. On top of that, scholars even prove issues of unequal representation of citizens against the European Parliament which has long been thought to represent citizens equally. Be that as it may, if the history of the EU reveals something, then the never ending struggle for more democracy. “The solution to the ills of democracy is more democracy.” Dahl would surely agree that this is definitely a lesson to learn by American legislators.

Click here for more by Sabine Volk.

If you enjoyed this longer piece, please check back with us mid-November for the first edition of the Mundus Journal, a collection of longer pieces from our best writers!

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