3-Minute Civics: Where is the democracy in America?

July 4, 2022 5:10 am
A public defender speaks to a jury

There is, however, one zone of our federal government that is entirely, purely democratic – the jury. (Chris Ryan | Stock Photo | Getty Images)

In which branch of our national government does our democracy truly live?

The answer is certainly not the Supreme Court. Justices don’t run for office, and they serve until they die or choose to retire (only one ever faced impeachment, more than 200 years ago, and the Senate refused to remove him). There is a double-layered buffer between the citizenry and selection of justices, in that justices are nominated by an elected president and confirmed by a majority of elected senators. These buffers insulate justices from democratic pressures. One benefit of this process may be that justices will not be political actors, but rather nonpartisan jurists free to interpret the Constitution according to their own consciences. But some might debate whether this a realistic goal (or even a desirable one), given that those justices are appointed by politicians with their own political agendas.

Some might say democracy lives in Congress. Every state is represented by at least one representative, who is tasked with voting on national legislation, approving the federal budget, and deciding whether our nation is at peace or at war. But are they a democratic proxy for their district? A representative of it? Should they take into concern only the interests of the citizens who voted for them? Of all citizens? Of all legal residents? Of everyone?

When you elect a congressperson, do you think of them as a fully empowered representative who should apply their own personal judgment to resolve the issues before them, leaving you only with the power to either vote for or against them in the next election? Or instead, do you think they should be obliged to vote on each issue they confront in the way that they feel the majority of their district would prefer?

These seem like pretty basic questions. After all, this is the foundation of what exactly our representatives are supposed to do to represent us. And these questions are left entirely unanswered in the Constitution – Congress is empowered to set its own rules of procedure and to ascertain the qualifications of its own members, and the electorate simply has to decide whether or not to elect them. For better or worse, this is the congressional system, and it’s not exceptionally democratic.

Imagine, as an alternate reality, a system wherein a group of legislators propose laws to the general public for a yes-or-no vote. While this exists in a number of small towns in one variation or another, at the founding of the federal government this would have been a technological impossibility. From its earliest moments, America has been far too geographically massive to realistically expect people to journey to the capital and vote on every legislative proposal. Ironically, such a system seems quite feasible with the advent of widespread internet access, but I doubt that’s the part of the Constitution people are keenest to rewrite.

If Congress isn’t the most democratic branch of our federal government, is it the presidency? The answer is a resounding no. First, the president (even more so than Congress) is free to act according to his or her own set of rules. They have broad executive power to pass their own type of laws (executive orders), to fire and hire (with Senate approval) the heads of the various administrative departments overseeing the vast bulk of our nation’s laws, to maneuver the military into situations analogous to war, and to nominate Supreme Court justices (and lower judges). The president may poll sections of the general public to get a sense of what these decisions might do to re-election odds, but is free to do anything  chosen within the vast limits of his or her powers, popular or not.

It may be tempting to say that our particular brand of democracy is representative in nature. Fair, but how representative is it for actual Americans? How typical is it for a congressperson to have a salary and a house comparable to the average citizen they represent? Senators weren’t even popularly elected until 1913 but rather chosen by state legislators. And the Electoral College that elects the president provides a powerful buffer between the will of the majority and the selection of the head of state – of our 59 presidential elections, five have seen the person with the most votes not win the election due to the Electoral College. That means more than one out of every 12 presidential elections has been won by the second-place vote-getter. That’s many things, but not democratic.

There is, however, one zone of our federal government that is entirely, purely democratic – the jury. Jurors have near-limitless discretion to make their own decision of lasting legal significance. They sit as strangers, are educated as to the facts and law of a particular dispute, discuss their opinions, and then decide. No filter, no buffer, just a result directly based on the people’s votes.

With such a great power come some limitations, but importantly, none to the actual power to declare that a person is not guilty of a crime. The judge can limit what information the jury can hear or consider, as well as frame what the law is and the requirements necessary to sustain a verdict; in extreme cases, the judge can even overturn a guilty verdict as not supported by the facts. But if a group of jurors decides to acquit a defendant, for whatever reason they see fit, that defendant is forever free of those charges. Regardless of what laws Congress passed. Regardless of what laws the president enforced. Regardless of how the Supreme Court interpreted the rights at stake.

The jury has the last and most democratic say.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Chris Pappavaselio
Chris Pappavaselio

Chris Pappavaselio is a former high school Latin teacher and a third-year law student at Harvard Law School.