We’re Screwed: A Periodic Reminder (Part 2)

Jamelle Bouie of The New York Times compares today to the early 19th century, when America was ruled by the “Slave Power”. It was a crisis then. It’s a crisis now:

The antislavery politicians of the 1840s and 1850s did not speak with a single voice. . . . What tied the antislavery factions of American politics to each other wasn’t a single view of slavery or Black Americans but a shared view of the crisis facing the American republic. That crisis, they said in unison, was the “slave power.”

The “slave power” thesis was the belief that a slaveholding oligarchy ran the United States for its own benefit. It had ruled the nation for decades, went the argument, and now intended to expand slavery across the continent and even further into the North.

The “slave power” thesis was also a claim about the structure of American government itself. As these antislavery politicians saw it, “the real underpinnings of southern power were regional unity, parity in the Senate, and the three-fifths clause of the Constitution,” the historian Leonard L. Richards writes in The Slave Power. Together, this gave the slaveholding oligarchs of the South a virtual lock on much of the federal government, including the Supreme Court. “Between Washington’s election and Lincoln’s,” Richards points out, “nineteen of the thirty-four Supreme Court appointees were slaveholders.”

For antislavery politicians, the counter-majoritarian institutions of the American system enabled a faction that threatened democracy. The question of the “slave power,” then, was ultimately one of self-government. . . . 

You’ve probably guessed, by now, that this is not an idle history lesson. I am thinking about “the slave power” because I am thinking about the ways that narrow, destructive factions can capture the counter-majoritarian institutions of the American system for their own ends. I am thinking of how they can then use the levers of government to impose their vision of society and civil life against the will of the majority. And I am thinking of this in the context of guns, gun violence and the successful movement, thus far, to make the United States an armed society.

Although there has been, in the wake of the atrocities [in Buffalo and Uvalde], the requisite call for new gun control laws, no one believes that Congress will actually do much of anything to address gun violence or reduce the odds of gun massacres. The reason is that the Republican Party does not want to. And with the legislative filibuster still in place (preserved, as it has been for the last year, by at least two Democratic senators), Senate Republicans have all the votes they need to stop a bill — any bill — from passing.

The filibuster, however, is only one part of the larger problem of the capture of America’s political institutions by an unrepresentative minority whose outright refusal to compromise is pushing the entire system to a breaking point.

Large majorities of Americans favor universal background checks, bans on “assault-style” weapons, bans on high-capacity magazines and “red flag” laws that would prevent people who might harm themselves or others from purchasing guns.

But the American political system was not designed to directly represent national majorities. To the extent that it does, it’s via the House of Representatives. The Senate, of course, represents the states. And in the Senate (much to the chagrin of many of the framers), population doesn’t matter — each state gets equal say. Fifty-one lawmakers representing a minority of voters can block 49 lawmakers representing a majority of them (and that’s before, again, we get to the filibuster).

Add the polarization of voters by geography — a rural and exurban Republican Party against an urban and suburban Democratic Party — and the picture goes from bad to perverse. Not only can Republicans, who tend to represent the most sparsely populated states, win a majority of the Senate with far less than a majority of votes nationally, but by using the filibuster a small number of Republican senators representing an even smaller faction of voters can kill legislation supported by most voters and most members of Congress.

The Senate might have been counter-majoritarian by design, but there is a difference between a system that tempers majorities and one that stymies them from any action at all. We have the latter, and like Congress under the failed Articles of Confederation, it makes a mockery of what James Madison called the “republican principle,” which is supposed to enable the majority of the people to defeat the “sinister views” of a minority faction by “regular vote.”

Rather than suppress the “mischiefs of faction,” our system empowers them. Few Americans want the most permissive gun laws on offer. But those who do have captured the Republican Party and used its institutional advantages to both stop gun control and elevate an expansive and idiosyncratic view of gun rights to the level of constitutional law.

The result is a country so saturated in guns that there’s no real hope of going back to the status quo ante. If anything, American gun laws are poised to get even more permissive. If the Supreme Court rules as expected in New York State Rifle & Pistol Association v. Bruen, it will strike down a law that requires a license for carrying a concealed firearm.

Whether or not the public wants a world of ubiquitous firearms, the [reactionary] majority on the court — which Americans have never voted for and which would not exist without the counter-majoritarian institutions that gave D____ T____ the White House and the Republican Party a Senate majority — seems ready to impose one.

Over the years, historians have been divided on the “slave power” thesis. . . . The slaveholding South may not have been as political unified as charged, but the institutions of American democracy were slanted toward slaveholders who really did capture the state for their own ends. As much as possible, they used the power of the federal government to further their interests and stymie opposition, with the help of a like-minded majority on the Supreme Court that did not hesitate to act on their behalf.

What must be understood is that the institutions that enabled this subversion of self-government are still with us, a practically indissoluble part of our constitutional order. To say that it is possible for a narrow faction of ideologues to weaponize the counter-majoritarian features of our system against the “republican principle” is, basically, to describe the current state of our democracy. It is, in other words, to state the crisis.