We Have a Millstone Around Our National Neck

It’s good to have a constitution, but not every constitution is good. Charles Blow of The New York Times evaluates ours:

… I have been thinking about what I would say to Biden about the threats to American democracy. The most acute threat, itโ€™s true, comes from election deniers and the authoritarian mass movement led by the previous president….. But the long-term threat is less an imposition from bad actors and more a constitutive part of our political system. It is, in fact, the Constitution. Specifically, it is a set of fundamental problems with the structure of our government that flow directly from the Constitution as it currently exists.

We tend to equate American democracy with the Constitution as if the two were synonymous with each other. To defend one is to protect the other and vice versa. But our history makes clear that the two are in tension with each other โ€” and always have been. The Constitution,ย as Iโ€™ve written before, was as much a reaction to the populist enthusiasms and democratic experimentation of the 1780s as it was to the failures of the Articles of Confederation.

The framers meant to force national majorities through an overlapping system of fractured authority; they meant to mediate, and even stymie, the popular will as much as possible and force the government to act with as much consensus as possible.

Unfortunately for the framers, this plan did not work as well as they hoped. With the advent of political parties in the first decade of the new Republic โ€” which the framers failed to anticipate in their design โ€” Americans had essentially circumvented the careful balance of institutions and divided power. Parties could campaign to control each branch of government, and with the advent of the mass party in the 1820s, they could claim to represent โ€œthe peopleโ€ themselves in all their glory.

Americans, in short, had forced the Constitution to accommodate their democratic impulses, as would be the case again and again, up to the present. The question, today, is whether thereโ€™s any room left to build a truly democratic political system within the present limits of our constitutional order.

In his new book โ€œTwo Cheers for Politics: Why Democracy is Flawed, Frightening โ€” and Our Best Hope,โ€ the legal scholar Jedediah Purdy says the answer is, essentially, no.ย โ€œOur mainstream political language still lacks ways of saying, with unapologetic conviction and even patriotically, that the Constitution may be the enemy of the democracy it supposedly sustains,โ€ Purdy writes.

This is true in two ways. The first (and obvious) one is that the Constitution has enabled the democratic backsliding of the past six years. Founding-era warnings against demagogues โ€” used often to justify our indirect system of choosing a president โ€” run headfirst into the fact that [the last one] was selected constitutionally, not elected democratically….

And consider this: In the 2020 presidential election, a clear majority of Americans voted against [the incumbent] in the highest turnout election of the 21st century so far. But with a few tens of thousands of additional votes in a few states, [he] would have won a second term under the Constitution. โ€œA mechanism for selecting a chief executive among propertied elites in the late eighteenth century persists into the twenty-first,โ€ Purdy writes, โ€œnow as a key choke point in a mass democracy.โ€

The Constitution subverts democracy in a second, more subtle way. As Purdy notes, the counter-majoritarian structure of the American system inhibits lawmaking and slows down politics, โ€œmaking meaningful initiatives hard to undertake”…..

Even if you keep MAGA Republicans out of office (including [their leader]), youโ€™re still left with a system the basic structure of which fuels dysfunction and undermines American democracy….

What makes this all the worse is that it has become virtually impossible to amend the Constitution and revise the basics of the American political system. The preamble to the Constitution may begin with โ€œWe the People,โ€ but as Purdy writes, โ€œA constitution like the American one deserves democratic authority only if it is realistically open to amendment.โ€ It is only then that we can โ€œknow that what has not changed in the old text still commands consent.โ€ Silence can have meaning, he points out, โ€œbut only when it is the silence of those free to speak.โ€

There is much more to say about the ways that our political system has inhibited democratic life and even enabled forms of tyranny. For now, it suffices to say that a constitution that subverts majority rule, fuels authoritarian movements and renders popular sovereignty inert is not a constitution that can be said to protect, secure or even enable American democracy.

Inย a speech in Philadelphia last month, Biden did speak publicly on the threats to American democracy. He focused, as almost any president would, on the Constitution. โ€œThis is a nation that honors our Constitution. We do not reject it. This is a nation that believes in the rule of law. We do not repudiate it. This is a nation that respects free and fair elections. We honor the will of the people. We do not deny it.โ€

The problem, and what this country must confront if it ever hopes to turn its deepest democratic aspirations into reality, is that we donโ€™t actually honor the will of the people. We deny it. And itโ€™s this denial that sits at the root of our troubles.