Understanding the MAGA Political Project

Last night, Judge Aileen “Loose” Cannon took another step toward legal immortality by turning down the Department of Justice’s offer to act somewhat judicially and allow the government to proceed with its criminal investigation of her political patron (the one referred to by the actual president as “the last guy”). When she became a judge, she swore an oath to “administer justice without respect to persons … faithfully and impartially”, yet she announced in her ruling that “principles of equity” required her to consider “the position formerly held by Plaintiff”. In other words, Loose gave her patron everything he asked for because he’s a very special person.

Now, more senior judges will be forced to remind a human monster that equality before the law is still a thing nd he’s just another plaintiff. Which will make him very, very mad.

On that note, I’m going to step away from this blog for a while, but leave you with historian Thomas Zimmer’s thoughts on what Loose Cannon and her ilk are trying to accomplish:

[The MAGA movement’s] assault on democracy [is] animated not by nihilism, but by conviction – by the idea that America must forever remain a land where a traditional white Christian patriarchal order is upheld.

This isn’t just a matter of semantics. The idea that we are dealing with nihilists and opportunists underestimates or ignores the Right’s ideological vision for how U.S. society should be structured and the deliberate, systematic way in which the Right attempts to realize it.

I appreciate [Tom Nichols, writing for The Atlantic] pushing back against the narrative that MAGA Americans are simply motivated by economic anxiety, for which there is very little empirical basis; and he’s right to reject the idea the conflict could be solved by compromise or persuasion.

[MAGAs] are indeed not interested in debate, or a different perspective, or building bridges, or compromise. The only thing they would accept from “the Left” (which is everyone in the pro-democracy camp) is compliance, submission. There is no truce to be had.

But the key question is: Why is “normal” political deliberation not an option, why are [they] so clearly willing to tear constitutional government down? Nichols has a clear answer: Because they are “anti-American nihilists,” purely driven by anger and resentment.

Leaving it there, however, is a little bit like parachuting into an ongoing conflict, seeing people with torches and pitchforks in their hands, and simply concluding that “Ah well, I guess these guys just want to burn stuff down” …

All this resentment, anger, and lust for revenge is not aimless: It is directed against certain traditionally marginalized groups of people who are claiming equality and respect, and against the institutions that are supposedly doing their bidding to destroy “real America.”

Nichols himself rightfully diagnoses “fears about social status” as an animating force behind the [MAGA] project – and all the evidence we have points to the fact that those are racialized, gendered fears about the “wrong” kind of people getting ahead in America.

This is absolutely key: It’s not a coincidence that all this anger and resentment is targeting people who have traditionally not been allowed a seat at the table of power, right at the moment when they are threatening to claim their seat….

These numbers … are indicative of a very clear rightwing vision for the country: The supposed victimization of white Christians has to be reversed, their rightful status at the top needs to be restored.

Among [Republican] voters 90% say Christianity is under assault; 3/4 say bias toward whites equals bias toward minorities; 70% say immigrants are undermining US values & traditions; ~3/5 say white men the most persecuted group; ~3/5 say men are now punished for acting like men.

This is why the president was right to tie the “MAGA Republican” assault on the political system to the broader reactionary struggle to roll back the post-1960s civil rights regime in his “Soul of the Nation” speech in Philadelphia….

The “nihilism” interpretation falls short of explaining what it is that holds the American Right together – [the defeated president] and his disciples, the Republican establishment, rising white Christian nationalist extremists, the reactionary intellectual sphere, rightwing militant groups.

All of these different factions on the Right are ultimately united behind the same political project of fighting back against the “Un-American” leftist forces that are out to turn the country into something it must never become: an egalitarian, multiracial, pluralistic order….

Yes, they want to tear down and destroy, but only those institutions that are supposedly captured by this “Un-American” enemy within.

This is not at all an aberration from long-standing rightwing attitudes towards the state and civic institutions, which conservatives have only ever defended if they perceived them to be allies in the struggle to entrench traditional hierarchies. Whenever the government or the institutions acted as an engine of racial and social progress, conservatives saw it as the enemy. Conservative support for state authority and establishment institutions has always been contingent on them working to uphold reactionary rule….

At its core, the politics of “law and order” has always been a promise (and a threat) to mobilize all the tools available to the modern state to keep insubordinate groups in check and uphold a certain racial, social, and cultural order: traditional white Christian rule.

It is therefore not at all surprising that the January 6 insurrectionists were viciously attacking police officers while displaying the Thin Blue Line flag, or that this symbol is regularly displayed by those who embrace political violence against state authority in general.

The Thin Blue Line flag doesn’t say “We stand with the police” – it says “We stand with the police as long as they’re working to uphold the kind of ‘law and order’ that allows us to dominate with impunity while subduing those who dare to oppose our rule.”

… [It is crucial] to see how all of this is connected, all part of a multi-pronged, multi-level reactionary counter-mobilization that has a judicial arm, a political arm, an intellectual arm, and a paramilitary arm, all flanked by a massive, highly effective propaganda machine.

In this context, the supposedly mindless, nihilistic, anarchist raging has a specific role to play: to spread violent chaos and intimidation, in a direct assault on the foundations of democratic society. The MAGA raging is inherently political. Democracy depends on people feeling safe in the public square. If they don’t, because it’s ruled by intimidation and threats of violence, they won’t be able to participate as citizens. It’s what these extremists want: Rule and dominate through violence and harassment….

The “nihilism” approach completely isolates MAGA from the context and continuity of the long struggle over democracy and the fact that those who oppose it have often been willing to embrace violence, have often opted to tear the system down rather than accept defeat….

The fact that the Right in general is deliberately pursuing a reactionary political project, one that is animated by ideology and conviction rather than blind, nihilistic rage, makes the threat to American democracy more, not less acute.

It Needed To Be Said

President Biden made a speech last night that more Americans should have heard. The TV networks didn’t interrupt their regular programming for it. You needed cable TV or an internet connection to watch it.

Earlier in the day, the former president, the criminal, said he would give full pardons to the January 6th insurrectionists if he’s re-elected. He went further. He said he’d apologize to them.

From what I’ve read today, the talking heads on TV were more focused on the setting for the President’s speech than what he said. They wondered how the speech would “play”. They were apparently concerned that Republicans would feel insulted.

Today, at least one reporter, John Harwood of CNN, spoke differently:

Of course, it was a political speech in a mid-term election year. The issues he’s talking about are inherently political. But … it’s important to say that the core point he made in that political speech about a threat to democracy is true! That’s not easy for us as journalists to say. We’re brought up to believe that there are two political parties with different points of view and we don’t take sides in honest disagreements between them. But that’s not what we’re talking about. These are not honest disagreements. The Republican Party right now is led by a dishonest demagogue. Many, many Republicans are rallying behind his lies about the 2020 election and other things as well. And a … portion of their constituency attacked the Capitol on January 6th violently. By offering pardons or suggesting pardons for those people … Donald Trump made Joe Biden’s point for him.

It was John Harwood’s last day at CNN. He’s one of the people the new management has fired in their attempt to make CNN a more pleasant viewing experience for Republicans and others lukewarm about democracy.

So here’s a partial transcript of the presidential speech that got so many people upset. It brings to mind what President Harry (“Give ’em Hell) Truman once : “I never did give anybody hell. I just told the truth and they thought it was hell”.

THE PRESIDENT:  My fellow Americans, … I speak to you tonight from sacred ground in America: Independence Hall in Philadelphia, Pennsylvania.

This is where America made its Declaration of Independence to the world more than two centuries ago with an idea, unique among nations, that in America, we’re all created equal.

This is where the United States Constitution was written and debated.

This is where we set in motion the most extraordinary experiment of self-government the world has ever known with three simple words: “We, the People.”  “We, the People.”

These two documents and the ideas they embody — equality and democracy — are the rock upon which this nation is built….

But as I stand here tonight, equality and democracy are under assault.  We do ourselves no favor to pretend otherwise.

So tonight, I have come this place where it all began to speak as plainly as I can to the nation about the threats we face, about the power we have in our own hands to meet these threats, and about the incredible future that lies in front of us if only we choose it…..

But first, we must be honest with each other and with ourselves.

Too much of what’s happening in our country today is not normal.

Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our republic.

Now, I want to be very clear — (applause) — very clear up front: Not every Republican, not even the majority of Republicans, are MAGA Republicans.  Not every Republican embraces their extreme ideology…..

But there is no question that the Republican Party today is dominated, driven, and intimidated by Donald Trump and the MAGA Republicans, and that is a threat to this country.

These are hard things.

But I’m an American President — not the President of red America or blue America, but of all America.

And I believe it is my duty — my duty to level with you, to tell the truth no matter how difficult, no matter how painful.

And here, in my view, is what is true: MAGA Republicans do not respect the Constitution.  They do not believe in the rule of law.  They do not recognize the will of the people.

They refuse to accept the results of a free election.  And they’re working right now, as I speak, in state after state to give power to decide elections … to partisans and cronies, empowering election deniers to undermine democracy itself.

MAGA forces are determined to take this country backwards — backwards to an America where there is no right to choose, no right to privacy, no right to contraception, no right to marry who you love.

They promote authoritarian leaders, and they fan the flames of political violence that are a threat to our personal rights, to the pursuit of justice, to the rule of law, to the very soul of this country.

They look at the mob that stormed the United States Capitol on January 6th — brutally attacking law enforcement — not as insurrectionists who placed a dagger to the throat of our democracy, but they look at them as patriots.

And they see their MAGA failure to stop a peaceful transfer of power after the 2020 election as preparation for the 2022 and 2024 elections.

They tried everything last time to nullify the votes of 81 million people.  This time, they’re determined to succeed in thwarting the will of the people.

That’s why respected conservatives, like Federal Circuit Court Judge Michael Luttig, has called Trump and the extreme MAGA Republicans, quote, a “clear and present danger” to our democracy.

But while the threat to American democracy is real, I want to say as clearly as we can: We are not powerless in the face of these threats.  We are not bystanders in this ongoing attack on democracy.

There are far more Americans — far more Americans from every — from every background and belief who reject the extreme MAGA ideology than those that accept it.  (Applause.)

And, folks, it is within our power, it’s in our hands — yours and mine — to stop the assault on American democracy.

I believe America is at an inflection point — one of those moments that determine the shape of everything that’s to come after.

And now America must choose: to move forward or to move backwards?

… MAGA Republicans have made their choice.  They embrace anger.  They thrive on chaos.  They live not in the light of truth but in the shadow of lies.

But together — together, we can choose a different path.  We can choose a better path….

I know this nation.  I know you, the American people….

This is a nation that honors our Constitution.  We do not reject it.  (Applause.)

This is a nation that believes in the rule of law.  We do not repudiate it.  (Applause.)

This is a nation that respects free and fair elections.  We honor the will of the people.  We do not deny it.  (Applause.)

And this is a nation that rejects violence as a political tool.  We do not encourage violence.

We are still an America that believes in honesty and decency and respect for others, patriotism, liberty, justice for all, hope, possibilities.

We are still, at our core, a democracy.  (Applause.)

And yet history tells us that blind loyalty to a single leader and a willingness to engage in political violence is fatal to democracy.

For a long time, we’ve told ourselves that American democracy is guaranteed, but it’s not.

We have to defend it, protect it, stand up for it — each and every one of us.

That’s why tonight I’m asking our nation to come together, unite behind the single purpose of defending our democracy regardless of your ideology.  (Applause.)

We’re all called, by duty and conscience, to confront extremists who will put their own pursuit of power above all else.

Democrats, independents, mainstream Republicans: We must be stronger, more determined, and more committed to saving American democracy than MAGA Republicans are to destroying American democracy. …Today, there are dangers around us we cannot allow to prevail.   We hear — you’ve heard it — more and more talk about violence as an acceptable political tool in this country.  It’s not.  It can never be an acceptable tool.

So I want to say this plain and simple: There is no place for political violence in America.  Period.  None.  Ever.  (Applause.)

We saw law enforcement brutally attacked on January the 6th.  We’ve seen election officials, poll workers — many of them volunteers of both parties — subjected to intimidation and death threats.  And — can you believe it? — FBI agents just doing their job as directed, facing threats to their own lives from their own fellow citizens.

On top of that, there are public figures — today, yesterday, and the day before — predicting and all but calling for mass violence and rioting in the streets.

This is inflammatory.  It’s dangerous.  It’s against the rule of law.  And we, the people, must say: This is not who we are.  (Applause.)

Ladies and gentlemen, we can’t be pro-insurrectionist and pro-American.  They’re incompatible.  (Applause.)

We can’t allow violence to be normalized in this country.  It’s wrong.  We each have to reject political violence with — with all the moral clarity and conviction this nation can muster.  Now.

We can’t let the integrity of our elections be undermined, for that is a path to chaos.

Look, I know politics can be fierce and mean and nasty in America.  I get it.  I believe in the give-and-take of politics, in disagreement and debate and dissent.

We’re a big, complicated country.  But democracy endures only if we, the people, respect the guardrails of the republic.  Only if we, the people, accept the results of free and fair elections.  (Applause.)  Only if we, the people, see politics not as total war but mediation of our differences.

Democracy cannot survive when one side believes there are only two outcomes to an election: either they win or they were cheated.  And that’s where MAGA Republicans are today.  (Applause.)

They don’t understand what every patriotic American knows: You can’t love your country only when you win.  (Applause.)  It’s fundamental.

American democracy only works if we choose to respect the rule of law and the institutions that were set up in this chamber behind me, only if we respect our legitimate political differences.

I will not stand by and watch — I will not — the will of the American people be overturned by wild conspiracy theories and baseless, evidence-free claims of fraud.

I will not stand by and watch elections in this country stolen by people who simply refuse to accept that they lost.  (Applause.)

I will not stand by and watch the most fundamental freedom in this country — the freedom to vote and have your vote counted be taken from you and the American people.  (Applause.)

Look, as your President, I will defend our democracy with every fiber of my being, and I’m asking every American to join me.  (Applause.)

… MAGA Republicans look at America and see carnage and darkness and despair.  They spread fear and lies — lies told for profit and power.

But I see a very different America…  Just look around.

I believed we could lift America from the depths of COVID, so we passed the largest economic recovery package since Franklin Delano Roosevelt.  And today, America’s economy is faster, stronger than any other advanced nation in the world.  (Applause.)

I believed we could build a better America, so we passed the biggest infrastructure investment since President Dwight D. Eisenhower.  And we’ve now embarked on a decade of rebuilding the nation’s roads, bridges, highways, ports, water systems, high-speed Internet, railroads.  (Applause.)

I believed we could make America safer, so we passed the most significant gun safety law since President Clinton.  (Applause.)

I believed we could go from being the highest cost of prescriptions in the world to making prescription drugs and healthcare more affordable, so we passed the most significant healthcare reforms since President Obama signed the Affordable Care Act.  (Applause.)

And I believed we could create — we could create a clean energy future and save the planet, so we passed the most important climate initiative ever, ever, ever.  (Applause.)

… It’s never easy.  But we’re proving that in America, no matter how long the road, progress does come.  (Applause.)

… We have never fully realized the aspirations of our founding, but every generation has opened those doors a little wider to include more people who have been excluded before….This is the work of democracy…

We can’t afford to leave anyone on the sidelines.  We need everyone to do their part.  So speak up.  Speak out.  Get engaged.  Vote, vote, vote.  (Applause.)

And if we all do our duty — if we do our duty in 2022 and beyond, then ages still to come will say we … kept the faith.  We preserved democracy.  (Applause.)  We heeded … not our worst instincts but our better angels.  And we proved that, for all its imperfections, America is still the beacon to the world, an ideal to be realized, a promise to be kept….

We just need to remember who we are.  We are the United States of America.  The United States of America.  (Applause.)

Identifying Semi-Fascism Again

I posted something a few days ago regarding Biden’s use of “semi-fascism” to describe what’s happening in the Republican Party. The author I quoted said some of the factors he listed should be given more weight than others. Being in thrall to a single leader is, for example, more important than making a fetish of the young. Here’s another take on “semi-fascism” from Brooklyn writer John Ganz:

“Semi-fascist” is actually used by scholars….In Stanley Payne’s A History of Fascism: 1914-1945, the author employs it several times and invests it with real content. In fact, semi-fascism was a common phenomenon because fascist movements had so much difficulty obtaining popular support and had to meld with conservative allies and existing institutions. In most places, fascist movements either failed or became a junior tendency in a broader political context:

Thus in the absence of a plurality of generically fascist regimes and systems, it is possible to refer only to a number of semifascist or would-be fascist regimes, while in turn distinguishing between the character and structure of each type and subtype both among themselves and in comparison with diverse kinds of conservative (or at least nonsocialist) nonfascist authoritarian regimes.

One of Payne’s primary examples of “semifascism” is Franco’s Spain: “That early Franquism contained a major component of fascism is undeniable, but it was so restricted within a right-wing, praetorian, Catholic, and semipluralist structure that the category ‘semifascist’ would probably be more accurate.” That is to say, in Franco’s Spain, hardcore fascists were part of a broad coalition of a more traditional authoritarian right and were subordinated to the role of junior partner and eventually swamped by the regime. You can also see similar processes take place in Legionary Romania, Horthy’s Hungary, Vichy France, and Salazar’s Portugal. Even Mussolini’s Italy had to make serious accommodations with conservative forces and kept aspects of the constitutional order in place at the beginning of the regime.

So, that’s regimes, but what about movements? Surely those must be more ideologically pure or clear-cut? Well, how would you characterize Action Française, Croix de Feu, or the Ku Klux Klan for that matter? The America First Committee contained Nazi sympathizers and others who were just sincerely anti-war. So, it was quite literally “semi-fascist.” Huey Long was not really a fascist, but he attracted a number of fascist followers, like Lawrence Dennis and Gerald L. K. Smith, because he looked close enough to them. They thought he could be turned into a more full-blown fascist, which was probably similar to the attitude of people like Bannon towards T____. Suffice it to say, there are many historical movements that anticipate fascist-style mobilization and themes, or copied some aspects of fascism while being more traditionally conservative in their desired outcome, or that excited and inspired fascists without fully delivering.

… As the highly-respected scholar Robert Paxton points out, fascism is less a coherent ideology than a set of “mobilizing passions:”

  • a sense of overwhelming crisis beyond the reach of any traditional solutions;
  • the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual
  • the belief that one’s group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external;
  • dread of the group’s decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences;
  • the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary;
  • the need for authority by natural leaders (always male), culminating in a national chief who alone is capable of incarnating the group’s destiny;
  • the superiority of the leader’s instincts over abstract and universal reason;
  • the beauty of violence and the efficacy of will, when they are devoted to the group’s success;
  • the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group’s prowess within a Darwinian struggle.

Now obviously some of these features apply more to T____ism than others, so “semi-fascism” seems to be right on the money.

The fact of the matter is this: T____ism at its core is a movement fixated on restoring national greatness through the charismatic leadership of a single providential individual who “alone can fix it.” It is obsessed with national decline and attacking internal enemies. Although more loosely organized and weaker than those of the classical fascisms, MAGA also has paramilitary formations that have tried to carry out this project to the point of attempting the overthrow an elected government. From the very beginning of his political ascent, he attracted the interest and enthusiasm of the extreme right. He was the kind of thing they’d been looking for for a long time. Perhaps now a disappointment, perhaps now a failure, but certainly a step in the right direction as far as they were concerned.

Biden was probably hedging: his aides were concerned if he said “fascism” it would be too strong. But he was landing on a pretty reasonable interpretation of the case….

Saying someone is fascist or semi-fascist does not make all their supporters to be goose-stepping stormtroopers or say they deserve to be in the dock at Nuremberg.

Many normal people, including conservatives and even former leftists, at one point or another supported Europe’s fascist regimes. They did so because one or another part of their appeals sounded good to them, or they did it as a protest vote against a system that wasn’t functioning well; many sensible and educated people thought of fascism as essentially technocratic solution to the ills of liberal democracy. Fascism was, at one time, and as I fear it is becoming again, attractive and persuasive, not just brutal and overwhelming. The problem was that it was not a solution to any of the crises that beset these democracies: it was a disastrous series of lies and delusions. And that is the reason to call this for what it is: to say, “Look, we’ve seen this before. It doesn’t end well….”

Unquote.

Biden will address the nation on television tonight concerning this ongoing threat to democracy. He might not use “semi-fascism” again but it’s clear what and who he’ll be talking about.

How Democracy May Survive the Constitution

Among our democracy’s enemies, foreign or domestic, is a document ratified in 1789: the United States Constitution. The power the Constitution gives to the states, its provisions that favor minority rule, and the difficulty of amending it may allow the Republican Party to institute authoritarian, one-party rule, all the while claiming to respect “the supreme law of the land”. 

Two law professors, Ryan Doerfler and Samuel Moyn, argue that it’s time to do something about our broken Constitution: 

When liberals lose in the Supreme Court — as they increasingly have over the past half-century — they usually say that the justices got the Constitution wrong. But struggling over the Constitution has proved a dead end. The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.

The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day. Our Constitution’s guarantee of two senators to each state is an example. And ever since the American founders were forced to add a Bill of Rights to get their handiwork passed, national constitutions have been associated with some set of basic freedoms and values that transient majorities might otherwise trample.

But constitutions — especially the broken one we have now — inevitably orient us to the past and misdirect the present into a dispute over what people agreed on once upon a time, not on what the present and future demand for and from those who live now. This aids the right, which insists on sticking with what it claims to be the original meaning of the past.

Arming for war over the Constitution concedes in advance that the left must translate its politics into something consistent with the past. But liberals have been attempting to reclaim the Constitution for 50 years — with agonizingly little to show for it. It’s time for them to radically alter the basic rules of the game.

In making calls to regain ownership of our founding charter, progressives have disagreed about strategy and tactics more than about this crucial goal. Proposals to increase the number of justices, strip the Supreme Court’s jurisdiction to invalidate federal law or otherwise soften the blow of judicial review frequently come together with the assurance that the problem is not the Constitution; only the Supreme Court’s hijacking of it is. And even when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism.

Since the Supreme Court began to drift right in the 1970s, liberals have proposed better ways of reading the Constitution. [Meanwhile,] the conservative Federalist Society engaged in a successful attempt to remake constitutional law by brainstorming ideas, creating networks of potential judges and eventually helping to guide the selection of President D____ T____’s nominees…. With the death of Ruth Bader Ginsburg, the consolidation of right-wing control of constitutional law and the overturning of Roe and other disasters this term — the damage has only worsened.

One reason for these woeful outcomes is that our current Constitution is inadequate, which is why it serves reactionaries so well. Starting with a text that is famously undemocratic, progressives are forced to navigate hard-wired features, like the Electoral College and the Senate, designed as impediments to redistributive change while drawing on much vaguer and more malleable resources like commitments to due process and equal protection — resources that a conservative Supreme Court has used over the years to invalidate things like abortion rights and child labor laws and might use in the coming term to prohibit affirmative action.

Sometimes reclaiming the Constitution is presented as a much-needed step toward empowering the people and their elected representatives. In a new book, the law professors Joseph Fishkin and William Forbath urge progressives to stop treating constitutional law as an “autonomous” domain, “separate from politics.” In contrast with earlier efforts among liberals, which, as Jedediah Purdy put it in a 2018 Times guest essay, put forward a “vivid picture of what judges should do with the power of the courts,” such exercises in progressive constitutionalism call on Congress and other nonjudicial actors to claim some amount of authority to interpret the Constitution for themselves

It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.

No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of anti-politics. It requires the substitution of claims about the best reading of some centuries-old text or about promises said to be already in our traditions for direct arguments about what fairness or justice demands.

It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.

By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.

After failing to get the Constitution interpreted in an egalitarian way for so long, the way to seek real freedom will be to use procedures consistent with popular rule. It will not be easy, but a new way of fighting within American democracy must start with a more open politics of altering our fundamental law, perhaps in the first place by making the Constitution more amendable than it is now.

In a second stage, though, Americans could learn simply to do politics through ordinary statute rather than staging constant wars over who controls the heavy weaponry of constitutional law from the past. If legislatures just passed rules and protected values majorities believe in, the distinction between “higher law” and everyday politics effectively disappears.

One way to get to this more democratic world is to pack the Union with new states. Doing so would allow Americans to then use the formal amendment process to alter the basic rules of the politics and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.

More aggressively, Congress could simply pass a Congress Act, reorganizing our legislature in ways that are more fairly representative of where people actually live and vote, and perhaps even reducing the Senate to a mere “council of revision” (a term Jamelle Bouie used to describe the Canadian Senate), without the power to obstruct laws.

In so doing, Congress would be pretty openly defying the Constitution to get to a more democratic order — and for that reason would need to insulate the law from judicial review. Fundamental values like racial equality or environmental justice would be protected not by law that stands apart from politics but — as they typically are — by ordinary expressions of popular will. And the basic structure of government, like whether to elect the president by majority vote or to limit judges to fixed terms, would be decided by the present electorate, as opposed to one from some foggy past.

A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way.

The War Between the States Continues in November

Today’s first post dealt with the prelude to the Civil War. This one deals with the Civil War’s unresolved division. From Mark Danner for The New York Review of Books:

Amid the blaring, pulsating hype of American culture, every election is routinely proclaimed the most important in our lifetime. Now the flood of heart-stopping news this summer—the Uvalde school massacre, the overturning of Roe v. Wade, the January 6 revelations—has brought us face to face with an exceptional problem: What if this one really is? What if this time, like the boy who cried wolf, we find ourselves screaming that the emergency is real—and no one pays attention?

The 2022 election will be the first held in the shadow of an attempted coup d’étata nearly successful and still-unpunished crime against the state. It will be the first held after a Supreme Court decision that not only uprooted a half-century-old established right but that threatens the rescinding of other rights as well. And it will be the first in which it is clear that, from Republican legislators’ relentless efforts to change who counts the votes, the very character of American governance is on the ballot.

American voters have not confronted so grave a choice since 1860. Now as then, two dramatically different futures are on offer. By undermining the right to privacy, the Supreme Court’s Dobbs decision not only allows government to force women to carry pregnancies to term—as more than half the states will likely soon do—but foreshadows a country in which a state or the federal government can deny people contraception or indeed the right to love or marry whom they choose. By limiting the regulation of firearms, the Bruen decision ensures that increasing numbers of Americans, including children in classrooms, worshipers in churches, and marchers on the Fourth of July, will die in shootings. By calling into question how votes are counted—or whether they should matter at all—the January 6 coup and the persistent “Big Lie” behind it augur a country where the candidate fewer Americans voted for not only can become president (as he did in 2000 and 2016) but can be awarded the electoral votes of a state not as the choice of its people but as a diktat of its legislature.

This America of the future will be an ever more authoritarian place where government maintains the right to intervene in personal decisions, even the most intimate—except when it comes to firearms, in which case anyone, young or old, sane or unbalanced, can go about as heavily armed as a combat soldier. The coming election can either accelerate the country’s move toward this kind of authoritarianism or begin to slow it down. If any election cried out to be nationalized—to be fought not only on the kitchen-table issues of inflation and unemployment but on the defining principles of what the country is and what it should be—it is this November’s.

It is no accident that the last time an election was fought this way was also the last time the party holding the White House gained congressional seats in the midterms. Following the September 11 attacks George W. Bush’s Republicans made ruthless use of nationalism and, above all, fear. “Americans trust the Republicans,” Karl Rove told his colleagues, to keep “our families safe.” Though terrorists had killed thousands of Americans on their watch, the Republicans turned around and denounced Democrats as soft on terror. To vote for Democrats—even for heroic veterans like Senator Max Cleland of Georgia, who had lost three limbs in Vietnam—was to vote for Osama bin Laden. The argument was shameless, savage, deeply unfair. It was anything but subtle. And it worked.

Two decades later the United States is again at risk, not from foreign terrorists but from domestic extremists who are working to insert government power between Americans and their most private decisions and who would fundamentally alter the way they choose their leaders. Justice Clarence Thomas in his Dobbs concurrence was forthright enough to state the implications of that decision for the right to contraception, same-sex relations, and marriage equality. The January 6 committee in its well-orchestrated hearings has begun to bring home to Americans the danger posed by the Big Lie for the next presidential election. Still, despite these clear signs of a darker future, for many voters the danger remains unfocused and distant.

Under the threat of this darkness, Democrats have a duty to make crystal clear to voters what is at stake in November. In midterm elections especially, Americans must be given a persuasive reason to vote—a task that is much harder for a party that won the White House only two years before. This year voters are apprehensive about inflation and other lingering effects of the pandemic and demoralized that Democrats, with their narrow majorities, have failed to achieve much of what they promised.

But the January 6 committee, the overturning of Roe v. Wade, and the Uvalde school shooting have put stark and frightening issues prominently before the public, and if presented clearly and persistently they have a strong potential to drive voters to the polls—especially younger voters, who were so vital to the Democrats’ midterm gains in 2018, and who now, after Democrats failed to pass their climate agenda, desperately need a reason to turn out. This election must be about safeguarding the country they know and the freedoms and rights they cherish. Democrats from President Biden on down need to present these issues clearly and unapologetically:

If you don’t want a government that can force you to carry an unwanted pregnancy to term—vote!

If you don’t want a government that can deny you contraceptives—vote!!

If you don’t want a government that can tell you with whom you can make love and whom you can marry—vote!!

If you don’t want a government that will do nothing to protect your child from a troubled teenager with an assault rifle—vote!!

If you don’t want a government that can ignore the people’s voice at the polling place—vote!!

If you don’t want a government that will do nothing about rising temperatures and the danger they pose to all of us—vote!

. . . During the past months the specter of an increasingly autocratic America has raised its head. Voters who cast their ballots for Democrats must be in no doubt about what they are voting for: the freedom to love and marry whom they wish, the freedom to decide when they want to bear children and to keep those children safe from gun violence—and the certainty that they will go on having a real voice in choosing who leads them. They must be reminded that these rights and freedoms are at risk, that a very different future looms. The most important election of our lifetime is coming. The emergency is upon us. If we are truly to meet it, we must first make bold to say so.