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, it’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 — and always have been. The Constitution, as I’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 — which the framers failed to anticipate in their design — 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 “the people” 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 there’s any room left to build a truly democratic political system within the present limits of our constitutional order.

In his new book “Two Cheers for Politics: Why Democracy is Flawed, Frightening — and Our Best Hope,” the legal scholar Jedediah Purdy says the answer is, essentially, no“Our 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,” 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 — used often to justify our indirect system of choosing a president — 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. “A mechanism for selecting a chief executive among propertied elites in the late eighteenth century persists into the twenty-first,” Purdy writes, “now as a key choke point in a mass democracy.”

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, “making meaningful initiatives hard to undertake”…..

Even if you keep MAGA Republicans out of office (including [their leader]), you’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 “We the People,” but as Purdy writes, “A constitution like the American one deserves democratic authority only if it is realistically open to amendment.” It is only then that we can “know that what has not changed in the old text still commands consent.” Silence can have meaning, he points out, “but only when it is the silence of those free to speak.”

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.

In 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. “This 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.”

The problem, and what this country must confront if it ever hopes to turn its deepest democratic aspirations into reality, is that we don’t actually honor the will of the people. We deny it. And it’s this denial that sits at the root of our troubles.

His Future and Ours

Salon interviewed George Conway, a Republican lawyer married to the infamous Kellyanne Conway (press secretary in the former administration) and who became known as an ex-Republican critic of the ex-president. I had a reaction to his closing comments.

How do we balance political expediency versus legal necessity? The law takes time, but [the former president] is an imminent danger to American society right now. Something needs to be done, and we are running out of time. 

At the end of the day, we have to follow the legal system and apply it evenhandedly — but that should be done as expeditiously as possible. The Justice Department has clearly come around to that understanding. They are now expanding their investigations of Jan. 6, [his] other alleged crimes and related matters at the highest levels. I don’t think it’s going to take them very long to put together a case on the classified documents. And I don’t think they have a choice, even if they wanted to resist prosecuting him. It’s going to be sooner rather than later. [He] could easily be under both federal and state indictment at some point between Election Day [Nov. 8] and New Year’s Day.

What do you think is going to happen with these criminal cases? Does he take a plea bargain? There’s this fantasy among some liberal folks that [he] does a perp walk and goes to prison. I don’t see that happening. If anything, [he] pays fines and takes a plea deal. Merrick Garland and the Department of Justice will not put a former president in prison. 

I don’t believe that [he] is going to plea bargain. I think he could go to prison, but it is more likely that he will serve home confinement. In all likelihood, he will be convicted of multiple felonies. I don’t know if there’s ever going to be a perp walk, but I don’t think it’s a fantasy either. There’s a good chance that [he] will end up with a felony conviction. I know he has cut deals in civil cases, but that’s just writing checks. To reiterate, I do not believe that [he] will plead out. This all goes so much to the core of [his] identity that he will try to tear the country apart before he settles one of these criminal cases.

That is a powerful statement. 

[He] will incite violence on his behalf. He will try to pretend it is something spontaneous. Does [he] have enough power and influence over his followers to threaten the republic? I don’t think so. But I do think it’s enough to be dangerous.

What are you most concerned about? And what, if anything, are you hopeful about, regarding the country’s future?

What keeps me up at night is the violence that [he] could potentially cause. The danger of violence will increase as the 2024 election approaches. What gives me hope is that the legal reckoning is coming…. I am hopeful that the American people will be so exhausted by this whole saga that they will be drawn toward all the things that tie us together as a nation and people. Of course we may disagree with one another, and do so passionately. But in the end we are all Americans, and we have more in common than divides us. I hope we can get back to that and heal….

First, nothing keeps me up at night except the desire to stay up.

More importantly, when the former president is finally indicted somewhere, the authorities will let him show up with his lawyers and hear the charges. He won’t ever be in handcuffs or a cell. If he accepts a deal or is convicted, he’ll get house arrest, not prison, and then may leave the country.

Right-wing violence is always a threat (much more than left-wing or Islamic violence) but my biggest short-term concern is that Republicans will do well-enough in upcoming elections, either legally or illegally (by ignoring the results), that — with the help of radical reactionaries on the Supreme Court — they’ll consolidate minority rule. They’ll change the laws in enough states to make it very hard for them to lose (and the laws to be changed back). Add that to their built-in advantages in the Senate and Electoral College and elections won’t matter much.

The only hope I have is that once enough members of my generation die off, fewer voters will watch network or cable TV and be misled by right-wing and corporate propaganda or local news that “leads with what bleeds”.

My longer-term concern (although it becomes shorter all the time) is the climate crisis and the many ways a warmer climate will affect life on Earth. But it doesn’t keep me up at night.

On that subject, however, here’s an article from the MIT Press called “How to Fix Climate Change (A Sneaky Policy Guide)”:

We may already have a “miracle” fix for climate change. [It’s] a planetary emergency. We have to do something now — but what? Saul Griffith, an inventor and renewable electricity advocate (and a recipient of a MacArthur “genius” grant), has a plan. In his book “Electrify,” Griffith lays out a detailed blueprint for fighting climate change while creating millions of new jobs and a healthier environment. Griffith’s plan can be summed up simply: Electrify everything. He explains exactly what it would take to transform our infrastructure, update our grid, and adapt our households to make this possible. Billionaires may contemplate escaping our worn-out planet on a private rocket ship to Mars, but the rest of us, Griffith says, will stay and fight for the future….

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.

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.

We’re Screwed: A Periodic Reminder

With so many Americans willing to vote for today’s radical Republican Party, it’s hard not to conclude this country is over. It’s like we’re up an extremely treacherous creek without a paddle. Jamelle Bouie of The New York Times highlights one reason we may be even more screwed in the future:

For much of the past decade, the Republican Party’s ability to win power in Washington has rested on the counter-majoritarian institutions of American politics. There is no President D____ T____ without the Electoral College [or Pres. George W. Bush in 2000] and Republicans would not have such a firm grip on the United States Senate if not for its unequal representation, which gives as much weight to the sparsely populated states of the Great Plains and the Mountain West as it does to states like New York, Illinois, California and Texas.

The Republican Party, in other words, does not need to win majorities to win control.

One result of this is that Republicans have developed a set of ideological justifications for why it is a good thing that the American political system violates basic principles of political equality, most commonly expressed in the assertion that the United States is “a republic, not a democracy.”

Another result is that Republicans, having embraced counter-majoritarianism as a principle, are now looking for ways to extend it. You see this in the emergence of the lunatic “independent state legislature” doctrine, which would give state legislatures total power to write rules for congressional elections and direct the appointment of presidential electors, unbound by state constitutions and free from the scrutiny of state courts. Under this doctrine, a Republican legislature could — with sufficient pretext (like “voter fraud”) — unilaterally assign the state’s presidential electors to the candidate of its choice, above and beyond the will of the voters.

Some Republicans want to extend the counter-majoritarian principle down to the state level as well. In 2019, the chairman of the Arizona Republican Party, Kelli Ward, floated the idea of an “Electoral College type system” at the state level. More recently, the Republican nominee for governor in Colorado, Greg Lopez, has promised to eliminate “one-person, one-vote” for statewide elections and institute a system where the votes of rural voters are given significantly more weight than those of voters in the state’s cities and metropolitan areas. He outlined his plan at a campaign stop earlier in the week:

“One of the things that I’m going to do, and I’ve already put this plan together, is, as governor, I’m going to introduce a conversation about doing away with the popular vote for statewide elected officials and doing an Electoral College vote for statewide elected officials,” Lopez said. Lopez said his Electoral College plan would weight counties’ votes based on their voter turnout percentage to encourage turnout. “I’ve already got the plan in place,” Lopez said. “The most that any county can get is 11 Electoral College votes. The least that a county can get is three.”

Under this plan, according to the local CBS affiliate, Republicans in the state would have easily won the previous governor’s race, in 2018, despite losing the popular vote by 10 percentage points.

It’s unlikely that this will happen. First, Lopez would have to be elected . . .  Second, he would have to persuade the legislature to go along with the plan. And third, it would have to survive judicial review, specifically the precedent established by the court in the early 1960s, which held that such schemes were unconstitutional. (Although, given this court’s contempt for voting rights and indifference to extreme gerrymandering, I’m not so sure that it would uphold that decision.)

But this proposal isn’t noteworthy because it’s likely to happen; it’s noteworthy because of what it says about the ideological direction of the Republican Party. It’s not just that Republicans have rejected majority rule . . . [It’s that, when they lose,] it’s just time to change the rules.