We all change our minds now and then, but Steven Levitsky and Daniel Ziblatt (left) have done so with a vengeance.  They have a new book out called Tyranny of the Minority: Why American Democracy Reached the Breaking Point (Crown), and a glance at the dust jacket suggests it’s a sequel to their 2018 bestseller, How Democracies Die.  But it’s not.  Rather than a continuation, it’s a repudiation.

How Democracies Die was all about checks and balances, constitution norms, and political guardrails, the kinds of things that good liberals believe are necessary to keep democratic politics within proper bounds.  It was a hit – none other than Barack Obama called it one of the best books of the year – because it told good people what they wanted to hear, which is that they’re right, the system is sound, and everything was fine until a human wrecking ball showed up in the form of Donald Trump.  To be sure, How Democracies Die acknowledged that partisanship was over the top on both sides of the aisle.  Just weeks before Trump took office, it noted that the New York Times ran an op-ed arguing that Democrats “should be fighting tooth and nail” to prevent him from entering the White House.  They should push for recounts and fraud investigations in crucial states like Michigan, Pennsylvania, and Wisconsin, they should seek to sway the Electoral College, and they should challenge the election results in court.  These were tricks that would lead to howls of protest when Trump tried them four years later.  But since they were Democrats, the op-ed said it was A-OK.

Still, Levitsky and Ziblatt put the onus squarely on Trump.  If “Americans have retained great faith in their Constitution, as the centerpiece of a belief that the United States was a chosen nation, providentially guided, a beacon of hope and possibility to the world,” they wrote, it’s only because they had developed “strong democratic norms” to go along with it. These are things like patience, forbearance, and the mutual respect needed to make checks and balances work.  What made Trump so dangerous is that he ignored such norms from the get-go.  In 2011, he emerged as “America’s most prominent birther,” arguing that Barack Obama was a Kenyan-born Muslim and therefore not a “natural-born citizen” as required by Article II, section one.  When Obama made his birth certificate public, Trump then charged that it was a forgery.  “Intolerance was politically useful,” Levitsky and Ziblatt wrote, because it won him “media attention and endeared him to the Republicans’ Tea Party base.”  Once he entered the Oval Office, Trump sought to “derail independent investigations” in a way that reminds the authors of “the kind of assaults on the referees routinely seen in less democratic countries.”  He repeatedly accused major outlets like the New York Times and CNN of dispensing “fake news” in a way that would also “look familiar to any student of authoritarianism.” 

Trump was an unconstitutional strongman who slipped into the White House by slipping past the controls.  He was messing things up because he refused to play by long-established rules that are necessary for democracy to function.  The solution was to re-establish the old norms that had held the system together for centuries on end and put them back in working order.  “Our constitutional system, while older and more robust than any in history, is vulnerable to the same pathologies that have killed democracy elsewhere,” Levitsky and Ziblatt declared.  “Ultimately, then, American democracy depends on us – the citizens of the United States.  No single political leader can end a democracy; no single leader can rescue one, either.  Democracy is a shared enterprise.  Its fate depends on all of us.”  

If things were going awry, in other words, it wasn’t the Constitution’s fault but our own.  We weren’t living up to the founders’ ideals.  We should try harder to be worthy of the glorious system they bequeathed.

This is basically the lesson of the Old Testament updated by 2,500 years or so.  Where Yahweh repeatedly accuses the Israelites of failing to follow his laws and commandments, Levitsky and Ziblatt accused Americans of failing to follow those of the founders.  They’re “a stiff-necked people,” it seems, and Trump was their divine comeuppance.

But that was so last decade.  Five years later, the message has changed.  Rather than “a strongman with a cultlike following,” the problem now “lies in something many of us venerate: our Constitution.”  In its efforts to steer clear of “the Scylla of majority tyranny,” the document has left us “vulnerable to the Charybdis of minority rule.”  

It’s not our fault after all.  Tyranny of the Minority rounds up the usual suspects in order to show why the US constitutional structure is increasingly undemocratic.  There’s the Electoral College, which, by doubling or tripling the weight of underpopulated rural states, allows a president to slip into office despite trailing at the polls.  There’s a bicameral legislature whose upper chamber is both powerful and “severely malapportioned.”  There’s the filibuster, which allows 41 senators representing as little as 11 percent of the population to veto any measure sought by the other 89.  There’s a first-past-the-post electoral system that locks in a two-party system despised by a growing majority, there’s lifetime tenure for Supreme Court justices, which shields them from accountability, and there’s the sheer impossibility of constitutional reform due to an amending clause that requires a two-thirds majority in both houses of Congress plus approval by three-fourths of the states to change so much as a comma.

We all know the thinking behind such features.  The idea is to rein in an anarchic majority that is forever straining at the bit.  But as Levitsky and Ziblatt point out — the new Levitsky and Ziblatt, that is — it’s at the cost of empowering minorities that are fundamentally irresponsible.  As their latest book notes:

“America’s excessively counter-majoritarian institutions reinforce extremism, empower authoritarian minorities, and threaten [to impose] minority rule.  To overcome these problems, we must double down on democracy.  This means dismantling spheres of undue minority protection and empowering majorities at all levels of government; it means ending constitutional protectionism and unleashing real political competition; it means bringing the balance of political power more closely in line with the balance of voter preferences; and it means forcing our politicians to be more responsive and accountable to majorities of American.  In short, we must democratize our democracy, undertaking long overdue constitutional and electoral reforms that would, at minimum, bring America in line with other established democracies.”  

This is not to say that the authors no longer believe in checks and balances.  They do.  But they think that all those delicate balances have gotten out of hand and therefore need to be reset so as to favor political minorities less and allow the democratic majority greater room in which to operate.  Modest as this is, it’s a sign of how much thinking has changed since the Capitol Hill insurrection.  After all the tumult of the last four or five years, it’s beginning to dawn on Americans that the system is broken, that government is not working, and that politics are increasingly undemocratic as a consequence.  If “governments are instituted among men” in order to secure life, liberty, and the rest, then it’s plain that the present system is “becom[ing] destructive of these ends” and that it’s “the right of the people” to begin thinking about how to alter it.  This is not a right granted by the founders, but one that “we the people” created ourselves – or so the Declaration of Independence and the Constitution indicate.  So it’s high time that the people start thinking about such a right and how to put it to use.

The change of heart that Tyranny of the Minority represents is entirely welcome.  The crisis is so advanced that even a couple of Harvard professors have begun to notice.

That said, Tyranny of the Minority is not without its problems.  The author’s say nothing about how they changed their minds or why, which is not very helpful.  While they’re good on the question of constitutional rigidity, they fail to fully explore the special problem posed by an increasingly restrictive amending clause in Article V.  In 1790, four states representing as little as 9.8 percent of the population could block any constitutional change thanks to the two-thirds, three-fourths rule. Today, thirteen states representing as little as 4.4 percent can do the same, while in a few decades the magic number will be down to 4.2.  It’s this fundamental rigidity that is squeezing the life blood out of what little is left of American democracy.  What Levitsky and Ziblatt see as a problem, consequently, is a good deal worse, i.e. an emergency that can only intensify as time goes on.

The authors also make a mess of the question of majority rule versus minority rights.  Referring to a former member of the Supreme Court named Robert H. Jackson, they argue that “[a]lthough the scope of rights to be protected will always be a matter of some dispute (and will likely change over time), there clearly exist a broad range of individual liberties that, in the words of Justice Jackson, ‘may not be submitted to vote; they depend on the outcome of no elections.’”  Most Americans agree that things like free speech or a free press should be exempt from the vagaries of electoral politics.  But this doesn’t mean they’re right.  If rights are likely to change over time, how can we determine which ones are still valid without putting them to a vote?  “Most democrats agree that individual liberties and the opposition’s right to fair competition must be placed beyond the reach of majorities,” they add.  But how can we determine if most democrats indeed feel that way without doing so democratically via a free election?

Amazingly, Levitsky and Ziblatt cite the Bill of Rights as an example of something that “enshrines individual liberties” by “roping them of from the whims of temporary majorities.” But the Bill of Rights includes the Second Amendment whose apparently unqualified right to bear arms is in fact destructive of democracy.  Whether or not one agrees with the Supreme Court’s current interpretation, there’s no doubt that the text is unclear and that a clarification is in order.  But if the Bill of Rights as too sacred to be touched, then Levitsky and Ziblatt presumably oppose any attempt at clarification on the grounds that it’s outside of democratic purview.  This is not democracy, but the opposite.

This leads to the question of how to democratize an undemocratic constitution, an issue that Levitsky and Ziblatt bollix up as well.  “[W]e ask readers to momentarily set aside concerns about how to bring about change – we’ll get to that – and consider three broad areas of reform,” Tyranny of the Minority declares at one point.  But the authors never get to the issue at all. “What is needed today,” they write, “…is not only a democratic reform agenda but a democratic reform movement capable of mobilizing diverse citizens in a sustained nationwide campaign to ignite imaginations and change the terms of public debate.”  But what’s the point of a democratic reform movement if the law of the land says that democratic reform is out of order?  Given the unlikelihood of structural reform, shouldn’t “we the people” forget the Constitution and focus on the things they can change instead?  This is the conclusion that an increasingly conservative political structure all but dictates, and even though it’s wrong, it’s easy to see why people go along.

The problem has to do with the concept of limited government, something Levitsky and Ziblatt accept reflexively without thinking the problem through.  Limited government means limited democracy in which some issues are on the table as far as the demos is concerned and some are off.  But “we the people” need to have all issues on the table so they can refashion society as they see fit — not some of it, but all.  They need absolute, uncontrolled democracy to smash through the barriers to change.  The current structure is so outmoded, so antique, so at odds with the needs of modern society that tinkering around the edges will not do.  Instead, the entire problem of government, society, and political development must be re-thought from scratch.  Considering that the process is by definition extra-constitutional and would thus be at odds with the precepts set forth in Article V, it’s very much a leap into the void.

But given the hollowed-out nature of the US constitutional order, perhaps it’s a leap out of the void and back into history.

The Marjorie Taylor Greene-Matt Gaetz bid to draft Donald Trump for the House speakership is worth taking seriously.  The reason: simple arithmetic.  There are 435 seats in the lower chamber, which means that 218 votes are needed to fill the post that Kevin McCarthy vacated on Tuesday.  With Republicans controlling 222, that means that anyone who wants to win the post can afford only four defections.  In fact, the picture is even worse since two Republican representatives are on leave, Anna Paulina Luna of Florida and Frank Lucas of Oklahoma.  So a successful candidate can only afford two.  That means garnering 99 percent of the Republican vote.  Is there anyone on Capitol Hill capable of doing this?

The answer is almost certainly no.  Steve Scalise, Jim Jordan, or whoever else wants to throw his or her hat into the ring have too many enemies to even come close.  The same goes for so-called moderates who are virtually at war with the hard-core right.  Considering that House Republicans just split down the middle on McCarthy’s 45-day stopgap spending measure, virtual unanimity is beyond reach.  The chances of House Republican settling on someone from their own ranks are therefore nil.

That leaves two ways out.  One is for a minority to break ranks and vote for Hakeem Jeffries, the leader of the Democratic minority.  It’s not completely out of the question, but it would put a serious dent in GOP prospects next fall.  Yes, memories are short. But some people will remember how the Republicans surrendered to the enemy and then slunk away in shame.  The ill will will undoubtedly spill over onto Trump and perhaps give Joe Biden the extra push he needs to go over the edge.  Since Republicans are desperate to win in 2024, they must do everything they can to hold their ranks together in 2023.  A crossover vote must be avoided at all costs.

The other option is Trump.  He’s the Republicans’ fuehrer at this point, their duce, a man whose leadership is so unquestioned that the party is thinking of doing away with presidential debates altogether so members can nominate him by acclaim.  If Trump allows himself to be drafted, no Republican would dare vote no since it would mean almost certain defeat in 2024.  A Trump speakership would thus be a way for Republicans to unify their forces in preparation for the coming battle.  The fact that Trump has just endorsed Jordan is immaterial. The longer the selection process drags on, the more Republicans will realize that he’s the only choice.

When Joe Biden delivers his state of the union address in January, odds are that his predecessor and possible successor will be sitting on the dais behind him.  Weird? Yes.  But when a constitutional meltdown reaches such an advanced stage, weird things happen.  

The constitutional implications are staggering.  Trump’s number-one goal is to take back the White House, so his sole purpose in assuming the speakership will be to use it to weaken Biden.  Since compromise makes the president look good, his program will be the opposite, which is to say ceaseless confrontation.  He’ll press the pedal to the floor in terms of impeachment, and he’ll push for a government shutdown when the current spending measure runs out in mid-November.  Rival power centers will thus take shape, one at 1600 Pennsylvania Avenue and the other on Capitol Hill.  Neither will be able to accomplish a thing because they’ll be too busy dragging each other down.  

In 2020, civil war erupted after the election; this time it may well erupt before.  There are resemblances here to Petrograd in 1917 when Kerensky and the soviets grappled for control and to England in the 1640s when the legislative and executive branches, i.e. Parliament and King Charles I, were also at odds.  This is not to say that Trump is a second Cromwell, much less a neo-Bolshevik.  But dual power means nothing but scorched earth in between.

The great constitutional breakdown that began with Newt Gingrich’s Contract with America in 1994 will thus reach its logical conclusion.  The delicate balances that we’ve all been taught to revere will come undone, finally and irrevocably.  Where Cromwell eventually led to the first stirring of parliamentary democracy (after only two or three centuries), we all know what will happen after the current episode: a plunge into rightwing authoritarianism.   As The Frozen Republic warned in 1996, constitutional immobility can only lead to democratic collapse since politics need freedom to grow and develop.  Locking a political order in place, which is what an unchangeable constitution does, causes them to wither and die.  The more the crisis intensifies, the harder this central truth will be to avoid

The imperial implications are also stunning.  If Trump becomes speaker, the administration may be able to eke out some accommodation in terms of Ukrainian military aid.  But it won’t be for long, and the message will be clear that US backing is coming to a close.   Since it’s doubtful the Europeans will be able to pick up the slack, a decade-long effort to tear the Ukraine away from the Russian orbit and bring it into NATO will collapse.  The effort could end as ignobly as the 2001-21 Afghan adventure, which Biden personally championed during his years as chairman of the Senate foreign relations committee.  Whether the Atlantic alliance will be able to withstand the blow is unknown.  But it won’t be easy once the truth about Nord Stream comes out, which it inevitably will.  Volodymyr Zelensky has already warned that veterans of the Azov Battalion will take revenge if they feel betrayed by the western powers.  (It would not be a “good story” for Europe if it were to “drive these people into a corner,” is how he put it.)   If you can imagine a neo-Nazi version of Al Qaeda, then you have an idea of what could conceivably lie ahead.

Of course, this may all be too apocalyptic.  Things on Capitol Hill may sort themselves out peacefully and rationally, a new era of bipartisanship may take hold, the lion will lie down with the lamb, and so on.  For the umpteenth time, Chicken Little will have been proved wrong.  But societies do not simply pick themselves up and move on once a constitutional order breaks down.  It’s never that easy.  They will have to go through turmoil before the working class can begin picking up the pieces and rebuilding along new lines. 

A recent article by a couple of Columbia law professors named David E. Pozen and Thomas P. Schmidt raises a fascinating question about why the 27^th Amendment is in the Constitution and why the would-be 28^th, the Equal Rights Amendment, is not.  Quick answer: no one knows.

The 27^th is the Congressional Pay Amendment, which entered the Constitution in 1992 after a bizarre 202-year journey.  What it says, basically, is that while senators and representatives can vote themselves a pay hike, they should know that it won’t go into effect until after the next biennial election so voters can weigh in on whether they deem it justified or not.  It’s an anodyne bit of legal prose that cleared the two-thirds hurdle in Congress in 1789, but then entered into a kind of constitutional limbo after winning approval in only six of the original 13 states, four less than needed for ratification.

There it remained for close to a century until the Ohio state legislature ratified it out of the blue to protest Congress’s decision to award itself a hefty retroactive raise in the so-called “Salary Grab” Act of 1873.  Then it was sleepy-time again until the early 1980s when a University of Texas student named Gregory D. Watson stumbled across it while researching a school paper.  The story goes that Watson’s professor gave him a C because she couldn’t believe that the amendment was still a live issue after all these years.  Cheekily, Watson set out to prove her wrong by circulating it among the states.  Since the amendment accorded perfectly with the anti-government mood of the day, it began picking up support.  Michigan became the 38^th state to ratify in March 1992, putting it over the edge.

This was astonishing.  Supposedly the purpose of a triple super-majoritarian amending process is to give Americans time to reach a genuine consensus.  But this was the opposite, a series of scattered and disconnected votes over the course of centuries with no opportunity for “we the people” – today’s people, that is – to come together to discuss the amendment as a whole.  The Justice Department’s Office of Legal Counsel declared the amendment valid because Article V says nothing about a time limit even though the Supreme Court wrote in 1921 (in a case called Dillon v. Gloss) that a reasonable limit was implicit in the text.  The OLC also said that Congress had no say in the matter even though seven justices had said the opposite in 1939.  Senator Robert Byrd of West Virginia, famous for carrying around a copy of the Constitution in his shirt pocket, protested that only “Congress should … decide [such] substantive questions.”  Since Article V makes no mention of an executive-branch role whatsoever, he would appear to be correct.  But Congress submitted to the OLC regardless.  It was yet another example of mindless deference to textual authority even though the outcome is plainly ridiculous.

The story of the Equal Rights Amendment is the reverse.  Approved by the House in October 1971 and then by the Senate five months later, it racked up its 38^th state approval when Virginia voted to ratify in 2020.  It had taken half a century.  But by the logic of the 27^th Amendment, it was over the top.

Except that it wasn’t.  One reason is that Congress had imposed a seven-year deadline on the process plus a three-year extension.  But that still wasn’t enough time to garner the necessary state approvals.  Moreover, with the late Phyllis Schlafly fanning the anti-ERA flames, five states had bowed to rightwing pressure and voted to rescind, so it wasn’t clear if 38 states had approved, 33, or what.

Wait – does Article V even allow states to rescind?  There’s nothing indicating that in the text, and the implications are mind-blowing if it does.  If states can rescind their votes on the 28th Amendment, for instance, can they rescind it on the First?  How about the 13^th Amendment abolishing slavery – can they rescind that as well?  Perhaps there should be a rule saying that states can only rescind amendments that are still pending.  But who will make such a rule and how will it be approved – via another constitutional amendment?

As to the deadline, why were two centuries OK for the 27^th Amendment but half a century not OK for the 28^th?  If Congress could impose a time limit in one instance, why couldn’t it impose a retroactive time limit in another by declaring that 200-plus years is too long?  If the states were able to bring the 27^th Amendment back to life, moreover, are there other sleeper amendments waiting in the wings for rightwing activists to re-awaken as well?

This is not idle speculation.  As Pozen and Schmidt note, something known as the Titles of Nobility Amendment, which forbids Americans from accepting a title “from any emperor, king, prince, or foreign power,” cleared Congress in 1810 and had won approval in a dozen states as of 1812.  This was two states short of passage.  But does that mean that only 26 states are now required for ratification?

The Titles of Nobility Amendment is at the center of one of those marvelously ornate conspiracy theories that hold that the “Esquire” that lawyers put after their name is also a title of nobility and that the entire legal profession therefore amounts to a giant anti-constitutional plot.  In 2010, Iowa Republicans included a plank in their party platform calling for “the reintroduction and ratification of the original 13th Amendment” so attorneys could be barred from public life and complicated legal cases could be tried by ordinary citizens untrained in the law.

Swell, eh?  But the real problem is there’s no clear answer if someone decides to resurrect it after all.  There’s no mechanism for sorting such difficult questions out, no procedure for deciding what the Constitution’s decidedly complicated amending clause says, nothing.  Some might argue that the Supreme Court should take control, but this would open a can of worms as well.  If the court can decide if certain proposed amendments are unconstitutional, can it limit the amending process in general?  What happens if Americans approve an amendment limiting the court’s own power?  Could the court limit that too?

Moreover, if the court can declare a proposed amendment to be unconstitutional, can it declare existing amendments to be unconstitutional too?  The most obvious examples, of course, are the post-Civil War amendments adopted between 1865 and 1870, not only the 13^th abolishing slavery but the 14^thdeclaring that all Americans are entitled to “the equal protection of the laws” and the 15^th declaring that the right to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude.”  Pozen and Schmidt, noting that the Union-controlled Congress used all sorts of tricks to ram the amendments through, say that their ratification pushed Article V “to the breaking point.”  This is unquestionably correct; indeed, it’s what made them so revolutionary.  But it’s also what renders them vulnerable to this sort of challenge. A smart conservative scholar should have no trouble proving that they’re on dubious constitutional grounds, an argument that an ultra-right court just might accept.

The mind reels.  Pozen and Schmidt’s answer to the Article V conundrum is what one might call a neo-Byrdian solution, although the authors prefer to describe it as “Thayerian” after a Harvard law professor named James Bradley Thayer who argued in 1893 that the Supreme Court should defer to Congress when it came to deciding constitutional issues rather than the other way around.  But the point is that only Congress has the democratic standing to take the amending process in hand.  If it thinks that the Congressional Pay Amendment is invalid according to any reasonable interpretation of the Article V text, then invalid it is, OLC or no OLC.  If it decides that resurrecting the Titles of Nobility Amendment after all these years is absurd, then out it goes.  By the same token, if it decides that the ERA has been properly ratified after all, then so be it.  Indeed, a Thayerian resolution declaring the ERA to be part of Constitution came up for a vote in the Senate in April.  As Kate Shaw, a New York Times opinion writer, and Julie C. Suk, a professor at Harvard Law School, wrote in the Times, the goal was not just to approve the amendment itself but to establish the broader principle “that constitutional amendment is possible” and that this “is one area in which Congress, not courts, gets the final say.”

Hear, hear.  Such a resolution would be the most important constitutional reform since Reconstruction.  Instead of an arduous two-thirds, three-fourths process, the people would be able to decide if an amendment is in or out via their elected representatives in a simple up-or-down majority vote.  But the resolution failed not because it fell short of a majority – it got 51 votes – but because it ran afoul of the Senate’s ridiculous filibuster rules, which require a 60-vote super-majority.  Since its chances of passage in the Republican-controlled House are nil, Thayerianism seems to have died aborning.

But wait – it gets worse.  Suppose the Senate had passed the resolution and suppose by some miracle the House had too.  What then?  Republicans would undoubtedly cry foul and file suit, meaning that the issue would wind up before the Supreme Court after all.  Rather than countenancing a fundamental power shift from the judicial to the legislative branch, the best guess is that people like Clarence Thomas and Sam Alito would slap Democrats down in a flash.  But even if they agreed to an expansion of Congress’s role, they would likely surround it with so many rules and qualifications as to render it nugatory.  Congress would wind up under the court’s authority after all.  So whether you call it Thayerianism, neo-Byrdism, or whatever, the bottom line is that it would be doubly kaput. 

Thayerianism is the weakest part of what is otherwise one of the most brilliant law-review articles in years.  Presumably, the authors felt obliged to end on a “constructive” note, but if that’s the case, they failed.  In the end, Article V, like the rest of the Constitution, rests on a fallacy, which is that an inert document can somehow set things right on its own without real, live human beings having to intervene.  All we have to do, evidently, is sit back and let the Constitution do our thinking for us and everything will work out.  

But it won’t.  The accelerating decay that we see all around us is proof that an ancient and unchangeable constitution is no substitute for human intelligence in the here-and-now. Everyone has to take part in a process of collective “mentation” in which “we the people” work our way through such issues not via the elaborate process outlined in Article V, but via free elections, democratic debate, and simple majority votes.  Instead of what the founders want us to do, we’ve got to figure out what we want to do instead.  Constitutional scholars are like math students covering a blackboard with endless equations in a vain attempt to solve a problem.  Since the denser the scrawl, the greater the confusion, the only solution is to wipe the slate clean and think the problem over from scratch.  That’s what Americans – led, of course, by the working class – need to do now, i.e. wipe the slate clean of all that 18^th-century gobbled-gook and think through modern problems afresh – in a modern democratic way.  The Constitution is an immense burden, and the only solution is to cast it off.

“A Crisis Coming,” David Leonhardt’s recent 5,400-word article in the Times, certainly has its strong points.  It effectively highlights the Constitution’s most undemocratic features, an Electoral College that has allowed two of the last four presidents to waltz into the Oval Office despite losing the popular vote, a woefully lopsided Senate that gives California the same weight as demographic midgets like Wyoming and the Dakotas, a House that shortchanges the majority “because of the way districts are drawn,” and so forth.  “We are far and away the most counter-majoritarian democracy in the world,” it quotes Harvard prof Steven Levitsky, co-author of the 2018 book, How Democracies Die, as saying – quite rightly, one might add, except for one thing: “counter-majoritarian democracy” is a meaningless phrase since any system that consistently goes against the will of the majority is no democracy at all.  Rather, it’s a dictatorship, pure and simple.

But the article is a sign that the Times is at last waking up to the fact that we have a real problem on our hands, which is certainly good.  Still, I’d only give Leonhardt a C- due to a number of bloopers.  The most serious occurs in the third paragraph when he says that “the United States today finds itself in a situation with little historical precedent.”  The statement is flat-out wrong.  Hasn’t Leonhardt ever heard of the Civil War?

The “irrepressible conflict” is usually depicted as a great moral crisis in which a young nation finally woke up to the fact that it could no longer continue as half-slave and half-free.  This is correct as far as it goes.  But the war was also a constitutional crisis involving a rough semi-democracy that was rapidly morphing into its opposite, which is to say a hideous dictatorship.

The reason was simple.  A number of mechanisms that the founders had baked into the Constitution decades earlier were backfiring by handing growing power to a slave-owning minority.  The most obvious was a clause in Article I stating that slaves were to be counted as three-fifths of a person for purposes of congressional apportionment.  Abolitionists were correct in describing the provision as a bounty for slaveholders because it gave slave states as many as 25 extra congressional seats as early as the 1830s.  Even though they accounted for less than 30 percent of the free population, slave states wound up controlling nearly half of the House as a consequence, enough to give the “solid South” a near-total veto power over congressional legislation.

The clause also gave it up to 25 extra votes in the Electoral College, which, in a nutshell, is why every president from 1789 to 1850 would be a slaveholder with the exception of John Adams and his son, John Quincy – neither of whom did much to disturb slavery while in office by the way.  The clause allowed the slaveholder Thomas Jefferson to defeat Adams père in 1800, and it provided the muscle to ram through the great Compromise of 1850, a monstrous legislative package that allowed slave catchers to snatch black people off the street with few questions asked, if any.  Abolitionists were aghast that blacks had to flee to Canada now that they were no longer safe in states that had previously regarded themselves as free.  Yet there was nothing they could do.  With few exceptions, they continued worshiping at the shrine of the glorious Constitution even though the document is what made such horrors possible in the first place.  

The South had another constitutional advantage: a Senate based on equal state representation.  From nearly the moment Washington took office, the upper chamber had been evenly divided between free and slave states, an arrangement so durable that many Americans had come to regard it as constitutional as well. But not only did it strengthen the South’s legislative veto, but it strengthened its grip on the executive branch by adding to its clout in the Electoral College.  Since Supreme Court justices are jointly appointed by the president and the Senate – one nominates, the other confirms – it also strengthened its grip on the judiciary.  By the time the Dred Scott case came up for review in 1857, the Supreme Court’s nine members included five pro-slavery Southerners – among them Chief Justice Roger Taney, born into a slaveowning family in Maryland in 1777 – plus two Northerners who were also in favor.  Hence, it was all but a foregone conclusion that the court would rule seven-to-two that blacks had “no rights which the white man was bound to respect” and that slaveowners were now free to take their human property wherever they wished, including “free” states up north.

This is what fueled the Civil war: not only the shocking immorality of slavery itself, but an upside-down constitution arrangement that enabled slaveowners to ram it down the people’s throat — in the name of “we the people” no less.  The South’s power was growing even as its share of the population continued to shrink, a contradiction that soon brought the structure to the breaking point.  As Lincoln put it in 1861: “We must settle this question now, whether in a free government the minority have the right to break up the government whenever they choose.”

Sound familiar?  It should because it’s essentially what we’re seeing today.  The three-fifths clause has been a dead letter since the Thirteenth Amendment abolished slavery in 1865.  But gerrymandering has taken its place.  Thanks to ruthless manipulation of congressional districting, Republicans have enjoyed roughly a 12-percent electoral advantage since 2010 in terms of the number of votes needed to win each House seat.  That’s even more of a boost than what the South enjoyed in 1860.  The Senate is meanwhile worse than ever since Republicans represent 45 million fewer people even though the chamber is ostensibly split 50-50d.  Where in 1860 it was possible to cobble a Senate majority together out of states representing 23 percent of the population, today it’s possible to do so out of states representing 17.6.  That’s more than a 30-percent jump in inequality.  As for the Electoral College, whether it’s more unfair than it was on the eve of the Civil War is unclear.  But the more the population winds up concentrated in fewer and fewer states due to urbanization, the more the Electoral College will end up triumphing over the popular vote.

Finally, there’s the Supreme Court, by this point a sterling example of the baleful consequences of compounded minoritarianism.  Of the six members of the court’s conservative majority, five were nominated by unelected presidents, i.e. Dubya or Trump, while four were narrowly confirmed by senators representing a popular minority.  Thus, the 54 senators who voted to confirm Neil Gorsuch in 2017 represented just 44.6 percent of the population while the 50 who voted for Brett Kavanaugh, the 52 who voted for Amy Coney Barrett, and the 52 who voted for Clarence Thomas represented between 44.5 and 48.7 percent.  As with Dred Scott, the court is again pushing through policies that “we the people” find repellent, most notably the repeal of national abortion rights.  Yet the majority is no less powerless to do anything in response.

The parallels are thus overwhelming.  So how did the Times manage to miss them?  There are a couple of possibilities.  One is that historical knowledge is so abysmal these days that the Times’s institutional memory simply doesn’t extend as far back as the mid-19^th century.  But another is simply that the paper is too conservative to look the crisis square in the face.  After all, the Civil War was, at bottom, a constitutional rupture in which Lincoln was forced to use semi-revolutionary means to solve a problem that was previously beyond reach.  It’s worth keeping in mind just how shaky the Union position was. Even though the North insisted that the slave states were acting contrary to the Constitution, the argument required a leap of faith since the document was a complete muddle when it came to the secession issue.  Thanks to the myriad compromises that the founders entered into in 1787, it was far from clear who was in charge, who had a right to leave, and who, if anyone, had power to stop them.  As one historian points out:

“If the Preamble located sovereignty in the American people, then the ratification clause (Article VII) made the states, not the people, so many sovereigns.  If Articles I and II allowed the people to select the members of the House of Representatives and some of the members of the Electoral College, they also allowed the states to select members of the Senate and the other members of the Electoral College.”^[1]

“Compact theorists” who argued that the Constitution was no more than a treaty that individual states could enter and leave as they saw fit thus had no shortage of arguments to support their point of view. The same goes for “chartists” who viewed the federal government as sovereign: they could find plenty of material in the Constitution to support their perspective as well.  Since neither side could prevail, there was no other way to settle the question other than through force of arms.  

Some 640,000 people, roughly two percent of the population, had to die as a consequence.  It was a thrilling victory, certainly.  But democracy would have been better served if the people had been able to settle the slavery question in ways that were less glorious and a bit more mundane.

Leonhardt makes other mistakes. One that occurs roughly a quarter of the way through is particularly galling: “The founders did not design the United States to be a pure democracy.” The state is a real eye-roller because it begs all sorts of questions that the Times doesn’t pause to consider. What does “pure democracy” mean? Even though the founders designed the current structure, does that imply that they’re the final word? How long must Americans limit themselves to what a group of tribal patriarchs said they could or could not do — another decade? another century? Are they condemned to stand by idly as US society disintegrates around them, not despite the Constitution but because of it? Or at some point can they take whatever measures they think are necessary to save it under their own authority?

Leonhardt also makes no mention of the amending clause set forth in Article V, which allows 13 states representing as little as 4.4 percent of the population to block any constitutional reform desired by the other 95.6. By this measure, the Constitution is more twice as restrictive as it was in Washington’s day and 50 percent more than in Lincoln’s. A constitutional structure that grows more change averse the antiquated it becomes is a recipe for disaster. Yet, once again, there is no way out of the bind, at least not under the present system.

The implications of all this constitutional arteriosclerosis are stunning, yet they’re not something the Times can even bring itself to consider.

^[1] Michael F. Conlin, The Constitutional Origins of the American Civil War (Cambridge, 2019), 204.

Why do American journalists’ brains turn to mush whenever the Constitution comes up?  Examples abound in the wake of last week’s disastrous Supreme Court overturning Roe v. Wade.  There’s neocon Max Boot who offers the curious view in the Washington Post that while the founders were well known for  being “afraid of the tyranny of the majority,” it turns out that “they were also afraid of the tyranny of the minority.”  What? The founders were afraid of … both?  Keeanga-Yamahtta Taylor writes in the New Yorker that “[i]t is long overdue to end the Court’s undemocratic role in US society.” This makes sense considering that 60 percent of Americans oppose overturning Roe.  But why stop at just the court when the entire system is shot through with undemocratic features, e.g. a Senate based on equal state representation, an Electoral College that triples the weight of white, rural, underpopulated states like Wyoming, a filibuster that lets tiny minorities veto just about any bill, etc.?

There’s Jacobin, semi-official organ of Democratic Socialists of America, which has just come up with five modest proposals for restoring Roe, i.e. codify the right to an abortion by incorporating it into federal law; repeal the Hyde Amendment so that federal money can once again fund abortions; punish “the Supremes” by cutting their budget; pack the court with liberals à la FDR; and, finally, impeach hard-core rightists like Neil Gorsuch and Brett Kavanaugh for misleading Congress as to their real intentions regarding Roe when they were nominated.  It all sounds quite nice except that none of them stands a chance.  Even if codification makes it through Congress, an ultra-right court is likely shoot it down on the grounds that interferes with state constitutional prerogatives.  Congressional support for repealing Hyde is minimal, just as it is for court packing or budget cutting.  And it will even lower once the Democrats suffer the shellacking in the upcoming midterm elections that now seems inevitable.  

As for impeachment, it’s a nonstarter for the simple reason that the Constitution requires a two-thirds Senate vote to convict.  That’s a 67-vote super-majority that is simply unattainable except in the most extreme circumstances.   

Finally, there’s Jill Filipovic, a regular at the Guardian’s US edition and author of OK Boomer, Let’s Talk: How My Generation Got Left Behind, published in 2020 by Simon and Schuster.  Filipovic is admirably succinct and forthright in pointing out that “Americans are now living in an undemocratic nation of reactionary minority rule.”  She’s right: democracy is giving way to judicial dictatorship. But then she turns mushy too.  Referring to George W. Bush’s Supreme Court-sanctioned electoral theft in December 2000, she says:

“Democrats had a chance to correct it.  They had a base that was livid about what had happened, and a country primed to accept a ‘one person, one vote’ rule for elections.  And despite a huge win in 2008, they did absolutely nothing to prevent such an undemocratic result from happening again.”

But what, exactly, would Filipovic have had Democrats do – push through a constitutional amendment abolishing the Electoral College?  That’s impossible given that the two-thirds, three-fourths rule in Article V means that 13 states representing as little as 4.4 percent of the population have effective veto power.  If she thinks country is primed for one person-one vote, does she think the principle ought to extend to the Senate as well?  If so, Article V says that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” which means that unanimous approval is required if equal state representation is to be modified in the slightest.  The Rocky Mountains will crumble into the sea before anything like that occurs.

Filipovic is a lawyer – she’s got a JD from NYU – yet she doesn’t seem to know very much about the legal document she’s discussing.   Yes, the US is a minority dictatorship.  But it’s not a matter of a provision here or there, but of a way of thinking that permeates the entire structure.

There’s the amending process for example.  There’s impeachment in which the 34 senators capable of blocking conviction can represent as little as 8.3 percent of the population.  There’s the Senate in general, which is so monstrously lopsided that it allows the 54 percent of the country that lives in just ten states to be outvoted four-to-one by the minority in the other 40.  There’s the filibuster, which allows 41 senators representing as little as 11 percent to block any bill.  There’s the provision in Article 1, section three, allowing one-third-plus to block the expulsion of any member from either house no matter how egregious his or her behavior.  There’s the two-thirds majority needed to override a presidential veto in Article I, section seven, which means that one-third-plus in either house is all that’s needed to uphold it.  There’s the one-third-plus Senate minority that can block any treaty.  

And so on. Indeed, Mitch McConnell – also a lawyer, by the way – put his finger on the problem when he recently observed that “[v]irtually everything in the Constitution is designed to defend the minority against the majority.”  Quite right: that in a nutshell is the essence of checks and balances.  But the Constitution doesn’t just defend the minority; rather, it allows it to ride roughshod over those with the votes.  

This is absurd.  To be sure, Hamilton declared in Federalist 22 that “the fundamental maxim of republican government … [is] that the sense of the majority should prevail.”  But the Federalist Papers are a grab-bag that can be used to support anything and the opposite.  More relevant is Federalist 10 in which Madison stresses the importance of “mak[ing] it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, … [making it] more difficult for all who feel it to discover their own strength and to act in unison with each other.”

The reason?  Democracy is dangerous.  The people are prone to “improper or wicked” enthusiasms, Madison goes on, such as “[a] rage for paper money, for an abolition of debts, [or] for an equal division of property.”  Hence, the majority must be broken up and constrained via checks and balances, separation of powers, and other such 18th-century rigmarole.  Madison feared a repeat of Shay’s Rebellion, an uprising of indebted farmers that threw western Massachusetts into turmoil in late 1786 and early 1787.  But as a Virginia planter, he also feared the incipient bourgeoisie taking shape up north.  He worried about “[a] landed interest, a manufacturing interest, a mercantile interest, [or] a moneyed interest” invading one another’s turf – especially, in his case, the turf occupied by Virginia’s slave-owning gentry.  “Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures?”  These “are questions,” he said, “which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good.”  Translation: they want to do us harm, but we’re not going to let them.  The whole point of the elaborate constitutional structure Madison had helped create was thus to prevent manufacturers from winning majority support and thereby invading the Virginia planters’ realm.

It’s a recipe for separate but equal economic development north and south of the Mason-Dixon line. But the scheme fell apart in 1860-61 just as it’s falling apart today.  The idea that minorities have certain interests that the majority shouldn’t overstep essentially allows ever-smaller interests to veto society as a whole.  A majority supports abortion rights?  It doesn’t matter because a small number of ultra-conservatives have seized control of the Supreme Court and are putting opposite policies into effect.  A majority thinks that the federal government should require coal-fired power plants to limit greenhouse-gas emissions?  That doesn’t matter either because a minority-controlled court says no to that as well.

It’s a purely negative view of society that is anti-democratic to the core, yet has nothing to put in democracy’s place.  In a curious reversal, the Republicans are not unlike certain 60s radicals who were all for tearing down the political structure but had no idea what to replace it with.  

This is the problem.  An 18^th-century constitution has pushed minority rule to lengths that are nihilistic and absurd.  America has “reached almost the last stage of national humiliation,” as Hamilton put it in Federalist 15.  Yet no solution is possible within a constitutional structure that is grossly at odds with the needs of democratic society.  There is only one solution, which is to dislodge the structure and replace it with something more democratic.  This means revolution.  As dear old Margaret Thatcher used to say, “There is no alternative.”

There is no way out of this crisis.  American society is “caged,” as the sociologist Michael Mann puts it in his three-part opus, The Sources of Social Power.  It can’t escape, it can’t back down, and it can’t find some fire pole to slither down either.  It’s truly up against a wall.  “Democrats can’t fix the past,” Filipovic goes on.  “But the least they can do is learn from it – and change course accordingly.”  But how can people change course when they’re not in control?  How can they “end the Court’s undemocratic role in US society” when constitutional reform is a dead letter?  After running through the dreadful health consequences of the anti-Roe decision, a New Yorker writer named Jia Tolentino winds up by calling on Americans to keep a stiff upper lip.  “We will need to be full-throated and unconditional about abortion as a necessary precondition to justice and equal rights if we want even a chance of someday getting somewhere better,” she says.  But a chance of something better? How is this even possible when all roads are blocked?

The American plan of government, drafted in the summer of 1787 and ratified the following June, opens with a 52-word statement of purpose:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.”

One could parse those words nearly endlessly.  “We the people of the United States” is ambiguous since it’s unclear if it refers to the people of the individual states or the nation as a whole, a minor technicality that would require an entire civil war to sort out.  Since “to form a more perfect union” is ungrammatical – there can’t be degrees of perfection – it’s unclear what it means or whether it means anything at all.

But the rest – “establish justice, insure domestic tranquility,” etc. – seems straight-forward enough.  The new republic, such phrases suggest, should be a place in which people are treated fairly and honestly and can live and work together in something approaching peace and harmony.  That doesn’t mean they have to wear a smiley face around the clock.  But it does mean that they shouldn’t go around blowing heads off with AR-15s.

Yet that is precisely what’s happening.  It happened in Uvalde, it happened in Buffalo, and it’s happening more recently in places like Philadelphia, Chattanooga, and other cities in which the body count many not be as high, but the bloodshed is just as horrific.

One reason it’s happening is constitutional, which is to say an expansive reading of the Second Amendment that has gained ground since the 1980s and 90s and has helped fuel a veritable explosion in firearms.  Sales have tripled over the last two decades to the point where there are now three guns in private hands for every two adults.  More than 45,000 gun fatalities occur each year as a consequence, five times more per-capita than in France, six times more than in Canada, 14 times more than in Australia, and 15 times more than in Germany.  So far this year, the US has seen twelve mass murders, defined as any incident in which four or more victims are killed, plus 249 mass shootings, defined as any incident in which four or more victims are killed or wounded.  Last weekend saw eleven mass shootings alone, the aforementioned incident in Philadelphia that left three people dead and a dozen wounded, a bar fight in Chattanooga that killed two more, a shooting in Saginaw, Michigan, that killed three and wounded two, and so on.

“Domestic tranquility” this is not.  Neither is it “promot[ing] the general welfare” or “secur[ing] the blessings of liberty to ourselves and our posterity” for the simple reason that the individuals who should enjoy such blessings are lying in pools of blood.  Rather than advancing the goals set forth in the Preamble, the part of the Constitution known as the Second Amendment is undermining them.

But that’s not all.  If “we the people” decide that the Second Amendment is no longer working the way we think it should, the solution is simple: fix it.  Just as there’s no reason to throw out a car when the radio is on the blink, there’s no reason to throw out an entire constitution when a certain section is malfunctioning.  But there’s a problem here as well.  The people can’t avail themselves of such a common-sense logic because another part is also dysfunctional, i.e. the amending clause set forth in Article V.  This is the section that says that changing so much as a comma in the sacred text requires the approval of two-thirds of each house of Congress plus three-fourths of the states.  The last is a killer since the effect is to give an unqualified veto to one-fourth-plus of the states – just 13 in all – even though they may represent as little as 4.4 percent of the population.

Since no one will have any trouble drawing up a list of 13 states guaranteed to just say no to altering the Second Amendment in the slightest, the problem is unfixable.  Even though the Preamble says it’s the people’s constitution, the people are powerless to change a provision that is causing their children to die.   

Uvalde highlighted two other problems: the stunning incompetence of the police and the absence of social or psychological services aimed at reaching out to troubled young people before they explode.  “We as a state … need to do a better job with mental health,” Texas Governor Greg Abbott said at a press conference the day after the massacre. But what Abbott forgot to mention is that, just a few weeks earlier, he slashed $211 million from the state mental-health budget even though Texas was already dead last in terms of access to mental-health care.

This is another outrage that the people should fix but can’t.  America’s hyper-federal system places such responsibilities firmly in the states and therefore limits the degree to which the people can intervene as a whole. This is absurd. But since updating such an outdated structure would also require constitutional reform, Article V says no to this as well.

The structure is rotten, yet nothing can be done – zero, nada, zilch — because the same rotten structure won’t permit it. But there’s a solution to this tautology: step outside it so as to act on the structure in its entirety. If the Constitution is riddled with problems, then the people use their constituent power to suspend it while they go over it with a fine-toothed comb to determine what, if anything, is worth saving and what’s not. To quote the Declaration of Independence, the people should “institute new government … in such form as to them shall seem most likely to effect their safety and happiness.” They should declare the Constitution unconstitutional, therefore, and design a new one better suited to carrying out the Preamble’s goals.

This is what the framers did in tossing out the Articles of Confederation, which were so counterproductive that the entire country was in “almost the last stage of national humiliation,” as Hamilton would later put it in the Federalist Papers.  Moreover, they disposed of the articles not according to the articles’ own rules, which required unanimous state consent for any constitutional change, but according to new rules that they made up on the spot. Today’s population could do the same by overhauling the Constitution according to new rules that they devise as well.

The result would not be a constitutional convention but a constituent assembly, which is completely different. Article V outlines what a constitutional convention would be like, and it makes clear that it would be elected by the states and that whatever it comes up with would be subject to the same two-thirds, three-fourths rule governing the rest of the amending process.  The problem of a 4.4-percent veto would thus remain.  But a constituent assembly is different. It would not act under the authority of Article V, but the Preamble, which says, in effect, that “we the people” can “ordain and establish” new constitutions to serve our purposes and toss old ones out the window when they are no longer serving such ends. As such, it would be elected by the people as a whole and would have complete and total authority over the Constitution in general. If 51 percent of such a body turns thumbs down on the Second Amendment, then out it goes.  If the democratic majority says no to checks and balances, separation of powers, and other such 18^th-century rigmarole, then out they go too.  

The gun problem would be resolved in a flash, not constitutionally as the term is now understood, but democratically. America would get the clean democratic sweep it’s needed for generations.

This not something that some of us would like to happen.  To the contrary, it’s something that will happen if the country doesn’t first go plunging going over a cliff.  Otherwise, problems like guns, global warming, racial conflict, economic decay, you name it, will continue piling up until they reach a tipping point. Then society will collapse — not may, but will. If the people want to avoid such an outcome, they’ve got to take society in hand, not in part but in whole.

A new poll by the Wall Street Journal and the National Opinion Research Center at the University of Chicago shows what’s at stake.  The findings are grim.  Eighty-three percent of respondents described the economy as poor or “not so good,” 46 percent said they do not have a good chance of improving their standard of living, while 86 percent said that Americans are greatly divided when it comes to the most important values.  When pollsters asked respondents last year whether they expected those divisions to worsen over the next five years, a third said yes.  This time, the proportion was better than half.

“In the prior years that we’ve asked this question, there’s at least been some hope, a little bit more hope, that things might get better,” NORC VP Jennifer Benz said.  “That’s a key difference underlying all of this right now.”

Hope is vanishing thanks to an outmoded political structure shows itself as utterly inadequate to deal with the problems at hand.  This is very dangerous because if people are unable to come up with a democratic solution to what ails them, then they’ll opt for an authoritarian solution instead.  Democracy or barbarism – there is no alternative, as dear old Margaret Thatcher used to say.

The leak of a draft Supreme Court opinion repealing Roe v. Wade is so stunning it’s hard to know where to begin.  First, there’s the leak itself.  Although any number of ideas are bouncing around as to who dunnit, the theory that makes the most sense is that it was a liberal judicial clerk stunned and appalled that the court was about to abolish a right that women have enjoyed for half a century.  If so, it’s sad because it’s a safe bet that the leaker’s career will be ruined once his or her identity is revealed and that criminal or civil prosecution will follow.  But it’s also heroic since the leaker was no doubt trying to stop the court from pushing US society over a cliff – which is precisely what will happen if this ruling goes through.

But the leak is also a revolutionary act since, in violating various rules and ethics, it says, in effect, that such trifles don’t matter in view of a court that has lost all legitimacy.  This is not to say that it’s lost constitutional legitimacy since it’s still acting in accord with Article III as far as anyone can tell.  But what really counts in this day and age is democratic legitimacy, and, in that regard, the court is not just shooting itself in the foot, but using a bazooka to blow off its lower extremities.

The draft is flagrantly at odds with anything resembling the popular will.  After all, a recent poll found that only 28 percent of Americans think that Roe should be overturned versus 54 percent who think it should be upheld, while another poll was even more lopsided, with just 30 percent in favor of repeal and a whopping 69 percent opposed.  

But it’s not just the decision that’s undemocratic but the court itself.  As the conservative (!) journalist Byron York points out, four of the five justices who signed the draft were nominated by unelected presidents, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by Trump and Samuel Alito by George W. Bush.  They were then confirmed by a Senate so disproportionate that it gives multiracial California the same clout as lily-white Wyoming even though its population is 68 times greater.  The 54 senators who confirmed Gorsuch in 2017 thus represented just 44.6 percent of the population thanks to such monstrous imbalances while the 50 who put Kavanaugh over the top a year later represented 44.5.  The same goes for the 52 senators who confirmed Barrett in 2020: they represented a minority as well, i.s. 47.6 percent.  Alito, to be fair, made it by a hair since he was confirmed in 2006 by 59 senators representing 50.1.  But even though Thomas, the fifth signatory, was nominated by a duly-elected president (George Bush I), he’s still a minority choice because the 52 senators who voted for his confirmation in 1992 represented just 48.7.  That’s an average of 47 percent for each of the deadly five.  (By the way, the equivalent figures for Stephen Breyer, Sonia Sotomayor, and Elena Kagan, the court’s three remaining liberals who did not sign the opinion, are 89.5, 72.5, and 65.2 respectively.)

A minority-controlled executive thanks to a lopsided Electoral College and a minority-controlled Senate have moved the Supreme Court so far to the right that it is about to issue the most outrageously undemocratic decision since the 1930s.  The upshot is a dictatorship that can only intensify as the political infighting turns white-hot on Capitol Hill and a rightwing minority resolves to make the most of its built-in constitutional advantages.

It’s all quite reminiscent of the 1850s when a slaveholding minority in the south used its built-in constitutional advantages to control the federal government while a growing majority up north struggled to free itself in vain.  Some 170 years later, the same perverse constitutional mechanisms are at work, the same frustrations are building up to the point of explosion, and, once again, there’s no way out short of civil war.

This is what makes people like Chuck Schumer, Nancy Pelosi, and Elizabeth Warren so contemptible.  The day after Politico published the draft, Schumer called on Congress to codify Roe v. Wade by writing the right to an abortion into law.  But it’s so much empty blather since (a) Democrats no longer have a majority in the Senate now that Joe Manchin and Kyrsten Sinema have effectively deserted to the other side; (b) even if they did have a majority, they’d never be able to override a Republican filibuster, and (c) even they did override a filibuster, the Supreme Court would strike any such law down in a flash on the grounds that it amounts to a clear-cut violation of states’ rights.  If the draft opinion is correct and a constitutional right of privacy does not exist, then there’s nothing to stop states from doing away with abortion and no constitutional basis for Congress to stop them.

Pelosi lost no time after the Politico story broke to send out a mass fund-raising email describing the upcoming midterms as “the most important election in terms of women’s rights in history.”  This was also nonsense. Even if Democratic win big in November – which they won’t – they’ll still be unable to do anything to stop a Supreme Court bent on turning the clock back to the 18th century.  They won’t be able to codify Roe for constitutional reasons, and they would be able to alter the court’s ideological balance either because Alito and Thomas, the two most senior conservatives, are both in their early 70s and therefore are likely to remain on the bench for at least another decade.  Pelosi either doesn’t know what she’s talking about or she’s just hustling for funds.

Besides, this is the same Nancy Pelosi wo not long ago sang an ode of joy to — get this! — “the beautiful, exquisite, brilliant genius of the Constitution,” the same Constitution that is now robbing women of a fundamental right.

Finally, there’s Elizabeth Warren.  “An extremist Supreme Court is poised to overturn Roe v. Wade and impose it’s far-right, unpopular views on the entire country,” she tweeted on May 2.  “It’s time for the millions who support the Constitution and abortion rights to stand up and make their voices heard.  We’re not going back – not ever.”  Brave words!  But you are going back, Liz, because the slaveholders’ Constitution is not the instrument of democracy you say it is.  Rather, it’s a blueprint for minority control that you’ve spent your entire career helping to enforce.

Needless to say, small-d democrats – a category that most definitely does not include Pelosi, Schumer, and Warren – are outraged by the move to dump Roe.  But if they’re honest, they’ll also admit to being made uncomfortable by pro-privacy arguments of the sort that William O. Douglas made famous in Griswold v. Connecticut in 1965.  Yes, the Constitution should contain a right to privacy protecting not only abortion, but drugs, contraception, and sex work. But such a right does not exist in “penumbras and emanations” that only highly trained jurists can discern.  Rather, it should be in plain black and white for all to see.  In fact, just to make sure there’s no confusion, “we the people” should put up a big neon sign declaring: “The public has no legitimate interest in regulating activities that do not adversely affect public well-being.  Otherwise, individuals have a democratic right to do with their bodies what they will.”

Theoretically, the people could institutionalize such a right via the constitutional amending process set forth in Article V, except, of course, that the article makes it effectively impossible by giving untrammeled veto power to one-third-plus of either house or one-fourth-plus of the states.  This means that thirteen states representing as little as 4.4 percent of the population have an unqualified right to say no, not for a month or a week but forevermore.  Since 21 states have already shown where they stand by moving to restrict abortion, that particular escape hatch has been locked and bolted as well.

It’s yet another example of the minority dictatorship that Pelosi, Schumer, and Warren celebrate while making a great show of raging against the results. 

Ken Burns has a new documentary out about Benjamin Franklin, and it’s not entirely bad – well-paced, beautifully shot, but more than a bit on the bland side thanks to sponsors like Bank of America and Pew Charitable Trust and Burn’s own soft-core patriotism.  (See my review here.)  But the movie raises a point about the Declaration of Independence that’s worth exploring.

It concerns the declaration’s most famous line.  Thomas Jefferson originally rendered it as, “We hold these truths to be sacred and undeniable,” but Franklin, a master of plain speaking, blue-penciled the last three words and substituted “self-evident” instead.  The result was pithier, more secular, and also more mathematical in that it paved the way for a document constructed much like a Euclidean theorem.  The declaration thus began with a series of axioms to the effect that all men are created equal, that they are endowed with certain inalienable rights, and “that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  It then marshaled evidence in the form of a lengthy bill of indictment charging George III with “repeated injuries and usurpations all having in direct object the establishment of an absolute tyranny over these states.”  Finally, it arrived at a conclusion: since Britain aimed to reduce Americans to slavery and since the colonists had the same right of self-government as everybody else, then it followed that “these united colonies are, and of right ought to be, free and independent states.”

QED, as the math textbooks say.  The declaration “proved” that Americans had a right to go their own way.  But then Burns brings in a Columbia historian named Christopher Brown to zero in on a crucial contradiction:

“To say something is self-evident, to say that it’s common sense, is to say that there’s no other way to think about this, that only an irrational person who’s not using their mind correctly could contend with this thing, which is in fact really contentious.  It’s a classic lawyer’s trick to say, ‘We all agree to this thing.’  Who’s ‘we’?   The ‘we’ is presumptuous.”  (Quote begins at 30:04.)

Brown is right for the simple reason that Euclidean methodology is more paradoxical than it initially appears.  As readers may recall from high school, the purpose of an axiom is to provide a foundation with which to build a larger system of geometry.  Euclid began with just five, including the famous parallel postulate holding that parallel lines never meet.  From there, he went on to demonstrate how they could be used to generate a seemingly endless number of theorems about triangles, squares, rectangles, and so on.  It’s fascinating but problematic: all that system-building comes at a price since once you accept such axioms as your starting point, you essentially rule them off-limits to further inspection.  You can almost hear the wise guy in the back row raising his hand and asking how we know that parallel lines never meet.  To which the teacher can only respond: we just do – end of discussion.  The instructor must close off one avenue of inquiry so others can open up.

This may be what Brown means by “presumptuous.”  When it comes to such “self-evident” axioms, everyone must agree that “there’s no other way to think about this” so that the task of system-building can proceed. 

But imagine if the founders had not been in such a hurry.  Imagine if instead of accepting such axioms as givens, they had opened them up to debate.  Slaves, presumably, would have had something to say about all men being created equal when 20 percent of the population was in chains.  So would Native Americans since it was clear that the first thing the colonists would do upon casting off British rule would be to embark on a hell-for-leather western land grab.  The same goes for the 50 percent of the population that was female.  Did “men” refer to humanity in general or just the half that was male?  It’s a safe bet that women who had previously remained silent on such topics would suddenly have had much to say.  As someone who would enslave some 600 people over the course of his lifetime and father six children by a slave named Sally Hemings, Jefferson would also have had some ’splainin’ to do.

Which is why the founders preferred to toss off a few airy generalities before getting on with the business at hand, which was declaring independence.  Although often described as a forerunner of the French Revolution, the American revolution was in many ways the opposite.  In contrast to the French national assembly in which members raged at one another to boos and cheers from the galleries, the Constitutional Convention, which was held in secret, was a decorous affair in which debate was stilted and constrained.  Delegates didn’t passionately denounce the ancien régime for the simple reason that most didn’t view the ancien régime as entirely bad.  To the contrary, their goal was to turn back the clock to the ancien régime that existed prior to the mid-1760s when London was content to leave the colonies more or less on their own.  Instead of advancing into a brave new world, their goal was to return to the easy-going regime that had existed in the past.

This was a revolution in the pre-modern sense of society revolving in place.  A sense of this restorationist spirit can be gleaned from an interview that a certain Captain Preston, a 91-year-old veteran of the Battle of Concord, gave in 1842.  The exchange went like this:

Did you take up arms against intolerable oppressions?

Oppressions?  I didn’t feel them.

What, were you not oppressed by the Stamp Act?

I never saw one of those stamps.  I certainly never paid a penny for one of them.

Well, what then about the tea tax?

I never drank a drop of the stuff; the boys threw it all overboard.

Then I suppose you had been reading Harrington or Sidney and Locke about the eternal principles of liberty?

Never heard of ’em.  We read only the Bible, the Catechism, Watts’ Psalms and Hymns, and the Almanac.

Well, then, what was the matter?  And what did you mean in going to the fight?

Young man, what we meant in going for those redcoats was this: we always had governed ourselves, and we always meant to.  They didn’t mean we should.^[1]

Oddly enough, it was the Tories who were in favor of change while the “Old Whigs,” another word for the Patriot party, were opposed.  Eventually, Americans were forced to jettison such conservatism when the 1783 Articles of Confederation proved inadequate and they had no choice but to adopt a new constitution providing for an unprecedented degree of centralization.  But their reluctance was apparent.  While granting some powers to the new government, they specified in the Ninth and Tenth Amendments that all others would be “retained by the people” and that rights not expressly granted to the central authorities would be “reserved to the states.”  The language was foggy, but the underlying sentiment was clear.  While granting certain concessions to the new order, voters did so only under duress.

The contradiction was especially evident with regard to the class question, which is a good deal more complex than simple-minded populists like Staughton Lynd or Charles Beard would have us believe.  The French Revolution, as everyone knows, ended up sending the aristocrats to the guillotine.  But America’s sans-culottes, people like Sam Adams and the Sons of Liberty, did not.  Instead of chopping off the heads of the Virginia gentry, the closest thing America had to a native aristocracy, they deferred to people like Madison, Jefferson, and Washington, looked up to them, and wound up granting them more power than they ever enjoyed previously.  For “four score and seven years,” the sans-culottes – who were in fact an incipient bourgeoisie – took a back seat until society finally exploded in 1861.

The same goes for slavery. Instead of abolishing it as the French did in 1794, the Americans strengthened it to the point where it was virtually impregnable.  The three-fifths clause gave southern states as many as 25 extra seats in the House and an equal number of extra votes in the Electoral College.  Equal state representation in the Senate gave them a lock on both federal legislation and the constitutional amending process, a veto northern states couldn’t break no matter how much their population surged due to mass immigration.  Article I, section eight, required the feds to put down slave insurrections, while Article IV, section two, required northerners to return runaway slaves.

This was a change, certainly, since northerners had been under no obligation to return runaways before.  But it was change in defense of a pre-existing condition.  The result was a bizarre hybrid that was not only half slave and half free, but half democratic and half tyrannical, half progressive and half reactionary.  More than two centuries, the situation is essentially unchanged as American pseudo-democracy goes rushing backwards.

Burns ends his film with a description of how Franklin, after taking part in the Constitutional Convention in 1787, capped his career by taking on the presidency of the country’s first major abolitionist organization, the Pennsylvania Society for Promoting the Abolition of Slavery, and then presenting Congress with a petition declaring that the blessings of liberty cited in the Preamble “ought rightfully to be administered without distinction of color.”  Needless to say, Congress rejected it out of hand.

Burns presents it as a heroic gesture by one of the greatest men America ever produced.  But considering that Franklin had helped draft a constitution that strengthened slavery, it sounds like the final act of an old man who had deluded himself about the political structure he had just created and was now busily deluding others.

^[1] Samuel Eliot Morison, The Oxford History of the American People (New York: New American Library, 1972), vol. 1, p. 284.