Britain’s constitutional collapse

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Jean-Louis de Lolme: Parliament can do whatever it wants — but now it can’t.

A couple of points have been overlooked in the ongoing Brexit fiasco.  One is that referenda are not democratic.  The reason is simple.  Democracy is a process by which the masses take control of society and move it forward whereas a referendum is nothing more than a snapshot of how they feel at a given moment.  In a democracy, mistakes are to be expected.  Just as a child learns to walk by falling down, as Marx once put it, a sovereign people learns which path to take by venturing down others that turn out to be wrong.  Learning, progress, and democratic self-government are all impossible without the freedom to err.

But a referendum permits no such freedom.  Instead, it locks people into a position from which there is no escape.  A recent poll indicates that a majority of Britons now favor staying put inside the EU.  But it doesn’t matter because the vote is set in stone and any attempt to change it will be seen as akin to moving the goalposts in the final minutes of a soccer match because the other side is ahead.  The same goes for a second Brexit vote: it, too, is seen as an illegitimate, last-minute rules change.  So nothing can be done.  Brexiteers figure that they won fair and square, and now they want Parliament to do as it’s told, with no if’s, and’s, or but’s about it.

Brexit cripples parliamentary sovereignty while at the same time undermining democracy by robbing people of a crucial right – the right to change their mind.  The other point that’s been overlooked is that the British constitution is none too democratic either.  Parliamentary sovereignty, the ability of the “crown-in-parliament” to do whatever it wants short of changing a man into a woman and a woman into a man (to quote the eighteenth-century political philosopher Jean-Louis de Lolme), may resemble popular sovereignty in certain respects, but at bottom it’s very different.  In one, the people mobilize government while, in the other, government mobilizes the people every five years or so merely to vote yea or nay on how it’s doing.  It’s a fundamentally passive relationship between people and government that inevitably favors the Tories, the party of stand-pat Burkean conservatism, over leftwing Laborites who want change but at the same time are required to bow down before a constitution that emphasizes traditional and continuity.  Partisans of Britain’s famous unwritten constitution may claim that it’s neutral, but there’s no doubt that it really stands with the right.

Hence, it’s no surprise that a pseudo-democratic structure opted for a pseudo-democratic solution to the problem of whether or not to remain in the EU.

Which brings us to first-past-the-post voting.  The New York Times recently quoted a British pub-goer as blaming the current paralysis on a system that promotes political polarization by allowing policy to be “hijacked by an even smaller segment of the ruling government, the right-wing element of the party.”  It’s true that the system distorts as much as it reflects democratic sentiment.  Theoretically, Britain’s winner-take-all system allows a party to prevail by winning a bare majority of votes in a bare majority of British constituencies, which is to say with a little more than a quarter of the total.  And, in fact, parliamentary representation only loosely accords with the voting results.  In 2010, the Tories wound up with 47 percent of the seats despite winning just 36 percent of the vote.  In 2015, they ended up with 51 percent despite winning just 37.  In 2017,  they ended up with 49 despite winning just 42.

An unrepresentative parliament thus begat an unrepresentative referendum.  If Britain had proportional representation, in which each party’s share of seats exactly matches its share of the vote, there would have been no need for a referendum because the makeup of the national assembly would have precisely reflected the democratic will.  It would have been clear where people stand with regard to the EU without having to bother with a separate vote.  This is not to say that Brexiteers wouldn’t have prevailed.  To the contrary, they might well have.  But once it became clear how difficult leaving would be, there would have been ample opportunity for reflection and reconsideration as majority opinion shifted to the other side.

Popular sovereignty has thus been thrice denied – by an antiquated constitution that emphasizes continuity over change, by an unrepresentative voting system, and by a set-in-stone referendum.  An undemocratic system has painted itself into a corner as a consequence.  Reform is long overdue, yet real structural change is impossible without a break with the past, something that neither Labor nor the Tories want.  So both parties are frozen as the polity that gave us the industrial revolution and classic liberalism tumbles over a cliff.  But don’t worry – the US is following close behind.

Elizabeth Warren calls for overthrowing the Electoral College

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Elizabeth Warren: “every vote matters…”

Democratic presidential candidate Elizabeth Warren is making headlines by calling for the elimination of the Electoral College.  As she told an audience in Jacksonville, Miss., a week or so ago: “Well, my view is that every vote matters, and the way we can make that happen is that we can have national voting, and that means get rid of the Electoral College.”  Even more interesting was the response from the racially mixed audience: prolonged and enthusiastic applause.  America’s huddled masses are hungry – not for some shallow reform or other, which no one at this point believes will accomplish a thing, but for fundamental structural change.  They’re sick and tired of an absurd eighteenth-century constitution that hinders them at every turn and are yearning to breathe free.  Plainly, there’s a whiff of revolution in the air.

Otherwise, Warren’s statement can be safely dismissed as one of those games that bourgeois politicians play.  As a former Harvard law prof, she must know that the Electoral College is untouchable under anything like current circumstances.  The reason, of course, is the dysfunctional amending clause in Article V that gives absolute veto power to one-quarter-plus of the fifty states.  When you take the ten low-population states that would see their clout slashed in presidential elections by a half to two-thirds if the EC were abolished and combine them with the dozen or so swing states that would no longer bask in political attention every four years, then it’s clear that opponents would have no trouble winning over the thirteen states needed to stop any such change in its tracks.

To be sure, there’s also the National Popular Vote Interstate Compact, which is being billed as a painless way of bypassing the Article V roadblock.  But it’s hardly a magic solution.  The idea behind it seems simple.  All it requires is that individual states pledge that their “electors” will abide by the popular vote as soon as states comprising a majority of the Electoral College sign on.  Once the 270-vote threshold is attained, the popular vote will be all that matters and the college’s role will be reduced to ratifying the popular will.  But Colorado is the only swing state to climb on board after more than a dozen years, while Rhode Island and Vermont are the only ones among the bottom thirteen of least-populous states.  No Republican states have signed up either since the scheme would almost certainly favor the Democrats.  So while the compact has racked up endorsements from states representing 181 electoral votes so far, it’s highly unlikely to reach 270.

There’s another problem as well.  Contrary to popular belief, the United States does not hold a presidential election every four years.  Rather, it holds fifty separate elections, 51 if you count the District of Columbia, all conducted by local authorities according to various different rules.  As a result, a popular vote in, say, Massachusetts is not the same as one in Florida or North Carolina.  If the national popular vote is to be determinative, the rules will have to be standardized to avoid lumping together apples and oranges.  But if tampering with the Electoral College is likely to run into a buzzsaw of opposition, transferring electoral power from the states to the federal government will run into even more.

The uproar from diehard Republican states is guaranteed to be overwhelming.  Excising the Electoral College is thus doubly or triply doomed.  Like everything else in America’s superannuated constitution – a wildly inequitable Senate, a gerrymandered House, a complicated legislative process that fairly invites gridlock, etc. – it’s effectively unchangeable.  But that’s why the Constitution has lasted for some 230 years: because it’s frozen in place.  Politicians will issue rousing calls for change from time to time, audiences will clap and cheer, and pundits will churn out the usual thumbsuckers demanding that something be done.  But then everyone will go back to sleep.  Lather, rinse, repeat – that’s how constitutional debate works in this country.

Nothing will change – except that something will.  The current situation is untenable.  Yes, even though the EC has overridden the popular vote two times out of the last five elections, the country may dodge a bullet in 2020, in 2024, or after.  Eyelids will once again droop as memories of 2016 fade.  But the damage will not go away.  The longer Americans surrender before such problems, the more they underscore their own impotence, and the deeper they will allow the rot to go.

There’s an interesting parallel here with the United Kingdom.  The U.S. Constitution and the centralized “Westminster” system are really just two branches of the same Anglo-American tree, ones that began diverging at some point in the mid-eighteenth century.  The British system may have seemed more efficient in the years since. But with its monarchy, House of Lords, and attendant class system, it’s just as hidebound and decrepit as the American branch, with voting inequities that are just as pronounced.  With its 55 electoral votes, for example, California gets one vote for every 539,079 citizens within the voting age, while Wyoming, with three electoral votes, gets for every 148,610.  That’s a ratio of 3.6 to one.  But the Isle of Wight sends the same number of people to Parliament, i.e. one, as the Island of Lewis and Harris in the extreme north even though it’s voting-age population is five times greater (i.e. 110,697 vs. 21,769).  The anomaly has led to two 2016-style election upsets in the last seventy years or so, one in 1951 and another in February 1974.  But instead of fixing it, British politicians have allowed it to fester.

Could this deep political passivity be part of the reason that Britain is now stumbling over a cliff thanks to Brexit?  More on that anon.

William G. Brownlow: the Radical Republican who rammed through the Fourteenth Amendment

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William G. Brownlow: The people’s hero now vilified as “Tennessee’s worst governor.

In my previous post, I noted that the post-Civil War constitutional amendments were “force bills” imposed on ex-Confederate states as a condition of their readmission to the Union and that in one case, i.e. Tennessee, passage was rammed through “literally at a gunpoint.”

Here’s a more complete account of this fascinating incident.  According to E. Merton Coulter’s William G. Brownlow: Fighting Parson of the Southern Highlands (Univ. of North Carolina Press, 1937), Brownlow, Tennessee’s Radical Republican governor from 1865-69, wanted the state legislature to ratify the proposed new Fourteenth Amendment on July 4, 1866.   But he had a problem: a rebellion by die-hard pro-rebel forces in the lower house.  Determined to prevent a quorum, dissidents resigned on the spot or fled the capitol and went into hiding.  Brownlow first appealed for federal troops.  But when President Andrew Johnson, the crypto-Confederate who opposed ratification, turned him down, he looked to his fellow radicals in the lower house.

They rose to the occasion.  Under intense pressure, Speaker of the House William Heiskell issued arrest warrants for the absentees and sent Sergeant-at-arms William Heydt out into the countryside to serve them.  Heydt caught up with one member in the state’s eastern hill country and rounded another as well.  Returning to the state capitol in Nashville, he imprisoned both men in a committee room.  But when Heiskell, by now beginning to waver, declared that a quorum had still not been obtained, members overrode his decision, declared the two arrested members to be present, and then voted to ratify.  When a local judge ordered the prisoners to be released, they ignored him. When the judge then slapped Heydt with a ten-dollar fine, the legislature impeached him and removed him from office.

All of which made a mockery of the convoluted amending process set forth in Article V.  But the process is so asinine, so out of date, and so undemocratic that it deserves to be mocked, and Brownlow was a hero for doing it.  For his efforts, he has earned the undying contempt of racists who took control of the state in 1870 and have not relinquished it since.  They vilified him as “Tennessee’s worst governor” and “the most hated man in Tennessee history,” while, in 1981, a poll of fifty-two so-called state historians rated him the worst governor in Tennessee history.  In April 1987, someone hung a portrait of him in the legislative library, but it was quickly taken down.

No good deed goes unpunished, as they say.  But considering that the Posse Comitatus, the Christian Identity movement, and other ultra-rightists have long condemned the Fourteenth Amendment for granting civil rights revolution to non-white “mud people,” what would happen if such groups were to file suit against it on the grounds that it’s unconstitutional?  What would the ACLU do – condemn Brownlow for trampling on Article V, defend him, or argue that it’s all irrelevant because the amendment is by now settled law?

 

 

Department of constitutional breakdown: Something is happening but you don’t know what it is….

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Michael Cohen: Fixer turned accuser

“Given my experience working for Mr. Trump, I fear that if he loses the election in 2020 that there will never be a peaceful transition of power.”

Thus spake Michael Cohen at Wednesday’s hearing before the House oversight committee.  Over at TRNN, Paul Jay took this to mean that fascism is bearing down on us yet again.  This fell wide of the mark, however, for at least three reasons.  One is that Trump, despite certain Mussolini-esque tendencies, is far from a genuine fascist, as Dylan Rileyrecently showed in the New Left Review.  Another is that the man’s isolation is so complete in Washington that it’s hard to imagine the military or intelligence agencies following him into the trenches should he attempt something crazy like overturning a presidential election.  The third reason is that authoritarianism is fully bipartisan at this point, meaning that it is no less likely to come from the anti-Trump forces at this point as from Donald himself.

Nonetheless, Jay is in the right ballpark, more or less.  In May 2017, acting CIA Director Andrew McCabe and Deputy Attorney General Rod Rosenstein held a series of crisis meetings following the firing of Jim Comey in which they discussed using the Twenty-fifth Amendment to remove Trump from office – an act that amounted to an incipient coup d’état since it involved an obvious misuse of an amendment designed to deal with a president who is “unable to discharge the powers and duties of his office,” not one who, in the opinion of the FBI, is all too capable of turning the country over to the Russians.

Then, just two weeks ago, Trump declared a state of emergency in order to build his Mexican wall, another incipient or quasi-coup since it marked the first time such powers have been used to short-circuit Congress’s constitutional control over the purse strings.  If we include Cohen’s warning that Trump will not go gently into that good night in 2020, then it’s clear that the system’s ability to insure a democratic transition is more and more in doubt.

What does it all mean? Simply that the ancient machinery is experiencing something akin to cardiac arrest according to the people who live under its aegis.  The breakdown has been in the works at least since Watergate, the scandal that saw the removal of a president of pronounced dictatorial tendencies without any attempt to repair the constitutional machinery that allowed him to accumulate such powers in the first place.

In fact, Watergate saw the opposite, a quasi-religious celebration of the Constitution as a kind of divine protector.  “My faith in the Constitution is whole; it is complete; it is total,” sang Congresswoman Barbara Jordan.  “I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.” She was a defender of the faith sallying forth in the name of the sacred scroll.

The results were all too predictable: an upsurge in constitutional piety even as a dangerous logjam continued to pile up on Capitol Hill.  All but destroyed by congressional infighting, Jimmy Carter gave way to Ronald Reagan, a thoroughgoing reactionary who raised political fantasy to an art form.  “He is a Prospero of American memories, a magician who carries a bright, ideal America like a holograph in his mind and projects its image in the air,” gushed Time Magazine in its Fourth of July issue in 1986.  “…Reagan, master illusionist, is himself a kind of American dream.  Looking at his genial, crinkly face prompts a sense of wonder: How does he pull it off?”  The constitutional machinery was so decrepit that magic was the only thing that would make it work.  The Bush I and Clinton administrations ushered in an era of non-stop wars: the invasion of Panama in December 1989, the first Persian Gulf war in August 1990, and then a dozen years of intermittent bombing raids on Iraq starting in 1991.  Bush II upped the ante by invading Afghanistan and Iraq, while Barack Obama, deferring to “Queen of Chaos” Hillary Clinton and her followers, upped it even more by unleashing death and destruction on Libya, Syria, Yemen, and the Ukraine.  The atmosphere on Capitol Hill meanwhile grew more and more poisonous as Newt Gingrich’s back-to-back government shutdowns in 1995-96 gave way to wars over Monica Lewinsky’s little blue dress, the battle over Barack Obama’s birth certificate, the Benghazi hearings, Russiagate, and now Michael Cohen.

Warfare abroad led warfare at home.  Imperial overstretch in places like eastern Europe and the Middle East became bound up with constitutional collapse at the center.  While Congress remained violence-free, the story was different out in the hinterlands as Trump campaign rallies regularly erupted in fighting and clashes between anti-fascists and ultra-rightists in Charlottesville in August 2017 led to more than thirty injuries and the murder of a 32-year-old socialist named Heather Heyer.

What does the future hold?  After four decades or so, the answer is obvious: an acceleration of the crisis until some sort of breaking point is reached.  This is the significance of Cohen’s statement last week: people know a crisis is coming, they can feel it in their bones, but there’s nothing they can do to head it off.

The situation is so similar to the run-up to the Civil War that even the Washington Post has taken notice.  Thanks to the three-fifths clause and a southern-controlled Senate, a surprisingly small number of large-scale planters – nationwide, just 338 planters owned 250 or more slaves[1]– were able to leverage their power so as to acquire a veto over the federal government.  Democracy was blocked, yet there was nothing that the democratic majority could do.  “We the people” couldn’t amend the Constitution to eliminate slavery because slave states controlled both houses of Congress, and they couldn’t reinterpret it because southerners dominated the federal judiciary.  Their sole remaining option was to attack the problem extra-constitutionally via civil war, which is what they did.

Today, the US is seeing a similar efflorescence of minority rule.  Gerrymandering and voter suppression have added to Republican clout in the House while widening state population discrepancies have resulted in a Senate that is ever more lopsided.  Thanks to equal state representation, the 53 Republicans who control the upper house represent just 48 percent of the population, while the 41 Republican senators capable of stopping a bill in its tracks under current filibuster rules account for as little as twenty.  The Electoral College triples the weight of lily-white bastions like Wyoming and the Dakotas, while the two-thirds/three-fourths rule in Article V means that thirteen states representing just 4.4 percent of the population can veto any constitutional amendment sought by the remaining 95.6.

Those numbers are bound to worsen in the coming decades as state population differentials grow.  According to projections by the University of Virginia’s Demographics Research Group, the ratio between the most and least populous states, currently 68 to one, will hit 79 to one by the year 2040, while instead of 4.4 percent of the population, the thirteen states capable of vetoing a constitutional amendment will account for as little as 4.2.  Democracy will shrink, yet, once again, there will be nothing that the huddled masses living in multi-racial giants like California or New York will be able to do within the existing framework.  Their only option, rather, is to bust free by creating an entirely new framework, not in accordance with the existing rules but according to new rules they formulate in the course of their revolt.

The 1860s provides a hint of how this would work.  The Thirteenth, Fourteenth, and Fifteenth Amendments, ratified between 1864 and 1870, not only abolished slavery and guaranteed the right to vote irrespective of “race, color, or previous condition of servitude,” but established a new relationship between  the individual, the states, and the federal government.  They tightened the bonds so that a loose confederation turned into something approaching a modern nation-state.  No less importantly, the amendments were not ratified according to the rules set forth in Article V, but, rather, were “force bills” that Radical Republicans imposed on the ex-Confederate states, literally at a gunpoint in one case, i.e. Tennessee, as a condition of their readmission to the Union.

The process didn’t go far enough, which is why southern racists and northern conservatives succeeded in eviscerating the amendments so as to thrust blacks back into a state of semi-servitude and impose a dictatorship of capital on the nation as a whole.  But at least it tells us something about a how a revolutionary process liberates itself from existing rules and regulations in the process of creating a new order.  Led by the working class, Americans will have to do something similar in response to the present impasse, although naturally it will have to be far more radical and sweeping.

 

 

 

 

 

[1]William Kauffman Scarborough, Masters of the Big House: Elite Planters of Mid-Nineteenth-Century South(Baton Rouge: Louisiana State Univ. Press, 2003), 6.

How do we know Trump is president?

Venezuela's President Nicolas Maduro sholds a news conference in Caracas

Venezuela’s Nicolás Maduro: What gives Trump the authority to say he’s no longer president?

Garry Leech, a journalist, author, and academic, raised an interesting question in Counterpunch the other day, one that, unfortunately, he didn’t pursue quite far enough.  Since the Trump administration has decided to intervene in Venezuelan politics by recognizing Juan Guaidó as president, Leech wondered, then why shouldn’t he intervene in American politics by proclaiming himself president of the US?  One hardly seems more arbitrary than the other, legally speaking.   So if millions of American long to free themselves of Trump, why not take Leech up on his offer?

Leech was being satirical, but for the moment let’s take him at his word.  What’s wrong with his proposal?  For most Americans, the answer is easy: it’s contrary to the law.  Since it’s up to the Electoral College to choose a president, the fact that Leech didn’t wrack up a single electoral vote as far as anyone knows means that he doesn’t qualify.  If he tries to force his way into the White House, guards will regard him as an illegal intruder and respond accordingly.

But how do we know it’s up to the Electoral College?  The answer is that the Constitution says as much in Article II, section one, which deals with how presidents are to be chosen.  And how do we know that the Constitution is determinative, as the lawyers say?  Because it declares itself in Article VI to be “the supreme law of the land.”  The reason that Donald Trump is president and Garry Leech is not, in other words, is because a 230-year-old piece of parchment says so.

But what if Leech fetches another piece of parchment and writes on it that he hereby grants himself full authority to appoint himself commander-in-chief?  If so, we would have two competing documents, each claiming to be the final word.  Needless to say, constitutional experts would point out that since Leech wrote his document himself, it reflects nothing more than the whim of a single individual whereas the Constitution rests on the authority of an entire nation, i.e. “we the people” who ordained and established it.

But there’s a problem here, which is that the meaning of “we the people” has changed over the centuries.  In 1787, it meant white male property owners, virtually the only people allowed to participate in elections for the special state ratification conventions called to approve the proposed new plan of government.  This hardly qualifies as democratic by modern standards, while the fact that an estimated 160,000 people voted out of a total population of 3.9 million renders it less impressive still.[1]

So “we the people” did not ratify the Constitution in a way that we now regard as meaningful.  While conceding that the original ratification process was flawed, the same experts might reply that Americans have since demonstrated their support by living and dying for the Constitution and governing themselves according to its precepts.  But this concept of an on-going de-facto ratification doesn’t add up since we can’t be sure if Americans have approved of the Constitution all these years or merely acceded to it.  The only way to be certain is to put it to a formal vote.  But the Constitution makes no provision for an up or down vote on the entire document, so the courts would almost certainly intervene were Congress to allocate money for any such purpose.

So we’re stuck with a Constitution that blocks the only sure way of determining if it still enjoys a measure of democratic support.  In the final analysis, this means that the only authority it rests on is its own.  We obey the Constitution because it tells us to, and it tells us to because it’s the Constitution.  Ultimately, this is no better than a scrap of paper bearing the words, “I do hereby appoint myself president with all the rights and privileges thereof.”  It’s self-justifying, circular, and hence meaningless.

This is not word play, but a problem that goes to the heart of America’s growing political troubles.  The crisis facing the US today is one of legitimacy, which is to say the right to rule.  Trump lost the 2016 election by 2.8 million votes, yet slipped into office by virtue of an obscure constitutional provision that Americans had long regarded as a dead letter.  This is the second time this has happened in less than two decades, yet it’s likely to occur more and more as state population discrepancies widen and the Electoral College grows increasingly unrepresentative.  Yet thanks to an amending clause that is even more dysfunctional, there’s nothing Americans can do.  Supposedly, “we the people” are sovereign, meaning that we can do anything we think necessary to “establish justice, insure domestic tranquility, provide for the common defense,” and so forth.  Yet we’re powerless to repair an obvious defect that represents a growing danger to democracy.

This is absurd, but not unique.  In fact, it’s merely an extreme version of a malady affecting virtually every liberal democracy on earth.  All pay lip service to popular sovereignty, yet all set rules concerning how far popular sovereignty can go.  As a result, governments have spent the last few decades busily locking citizens up in huge international structures that are effectively beyond their control.  The European Union is the most glaring example, but others include the IMF, the World Bank, the World Trade Organization, and even the UN, all of which can make or break entire societies yet are subject to only the most indirect forms of democratic governance.  As Brexit demonstrates, the people cannot rebel against this unjust arrangement without suffering grievous consequences.  So their only option is to submit or strike out on their own and no doubt fare even worse.

It’s a Hobson’s choice if ever there was one.  To be sure, Britons voted better than two to one in a 1973 referendum to remain in the European Economic Community, the precursor of the EU.  But no one knew at the time there would be no way out.  Arguably, this wouldn’t have mattered if the EU were more democratic.  But it’s not, which is why the current situation is increasingly unsustainable.

What is to be done?  As far as the US is concerned, the options seem clear.  Since the Constitution is unchangeable, the only way out is to impose change from without by smashing through the legal constraints and establishing government on the basis of new laws that the people would then establish to justify their rule.  This means retroactively legalizing their own illegal act, a prerogative that only a supra-legal sovereign enjoys.  If this sounds dangerously radical, bear in mind that the founders did the same in 1787 when they declared in Article VII that the new plan of government would go into effect according to rules that were contrary to the existing law of the land.  (Where the Articles of Confederation, adopted in 1783 and still in effect, said that any constitutional change must be approved by all thirteen states, the new Constitution announced in Article VII that it would be considered ratified when approved by just nine.)

The same goes for Europe.  Instead of a Rube Goldberg-style governing apparatus consisting of a European Parliament, a European Commission, two European councils, plus who knows how many other bodies, Europeans must put an end to such absurdities and – led by the working class – reorganize the continent on a completely new and democratic basis.

No one knows how it will be done, whether via a general strike, workers’ councils, a constituent assembly, or some combination of all three.  But the more society buckles under the weight of the post-2008 economic slowdown, the more a showdown looms.  Revolution is crazy, far-fetched, fantastic — and unavoidable.

[1]Forrest McDonald, E Pluribus Unum: The Formation of the American Republic 1776-1790(Indianapolis: Liberty Fund, 1965), 319.

American jitters (with apologies to Edmund Wilson)

House Minority Leader Nancy Pelosi (D-Calif.) during a news conference on the day after a mass shooting at Marjory Stoneman Douglas High School.

Nancy Pelosi: Victim of a system she doesn’t understand.

Elections are supposed to make things better.  After thrashing out the issues this way and that, “we the people” at some point are supposed to call the question by putting it to a vote.  On average, 49 percent will be unhappy with the outcome.  But while vowing to fight on, they’ll have no choice but to go along.  After all, all they have to do is persuade one or two percent to switch sides in order to displace the old majority and declare themselves the new majority instead.

The majority is dead!  Long live the majority!  Such is the theory at least, but it’s not how things work in an eighteenth-century republic like the United States.  Thanks to a system of constitutionally entrenched minority rule that grows more oppressive by the year, elections accomplish nothing except to remind the majority of its growing impotence.

Thus, Donald Trump lost the 2016 election by 2.8 million votes but still found his way into the White House.  The 2018 elections were fair as far as the House was concerned since the Democrats’ share of the seats (54 percent) closely matched their share of the overall vote (53.4).  But the Senate was the opposite.  While garnering better than 59 percent of the total vote, Dems wound up with two seats less.  The majority lost in one contest, prevailed in another, and remains stymied by a minority president who wants to build a wall along the Mexican border that 54 percent of the country doesn’t like.

It doesn’t make sense.  But if a 231-year-old Constitution says it’s right, who are mere mortals to disagree?  This upside-down state of affairs explains the plight of people like Nancy Pelosi and Adam Schitt … er, sorry, Schiff.  Democratic legitimacy and power supposedly go hand in hand, but whereas Pelosi and the rest arguably possess one, they lack the other.  Consequently, they’re prisoners of a government shutdown now entering its fifth week as much as everyone else.

So Thursday’s very funny incident about a congressional junket to Belgium and Afghanistan showed.  Irritated with Pelosi for canceling his State of the Union address before Congress, Trump responded by sending a letter informing her that he was cancelling the military flight that had  been scheduled to transport her and her colleagues overseas.  According to the Times:

Mr. Schiff was on the bus outside the Rayburn House Office Building near the Capitol when Mr. Trump fired off his letter, along with Representative Eliot L. Engel, Democrat of New York and the chairman of the Foreign Affairs Committee, and several other lawmakers in what made for an unusual tableau.

Instead of heading for Joint Base Andrews and boarding a military plane, the lawmakers sat stunned on their bus, unsure of what to do next, until it eventually drove slowly to the Capitol driveway – some journalists jogging or riding electric scooters to keep up – to disgorge its perplexed passengers.  At one point, the House sergeant-at-arms, the chamber’s chief law enforcement officer, turned up to puzzle over the security arrangements for the lawmakers, whose secret travel plans were now public.

The Times says that House freshmen, all Democrats, also “staged a boisterous protest march” to call for an end to the shutdown.  But it adds:

When the House freshmen, all Democrats, arrived at the office of the Senate majority leader, Mitch McConnell, Republican of Kentucky, … to deliver a letter demanding that he reopen the government, they quickly discovered he was not there.

 One of Mr. McConnell’s deputies, Don Stewart, accepted the letter and promised to give it to his boss.  The lawmakers then milled outside Mr. McConnell’s office to plot their next move, as tourists gawked and cameras clicked, particularly at Representative Alexandria Ocasio-Cortez, Democrat of New York and a media darling.

AOC, as she’s known, would love to be an American La Pasionaria rallying her troops to overthrow Trump and his fellow oligarchs.  But a system of institutionalized impotence won’t let her.  Instead, it reduces her to the level of a “media darling,” as the Times calls it, someone for tourists to gawk at and photograph, but otherwise not take terribly seriously.

The farce goes on.  It’s tempting to say that Pelosi and Schiff got what they deserved.  Both are dutiful servants of imperialism who have supported every US war of aggression since the invasion of Afghanistan and Iraq.  Their all-expense-paid tour of Brussels and Kabul was nothing more than an opportunity to review the troops and bask in American military glory.  Schiff, who looks like a hyperactive gerbil in the best of times, no doubt hoped it would shore up his warrior credentials in preparation for a presidential bid in 2024.

But cheering on their humiliation would be wrong, as Richard Nixon would say.  Trump not only flaunted his control of federal expenditures in cancelling the trip, but his control of the military.  He’s got the aircraft and the rest of the shiny hardware, and Pelosi doesn’t    If he does declare a state of emergency as the shutdown drags on longer and longer, the new authoritarianism it ushers in will clearly have a militaristic edge.

I once described the House in a fit of enthusiasm as a proto-parliament awaiting its Cromwellian moment when it shuts down the other branches and takes power on its own (The Frozen Republic, pp. 289-97).  It was a mistake based on simplistic reading of Anglo-American constitutional history.  In fact, the House is a fundamentally conservative body closer in spirit to an Islamic shura than to a modern democratic assembly.  Rather than making new law, its primary purpose is to remind the ruler of his obligation to old law in the form of the Constitution.  Whether or not Pelosi enjoys the backing of the democratic majority, the fact remains that she is not a democrat at all, but the creature of an increasingly counter-democratic system who can’t understand why it’s treating her so badly.

 

The New York Times Urges Trump On

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The Times’s Charlie Savage: yes to a state of emergency

Donald Trump’s threat to declare a national emergency in order to fund a wall along the Mexican border is chilling.  But Charlie Savage’s front-page story in yesterday’s Times is even worse because it endorses a unilateral declaration before Trump even takes such a drastic step.  It’s more than a bit redolent of the Weimar Republic when centrists laid the basis for authoritarian government long before Hitler was at the point of seizing power.

Savage’s logic is dizzying.  While a state of emergency “would be an extraordinary violation of constitutional norms,” he writes, it may be “the only politically realistic way out of the shutdown” since it would allow government to resume while shifting the question of whether a state of emergency is legal onto the courts.

There, he assures us, it will languish for years, “keeping lawyers far busier than construction workers, at least initially, as his [i.e. Trump’s] term ticks away.”  If the declaration loses, Trump will happily bash away at liberal judges on the 2020 campaign trail.  If it’s sustained, he adds, he’ll still be tied up for years in litigation with border property owners unwilling to give up their land.

So a wall will be put off while Congress gets back to the business of government (such as it is).  To be sure, the article acknowledges “the risk of longer-term damage to the American constitutional system,” or at least quotes Elizabeth Goitein of NYU’s Brennan Center to that effect.  But this is hardly adequate.  It’s not merely a question of damage, but of taking a constitutional system that is already in an advanced state of decay and tossing it over a bridge.

An exaggeration?  Not at all.  Washington has seen a growing civil war over the last quarter of a century or so.  Three major government shutdowns have occurred, one for 26 days in 1995-96, another for sixteen days in 2013, and now one approaching the end of its third week.  Each has left Congress angrier, more polarized, and more gridlocked than ever.  A state of emergency would therefore seem to be a logical next step, one in which the executive branch gives up on a cumbersome legislative process and decides to bypass it altogether.

But once that Rubicon is crossed, what’s to stop it from doing it again and again?  The answer is nothing.  The more unilateralism becomes the norm, the more the presidential party will be inclined to drag its feet on Capitol Hill in the hope that the White House will break the logjam by issuing yet another emergency decree.  Congress will grow more dysfunctional as legislative power shifts ever more decisively to the executive.  Instead of a democracy, the US will wind up with a kind of Bonapartist presidential dictatorship interrupted every four years by elections distorted by big money, dirty tricks, and a lopsided Electoral College.  (For more on the Bonapartists threat, see what I wrote about Trump in Jacobin in December 2015.)  Checks and balances, the hallowed eighteenth-century mechanism that supposedly steers American politics firmly to the center, will become a dead letter.  Politics will grow even more elitist, corrupt, and dysfunctional than they already are.

Comparisons with Weimar are unavoidable.  Thanks to the abortive German revolution of 1918, the constitution that emerged a year later was an ungainly mix of the democratic and authoritarian.  Since the Reichstag was elected according to strict proportional representation with no minimum required for entry, a party could gain a seat with as little as 0.4 percent of the vote.  As a result, 28 parties were represented as of 1930 and forty as of 1933.  But contrary to decades of liberal propaganda, this was not the problem.  The problem, rather, was Weimar’s notorious Article 48, which gave the president sweeping emergency powers, thereby allowing him to cut short the legislative process and rule directly on his own.  This is precisely what President von Hindenburg, first elected in 1925, did once the crash of 1929 hit Germany with gale-force winds.  As the Reichstag descended into irrelevance, power retreated into an inner sanctum presided over by an arch-conservative ex-field marshal well into his eighties.  With the economy plummeting and major street fighting erupting between Nazis and Communists, the equally conservative Franz von Papen, Hindenburg hand-picked prime minister even though he didn’t have a seat in parliament, figured he had no choice but to bring in a real strongman to take matters in hand.  Von Papen assured his fellow rightists that he could keep Hitler under control, but that’s not quite how things turned out.

America’s constitutional fault lines are curiously similar. The problem is not a multitude of small parties since the “Repocrats” are by now history’s oldest two-party system since the Guelphs and Ghibellines of late-medieval Italy.  Rather, it’s an arcane division of power among three or four branches of government, the executive, the judiciary, plus the two houses of Congress.  The older the system grows and the more polarized politics become, the more the rickety old machinery freezes up in moments of stress.  The more it does so, the more emergency rule looms as the only practical alternative.  The United States finds itself treading the same path as Germany whether it likes it or not.

And now, to complete the analogy, we have the Times urging on emergency rule just as conservative parties like Konrad Adenauer’s Zentrum did decades earlier.  The Times doesn’t approve of radicalism, of course.  It’s constitutionally averse, so to speak.  But like German centrists, it figures it has no choice because it’s the only thing that will break the deadlock.  It assumes that the system will right itself once Trump is out of office — but, but, then, people like Von Papen lulled themselves to sleep with fairy tales as well.  Once a precedent is established, authoritarianism will in fact acquire a logic that is all but unbreakable.  It’s happened before, and it will definitely happen again.

America’s antiquated governmental machinery fairly cries out for an overhaul.  But Article V, the US equivalent of Weimar Germany’s Article 48, makes it impossible by allowing tiny minorities – just thirteen states representing as little as 4.4 percent of the US population – to veto the slightest constitutional reform.  Just as a revolution was the only thing that would have averted a democratic collapse in Germany – something that Stalin rendered impossible with his insane doctrine of “after Hitler, our turn” – a revolution sweeping away an absurd eighteenth-century governing structure is the only thing that will avert democratic collapse today.  America’s huddled masses are desperately in need of a genuine democracy that speaks to the needs of the working class.  But they can’t get there from here under anything resembling the present system.  What will they do – suffer in silence or take the measures needed to save society?