Post-Roe constitutional mush

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.?

Neocon Max Boot: constitutional mush

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 18th-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?

Is the US Constitution unconstitutional?

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

Gov. Greg Abbott: Texas double dealer

“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 18th-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 Constitution’s revenge

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.

Elizabeth Warren: Seriously annoying

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 and the whitewashing of Benjamin Franklin

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.

Benjamin Franklin: Deluded

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.

The “broken” Supreme Court confirmation process

Ketanji Brown Jackson

Now that Susan Collins, the moderate Republican from Maine, has announced that she’ll vote to confirm Ketanji Brown Jackson, it looks like her Supreme Court appointment is assured.  Spoil-sport Kyrsten Sinema is still sitting on the fence.  But it doesn’t matter because Jackson has 50 senators in her corner, enough to put her over the top with Vice President Kamala Harris casting the tie-breaking vote.

Not that it matters, though.  Jackson will be replacing liberal Stephen Breyer, who is stepping down after 27 years.  So despite her appointment, the court’s conservative majority will remain unchanged at 6-3.  Thanks to modern medicine, the two oldest conservatives, Clarence Thomas and Sam Alito, both 73, will likely go on handing down decisions for another decade or more, which means that the Supreme Court’s conservative dictatorship could continue well into the mid-2030s.  Jackson doesn’t change that a bit.

But the nomination does matter in one respect, i.e. what it says about the process.  The verdict is not good.  The New York Times says that “Republican manhandling” of the nominee, behavior that included asking about her religion, her racial views, allegations that she’s soft on child porn, etc., shows that the “confirmation process is irredeemably broken.”  “Broken” is also the word that Bloomberg News used to describe the Amy Coney Barrett confirmation process in 2020 and how ABC News described the tumultuous Brett Kavanaugh hearings two years earlier.  

So broken it is.  But this leads to the big question: why, precisely, has the confirmation process plunged to such abysmal depths?  For the pro-Democratic press, which includes just about everyone except for Fox News, the answer is easy: Republicans have taken a deep dive into racial backlash and QAnon freakdom, and their ridiculous questioning concerning Jackson’s views on Critical Race Theory and kiddie porn shows it.  And they’re right – except that Dems went equally bonkers over Kavanaugh and Barrett.  (See “The Great Kavanaugh Freakout” below.)  Either both parties have gone crazy at the exact same moment or something deeper is going on.

Needless to say, it’s the latter.

Basically, the real issue at hand is one of meaning and interpretation.  You don’t have to labor through William Empson’s Seven Types of Ambiguity to know that meaning is problematic and that clarity only emerges as part of an on-going dialectical struggle.  Anyone who’s married knows how it goes.  “But that’s not what I meant,” one spouse will say, whereupon the other will reply, “Then what did you mean?”  Only after an extended give-and-take does the answer begin to come out.

The concept of a living Constitution, that old liberal mainstay, assumes something similar, i.e. collective engagement by the courts, the people, Congress, etc. in the process of figuring out what it says about any given topic.  Because the document has so many layers of meaning, only the constitutional system as a whole, with all its various institutions and organs, is capable of sorting it all out.  But the concept opens itself up to attack from conservatives who invariably complain that the purpose of endless chatter about penumbras and emanations is to cover up for the fact that liberals are torturing the text to make it say what they want.  What’s the point of a Constitution if Democrats get to change its meaning at will?

Hence the great conservative backlash of the 1980s.  The battle began with Ronald Reagan’s nomination of Robert Bork in 1987.  Bork’s position was as plain as the text he proposed to explicate.  Liberal jurists, he said, should adhere to the clear meaning of the Constitution, and if they don’t like what it says, then they should avail themselves of the amending clause in Article V to change it.  Interpretation was to be reined in. But Bork was more than a bit disingenuous since, as he well knew, the amending clause is so dysfunctional that it allows impossibly small minorities – as little as 4.4 percent according to the latest census figures – to block even the most modest constitutional reforms.  This is why Americans are forever agonizing about the Second Amendment: because an infinitesimal number of rural Americans are determined to veto any textual emendation aimed at clearing it up and they have the power under the Constitution to make their views stick.

Bork’s modest proposal would thus cripple liberals for decades to come. Their only option, therefore, was to up the rhetoric to the highest possible level.  Declared Teddy Kennedy in a nationwide TV address:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Wow!  NAACP executive director Benjamin Hooks added of the Bork nomination: “We will fight it all the way – until hell freezes over, and then we’ll skate across on the ice.”

Liberals cheered and cheered.  But what no one had the guts or the analytical ability to point out is that Bork was not the problem – the amending clause was.  The more difficult the clause, the more frozen the constitutional structure and hence the greater the dependency of liberals on the miracle of interpretation to break through the ice.  

Since Congress was by this point dysfunctional as well, the Supreme Court rose in importance and the battles over each new nominee grew more and more vicious.  Kavanaugh – whom the liberal Yale law prof Akhil Reed Amar said “commands wide and deep respect among scholars, lawyers, and jurists” – ran into a MeToo wave of hysteria thanks to the dubious testimony of Christine Blasey Ford.  Amy Coney Barrett ran into religious bigotry on the part of Dianne Feinstein – “The dogma lives loudly within you,” the California Democrat memorably declared – while Jackson ran into racism on the part of Ted Cruz.

Each side is more disgraceful than the other.  But it’s not their fault, at least not directly, because the real problem lies not with people like Josh Hawley or Lindsey Graham, however reprehensible they may be.  Rather, it lies with a political structure that grows more frozen by the year.  This is the elephant in the room that no one knows what to do about, least of all office-holders who have taken an oath to preserve, protect, and defend a document that is beyond decrepit.  So they all pretend that the problem doesn’t exist.  Could anything be more pathetic?

 

Time to get this blog up and running again

It’s been sixteen months since my last entry, which is absolutely unconscionable given all that’s happened in the interim.  Nothing terribly important, of course, merely:

— an attempted coup d’état;

— a failed effort to hold Donald Trump to account for the January 6 insurrection via a dysfunctional impeachment mechanism;

— the Afghan debacle;

— an ongoing effort by the GOP to re-engineer the electoral process so that a Democrat never enters the White House again;

— the great Biden collapse;

— gathering economic storm clouds;

— and a looming war with Russia, proud owner of more than six thousand nuclear warheads.  

As I said, nothing important – unless, that is, you regard a terminal crisis affecting the global hegemon as noteworthy, at which point it becomes a very important indeed.

What’s it all mean?  Simply that America’s long-running constitutional breakdown is reaching a critical stage.  Every day brings a new horror story as the crisis intensifies.  One moment it’s an unaccountable Supreme Court moving to overturn Roe v. Wade despite polls showing public support running at a whopping 72 percent.  The next it’s the death and destruction of “Build Back Better,” Joe Biden’s highly flawed but nonetheless popular legislative program. Op-ed pages feature articles acknowledging that something is wrong with America’s 234-year-old constitutional system and that perhaps the Founders were not as foresighted as they are usually made out to be.  But no one has a clue as what to do next.

The problem with the Constitution is that its greatest strength, i.e. its Gibraltar-like solidity, turns out to be its greatest weakness since it renders the system all but immune to structural reform.  The amending clause set forth in Article V is a disaster in the same way that the three-fifth clause in Article I was a disaster in the years leading up to the Civil War.  Both immobilize the system at precisely the moment when change is most pressing. Article V’s two-thirds rule, which says that any constitutional change must be approved by two-thirds of each house, means that 34 senators representing as little as 7.4 percent of the country can block any structural reform sought by the other 92.6. The three-fourths rule, which says that proposed amendments must also gain the approval of three-fourths of the states, is even worse since it allows thirteen states representing as little as 4.4 percent do the same.

The result is that less than one person in 23 can just say no to whatever the rest have to offer, not for years or decades, but in perpetuity.  This would be bad enough if the problem consisted of just a few minor design flaws.  But it doesn’t.  Rather, the problem before us is an 18th-century constitution whose basic thrust is utterly at odds with the needs of modern democracy. Checks and balances and separation of powers are as out of date as leeches and exorcism.  Yet they’re all the Founders left us to deal with a growing list of modern maladies.  The entire rickety contraption is in desperate need of a re-think from top to bottom, yet Article V rules out even the most modest tinkering. America is thus stuck with a pre-modern constitution that is dragging it into the lower depths, yet which it can do nothing to shake off.

Americans want reform so badly that they can practically taste it.  But like Tantalus, the Greek god neck-deep in water that would recede whenever he lowered his mouth, it finds that it’s always beyond reach.  So it will remain as long as this idiotic system stays in power – which, hopefully, won’t be for long.

Organ failure meanwhile leads to a diminished flow of oxygen to the brain, which is why political leadership is declining so dramatically.  American politicians weren’t always this stupid.  Barack Obama actually had some semi-smart things to say on occasion, although Putin still ran rings around him in Syria and the Ukraine.  But the quality of leadership since then has fallen off a cliff.  Donald Trump, Hillary Clinton, Joe Biden – what can one say about such sorry specimens except that each has proved worse than the next?  Clinton and Biden played leading roles in pushing through the 2003 invasion of Iraq, the single most disastrous decision in US foreign policy since Vietnam, and while Trump clearly exaggerated his own opposition to the war, the fact remains that he turned against it within a matter of months whereas Biden continued supporting it until 2008 while Clinton did so until 2014 when it was clear that she’d never get the Democratic nomination if she didn’t beat a retreat.  Trump’s sins pale in comparison to such blindness.  Russiagate, which every Democrat touted at the top of his or her lungs during the Trump years, was little more than a liberal version of QAnon, an absurd conspiracy theory about the Kremlin supposedly using $44,000 worth of Facebook ads to subvert the electoral system and take over the White House.  It was too far-fetched even for a loyal anti-Trump foot soldier like Robert Mueller, which is why he was forced to admit that collusion was unprovable.  But top Dems like the odious Adam Schiff continue to cling to it as if it were the gospel.  

And now we have Biden leading us into war in the Ukraine.  The imbecility of a needless conflict with Russia is simply staggering.  It’s as if no one in Washington had ever read or even heard of Barbara Tuchman’s Guns of August (1962), a tale about how European powers allowed themselves to be dragged into an unwinnable conflict in 1914 simply because they were too feeble-minded or timid to throw the locomotive of war into reverse.  To be sure, imperial conflicts sometimes acquire a momentum beyond the control of ordinary statesmen.  But at least they know when they’re stumbling into disaster whereas Biden, Blinken, and the rest seem to have no historical consciousness at all.  They’re children living eternally in the present, yet that’s the only sort of leadership that the brain-dead American political system seems capable of generating at the moment.

All hegemons fall victim to imperial overstretch.  So we know from Paul Kennedy’s Rise and Fall of the Great Powers (1987), another cautionary tale that no one in Washington seems to have read.  Yet not only is the US falling into the same trap by looking for trouble in no less than three theaters of war, not only the Black Sea but the Persian Gulf and the South China Sea as well, but it’s also falling victim to political and economic disaster.  Government has stopped working, politicians have stopped thinking, generals have stopping winning, and Wall Street is going into a swoon. Collapse is over-determined, as the sociologists say, which is why the mood in Washington is so grim – and likely to grow even grimmer as the years unfold.

We’ll all have an opportunity watch what happens when the roof caves in. The coming period should thus be … interesting.  I promise to do a better job covering the next stage of the crisis than I did in the previous.

Why America is as racist as ever (Answer: It’s the Constitution, stupid)

Image

Racism, racism, racism – haven’t we heard enough?  It’s more than half a century since the Civil Rights Act outlawed discrimination in housing, education, and public accommodations, so why don’t people just give it a rest?  Isn’t it time we moved onto something important, like when the next “Wonder Woman” movie is coming out?Er, no.  People can’t stop talking about racism for two reasons: (1) anti-racism is an ongoing struggle and (2) it’s actually gotten worse.  Yes, the language is politer than in the days when Mississippi Democrat Theodore Bilbo would rail against the horrors of miscegenation on the Senate floor. But in other respects, the trend in key ruling institutions has been the opposite, i.e. toward greater misrepresentation and bias rather than less.  This is not hyperbole, but plain fact.

James Madison:
Ur-racist?
James Madison: Ur-racist?

Racism, racism, racism – haven’t we had enough?  It’s more than half a century since the Civil Rights Act outlawed discrimination in housing, education, and public accommodations, so why don’t people just give it a rest?  Now that the problem has been solved, isn’t it time we moved onto something important, like when the next “Wonder Woman” movie is coming out?

Er, not quite.  People can’t stop talking about racism for two reasons: (1) anti-racism is an ongoing struggle and (2) it’s gotten worse.  Yes, the language is politer than in the days when Mississippi Democrat Theodore Bilbo would rail against miscegenation on the Senate floor.  But otherwise, the trend in key ruling institutions is the opposite, i.e. toward greater misrepresentation and bias rather than less.  This is not hyperbole, but fact.

The Senate is the best example.  As everyone knows, equal state representation, the idea that every state is entitled to two senators each, is an affront to any concept of democratic equality. It means not only that California winds up with the same number of votes as Wyoming even though its population is 69 times greater, but that the majority of Americans who live in just ten states find themselves outvoted four-to-one by a minority that lives in the other forty.

It’s a situation without parallel in the putative democratic world.  But it’s only half the story because, racially, the Senate is even worse.  While 54 percent of Americans live in the ten biggest states, the portion of blacks, Hispanics, Asians, and other minorities is even greater – nearly 75 percent.  Ten states with nineteen percent more minorities than the national average find themselves outvoted by forty others with 32 percent less. 

This is what structural racism looks like.  What’s even more remarkable is that it’s all relatively new.  Sixty years ago, the proportion of Americans living in the top ten – California, Texas, New York, Florida, Pennsylvania, Illinois, Ohio, Georgia, North Carolina, and Michigan – also stood at 54 percent, meaning that the Senate was no more or less undemocratic then than it is now.  But the racial consequences were nil because the proportion of minorities was less than in the country as a whole — 23.5 percent less, to be exact.  The Senate was demographically lopsided but not racially, at least not in the same respect.  But now it is despite decades of marching, protesting, and nearly endless litigation.  Minorities have advanced in some respects, but fallen behind in others.

This might not matter if the Senate were some minor Washington outpost, but of course it’s not.  In most bicameral systems, upper houses are less powerful because they’re less democratic, e.g. Britain’s House of Lords, France’s indirectly-elected Senate, the German Federal Republic’s Bundesrat whose members are appointed by the länder, or states, etc.  But the US system is unique in that it gives the Senate more power rather than less.  Except for the constitutional provision that all spending bills must originate in the lower chamber, its legislative powers are fully equal to those of the House while it enjoys exclusive veto power over Supreme Court nominations, treaties, cabinet members, and other executive-branch appointments as well.  Thanks to the filibuster, 41 senators representing as little as eleven percent of the population can kill any bill, while 34 senators representing as little as 7.5 percent can kill any constitutional amendment.  The Senate is an all-powerful god of destruction, yet it’s as racist as, say, the Minneapolis police department.

Why is this happening – and why isn’t anybody talking about it?  The short answer is that the US Constitution is a kind of computer program that encourages certain types of discussion while short-circuiting those that don’t.  Americans can thus argue endlessly about this or that Senate bill, but not about the Senate itself or why it exists in the first place.  This is not to say that the Constitution forbids such discussion; rather, it renders it so superfluous that few people even bother.  Like dissidents in certain Latin American countries, it sees to it that problems arising out of the Senate’s undemocratic structure are “disappeared.”  As for the other question – how things ever got so awful – it’s because the Senate emerged out of a series of elaborate compromises in 1787 that were less between big and small states than between slave and free.  As James Madison put it according to his own notes of the proceedings, “the great division of interests in the U. States did not lie between the large & small States; it lay between the Northern & Southern” because of “their having or not having slaves.”  Since southern delegations had made it clear that they would not recommend ratification unless their demands were met, centrists like Washington and Hamilton granted concession after concession to keep them in the fold.  The Constitution wound up promising that a new federal government would not interfere with slave importations prior to 1808; that even free states would apprehend and return runaways; that the federal government would put down slave revolts, and, most notoriously, that slaves would count as three-fifths of a person for purposes of congressional apportionment, a provision that by the 1850s would give slave states as many as twenty-five extra seats in the House and twenty-five extra votes in the Electoral College.  Not only did the founders entrench slavery — they entrenched slaveholder control of the entire republic.

That wasn’t all.  The founders also included an amending clause with two notable provisos.  One was Article V’s requirement that two-thirds of each house plus three-fourths of the states give their approval before the Constitution could be changed in the slightest. The other was a clause specifying that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”  Due to southern parity in the Senate and the south’s extra votes in the House and Electoral College, the first all but guaranteed that the Constitution’s pro-slavery provisions would remain beyond political reach.  The second provided an extra layer of protection by seeing to it that the Senate’s basic structure would remain unalterable as well.  The Senate was the keystone of the arch, an unchangeable element that insured that the rest of the apparatus would be immovable as well.

Political passivity was assured.  The result some 230 years later is that while millions of people may take to the streets denouncing this or that racist abuse, one atrocity that they will not discuss is the constitutional racism that is at the core of the problem. The structural question is purely theoretical as far as 99.9 percent of Americans are concerned, hence not worth mentioning. After all, why protest what you can’t change? Yet people continue to protest racism itself even though, according to bourgeois-liberal dogma, it’s unchangeable too — even though it’s not.

Structural racism doesn’t end with the Senate.  Given its power over judicial appointments, its racial imbalance also infects the federal courts.  Because it doubles or even triples the power of lily-white bastions like Wyoming, Montana, and the Dakotas, the Electoral College short-changes minorities for more or less the same reason, i.e. because it privileges states over people.  Gerrymandering, a practice that goes back to the nation’s founding – it’s named after Elbridge Gerry, a Massachusetts politician who was a delegate in 1787 – has the same effect in the House and in dozens of state legislative houses too. Racial equality suffers because democratic equality in the United States is at most half-formed and incomplete.

So if America is racist, it’s not because Americans suffer from some incurable psychological disorder, but because the Constitution is a slave document that should have been overhauled generations ago, but has only been subject to a few tweaks here and there.  It’s not that Americans don’t long for something more thorough. But a two-thirds / three-fourths rule that allows just thirteen states representing as little as 4.4 of the population to veto any and all amendments renders comprehensive reform impossible.  Americans are prisoners of an undemocratic system that oppresses all working people, whites and blacks alike.  When will they set themselves free? 

Britain’s constitutional collapse

Portrait_of_Jean-Louis_de_Lolme_from_Constitution_de_l'Angleterre_(1789)

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 no more than a snapshot of how they feel at a certain moment.  One is dynamic, the other static.  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 allows for no such freedom.  To the contrary, 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 game.  The same goes for a second Brexit vote: it, too, is seen as an illegitimate last-minute change.  So nothing can be done about a referendum that is apparently inviolate.  Brexiteers figure that they won fair and square and therefore want Parliament to do as it’s told.  Apparently, the losing side has no recourse.

Brexit thus cripples parliamentary sovereignty while robbing the people of a basic democratic right – the right to change their mind.  But the other point that’s overlooked is that parliamentary sovereignty, the total power enjoyed by the “crown-in-parliament,” may resemble popular sovereignty in certain respects, but it’s a bird of a very different feather.  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 that ultimately favors the Tories, the party of stand-pat conservatism, over leftwing Laborites who want change but at the same time feel obliged to bow down before a constitutional traditional that is all about continuity and keeping faith with the past.  Partisans of Britain’s famous unwritten constitution may claim that it’s neutral, but there’s no doubt that it favors the right.

So is any 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, a basic element in Britain’s constitutional make-up .  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.”  The pub-goer is quite right: by allowing a party to prevail by winning a bare majority of votes in a bare majority of constituencies, first-past-the-post consistently distorts democratic sentiment.  The UK is not as awful as the US, where Trump was able to capture the White House despite losing by more than 2.8 million votes.  But it’s still pretty bad.  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.  Instead of pushing ahead with democratic reform, the political classes opted for a process resulting in something like constitutional collapse.  If the voting system had been more democratic, there would have been no need for a referendum since Parliament would have more accurately reflected national sentiment.   That doesn’t mean that Brexiteers wouldn’t have prevailed.  They might well have, if only in the short term.  But once it became clear how difficult leaving the EU would be, there would have been plenty of opportunity to re-open the question.  Instead of being locked in, voters would have been free to debate the issue anew and perhaps change their mind.

But now popular sovereignty is thrice denied – by an antiquated constitution that imposes a dictatorship of the past, by an unrepresentative voting system, and by a set-in-stone referendum.  An undemocratic system has painted itself into a corner.  Reform is overdue, yet structural change is impossible without a break with tradition, something that neither Labor nor Conservatives want to do.  So both parties are frozen as the country that gave us the industrial revolution and classic liberalism stumbles 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?