In the wake of the Brett Kavanaugh affair, a number of news outlets have discovered that the body that confirmed him, i.e. the US Senate, is less than a model of democracy. Due to growing state population discrepancies, declared Lawrence O’Donnell on MSNBC, “the votes of New Yorkers and Californians [are] worth less everyday in the United States compared to the votes of people in the Dakotas.” At the New York Times, David Leonhardt described the Senate as “affirmative action for white people” and calculated that it gives whites 35 percent more political clout than blacks and 85 percent more than Hispanics. Over at the Atlantic, Parker Richards noted that the fifty senators who voted for Kavanaugh represent just 44 percent of the US population, adding: “those who want abolition and those who want more modest, but nonetheless significant, changes agree: The Senate is increasingly unrepresentative of the American populace.”
How incendiary. Then there is Ezra Klein, whose essay at Vox.com, “The Rigging of American Politics,” is even more sweeping. “Since 2000,” he writes, “fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.”
Yes, it really is a horror show. “Kavanaugh now serves on a Supreme Court,” Klein goes on, “where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office.” Having gained control of the executive branch, the House, and the Senate, the minority dictatorship has thus moved on to the judiciary, which it will now use to deepen and extend its rule. The result, Klein writes, is a growing crisis of legitimacy in which “we the people” no longer believe that the system is right, fair, and representative. “This is the feeling that is draining out of the American political system,” he says, “and as bad as it is now, it can, and likely will, get much, much worse.”
Quite right: the longer this farce goes on, the more demoralized Americans will become. But what’s notable about Klein’s 3,200-word article is the way it can barely bring itself to mention the real problem, which, of course, is the dysfunctional amending clause in Article V. All Klein can say is that the “Constitution is devilishly difficult to amend” and that “the pace of amendments is slowing as we move further from the date of ratification” – hardly adequate given that the Article V effectively rules out meaningful constitutional reform by allowing just thirteen states representing as little as 4.4 percent of the population to veto any and all change. This is why frustration is mounting to such dangerous levels: because the Constitution is essentially unfixable under anything like present circumstances and “we the people” are therefore destined to writhe ever more hopelessly in its grip.
This inability to look the problem full in the face explains why Klein’s rhetoric grows murkier and murkier the longer he goes on. “America is not, and never has been, a democracy,” he says before complaining that it falls short of democratic norms. “We do not judge our constitution, we venerate it,” he adds. He worries that “there’s little clarity on the principles we believe should undergird America’s political system” and wonders whether “our true belief is not that our system of governance is performing so well that it should be immune to change, but that we are performing so poorly that we do not trust ourselves to change it.” Then comes the following peroration:
The problem right now is we don’t all agree the rules are fair, but the depth of that disagreement has made it impossible to imagine agreeing to other rules, either. And since we haven’t even tried to agree to the principles that are meant to guide our rules, every question, in every case, comes down to the raw exercise of power. Perhaps the only way out of this mess is for the stakes to be raised, for Democrats to respond to Republican provocations and an increasingly tilted playing field by striking back and pushing the system to a breaking point. Perhaps then a compromise will come clear to both sides. But that’s a treacherous path to walk in a country that already feels near fracture.
All of which is quite misleading. If Americans venerate the Constitution, it’s not because they’re worshipful or religious but because Article V places it so far beyond their reach that they have no choice other than to acquiesce. If the system lacks clarity, it’s because they don’t know how to fix it and thus dispel the constitutional fog. It’s not that they don’t trust themselves to make long-overdue reforms. It’s that they lack the power and therefore don’t know how to begin.
As for “the depth of that disagreement [that] has made it impossible to imagine agreeing to other rules,” in fact it’s not at all impossible – it’s just seems that way. For the moment, an obsolete political system cripples effective decision-making. But it’s not impossible to imagine a different system in which all it would take is a 51-percent majority to cast aside old rules and superstitions so that “we the people” can address their problems in something like the clear light of day. Agreement under such conditions might actually prove quite easy.
The problem is really simple — so simple, in fact, that people like Klein tend to look away. The issue is that Article V and the Preamble are mutually contradictory. One says that “we the people” are all-powerful and hence fully capable of tossing out old constitutions and instituting new ones in their place in order to establish justice, insure domestic tranquility, and do all the other things that popular sovereignty requires. The other says the opposite, i.e. that the Constitution is not an instrument of democratic self-government, but a totem before which the people must bow and scrape. Just as a house divided itself cannot stand, a people that can’t figure out whether they’re over the Constitution or under it is one that will grow increasingly paralyzed the more sclerotic the system grows and the more problems pile up.
The structure is collapsing, yet Americans don’t know what to do because the founders neglected to include a repair kit along with a user’s manual. But what they don’t realize is that the founders didn’t include a repair kit because they couldn’t: being mere mortals, they had no way of anticipating the problems that would arise. Hence, what they fail to realize is that they must come up with their own repair kit to deal with such difficulties and that casting off the dead weight of eighteenth-century constitutionalism is the first step to doing so.
This doesn’t means operating within the Constitution according to its various rules and precepts, but stepping outside it, which is nothing less than a revolutionary act. But this is why bourgeois liberals like Klein are unable to grasp the problem in full – because doing so would mean opening the door to more change than they’re willing to admit. “Be practical, demand the impossible” – so radicals declared in Paris in 1968. But present circumstances have turned that dictum on its head. Because change is impossible, people feel they have no choice but to stick with the status quo no matter how impractical it grows.