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?
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