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?