The Times wakes up to the constitutional crisis

The New York Times’s David Leonhardt: Getting the crisis wrong

A Crisis Coming,” David Leonhardt’s recent 5,400-word article in the Times, certainly has its strong points.  It effectively highlights the Constitution’s most undemocratic features, an Electoral College that has allowed two of the last four presidents to waltz into the Oval Office despite losing the popular vote, a woefully lopsided Senate that gives California the same weight as demographic midgets like Wyoming and the Dakotas, a House that shortchanges the majority “because of the way districts are drawn,” and so forth.  “We are far and away the most counter-majoritarian democracy in the world,” it quotes Harvard prof Steven Levitsky, co-author of the 2018 book, How Democracies Die, as saying – quite rightly, one might add, except for one thing: “counter-majoritarian democracy” is a meaningless phrase since any system that consistently goes against the will of the majority is no democracy at all.  Rather, it’s a dictatorship, pure and simple.

But the article is a sign that the Times is at last waking up to the fact that we have a real problem on our hands, which is certainly good.  Still, I’d only give Leonhardt a C- due to a number of bloopers.  The most serious occurs in the third paragraph when he says that “the United States today finds itself in a situation with little historical precedent.”  The statement is flat-out wrong.  Hasn’t Leonhardt ever heard of the Civil War?

The “irrepressible conflict” is usually depicted as a great moral crisis in which a young nation finally woke up to the fact that it could no longer continue as half-slave and half-free.  This is correct as far as it goes.  But the war was also a constitutional crisis involving a rough semi-democracy that was rapidly morphing into its opposite, which is to say a hideous dictatorship.

The reason was simple.  A number of mechanisms that the founders had baked into the Constitution decades earlier were backfiring by handing growing power to a slave-owning minority.  The most obvious was a clause in Article I stating that slaves were to be counted as three-fifths of a person for purposes of congressional apportionment.  Abolitionists were correct in describing the provision as a bounty for slaveholders because it gave slave states as many as 25 extra congressional seats as early as the 1830s.  Even though they accounted for less than 30 percent of the free population, slave states wound up controlling nearly half of the House as a consequence, enough to give the “solid South” a near-total veto power over congressional legislation.

The clause also gave it up to 25 extra votes in the Electoral College, which, in a nutshell, is why every president from 1789 to 1850 would be a slaveholder with the exception of John Adams and his son, John Quincy – neither of whom did much to disturb slavery while in office by the way.  The clause allowed the slaveholder Thomas Jefferson to defeat Adams père in 1800, and it provided the muscle to ram through the great Compromise of 1850, a monstrous legislative package that allowed slave catchers to snatch black people off the street with few questions asked, if any.  Abolitionists were aghast that blacks had to flee to Canada now that they were no longer safe in states that had previously regarded themselves as free.  Yet there was nothing they could do.  With few exceptions, they continued worshiping at the shrine of the glorious Constitution even though the document is what made such horrors possible in the first place.  

The South had another constitutional advantage: a Senate based on equal state representation.  From nearly the moment Washington took office, the upper chamber had been evenly divided between free and slave states, an arrangement so durable that many Americans had come to regard it as constitutional as well. But not only did it strengthen the South’s legislative veto, but it strengthened its grip on the executive branch by adding to its clout in the Electoral College.  Since Supreme Court justices are jointly appointed by the president and the Senate – one nominates, the other confirms – it also strengthened its grip on the judiciary.  By the time the Dred Scott case came up for review in 1857, the Supreme Court’s nine members included five pro-slavery Southerners – among them Chief Justice Roger Taney, born into a slaveowning family in Maryland in 1777 – plus two Northerners who were also in favor.  Hence, it was all but a foregone conclusion that the court would rule seven-to-two that blacks had “no rights which the white man was bound to respect” and that slaveowners were now free to take their human property wherever they wished, including “free” states up north.

This is what fueled the Civil war: not only the shocking immorality of slavery itself, but an upside-down constitution arrangement that enabled slaveowners to ram it down the people’s throat — in the name of “we the people” no less.  The South’s power was growing even as its share of the population continued to shrink, a contradiction that soon brought the structure to the breaking point.  As Lincoln put it in 1861: “We must settle this question now, whether in a free government the minority have the right to break up the government whenever they choose.”

Sound familiar?  It should because it’s essentially what we’re seeing today.  The three-fifths clause has been a dead letter since the Thirteenth Amendment abolished slavery in 1865.  But gerrymandering has taken its place.  Thanks to ruthless manipulation of congressional districting, Republicans have enjoyed roughly a 12-percent electoral advantage since 2010 in terms of the number of votes needed to win each House seat.  That’s even more of a boost than what the South enjoyed in 1860.  The Senate is meanwhile worse than ever since Republicans represent 45 million fewer people even though the chamber is ostensibly split 50-50d.  Where in 1860 it was possible to cobble a Senate majority together out of states representing 23 percent of the population, today it’s possible to do so out of states representing 17.6.  That’s more than a 30-percent jump in inequality.  As for the Electoral College, whether it’s more unfair than it was on the eve of the Civil War is unclear.  But the more the population winds up concentrated in fewer and fewer states due to urbanization, the more the Electoral College will end up triumphing over the popular vote.

Finally, there’s the Supreme Court, by this point a sterling example of the baleful consequences of compounded minoritarianism.  Of the six members of the court’s conservative majority, five were nominated by unelected presidents, i.e. Dubya or Trump, while four were narrowly confirmed by senators representing a popular minority.  Thus, the 54 senators who voted to confirm Neil Gorsuch in 2017 represented just 44.6 percent of the population while the 50 who voted for Brett Kavanaugh, the 52 who voted for Amy Coney Barrett, and the 52 who voted for Clarence Thomas represented between 44.5 and 48.7 percent.  As with Dred Scott, the court is again pushing through policies that “we the people” find repellent, most notably the repeal of national abortion rights.  Yet the majority is no less powerless to do anything in response.

The parallels are thus overwhelming.  So how did the Times manage to miss them?  There are a couple of possibilities.  One is that historical knowledge is so abysmal these days that the Times’s institutional memory simply doesn’t extend as far back as the mid-19th century.  But another is simply that the paper is too conservative to look the crisis square in the face.  After all, the Civil War was, at bottom, a constitutional rupture in which Lincoln was forced to use semi-revolutionary means to solve a problem that was previously beyond reach.  It’s worth keeping in mind just how shaky the Union position was. Even though the North insisted that the slave states were acting contrary to the Constitution, the argument required a leap of faith since the document was a complete muddle when it came to the secession issue.  Thanks to the myriad compromises that the founders entered into in 1787, it was far from clear who was in charge, who had a right to leave, and who, if anyone, had power to stop them.  As one historian points out:

“If the Preamble located sovereignty in the American people, then the ratification clause (Article VII) made the states, not the people, so many sovereigns.  If Articles I and II allowed the people to select the members of the House of Representatives and some of the members of the Electoral College, they also allowed the states to select members of the Senate and the other members of the Electoral College.”[1]

“Compact theorists” who argued that the Constitution was no more than a treaty that individual states could enter and leave as they saw fit thus had no shortage of arguments to support their point of view. The same goes for “chartists” who viewed the federal government as sovereign: they could find plenty of material in the Constitution to support their perspective as well.  Since neither side could prevail, there was no other way to settle the question other than through force of arms.  

Some 640,000 people, roughly two percent of the population, had to die as a consequence.  It was a thrilling victory, certainly.  But democracy would have been better served if the people had been able to settle the slavery question in ways that were less glorious and a bit more mundane.

Leonhardt makes other mistakes. One that occurs roughly a quarter of the way through is particularly galling: “The founders did not design the United States to be a pure democracy.” The state is a real eye-roller because it begs all sorts of questions that the Times doesn’t pause to consider. What does “pure democracy” mean? Even though the founders designed the current structure, does that imply that they’re the final word? How long must Americans limit themselves to what a group of tribal patriarchs said they could or could not do — another decade? another century? Are they condemned to stand by idly as US society disintegrates around them, not despite the Constitution but because of it? Or at some point can they take whatever measures they think are necessary to save it under their own authority?

Leonhardt also makes no mention of the amending clause set forth in Article V, which allows 13 states representing as little as 4.4 percent of the population to block any constitutional reform desired by the other 95.6. By this measure, the Constitution is more twice as restrictive as it was in Washington’s day and 50 percent more than in Lincoln’s. A constitutional structure that grows more change averse the antiquated it becomes is a recipe for disaster. Yet, once again, there is no way out of the bind, at least not under the present system.

The implications of all this constitutional arteriosclerosis are stunning, yet they’re not something the Times can even bring itself to consider.

[1] Michael F. Conlin, The Constitutional Origins of the American Civil War (Cambridge, 2019), 204.

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