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of which made a mockery of the convoluted amending process set forth in Article V.  But the process is so asinine, so out of date, and so undemocratic that it deserves to be mocked, and Brownlow was a hero for doing it.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?

Michael Cohen: Fixer turned accuser

“Given my experience working for Mr. Trump, I fear that if he loses the election in 2020 that there will never be a peaceful transition of power.”

Thus spake Michael Cohen at Wednesday’s hearing before the House oversight committee.  Over at TRNN, Paul Jay took this to mean that fascism is bearing down on us yet again.  This fell wide of the mark, however, for at least three reasons.  One is that Trump, despite certain Mussolini-esque tendencies, is far from a genuine fascist, as Dylan Rileyrecently showed in the New Left Review.  Another is that the man’s isolation is so complete in Washington that it’s hard to imagine the military or intelligence agencies following him into the trenches should he attempt something crazy like overturning a presidential election.  The third reason is that authoritarianism is fully bipartisan at this point, meaning that it is no less likely to come from the anti-Trump forces at this point as from Donald himself.

Nonetheless, Jay is in the right ballpark, more or less.  In May 2017, acting CIA Director Andrew McCabe and Deputy Attorney General Rod Rosenstein held a series of crisis meetings following the firing of Jim Comey in which they discussed using the Twenty-fifth Amendment to remove Trump from office – an act that amounted to an incipient coup d’état since it involved an obvious misuse of an amendment designed to deal with a president who is “unable to discharge the powers and duties of his office,” not one who, in the opinion of the FBI, is all too capable of turning the country over to the Russians.

Then, just two weeks ago, Trump declared a state of emergency in order to build his Mexican wall, another incipient or quasi-coup since it marked the first time such powers have been used to short-circuit Congress’s constitutional control over the purse strings.  If we include Cohen’s warning that Trump will not go gently into that good night in 2020, then it’s clear that the system’s ability to insure a democratic transition is more and more in doubt.

What does it all mean? Simply that the ancient machinery is experiencing something akin to cardiac arrest according to the people who live under its aegis.  The breakdown has been in the works at least since Watergate, the scandal that saw the removal of a president of pronounced dictatorial tendencies without any attempt to repair the constitutional machinery that allowed him to accumulate such powers in the first place.

In fact, Watergate saw the opposite, a quasi-religious celebration of the Constitution as a kind of divine protector.  “My faith in the Constitution is whole; it is complete; it is total,” sang Congresswoman Barbara Jordan.  “I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.” She was a defender of the faith sallying forth in the name of the sacred scroll.

The results were all too predictable: an upsurge in constitutional piety even as a dangerous logjam continued to pile up on Capitol Hill.  All but destroyed by congressional infighting, Jimmy Carter gave way to Ronald Reagan, a thoroughgoing reactionary who raised political fantasy to an art form.  “He is a Prospero of American memories, a magician who carries a bright, ideal America like a holograph in his mind and projects its image in the air,” gushed Time Magazine in its Fourth of July issue in 1986.  “…Reagan, master illusionist, is himself a kind of American dream.  Looking at his genial, crinkly face prompts a sense of wonder: How does he pull it off?”  The constitutional machinery was so decrepit that magic was the only thing that would make it work.  The Bush I and Clinton administrations ushered in an era of non-stop wars: the invasion of Panama in December 1989, the first Persian Gulf war in August 1990, and then a dozen years of intermittent bombing raids on Iraq starting in 1991.  Bush II upped the ante by invading Afghanistan and Iraq, while Barack Obama, deferring to “Queen of Chaos” Hillary Clinton and her followers, upped it even more by unleashing death and destruction on Libya, Syria, Yemen, and the Ukraine.  The atmosphere on Capitol Hill meanwhile grew more and more poisonous as Newt Gingrich’s back-to-back government shutdowns in 1995-96 gave way to wars over Monica Lewinsky’s little blue dress, the battle over Barack Obama’s birth certificate, the Benghazi hearings, Russiagate, and now Michael Cohen.

Warfare abroad led warfare at home.  Imperial overstretch in places like eastern Europe and the Middle East became bound up with constitutional collapse at the center.  While Congress remained violence-free, the story was different out in the hinterlands as Trump campaign rallies regularly erupted in fighting and clashes between anti-fascists and ultra-rightists in Charlottesville in August 2017 led to more than thirty injuries and the murder of a 32-year-old socialist named Heather Heyer.

What does the future hold?  After four decades or so, the answer is obvious: an acceleration of the crisis until some sort of breaking point is reached.  This is the significance of Cohen’s statement last week: people know a crisis is coming, they can feel it in their bones, but there’s nothing they can do to head it off.

The situation is so similar to the run-up to the Civil War that even the Washington Post has taken notice.  Thanks to the three-fifths clause and a southern-controlled Senate, a surprisingly small number of large-scale planters – nationwide, just 338 planters owned 250 or more slaves[1]– were able to leverage their power so as to acquire a veto over the federal government.  Democracy was blocked, yet there was nothing that the democratic majority could do.  “We the people” couldn’t amend the Constitution to eliminate slavery because slave states controlled both houses of Congress, and they couldn’t reinterpret it because southerners dominated the federal judiciary.  Their sole remaining option was to attack the problem extra-constitutionally via civil war, which is what they did.

Today, the US is seeing a similar efflorescence of minority rule.  Gerrymandering and voter suppression have added to Republican clout in the House while widening state population discrepancies have resulted in a Senate that is ever more lopsided.  Thanks to equal state representation, the 53 Republicans who control the upper house represent just 48 percent of the population, while the 41 Republican senators capable of stopping a bill in its tracks under current filibuster rules account for as little as twenty.  The Electoral College triples the weight of lily-white bastions like Wyoming and the Dakotas, while the two-thirds/three-fourths rule in Article V means that thirteen states representing just 4.4 percent of the population can veto any constitutional amendment sought by the remaining 95.6.

Those numbers are bound to worsen in the coming decades as state population differentials grow.  According to projections by the University of Virginia’s Demographics Research Group, the ratio between the most and least populous states, currently 68 to one, will hit 79 to one by the year 2040, while instead of 4.4 percent of the population, the thirteen states capable of vetoing a constitutional amendment will account for as little as 4.2.  Democracy will shrink, yet, once again, there will be nothing that the huddled masses living in multi-racial giants like California or New York will be able to do within the existing framework.  Their only option, rather, is to bust free by creating an entirely new framework, not in accordance with the existing rules but according to new rules they formulate in the course of their revolt.

The 1860s provides a hint of how this would work.  The Thirteenth, Fourteenth, and Fifteenth Amendments, ratified between 1864 and 1870, not only abolished slavery and guaranteed the right to vote irrespective of “race, color, or previous condition of servitude,” but established a new relationship between  the individual, the states, and the federal government.  They tightened the bonds so that a loose confederation turned into something approaching a modern nation-state.  No less importantly, the amendments were not ratified according to the rules set forth in Article V, but, rather, were “force bills” that Radical Republicans imposed on the ex-Confederate states, literally at a gunpoint in one case, i.e. Tennessee, as a condition of their readmission to the Union.

The process didn’t go far enough, which is why southern racists and northern conservatives succeeded in eviscerating the amendments so as to thrust blacks back into a state of semi-servitude and impose a dictatorship of capital on the nation as a whole.  But at least it tells us something about a how a revolutionary process liberates itself from existing rules and regulations in the process of creating a new order.  Led by the working class, Americans will have to do something similar in response to the present impasse, although naturally it will have to be far more radical and sweeping.

[1]William Kauffman Scarborough, Masters of the Big House: Elite Planters of Mid-Nineteenth-Century South(Baton Rouge: Louisiana State Univ. Press, 2003), 6.

Venezuela’s Nicolás Maduro: What gives Trump the authority to say he’s no longer president?

Garry Leech, a journalist, author, and academic, raised an interesting question in Counterpunch the other day, one that, unfortunately, he didn’t pursue quite far enough.  Since the Trump administration has decided to intervene in Venezuelan politics by recognizing Juan Guaidó as president, Leech wondered, then why shouldn’t he intervene in American politics by proclaiming himself president of the US?  One hardly seems more arbitrary than the other, legally speaking.   So if millions of American long to free themselves of Trump, why not take Leech up on his offer?

Leech was being satirical, but for the moment let’s take him at his word.  What’s wrong with his proposal?  For most Americans, the answer is easy: it’s contrary to the law.  Since it’s up to the Electoral College to choose a president, the fact that Leech didn’t wrack up a single electoral vote as far as anyone knows means that he doesn’t qualify.  If he tries to force his way into the White House, guards will regard him as an illegal intruder and respond accordingly.

But how do we know it’s up to the Electoral College?  The answer is that the Constitution says as much in Article II, section one, which deals with how presidents are to be chosen.  And how do we know that the Constitution is determinative, as the lawyers say?  Because it declares itself in Article VI to be “the supreme law of the land.”  The reason that Donald Trump is president and Garry Leech is not, in other words, is because a 230-year-old piece of parchment says so.

But what if Leech fetches another piece of parchment and writes on it that he hereby grants himself full authority to appoint himself commander-in-chief?  If so, we would have two competing documents, each claiming to be the final word.  Needless to say, constitutional experts would point out that since Leech wrote his document himself, it reflects nothing more than the whim of a single individual whereas the Constitution rests on the authority of an entire nation, i.e. “we the people” who ordained and established it.

But there’s a problem here, which is that the meaning of “we the people” has changed over the centuries.  In 1787, it meant white male property owners, virtually the only people allowed to participate in elections for the special state ratification conventions called to approve the proposed new plan of government.  This hardly qualifies as democratic by modern standards, while the fact that an estimated 160,000 people voted out of a total population of 3.9 million renders it less impressive still.[1]

So “we the people” did not ratify the Constitution in a way that we now regard as meaningful.  While conceding that the original ratification process was flawed, the same experts might reply that Americans have since demonstrated their support by living and dying for the Constitution and governing themselves according to its precepts.  But this concept of an on-going de-facto ratification doesn’t add up since we can’t be sure if Americans have approved of the Constitution all these years or merely acceded to it.  The only way to be certain is to put it to a formal vote.  But the Constitution makes no provision for an up or down vote on the entire document, so the courts would almost certainly intervene were Congress to allocate money for any such purpose.

So we’re stuck with a Constitution that blocks the only sure way of determining if it still enjoys a measure of democratic support.  In the final analysis, this means that the only authority it rests on is its own.  We obey the Constitution because it tells us to, and it tells us to because it’s the Constitution.  Ultimately, this is no better than a scrap of paper bearing the words, “I do hereby appoint myself president with all the rights and privileges thereof.”  It’s self-justifying, circular, and hence meaningless.

This is not word play, but a problem that goes to the heart of America’s growing political troubles.  The crisis facing the US today is one of legitimacy, which is to say the right to rule.  Trump lost the 2016 election by 2.8 million votes, yet slipped into office by virtue of an obscure constitutional provision that Americans had long regarded as a dead letter.  This is the second time this has happened in less than two decades, yet it’s likely to occur more and more as state population discrepancies widen and the Electoral College grows increasingly unrepresentative.  Yet thanks to an amending clause that is even more dysfunctional, there’s nothing Americans can do.  Supposedly, “we the people” are sovereign, meaning that we can do anything we think necessary to “establish justice, insure domestic tranquility, provide for the common defense,” and so forth.  Yet we’re powerless to repair an obvious defect that represents a growing danger to democracy.

This is absurd, but not unique.  In fact, it’s merely an extreme version of a malady affecting virtually every liberal democracy on earth.  All pay lip service to popular sovereignty, yet all set rules concerning how far popular sovereignty can go.  As a result, governments have spent the last few decades busily locking citizens up in huge international structures that are effectively beyond their control.  The European Union is the most glaring example, but others include the IMF, the World Bank, the World Trade Organization, and even the UN, all of which can make or break entire societies yet are subject to only the most indirect forms of democratic governance.  As Brexit demonstrates, the people cannot rebel against this unjust arrangement without suffering grievous consequences.  So their only option is to submit or strike out on their own and no doubt fare even worse.

It’s a Hobson’s choice if ever there was one.  To be sure, Britons voted better than two to one in a 1973 referendum to remain in the European Economic Community, the precursor of the EU.  But no one knew at the time there would be no way out.  Arguably, this wouldn’t have mattered if the EU were more democratic.  But it’s not, which is why the current situation is increasingly unsustainable.

What is to be done?  As far as the US is concerned, the options seem clear.  Since the Constitution is unchangeable, the only way out is to impose change from without by smashing through the legal constraints and establishing government on the basis of new laws that the people would then establish to justify their rule.  This means retroactively legalizing their own illegal act, a prerogative that only a supra-legal sovereign enjoys.  If this sounds dangerously radical, bear in mind that the founders did the same in 1787 when they declared in Article VII that the new plan of government would go into effect according to rules that were contrary to the existing law of the land.  (Where the Articles of Confederation, adopted in 1783 and still in effect, said that any constitutional change must be approved by all thirteen states, the new Constitution announced in Article VII that it would be considered ratified when approved by just nine.)

The same goes for Europe.  Instead of a Rube Goldberg-style governing apparatus consisting of a European Parliament, a European Commission, two European councils, plus who knows how many other bodies, Europeans must put an end to such absurdities and – led by the working class – reorganize the continent on a completely new and democratic basis.

No one knows how it will be done, whether via a general strike, workers’ councils, a constituent assembly, or some combination of all three.  But the more society buckles under the weight of the post-2008 economic slowdown, the more a showdown looms.  Revolution is crazy, far-fetched, fantastic — and unavoidable.

[1]Forrest McDonald, E Pluribus Unum: The Formation of the American Republic 1776-1790(Indianapolis: Liberty Fund, 1965), 319.

Nancy Pelosi: Victim of a system she doesn’t understand.

Elections are supposed to make things better.  After thrashing out the issues this way and that, “we the people” at some point are supposed to call the question by putting it to a vote.  On average, 49 percent will be unhappy with the outcome.  But while vowing to fight on, they’ll have no choice but to go along.  After all, all they have to do is persuade one or two percent to switch sides in order to displace the old majority and declare themselves the new majority instead.

The majority is dead!  Long live the majority!  Such is the theory at least, but it’s not how things work in an eighteenth-century republic like the United States.  Thanks to a system of constitutionally entrenched minority rule that grows more oppressive by the year, elections accomplish nothing except to remind the majority of its growing impotence.

Thus, Donald Trump lost the 2016 election by 2.8 million votes but still found his way into the White House.  The 2018 elections were fair as far as the House was concerned since the Democrats’ share of the seats (54 percent) closely matched their share of the overall vote (53.4).  But the Senate was the opposite.  While garnering better than 59 percent of the total vote, Dems wound up with two seats less.  The majority lost in one contest, prevailed in another, and remains stymied by a minority president who wants to build a wall along the Mexican border that 54 percent of the country doesn’t like.

It doesn’t make sense.  But if a 231-year-old Constitution says it’s right, who are mere mortals to disagree?  This upside-down state of affairs explains the plight of people like Nancy Pelosi and Adam Schitt … er, sorry, Schiff.  Democratic legitimacy and power supposedly go hand in hand, but whereas Pelosi and the rest arguably possess one, they lack the other.  Consequently, they’re prisoners of a government shutdown now entering its fifth week as much as everyone else.

So Thursday’s very funny incident about a congressional junket to Belgium and Afghanistan showed.  Irritated with Pelosi for canceling his State of the Union address before Congress, Trump responded by sending a letter informing her that he was cancelling the military flight that had  been scheduled to transport her and her colleagues overseas.  According to the Times:

Mr. Schiff was on the bus outside the Rayburn House Office Building near the Capitol when Mr. Trump fired off his letter, along with Representative Eliot L. Engel, Democrat of New York and the chairman of the Foreign Affairs Committee, and several other lawmakers in what made for an unusual tableau.

Instead of heading for Joint Base Andrews and boarding a military plane, the lawmakers sat stunned on their bus, unsure of what to do next, until it eventually drove slowly to the Capitol driveway – some journalists jogging or riding electric scooters to keep up – to disgorge its perplexed passengers.  At one point, the House sergeant-at-arms, the chamber’s chief law enforcement officer, turned up to puzzle over the security arrangements for the lawmakers, whose secret travel plans were now public.

The Times says that House freshmen, all Democrats, also “staged a boisterous protest march” to call for an end to the shutdown.  But it adds:

When the House freshmen, all Democrats, arrived at the office of the Senate majority leader, Mitch McConnell, Republican of Kentucky, … to deliver a letter demanding that he reopen the government, they quickly discovered he was not there.

 One of Mr. McConnell’s deputies, Don Stewart, accepted the letter and promised to give it to his boss.  The lawmakers then milled outside Mr. McConnell’s office to plot their next move, as tourists gawked and cameras clicked, particularly at Representative Alexandria Ocasio-Cortez, Democrat of New York and a media darling.

AOC, as she’s known, would love to be an American La Pasionaria rallying her troops to overthrow Trump and his fellow oligarchs.  But a system of institutionalized impotence won’t let her.  Instead, it reduces her to the level of a “media darling,” as the Times calls it, someone for tourists to gawk at and photograph, but otherwise not take terribly seriously.

The farce goes on.  It’s tempting to say that Pelosi and Schiff got what they deserved.  Both are dutiful servants of imperialism who have supported every US war of aggression since the invasion of Afghanistan and Iraq.  Their all-expense-paid tour of Brussels and Kabul was nothing more than an opportunity to review the troops and bask in American military glory.  Schiff, who looks like a hyperactive gerbil in the best of times, no doubt hoped it would shore up his warrior credentials in preparation for a presidential bid in 2024.

But cheering on their humiliation would be wrong, as Richard Nixon would say.  Trump not only flaunted his control of federal expenditures in cancelling the trip, but his control of the military.  He’s got the aircraft and the rest of the shiny hardware, and Pelosi doesn’t    If he does declare a state of emergency as the shutdown drags on longer and longer, the new authoritarianism it ushers in will clearly have a militaristic edge.

I once described the House in a fit of enthusiasm as a proto-parliament awaiting its Cromwellian moment when it shuts down the other branches and takes power on its own (The Frozen Republic, pp. 289-97).  It was a mistake based on simplistic reading of Anglo-American constitutional history.  In fact, the House is a fundamentally conservative body closer in spirit to an Islamic shura than to a modern democratic assembly.  Rather than making new law, its primary purpose is to remind the ruler of his obligation to old law in the form of the Constitution.  Whether or not Pelosi enjoys the backing of the democratic majority, the fact remains that she is not a democrat at all, but the creature of an increasingly counter-democratic system who can’t understand why it’s treating her so badly.

The Times’s Charlie Savage: yes to a state of emergency

Donald Trump’s threat to declare a national emergency in order to fund a wall along the Mexican border is chilling.  But Charlie Savage’s front-page story in yesterday’s Times is even worse because it endorses a unilateral declaration before Trump even takes such a drastic step.  It’s more than a bit redolent of the Weimar Republic when centrists laid the basis for authoritarian government long before Hitler was at the point of seizing power.

Savage’s logic is dizzying.  While a state of emergency “would be an extraordinary violation of constitutional norms,” he writes, it may be “the only politically realistic way out of the shutdown” since it would allow government to resume while shifting the question of whether a state of emergency is legal onto the courts.

There, he assures us, it will languish for years, “keeping lawyers far busier than construction workers, at least initially, as his [i.e. Trump’s] term ticks away.”  If the declaration loses, Trump will happily bash away at liberal judges on the 2020 campaign trail.  If it’s sustained, he adds, he’ll still be tied up for years in litigation with border property owners unwilling to give up their land.

So a wall will be put off while Congress gets back to the business of government (such as it is).  To be sure, the article acknowledges “the risk of longer-term damage to the American constitutional system,” or at least quotes Elizabeth Goitein of NYU’s Brennan Center to that effect.  But this is hardly adequate.  It’s not merely a question of damage, but of taking a constitutional system that is already in an advanced state of decay and tossing it over a bridge.

An exaggeration?  Not at all.  Washington has seen a growing civil war over the last quarter of a century or so.  Three major government shutdowns have occurred, one for 26 days in 1995-96, another for sixteen days in 2013, and now one approaching the end of its third week.  Each has left Congress angrier, more polarized, and more gridlocked than ever.  A state of emergency would therefore seem to be a logical next step, one in which the executive branch gives up on a cumbersome legislative process and decides to bypass it altogether.

But once that Rubicon is crossed, what’s to stop it from doing it again and again?  The answer is nothing.  The more unilateralism becomes the norm, the more the presidential party will be inclined to drag its feet on Capitol Hill in the hope that the White House will break the logjam by issuing yet another emergency decree.  Congress will grow more dysfunctional as legislative power shifts ever more decisively to the executive.  Instead of a democracy, the US will wind up with a kind of Bonapartist presidential dictatorship interrupted every four years by elections distorted by big money, dirty tricks, and a lopsided Electoral College.  (For more on the Bonapartists threat, see what I wrote about Trump in Jacobin in December 2015.)  Checks and balances, the hallowed eighteenth-century mechanism that supposedly steers American politics firmly to the center, will become a dead letter.  Politics will grow even more elitist, corrupt, and dysfunctional than they already are.

Comparisons with Weimar are unavoidable.  Thanks to the abortive German revolution of 1918, the constitution that emerged a year later was an ungainly mix of the democratic and authoritarian.  Since the Reichstag was elected according to strict proportional representation with no minimum required for entry, a party could gain a seat with as little as 0.4 percent of the vote.  As a result, 28 parties were represented as of 1930 and forty as of 1933.  But contrary to decades of liberal propaganda, this was not the problem.  The problem, rather, was Weimar’s notorious Article 48, which gave the president sweeping emergency powers, thereby allowing him to cut short the legislative process and rule directly on his own.  This is precisely what President von Hindenburg, first elected in 1925, did once the crash of 1929 hit Germany with gale-force winds.  As the Reichstag descended into irrelevance, power retreated into an inner sanctum presided over by an arch-conservative ex-field marshal well into his eighties.  With the economy plummeting and major street fighting erupting between Nazis and Communists, the equally conservative Franz von Papen, Hindenburg hand-picked prime minister even though he didn’t have a seat in parliament, figured he had no choice but to bring in a real strongman to take matters in hand.  Von Papen assured his fellow rightists that he could keep Hitler under control, but that’s not quite how things turned out.

America’s constitutional fault lines are curiously similar. The problem is not a multitude of small parties since the “Repocrats” are by now history’s oldest two-party system since the Guelphs and Ghibellines of late-medieval Italy.  Rather, it’s an arcane division of power among three or four branches of government, the executive, the judiciary, plus the two houses of Congress.  The older the system grows and the more polarized politics become, the more the rickety old machinery freezes up in moments of stress.  The more it does so, the more emergency rule looms as the only practical alternative.  The United States finds itself treading the same path as Germany whether it likes it or not.

And now, to complete the analogy, we have the Times urging on emergency rule just as conservative parties like Konrad Adenauer’s Zentrum did decades earlier.  The Times doesn’t approve of radicalism, of course.  It’s constitutionally averse, so to speak.  But like German centrists, it figures it has no choice because it’s the only thing that will break the deadlock.  It assumes that the system will right itself once Trump is out of office — but, but, then, people like Von Papen lulled themselves to sleep with fairy tales as well.  Once a precedent is established, authoritarianism will in fact acquire a logic that is all but unbreakable.  It’s happened before, and it will definitely happen again.

America’s antiquated governmental machinery fairly cries out for an overhaul.  But Article V, the US equivalent of Weimar Germany’s Article 48, makes it impossible by allowing tiny minorities – just thirteen states representing as little as 4.4 percent of the US population – to veto the slightest constitutional reform.  Just as a revolution was the only thing that would have averted a democratic collapse in Germany – something that Stalin rendered impossible with his insane doctrine of “after Hitler, our turn” – a revolution sweeping away an absurd eighteenth-century governing structure is the only thing that will avert democratic collapse today.  America’s huddled masses are desperately in need of a genuine democracy that speaks to the needs of the working class.  But they can’t get there from here under anything resembling the present system.  What will they do – suffer in silence or take the measures needed to save society?

Yellow Vest racism in the Savoy

In both his blog and his book, The Long Depression, the British Marxist economist Michael Roberts has driven the point home again and again that the 2008 financial crisis can only be understood as a crisis of profitability, i.e. as a reflection of capitalism’s fatal tendency to over-invest in capital goods and thus drive labor productivity to ever greater heights while at the same time producing a growing mountain of goods that it is unable to sell.  Over-investment leads to over-production, which leads to financial crisis when it becomes clear that such investments must be written off.  Liquidation leads to slump as workers are dismissed and consumption plummets.  But then, once the dust settles and the crisis bottoms out, capitalist accumulation resumes on a new and higher level.  The “long depression” of 1873 to 1896 thus gave way to a surge of inventions such as long-distance railroads, electric trolleys and subways, the Model T, and the airplane.  The Crash of 1929 gave way to Les Trente Glorieuses, the postwar golden age in which French wages rose 170 percent between 1950 and 1974 while private consumption rose 174.  But now we’re seeing the great unwinding as growth slows, pay stagnates, and, thanks to “quantitative easing,” the profits of an infinitesimal few soar to unprecedented heights.

But if the financial results are clear enough, what about the political consequences?  The answer since 2008 has been a series of populist revolts beginning with the Arab Spring and continuing on through Occupy Wall Street, the Automaidan uprising in Kiev, Brexit, and Trump, all reflective of a growing sense that ordinary people are suffering while certain elites – dictators, oligarchs, Wall Street shysters, Hollywood liberals, etc. – grow richer, more grasping, and more arrogant.

The latest such revolt is France’s Gilets Jaunes, or “Yellow Vests,” so called for the reflective garments that French motorists are supposed to have on hand in case of a breakdown, which thousands of protesters have adopted as their emblem.  What makes the Yellow Vests especially interesting is that they’re the clearest example yet of how the profitability crisis manifests itself in everyday life.

It does so via the automobile, the mass-produced commodity that defines modern life.  Mass motorization is so all-pervasive that its effects are almost beyond measure.  Under its impact, corner grocery stores have given way to hangar-sized supermarkets and shopping malls, crowded slums have given way to suburban sprawl, while sidewalks have all but disappeared from much of the US for the simple reason that people no longer walk and instead drive wherever they want to go.  From Gustave Le Bon’s 1895 study, The Crowd: A Study of the Popular Mind, to Riesman, Glazer, and Denny’s The Lonely Crowd (1950), about growing isolation out in the ’burbs, bourgeois society effectively turned itself inside out over the course of little more than half a century, and, more than any other commodity, the automobile is what made it possible.

But the curious thing about the car is that while it seemed to encourage a new spirit of individualism, it in fact depended on vast public inputs.  Nineteenth-century railroad barons not only owned the locomotives and passenger cars, but also built the tracks on which they traveled.  But auto manufacturers like Henry Ford did not build the paved highways that their vehicles required.  Instead, they demanded that government build them instead.  To be sure, gasoline taxes helped offset construction costs.  But the shortfall has been enormous, as environmental economists discovered when they began tallying up the full range of “externalities,” or uncovered costs, in the 1980s.  Turning a gimlet eye not only on highway infrastructure but other auto-related expenditures and expenses in the form of low-cost urban parking, highway services (e.g. cops and ambulances), pollution, and traffic delays, they came up with deficits in year-2000 terms of anywhere from $3.75 to $10 a gallon.

Where prices appear to hover around the $3 mark, in other words, the real cost of a gallon of gas, counting inflation, is some five or six times higher.  Moreover, the picture has gotten a lot worse since Y2K.  Traffic delays in major urban areas have risen by better than thirty percent according to the Texas A&M Transportation Institute while average traffic speeds in midtown Manhattan have slowed to just 4.7 miles per hour, little better than a fast walk.  Climate change, in which auto emissions play a growing role, is accelerating while military costs are exploding.  In 2010, a Princeton University economist calculated that the Pentagon was spending roughly $600 billion a year in current dollars to firm up US control of the Persian Gulf, home to nearly half of the world’s proven oil supply, while the invasion of Iraq, as Joseph E. Stiglitz and Linda J. Bilmes remind us, will likely add $3 trillion more to the tab.  If you divide those costs among the 140 billion or so gallons that US citizens consume each year, then the per-gallon deficit rises to $20 or even more.  Americans are racking up astronomical costs for the privilege of sitting in traffic.

This is over-production at its most tangible.  The more cars roll off the assembly line, the more unprofitable each one becomes.  But with half of all companies in the Dow Jones Industrial Average tied up in one way or another with auto manufacturing, capitalism can’t afford to say no.  Instead, it must ramp up production while shunting the cost onto larger society.  Damage mounts in the form of Middle East wars, climate change, terrorism, and political breakdown.  The more it piles up, the less society seems to work.

Which brings us back to the Yellow Vests, an immense protest movement growing out of mounting social dysfunction.  The movement started when President Emmanuel Macron dared to raise fuel taxes in an effort to rein in highway demand.  When he dug in his heels and vowed not to back down, crowds responded by rampaging through Paris and blockading roundabouts out in the hinterlands.  Again and again, protesters gave voice to the same complaints.  Taxes are rising while income falls.  Green reforms make no sense when ordinary people are up against the wall.  One protester said he had no choice but to drive because he lives 35 minutes from the nearest train station.  Another sneered that officials are increasingly out of touch.  “The citizens have asked for lower taxes, and they’re saying, ‘ecology,’” he snorted.  Léon Crémieux, a member of the New Anticapitalist Party, a spinoff of Alain Krivine’s rudderless Revolutionary Communist League, reports that of 17 million French commuters, eighty percent have no choice but to drive: “even in the Paris region, only one in two employees uses public transportation to go to work.”

French workers can’t afford to pay for what has become a daily necessity, just as workers can’t in America, Britain, and virtually everywhere else in the industrialized world.  But there’s a problem.  If fuel costs are lowered, then sprawl will accelerate, which means that workers will wind all the more dependent on the private car.   Instead of living 35 minutes from the nearest station, they’ll live 45, 50, or even an hour – not because they want to, but because growing subsidization pushes them out to the periphery by driving costs up in urban centers and lowering them in the distant ’burbs.  The more they stew in traffic, the more they’ll curse the government for not lowering gas prices even more.

Although people like Crémieux try to put the best face on things, the rightwing nature of such mindless road rage is impossible to ignore.  Donald Trump has tweeted his approval while Marine Le Pen, Steve Bannon, and Matteo Salvini, Italy’s immigrant-bashing deputy PM, have all spoken out in support.  A number of ultra-rightists have emerged in the leadership, among them a charming guy from the southern Vaucluse region named Christophe Chalençon, who is openly anti-Muslim and has called for a military-led government “because a true commander, a general, a strong hand is what we need.”  “Retourne dans son pays” (“Go back to where you came from”) shouted Yellow Vests at a black motorist in the Savoy.  “Macron pute à juif!” (“Macron is a Jewish whore!”) cried a protester in Paris.  (Go to 4:57 for the quote.)  Not surprisingly, an unofficial list of Yellow Vest demands (English translation here) calls for deporting migrants who fail to gain asylum, strengthening French language laws, lengthening presidential terms from five years to seven, and instituting a hare-brained scheme for a system of popular referenda that moneyed interests will find all too easy to manipulate.

A rightwing drift is inevitable because rather than challenging the vast giveaways that keep auto manufacturers and oil companies afloat, the movement can only call for more.  Comparisons have been made, appropriately enough, to the 2013 bus fare protests in Brazil, which undermined Dilma Rousseff and paved the way for Jair Bolsonaro; to the Automaidan in early 2014 Kiev, in which ultra-rightists played a growing role; and to the Five Star Movement in Italy, which also started out as amorphously anti-establishment but has since veered off in a more and more xenophobic direction.  Instead of leftwing solutions, populist eruptions like these are part of a growing political dynamic that is pushing bourgeois society ever farther to the right.

The process is even more advanced in America where an ultra-conservative occupies the Oval Office and the only way Russophobic Democrats know how to challenge him is from the right.  Rather than steering government back to the center, separation of powers, checks and balances, and the rest are driving it in an ever more authoritarian direction.  The “solution” to Trump has become part of the problem, which is why the process seems to be accelerating.

Pelosi, Pence, Trump, and Schumer: Meeting of the minds

Unsurprisingly, the New York Times, the newspaper that virtually invented the #MeToo movement, has declared Nancy Pelosi’s confrontation with Donald Trump yesterday a victory for feminism.  “We rarely get to see a woman in that level of leadership confronted in that way,” it quotes Debbie Walsh, director of the Center for American Women and Politics at Rutgers University, as saying.  “I think this was an example that really speaks to women’s capacity to lead, and to do it civilly, to do it with grace and to be strong and clear.”

This is nonsense.  Rather than a woman’s capacity to lead, all the exchange demonstrated was the Democratic leadership’s deep fear of publicly disagreeing with the president.  “I don’t think we should have a debate in front of the press on this,” Pelosi pleaded at one point.  “Let’s debate in private,” added Chuck Schumer.  “This is the most unfortunate thing,” Pelosi continued.  “We came in here in good faith, and we are entering into this kind of a discussion in the public view.”

To which Trump could only retort: “But it’s not bad, Nancy….  It’s called transparency.”  All that Pelosi accomplished in the end was to make the Great Orange-Haired One look good.

This was sad, certainly.  But it wasn’t Pelosi’s fault, at least not entirely.  To the contrary, the horror of debate arises from deep within the American political structure. After all, the 55 delegates who attended the Philadelphia convention in 1787 were so terrified of what people might think if they openly disagreed with one another that they opted to keep their proceedings secret.  Indeed, Madison kept his notes about the proceedings under wraps for a full half century because he wanted the illusion of consensus to go undisturbed.  While Congress certainly saw plenty of disagreement in the years that followed, the system of divided powers that the founders bequeathed insured that politics would move increasingly off-stage as congressional leaders and the president negotiated their differences quietly among themselves.  The public thus found itself increasingly in the dark.  More recently, “sidebar politics” have reached baroque proportions as the legislative and executive branches ballooned and committees and subcommittees multiplied.  What takes place on the House or Senate floor is now all for show while the real action takes place offstage in corridors and committee rooms, far from the prying eyes of the public.

Pelosi was expecting a similar sort of private exchange when she and Schumer arrived at the White House, which is why she was so visibly put out when Trump dared to challenge her before the press.  He broke the rules, you see, by openly disagreeing.  Everyone knows that the two sides can’t stand one another.  But constitutional faith requires that they pretend to get along so that government can continue.

Ironically, this deep-seated aversion does nothing to limit debate.  To the contrary, tamping it down in Congress merely scatters it and drives it into the shadows.  When it does emerge, it’s all the more poisonous by virtue of being disorganized and repressed.  Instead of allowing one side to triumph over the other, the resultant muddle insures that all sides will sit and stew in a puddle of anger and incoherence.  The result is a country riven by deep disagreements that no one has any idea how to resolve.

Notice how Pelosi remained silent while Trump denounced thousands of desperate refugees huddled in Tijuana as nothing more than disease-ridden terrorists?  Too polite to spring to their defense, all she could do was emphasize how fervently she and Chuck agree on the need for stepped-up “border security.”  So what if Trump kicks the huddled masses when they’re down?  The last thing Democrats want to do is violate constitutional propriety by saying that he’s wrong.

The Orange One: Legitimacy Enhanced

Democrats went into midterms hoping for a clear-cut repudiation of Donald Trump and all he stands for, but what they’ve wound up with instead is a muddle.  They captured the House, but gained less than half as many seats as Republicans did in 2010.  They lost ground in the Senate, showed distinct weakness in the crucial battleground states of Florida and Ohio, and were no more than spottily successful outside of the affluent suburbs.  New Deal progressives are increasingly a party of Brahmin liberals cut off from the “deplorable” masses below.

Trump thus emerged from the ordeal bloodied but unbowed.  To be sure, one-party rule is kaput, which means that he can say goodbye to his more extreme legislative proposals.  But it’s unclear how much Trump really wanted to build that wall along the Mexican border in the first place as opposed to using it as a slogan to pump up anti-Latino racism and xenophobia.  He’ll still have a free hand in foreign policy and in environmental and business de-regulation and will be able to use his enhanced majority in the Senate to intensify the GOP’s march of destruction through the judiciary.  Once Ruth Ginzburg steps down, now all but certain thanks to her failing health, he’ll be able to cap it off by nominating yet another Federalist Society pick for the Supreme Court.  The legal structure as a whole will lurch even farther to the right, forcing Democrats to wage a battle that is ever more uphill.

Not a pretty picture, is it?  All this occurs amid a political structure that is growing increasingly undemocratic and illiberal.  State population projections issued by the University of Virginia’s Weldon Cooper Center for Public Service indicate that US population as a whole will grow some 17.6 percent by the year 2040 and that the demographic gap between individual states will continue to widen.  Where the ratio between the most and least populous state, i.e. California and Wyoming, now stands at 68 to one, it will reach a whopping 79 to one over the same period.  Where a majority of Americans now live in ten states, better than 52 percent will live in just nine, i.e. California, Texas, Florida, New York, Pennsylvania, Georgia, Illinois, North Carolina, and Ohio.  Where California currently has more people than the 21 smallest states combined, in a little over two decades it will have more than 22.

The implications are ominous.  Where the Senate now allows the minority to outvote the majority by four to one, by 2040 it will allow it to do so by an even greater margin – 4.55 to one to be exact.  Where today a Senate majority can be gleaned from states representing just 18.7% of the population, by 2040 it will be obtainable from states representing just 17.4.  Given the disproportionate clout enjoyed by white rural states such as Montana, Wyoming, and the Dakotas, the upper chamber can only grow more racist, rightwing, and anti-urban, which means that the judiciary will as well.  Since rightwing judges are rarely troubled by gerrymandering, voter suppression, and the like, we can expect such trends to proceed apace, rendering the House more unrepresentative as well.  The same goes for the Electoral College.  Currently, Wyoming residents have 3.72 times more clout in presidential elections that Californians.  But by 2040, the smallest state – by this point Vermont – will have roughly 4.25 times as much.  Stolen elections à la 2000 and 2016 will grow more likely rather than less.

Inequities like these were no big deal at the time the US Constitution was created.  The Republic of Geneva limited voting to just 1,500 male residents, the Dutch Republic was ruled by a governing council in which seven provinces were equally represented despite immense population differences, while the Venetian Republic was a baroque masterpiece consisting of a citizen assembly, a grand council, a minor council, a “council of ten,” a senate, a doge, and a cabinet-like collegio.  All supposedly served as checks and balances on one another, although the arrangement didn’t stop a few hundred nobles from effectively running the show.  The US Constitution represented a significant improvement in its day.  But it has since served as a kind of historical conveyor belt for the transport of eighteenth-century political values to the twenty-first

And now it’s all going into reverse as the imbalances mount.  The Polyannas at Jacobin Magazine may think that that “things are slowly – but surely – moving our way,” but in fact they’re doing the opposite.  The result is not only “a growing crisis of legitimacy for the US political system,” to quote Paul Krugman in the Times, but one that is effectively unfixable for the simple reason that the founders neglected to include a toolkit that is up to the job.  To be sure, Article V establishes a mechanism for changing the Constitution.  But by requiring amendments to be approved by two-thirds of each house plus three-fourths of the states, it allows thirteen states representing as little as 4.4 percent of the population to veto any reform sought by the remainder.  A structural overhaul is thus out of the question even though common sense tells us that it is long overdue.  Indeed, by 2040 when the same number falls to just 4.2 percent according to the UVA projections, it will be even more impossible.  Instead of a more perfect union, Americans will be saddled with one that’s more corrupt, more undemocratic, and more dysfunctional. Rather than “secur[ing] the blessings of liberty to ourselves and our posterity,” the constitutional machinery will destroy them.

Conceivably, Democrats could respond by telling Americans the plain unvarnished truth about what needs to be done.  But for a thousand and one reasons they won’t.  As creatures of the constitutional system, they’re no more capable of altering its essential parameters than a guppy is capable of changing the fishbowl he lives in.  Rather than challenging the larger system, they’ll now doubt accept it as a fait accompli and internalize its increasingly rightwing logic.  In fact, this is what they’ve already done with their reactionary a campaign against Moscow.  Their only answer to the bad xenophobia of Trump, apparently, is a “good” xenophobia that targets Russia instead of brown people from the south.  This is what the two-party system amounts to in the age of Trumpism, i.e. a neck-and-neck race to authoritarinism.  Not good, as the Orange One would say.

Young fogey Ezra Klein: unable to look the problem full in the face.

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.

Christine Blasey Ford: Gaps and contradictions

Democrats have spent the last two years blaming Russia for Hillary Clinton’s defeat.  Now they’re blaming Republican Senator Susan Collins of Maine for the Kavanaugh debacle.  But it’s not going to work.  Once again, the only people Democrats have to blame are themselves.

Admittedly, they faced an uphill battle thanks to a confirmation process heavily weighted in favor of the executive branch.   Citing Alexander Hamilton in her epic speech last Friday, Collins laid out the conventional thinking concerning the constitutional phrase “advice and consent”: since “the president has broad discretion to consider a nominee’s philosophy … my duty as a senator is to focus on the nominee’s qualifications as long as that nominee’s philosophy is within the mainstream of judicial though.”  Assuming that his or her politics are not too outré, the only question is whether the nominee is morally and professionally fit.

This left Democrats with precious little to hold on to.  They tried to prove that Kavanaugh’s judicial philosophy was indeed beyond the mainstream by arguing that he’d strike down Obamacare and Roe v. Wade if given the chance.  But how could they be sure when, like every Supreme Court nominee before him, he refused to say how he’d vote one way or the other for fear of being “Borked”?  What evidence could they come up with to the contrary?  How could they respond to all those legal eminences arguing that he was the best candidate in years?  In a Times op-ed that he’ll no doubt regret for the rest of his life, a very liberal and very smart Yale law professor named Akhil Reed Amar described the nominee as nothing less than stellar:

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move.  Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.”  In picking Judge Kavanaugh, he has done just that.

Conceivably, Democrats could have held Kavanaugh’s feet to the fire by exploring his role in approving the use of torture as a member of George W. Bush’s White House staff.  But since they’ve never shown the moral courage on that score before, how could they do so now?

That left the question of moral competence.  This is where liberals took a bad situation and made it worse.  In bringing in Christine Blasey Ford, they didn’t understand that it would not be enough for her to be good witness.  Since it was bound to be a matter of “he said, she said,” rather, she’d have to be a great one whose story would be so convincing as to reduce Kavanaugh to a mass of Queeg-like twitches and tics.

She didn’t.  Kavanaugh’s rebuttal turned out to be unexpectedly strong, while, as one would expect with a 36-year-old account, Ford’s version turned out to be riddled with gaps and contradictions.  How could she be “a hundred percent certain” that Kavanaugh had attacked her when she was just fifteen but uncertain about so much else: where the attack occurred, how she had gotten there, who had driven her the half-dozen miles home, and so on?  Why didn’t a good friend who was also at the party telephone to ask why she had left so suddenly?  Why didn’t any of the four people who were allegedly present corroborate her account?  A sworn statement by an ex-boyfriend with whom she lived for a half-dozen years was especially damaging.  Ford said she had taken a polygraph to substantiate her charges.  But where she testified that she had never advised anyone else on how to take such a test, her ex said that she had coached a roommate who was applying for jobs with the FBI and the US Attorney’s office.  “Dr. Ford explained in detail what to expect, how polygraphs worked and helped [her] become familiar and less nervous about the exam,” he said.  “Dr. Ford was able to help because of her background in psychology.”

Where Ford said she suffers from claustrophobia and a fear of flying, the boyfriend also said she lived in a 500-square-foot home in California and that the two of them had flown around Hawaii, “including one time in a propeller plane.”  As University of California psychologist Elizabeth Loftus, who got her start exploring “recovered memory” in child-abuse cases, explains in an excellent TED talk:

If I’ve learned anything from these decades of working on these problems, it’s this: just because somebody tells you something and they say it with confidence, just because they say it with lots of detail, just because they express emotion when they say it, it doesn’t mean that it really happened.  We can’t reliably distinguish true memories from false memories – we need independent corroboration.

But then something strange happened.  The Democratic Party’s #MeToo wing stepped in and announced that such evidence was irrelevant because an accusation of sexual assault was enough in and of itself.  Protesters invaded Capitol Hill with signs reading, “We believe all survivors.”  They wrote “Believe Women” on their hands and chanted, “We believe women,” while pumping their fists.  “If their stories are credible, as Dr. Ford’s story is,” said Democratic Senator Mazie Hirono of Hawaii, “they need to be believed.”  According to Democratic Senator Kirsten Gillibrand of New York, sexual assault victims were shocked that anyone would question Ford at all.  Watching her testify, Gillibrand said, “they saw men in power who were believing other men in power over women who suffered gravely.  They saw that disbelief and dismissiveness of women and they felt disbelieved and dismissed themselves.”  To doubt was to be part of the patriarchy.

This is not just nonsense, but undemocratic nonsense.  Democracy is not some faith-based doctrine, but one resting on reason and evidence.  As anyone who has taken part in a union-organizing drive can attest, you can’t just ask a worker to sign up and then call him fascist if he balks. To the contrary, you’ve got to argue and explain why a union is important, listen very carefully to his counter-arguments, and then respond accordingly.  Not only doesn’t emotional blackmail work in such instances, it’s invariably counterproductive.  Ford supporters who stamped their feet, crying believe, believe, believe, were thus counterproductive as well.  By implying that corroboration is irrelevant and that questioning is immoral, they insulted the intelligence of those wavering in between and fairly pushed them into the arms of the GOP.

“I have been alarmed and disturbed … by some who have suggested that unless Judge Kavanaugh’s nomination is rejected, the senate is somehow condoning sexual assault,” Collins declared on Oct. 5.  Democrats hate and despise her for saying this, but she was right: that’s just what Hirono and Gillibrand implied.

The desperation of the Democrats is understandable.  They’ve won the popular vote in six out of the last presidential elections and hence can argue that they’re more popular, or at least less despised, than the GOP.  Yet they’re victims of a super-antiquated Constitution that locks them into a minoritarian ghetto.  With an Electoral College that triples the clout of rural white states like Wyoming, Montana, and the Dakotas, a senate that allows the 54 percent of the country that lives in just ten states to be outvoted four to one by the remainder, and an increasingly unrepresentative House due to rampant gerrymandering, they’re victims of a political structure that more and more favors the GOP.  They were therefore frantic to prevent the sole remaining semi-liberal institution in Washington to come under the Republican dictatorship.  But as members of an outrageously undemocratic senate, they couldn’t help stoking a liberal-feminist #MeToo movement that is just as authoritarian as anything produced by the GOP.

They made fools of themselves in the process while doing nothing to stop the general rush to the right.  If anything, they added to it.  The Kavanaugh debacle proves yet again that the  crisis of American democracy is nothing if not bipartisan.