Public domain illustration by Frederick Juengling and Alfred Kappes
We do not live in a democracy or even a proper republic, since in a republic our delegated representatives are supposed to reflect the will of the majority. New York Times columnist Jamelle Bouie is always a must-read on our broken Constitution, and his latest (free link) — on what’s wrong with the Senate — is especially worthwhile. Consider this: “Roughly half of Americans, some 169 million people, live in the nine most populous states. Together, those states get 18 of the 100 seats in the United States Senate.”
And as Bouie notes, that disparity was seen by some of the key founders as a bug, not a feature, but a bug that was needed in order to get support from the small states, which were already slated to be outvoted in the House of Representatives. James Madison referred to the Senate as “the lesser evil.” During the constitutional convention, Pennsylvania delegate James Wilson said the purpose of the national government was to empower individuals, not “the imaginary beings called states.” The 14th Amendment further enshrines individuals over the power of the states. Yet anti-democratic institutions persist, including the Senate, the Electoral College and, as a consequence, the Supreme Court.
Bouie has long shown that he knows his stuff, but in this case he’s riffing on a recent Washington Post report that I’ll confess I haven’t read. I’ll try to go back and take a look at it, but in the meantime, here’s another free link for you. And here is something I wrote last year on how government by a numerical minority is one of the reasons that this country is being torn apart.
The majority is not going to put up with being disempowered forever. The only question is how, and when, it will end.
Huey Long in 1935. Photo via the Harris & Ewing Collection at the Library of Congress.
One of the most important books of the Trump era was, and is, “How Democracies Die,” by Steven Levitsky and Daniel Ziblatt. In it, the Harvard political scientists trace how healthy democratic societies are able to fight the contagion of authoritarianism — and what happens when they lose the ability, or the will, to hold the antidemocratic forces at bay.
Among other things, they describe how the Democratic Party machinery prevented the populist demagogue Huey Long’s rise to what might have culminated in the presidency back in the 1930s, in contrast to the Republican Party’s unwillingness to contain Donald Trump in 2016. They also tell us that Italy staved off a right-wing revival at one point when the mainstream conservative party aligned itself with the liberal party in order to freeze out right-wing extremists.
Now Levitsky and Ziblatt are back with a new book, “Tyranny of the Minority: Why American Democracy Reached the Breaking Point.” The Atlantic has a lengthy excerpt, and you should read it if you can. In the excerpt, the authors argue that our Constitution is broken, mainly because it is so difficult to amend. They point out that Norway, their lead example, adopted a constitution as undemocratic as ours in 1814 but amended it 316 times over the next 200 years in order to extend the franchise, eliminate provisions that had empowered a minority of voters over the majority, and the like.
The American requirements for amending the Constitution, by contrast, add up to a nearly insurmountable hurdle. In addition to a two-thirds vote by each branch of Congress, which is not unreasonable, the rules also mandate that three-quarters of the state legislatures approve amendments. As a result, we are stuck with undemocratic provisions such as the Electoral College, under which the president can be elected despite losing the popular vote, and the Senate, which super-empowers small states since every state gets two votes. Indeed, the 14th Amendment, which in some important respects reinvented the United States, never could have been passed at any time other than in the post-Civil War environment, when the North controlled the South.
“With the Republican Party’s transformation into an extremist and antidemocratic force under Donald Trump,” Levitsky and Ziblatt write, “the Constitution now protects and empowers an authoritarian minority.” They add:
In 2016, the Democrats won the national popular vote for the presidency and the Senate, but the Republicans nonetheless won control of both institutions. A president who lost the popular vote and senators who represented a minority of Americans then proceeded to fill three Supreme Court seats, giving the Court a manufactured 6-3 conservative majority. This is minority rule.
Currently the antidemocratic impulse is playing out in Wisconsin in a big way. Earlier this year, voters in Wisconsin elected Janet Protasiewicz, a liberal Democrat, to the state supreme court, thus paving the way for the protection of reproductive rights and at least a partial reversal of the gerrymandering that has given the Republicans wildly disproportionate power in the legislature.
So what are Republican legislators going to do? They’re going to impeach her — except that they’re not actually going to remove her from office, since that would give Democratic Gov. Tony Evers the opportunity to replace her. Instead, they plan to leave her in limbo, still a member of the court but suspended from taking part in the court’s business. As New York Times columnist Jamelle Bouie puts it:
It’s that breathtaking contempt for the people of Wisconsin — who have voted, since 2018, for a more liberal State Legislature and a more liberal State Supreme Court and a more liberal governor, with the full powers of his office available to him — that makes the Wisconsin Republican Party the most openly authoritarian in the country.
We are heading off a cliff, moving closer and closer to authoritarianism in direct contradiction of the will of the majority. And as Levitsky and Ziblatt point out, there’s not all that much we can do about it since we can’t fix the Constitution without the cooperation of those who are benefiting from keeping things the way they are. God help us all.
There’s something about writing a proposed constitutional amendment that has the whiff of nuttery about it — some guy sitting at home in his underwear (hey, that’s me!) raving about something that has no chance of influencing anyone.
But, having complained quite a bit about our slide into undemocratic minority rule — a consequence of small, Republican states having a disproportionate advantage in the Electoral College and the Senate — I thought I’d lay out one possible solution. Or solutions.
We could move to a parliamentary system, and that would certainly be an improvement on what we have now. But I thought it would be interesting to see what it would look like if we tried something less radical, but still comprehensive. So here we go.
The presidency
This one is simple. Abolish the Electoral College. Elect the president by popular vote. One person, one vote should be our lodestar. Let’s end the absurdity of voters in tiny Wyoming having nearly four times as much power as Californians.
Congress
The Senate is unfixable because of its two-senators-per state requirement. That makes it far worse than even the Electoral College. Let’s make the Senate a mostly honorary body whose members are appointed by the states. I would restrict the senators’ powers to choosing the wine at weekly social gatherings they would be required to attend.
House members should be elected to four-year terms in presidential-election years. No more midterms. House districts would be drawn by nonpartisan commissions. States would be free to set up multi-member districts if they choose. (Actually, they are free to do so now, but no one does.) For instance, Massachusetts could have three House districts instead of nine, and each district would elect three members.
The Supreme Court
The nine members would each be appointed to a single 16-year term. Each president would be guaranteed two appointments per term. Proposals to curtail the justices’ power ought to be considered as well, but I’m not going to address that here.
Elections
All federal elections would require a majority winner. If the first-place finisher in a multi-candidate field receives less than 50% of the vote, a runoff would be held.
Attempts to regulate campaign spending would be deemed not to be in violation of the First Amendment.
Needless to say, attempts to restrict the vote of the sort that a number of red states have adopted would be taken out with the trash and burned.
Problem solved! Two hundred thirty-four years of accommodating the former slave states are enough.
The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?
I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:
Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.
If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.
Chinese immigrants in Oregon. Birthright citizenship dates to 1898, when the Supreme Court cited the 14th Amendment in overturning a California law. Photo published by The Oregonian, courtesy of the Byrom-Daufel family.
My Facebook feed is filling up with posts from liberal friends informing me that Donald Trump is, among many other bad things, an ignoramus when it comes to the Constitution.
Trump allegedly stepped in it on Tuesday, telling Bill O’Reilly of Fox News that the 14th Amendment wouldn’t necessarily impede his rather horrifying proposal to deny citizenship to the children of undocumented immigrants born in the United States.
Of course, it’s fun to think Trump is such a buffoon that he doesn’t realize something that’s part of the Constitution can’t be unconstitutional. All he’d need to do is spend a few minutes watching “Schoolhouse Rock!” videos on YouTube to disabuse himself of that notion.
But that’s not what Trump said. In fact, Trump made the perfectly reasonable assertion that the federal courts may be willing to revisit how they interpret the 14th Amendment. Trump told O’Reilly:
Bill, [lawyers are] saying, “It’s not going to hold up in court, it’s going to have to be tested.” I don’t think they have American citizenship, and if you speak to some very, very good lawyers, some would disagree…. But many of them agree with me — you’re going to find they do not have American citizenship. [Quotes transcribed by Inae Oh of Mother Jones, whose story is more accurate than the headline under which it appears.]
Birthright citizenship is not exactly a new issue. Jenna Johnson of The Washington Post noted earlier this week that, back in the early 1990s, none other than future Senate Democratic leader Harry Reid supported reinterpreting the 14th Amendment in order to end automatic citizenship — thus confirming a remark made on the campaign trail by Scott Walker, one of several Republican presidential candidates who have joined Trump in opposing it.
In searching the archives, I couldn’t find a specific reference to Reid. But The New York Times reported in December 1995 that House Republicans and some Democrats supported an end to birthright citizenship, with most arguing that a constitutional amendment would be needed and others claiming that legislation would suffice. Any attempt to enforce such legislation would have triggered exactly the sort of court challenge that Trump envisions.
And it’s not as though the 14th Amendment has stood immutable over time. After all, it wasn’t until 1954 that the Supreme Court ruled, in Brown v. Board of Education, that the amendment’s guarantee of “equal protection of the laws” forbade segregation in the public schools.
Birthright citizenship was recognized by the Supreme Court in 1898, three decades after enactment of the 14th Amendment. In that case, according to the 1995 Times article, the court overturned a California law that had been used to deny citizenship to children born in the United States whose parents were Chinese immigrants.
Trump’s rhetoric represents the worst kind of nativism, and he should be held to account for his words. But what he’s actually saying is bad enough. When the media exaggerate and distort, they hand him an undeserved victory.
This isn’t fair — I’m going to be on the road until tonight, and I managed to mess up the WordPress app on my BlackBerry. So I won’t be able to approve comments for quite a while. But I do have three questions about legal challenges to the health-care law, and I’m hoping someone can answer them here.
1. Critics say the requirement that everyone must buy health insurance from a private company is unconstitutional. Yet no one to my knowledge has ever even raised that issue with regard to the Massachusetts law, which has the same requirement. Is there something different about the Massachusetts Constitution?
2. Under federal law, we are required to invest our money in a government-controlled retirement system (Social Security) and medical-insurance system (Medicare). Why is that constitutionally permissible if being required to buy insurance from private companies is not?
3. Is it even correct to call the insurance mandate a “requirement”? If you refuse to buy insurance, you simply pay a penalty of some sort, right? You’re not being branded as a criminal or even a civil offender as I understand it.
Chris Lehmann repeats an oft-heard fallacy in an interview conducted by Ken Silverstein for Harpers.org. Reacting to Barack Obama’s and John McCain’s appearances with evangelical minister Rick Warren last Saturday, Lehmann says:
The only important issue about Saddleback is that the Constitution specifically forbids any religious test for office, so why are you having an evangelical minister asking the two candidates about their relationship to Christ? But the people who are in charge of delivering useful information to the public about the process have no historical frame of reference. They literally don’t know what they’re doing.
Lehmann’s right about what the Constitution says regarding a religious test, but he suggests that it somehow applies to the media and to voters. It does not. Here’s the exact language, from Article VI:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
That’s pretty clear: the government may not establish a religious test for candidates. If Congress were to pass a law stating that only believing Christians may run for president, or that practicing Muslims may not, then that would be unconstitutional under Article VI.
If, on the other hand, a voter decides he will not consider any candidate who isn’t an evangelical, that’s not only his right, but it’s perfectly in accord with both the letter and the spirit of the Constitution. Likewise, Rick Warren is free to invite the candidates in for a talk; the candidates are free to accept or decline; and the media are free to cover it or not.
Needless to say, this is a relevant issue, as Mitt Romney remains the subject of some speculation as to whether John McCain will choose him as his running mate. Some evangelicals have made it clear that they would object vociferously because Romney is a Mormon. That sentiment may be offensive to you and me, but it’s not offensive in the least to the Constitution.
If you think about it, we’ve all got our religious tests. Would you vote for a so-called Christian who believes we should hasten the Apocalypse through nuclear war? Of course you wouldn’t. The Constitution says such a person can run for office. It doesn’t say you have to vote for him. Neither does it say the press and the public can’t make an issue of his beliefs.
The Constitution is supposed to be a check on the government, not on the people.
