A New Constitution
As a radical, illegitimate Supreme Court begins to unravel Americans’ most fundamental rights; as a fascist party whose attempted coup recently failed works to put in place the processes to guarantee one-party rule; as a corrupted judicial system with its brazen hypocrisy openly exposes itself as the purely political force it has become and in some sense always has been; as the Democratic political class finally realizes just how screwed it and the majority of Americans who support it are; and as a growing segment of the media finally recognizes the existential threat to democracy facing America today, it should go without saying that this country is in serious, serious trouble. While the danger may now be coming from an autocratic Republican party, the underlying, unaddressed problem that has created the conditions for our democratic collapse is a failed Constitution that is both a legacy of racism and has been so thoroughly exploited and corrupted as to all but guarantee minority rule. The result is a litany of democratic failures.
In two of the last six elections, the winner of the popular vote did not win the presidency because of the absurdity of the Electoral College. Hillary Clinton won three million more votes but lost the White House because of less than 100,000 votes across three states. Joe Biden won the popular vote by seven million votes but also came within 100,000 votes across a few states of losing in the Electoral College. Now Republicans seemed determined to use the fact that Constitution allows state legislatures to simply choose Electoral College Electors regardless of the popular will of their states’ voters or without even to hold a presidential vote in the state at all.
Democrats will have won the majority of votes in the US Senate in every election cycle since 2000 and Democratic Senators currently represent about 40 million more Americans than Republicans, but the party often ends up in the minority. In the next decade, it seems probable that 70% of Americans will be represented by just 30 Senators, leaving a minority of 30% of Americans to be represented by a supermajority in the Senate that not only will not have to worry about the filibuster, a made-up rule mainly used over its history to protect Jim Crow racism, but also will be able to override any presidential veto.
Partisan gerrymandering by both parties allows the candidates to choose their voters and, after this round of redistricting, may give a built-in advantage of over 20 seats to Republicans in the House of Representatives. Gerrymandering of state election districts has created what are now described as “democracy deserts” where Democrats can still win the majority of votes but barely stop the Republicans from having a supermajority in the state legislature, such as happened in Wisconsin in 2012 and 2018. The existence of essentially one-party districts actually encourages both extremism and polarization as the most important election becomes the primary not the general.
The anti-democratic nature of the Electoral College and the Senate have, in turn, helped create a judicial system that is increasingly viewed as illegitimate. A majority of the Supreme Court, five of the nine current justices, were appointed by presidents who originally did not win the popular vote. Two of the justices are on the Court because the minority-controlled Senate invented a rule that there would be no confirmations in the final year of a president’s term and then promptly ignored that rule when it suited them. The Court has gutted voting rights, allowing states to create a new Jim Crow. It has eviscerated campaign finance reform, equating money with speech and politically empowering the prosperous few over the poorer many, while also enabling that few, including perhaps even foreigners, to hide in the shadows. While professing adherence to “originalism” or “textualism”, it shows no consistent judicial philosophy but does produce rulings that do reflect a consistent political preference. Now the Court has even abandoned judicial supremacy, endorsing constitutional vigilantism that allows states to craft laws the strip away Americans’ constitutional rights still currently considered binding, simply due to the majority’s political preferences.
The problem is even worse at the lower federal court level. Several circuits have become increasingly lawless, rubber-stamping any absurd legal challenge proffered by Republicans, enjoining Democratic presidents’ policies while spouting Fox News propaganda, citing Supreme Court dissents as though they were precedent, and allowing clearly unconstitutional laws to stand in the hopes that this new rogue Supreme Court will follow their lead. A similar process is occurring at the state level. In those democracy deserts where one party is enshrined in near-permanent power, legislatures are either packing courts to reach their political outcomes or impeaching those courts when they rule against the will of the legislature.
Over the last few years, there have been attempts to work around our constitutional dysfunction within the current constitutional system. The National Popular Vote Interstate Compact (NPVIC) is designed to solve the problem of the popular vote winner still losing the presidency. The Compact hopes to get states that total 270 Electoral Votes to adopt legislation that would award their Electors to the popular vote winner, regardless of how that state voted. Currently, there are states representing 195 Electoral Votes in the Compact. Democrats have proposed adding Washington, DC and Puerto Rico as new states to offset the small state imbalance in the Senate. Another alternative to restore balance in the Senate is to break up big Democratic states like California in a number of smaller states with their own two Senators each. Eric Orts has proposed to legislatively reform the Senate using the “Rule of One Hundred”, which essentially allocates one Senator to each state and then allocates the remaining 50 by population. Others have proposed expanding the number of seats in the House and/or allowing multi-member districts chosen by ranked choice voting, with the intended effect of reducing the imbalance created by gerrymandering. This could also be done by legislation alone. Finally, of course, Democrats could find the spine to break the filibuster for the various voting rights bills currently in limbo in the Senate, which would also reduce the impact of gerrymandering and voter suppression. In addition, Democrats could legislatively expand the federal courts, including and especially the Supreme Court, again diluting the power of the radical right in the federal judiciary.
Virtually all of these worthwhile proposals can be done purely legislatively. With control of Congress and the White House, now may be the last opportunity Democrats have for a decade, or more likely a generation, to implement these important reforms. But it also seems highly unrealistic to think they will. It seems unlikely that the NPVIC will get to 270 Electoral College votes anytime soon. Highly gerrymandered red states are unlikely to ever adopt it, meaning that Democrats will have to rely on demographic shifts to blue states to reach that number, something that is at least a decade or two away. So far, Democrats aren’t even really discussing expanding the House, adding states, or even expanding the courts and it is delusional to believe they will take those issues on before they probably lose the majority in one or both houses of Congress in 2022. It is similarly unlikely that any big blue state will decide to break itself up into smaller states and, even if one does, that would still require approval from Congress, which is again unlikely after 2022. Eric Orts’ aforementioned proposal runs into a similar problem of Senate adoption and almost certain blowback from the Supreme Court. In addition, it is unclear whether some pieces of the voting rights legislation that is waiting to be passed, including certain gerrymandering and voter suppression restrictions, will also even pass muster with a Supreme Court that seems indifferent, at best, to democracy.
What’s far worse, however, is that our democracy will still be broken even if Democrats managed to implement all the above-mentioned reforms. First, whatever Congress is able to do legislatively to reform elections will only apply to federal elections. Those gerrymandered democracy deserts where Democrats win the most votes but still remain in the minority in the state legislature will still continue to be democracy deserts. Many states already have separate rules for state elections and Republican efforts to reapportion state districts by citizenship rather than population were only stymied this year by the lack of such granular data due to the citizenship question being struck from the census.
Even if the Electoral College ceased to be relevant when the NPVIC succeeds, and the House becomes larger and more democratic, and the federal courts are reformed and expanded, we are still left with the conundrum of the US Senate. Democrats could not create enough states to counter the fact that 30% of the country will soon be represented by 70 Senators. Reforming the Senate will take a constitutional amendment that will require approval from three-fourths of the states which is clearly improbable because it would rely on acceptance from the very states whose power would be diluted. If all this wasn’t bad enough, Republicans are now focused on gaining partisan control over the election machinery so that they can guarantee their preferred candidates win.
In addition, Republicans are increasingly adopting the view that state legislators could simply appoint their own Electoral College Electors, either ignoring the will of the people of simply not bothering to run presidential ballot at all. And, as the Trump years illustrated, Republicans are willing to use state-sponsored violence to achieve their ends. That was not only highlighted by the 1/6 coup attempt but also includes the use of federal forces to clear Liberty Square and to “disappear” Portland protestors, the call to “Liberate Michigan” which resulted in the governor’s attempted kidnapping by GOP-aligned militia members, and at least discussions about declaring martial law or a national emergency, or even using federal forces to prevent Biden from taking office.
Republicans understand and act with a belief that they are engaged in a new, cold civil war. The Trump-supporting neoconservative Norman Podhoretz admitted as much when he recently declared, “It’s a war, in my view. Many people are reluctant to see it in those terms…but I don’t see it as a prelude to a civil war and 600,000 Americans dead. That’s not my meaning. But spiritually it’s a war…I think Trump was the only guy who understood the situation in those terms”.
If Democrats are unwilling or unable to take the legislative steps to attempt to save our democracy, the obvious alternate approach would be to amend the Constitution to at least make the Senate a more representative body. But with the requirement that any amendment must be approved by three-quarters of the states, that is already a non-starter. The disturbing reality is that Republican are far better positioned, both psychologically and politically, to be the ones willing and able to amend the existing Constitution. With unified control of around 30 state legislatures, Republicans are exceedingly close to have having the three-fifths of the states necessary to call a new Constitutional Convention. While it is impossible to predict what a new convention will produce, we know Republicans are intent on including items like a balanced budget, term limits, repealing the income tax, allowing Congress to easily override federal legislation, and letting states abrogate any federal law or regulation. In the current environment, the inclusion of a ban on abortion and fetal and corporate personhood would hardly be surprising. Whether Republicans can muster three-fourths of the states to ratify these amendments is an open question, but they are far closer to achieving such a goal than Democrats.
Saving our democracy means fixing the Constitution and if that can not be accomplished under the existing constitutional order, and it seems clear it can not, then it is time to consider a new Constitution or extra-legal methods to renew the existing one. It has been done before. The original Constitution was an illegal document that violated the Articles of Confederation. America’s first Civil War, an illegal war fought over our original sin of slavery, resulted in a new Constitution remade by the Reconstruction Amendments, which were passed simply because Southern states were basically under federal control. That Constitution was voided for nearly a century by the same mix of legalized minority rule and political violence that we see from Republicans today. Many legal scholars also consider the New Deal as the implementation of a new “constitutional regime” that did not even go through the amendment process, primarily driven by FDR’s intimidation of the Supreme Court. The Constitution was remade again legislatively amidst the upheaval of the 1960s with the passage of the Voting Rights and Civil Rights Acts of 1965 and 1964 respectively. And once again it is being dismantled through legalized minority rule and acts of political violence.
Democratic elites simply have not grasped just how close we are to losing our democracy and how willing Republicans are to end it. Faced with such an existential threat, the actual steps that the Democratic party is taking to prevent such an outcome border on the pathetic to the nonexistent. If the Democrats lose power in 2022 and/or 2024, we are looking at a dystopian decade, at least, of living under an autocratic government in the midst of a climate crisis that will disrupt the economic and social order. Into such a void and actualizing the tyrannical paranoia of the far right, it should hardly be surprising if, in the next few years, we soon don’t see the emergence of demagogues on the left who will speak for a sidelined majority and promise that they alone can and will restore true democracy to America. These demagogues of the left will in many ways mirror Trumpian politics, running as a Democrats against both Republicans and ineffectual establishment Democrats. We will see blue-state governors openly defying the Supreme Court, something the Trump administration did at times over the last four years. Those incidents of defiance may escalate into a confrontation between federal troops and state law enforcement forces similar to what we saw in the South in the 1960s but politically reversed. The end result may be an Avignon president who declares himself the winner simply because he won the popular vote and writes the new constitution, putting it up for a national referendum, while noting that the Constitution itself was an illegal act that violated the Articles of Confederation.
On the other hand, as we have seen in so many other places, the majority may be silenced by the state power controlled by the minority and, willingly or grudgingly, submit to an authoritarian government that seems useless and impossible to fight. We are in the doom-loop for American democracy. Our dysfunctional system allows for minority rule, which then allows that minority to appoint a judiciary that further guarantees the perpetuation of minority rule. Even with those advantages, the minority feels so threatened by the majority that they are attempting to ensure they control the machinery of democracy and are willing to use state violence in order to maintain that minority rule. History has shown that once democracy is lost, it does not return easily, either through peaceful or violent means. When Blacks lost the franchise to Jim Crow, it took nearly a century to get it back. Democrats and democrats of all stripes must recognize the moment and do whatever it takes, even a new Constitution, to save our democracy today. Sadly, it appears that will not happen any time soon.