The Constitution of the United States has failed
This is not fine.
What kind of nation allows the loser of a national election to become president — and then does it again 16 years later?
What kind of nation retains an electoral process that was originally designed to inflate the influence of slaveholders?
What kind of nation permits its Congress to write a time bomb into law that periodically forces rival factions into a game of chicken that could wreck the world economy?
What kind of nation fights a civil war over the question of whether people of African descent are people or property, and then looks the other way when the loser ignores the resolution of that war? What kind of nation waits until 1965 to guarantee black people’s right to vote?
Americans speak of our Constitution as if it were a religious text. To label a law “unconstitutional” is not simply to say that it violates some procedural rule or legal technicality, it is to label it fundamentally unAmerican. To do so is to question the values of any lawmaker despicable enough to support such a law, and to suggest that those values are at odds with who we are as a nation.
But our Constitution has not served us nearly as well as we would have been served by other systems adopted by our peer nations. Nor has it lived up to the expectations of its drafters.
Now, our country is facing a man of superlative ignorance. A racist. An admitted sexual assaulter of women. A man poised to violate the Constitutionthe very instant he takes the oath of office. A man who openly encouraged Russia’s efforts to usher him into the White House. A man who owes his election to the underhanded efforts of deep state actors within our nation’s internal police agency. A man who lost the popular vote by nearly 3 million votes. And the Constitution has placed this man in the White House.
The Constitution gave Donald Trump command of the world’s most powerful military and an nuclear arsenal that can eradicate all life on Earth. It let him name a racist as our nation’s top enforcer of its laws. It let him use his office to sell hotel rooms to foreign diplomats. The Electoral College has voted. Trump will be our next president. This is what the Constitution hath wrought.
It did this because our Constitution remains the product of a compromise with moral monsters who believed that human beings could be owned as property. It did this because our Constitution offers no guarantee, or even much in the way of likelihood, that the men and women elected to lead the country will share the preferences of the nation as a whole. It did this because our Constitution fosters voter ignorance. It did this because our Constitution can be gamed — and was gamed quite successfully by the Republican Party.
The price of peace
There are competing theories for why America has an Electoral College. One, offered by Alexander Hamilton in an advocacy document written to persuade the nation to support its new Constitution, is that it would allow “men most capable of analyzing the qualities adapted to” the presidency to determine who should hold that crucial job.
Another theory, which Hamilton did not include in his sales pitch for the Constitution, is that the Electoral College was part of the price northerners had to pay in order to form a union with states whose entire economic model depended on slavery.
Regardless of which theory you prefer, it is undeniable that the Electoral College now serves the second goal of giving a leg up to racists far better than it serves the first. In 2016, the electors themselves are almost entirely obscurities — party activists who are typically selected more for their willingness to cast a vote for their party’s candidate than for their ability to analyse the qualities best adapted to the presidency. Even if they’d wanted to elect someone other than Donald Trump as the president, they lack the stature necessary to quell unrest that would likely ensue.
What the Electoral College has done is steal the presidency from the woman who won it, and given it to a man who openly campaigned on racism and nativism. It’s the sort of outcome that would make many of the Founding Fathers smile — the ones who demanded a terrible price as the cost of Union.
To be sure, there were good men at the Philadelphia convention that drafted the original Constitution. There were men who, as Gouverner Morris said in a speech to the convention, saw slavery as a “nefarious institution” and “the curse of heaven on the States where it prevailed.” There were also delegates from large states who stood for the very simple proposition that a vote from Virginia should count exactly the same amount as a vote from Delaware.
Yet these good men traded away their convictions. The new Constitution explicitly protected slavery. It allowed slave states to count each slave as three-fifths of a person for purposes of calculating representation in the House and the Electoral College, even though those slaves could not vote. And it created the Senate, an anti-democratic body which today counts each person in Wyoming as 67 times more important than each person in California.
The good men in Philadelphia agreed to these terms in service of a singular goal: peace through Union. As Yale’s Akhil Amar explains, the Articles of Confederation, the loose alliance of states that preceded the Constitution, conceived of the United States as “an alliance, a multilateral treaty of sovereign nation-states.” Pennsylvania was as much a separate a sovereign nation from Virginia as Russia is today separate from China. The Articles largely bound these nations into a pact of mutual commerce and defense.
Nevertheless, the framers were well-versed in European history. They knew of the frequent warfare which plagued that continent, and they came to see Union as the best defense against a similar fate. As Amar describes their concerns, “each nation-state might well raise an army, ostensibly to protect itself against Indians or Europeans, but also perhaps to awe its neighbors. America would then recreate continental Europe — borders, armies, dictators, chains, and all.”
The threat from such armies, moreover, was twofold. As Hamilton warned, these armies could themselves be turned against the people, becoming “engines of despotism” that would lead the states in a “progressive direction toward monarchy.” Standing armies were a threat, not just to rival states, but to the people of their home states.
More than two centuries later, the Founding Fathers’ belief that their Constitution would keep America from keeping a standing army is quaint. The United States has the most powerful military in the world, in addition to a network of federal police, intelligence agencies, and an entire cabinet department devoted to internal security. Perhaps these institutions will balk if Trump orders them to impose the kind of tyranny Hamilton feared, but the Constitution sure did not stop them from being built.
It also didn’t save us from war among the states. The early history of the United States was an uneasy peace broken by regional conflicts and near-misses — the Nullification Crisis, Bleeding Kansas, John Brown’s raid on Harper’s Ferry. And then the war came, a four year conflict that killed between 2 and 3 percent of the nation’s entire population.
Our Founding Fathers traded away democracy. They traded away the fundamental principle that every American’s vote is equal. They traded away every person’s inalienable right to freedom. And they’d traded it away for nothing.
Three generations of lost rights
If you go to the American South today, and you speak to a black person over the age of 50, you are most likely speaking to someone who was born into an apartheid state. If you speak to someone over the age of 70, that person probably had their voting rights stolen from them by a white supremacist regime.
This is not ancient history. These are flesh and blood Americans who live and work among us. America became a liberal democracy in 1965, when President Lyndon Johnson signed the Voting Rights Act. Free and fair elections, at least at the nationwide level, are not something we have all that much experience with.
It wasn’t supposed to be this way. When the Civil War was won, the victors demanded a new covenant. They wrote slavery out of our Constitution. They wrote freedmen’s right to vote into the Constitution. And, in the most sweeping and radical change that has ever been written into the Constitution, they completely reworked the balance of power between the states and the people.
The Fourteenth Amendment declared, for the first time in American history, that everyone born in the United States is a citizen and that every citizen enjoys certain rights solely because they are an American (without this amendment, states were free to violate the Bill of Rights). It provided that no one can be stripped of their liberty without appropriate legal process, and it insisted on equal treatment along racial lines.
Yet, for much of the next century, the South gleefully ignored these guarantees. “Black codes” relegated freedmen to a status that was often difficult to distinguish from actual slavery. Black men were arrested for minor or even fabricated offenses, then rented out to whites as cheap labor. Jim Crow segregated African Americans and stripped them of their vote. And if anyone dared to question white supremacy, they were quieted by terrorist groups like the Ku Klux Klan, which often worked in close coordination with the state.
There are many villains in this saga. The resilience of white supremacist government in the South occurred because the Supreme Court largely sat on its hands, often explicitly embracing the South’s most odious practices. It happened because the rest of the nation lost its nerve, abandoning Reconstruction for a peace built from the bones of black Americans. It happened because of immoral men willing to use murder as a tool of political control. But white supremacy also thrived because of the Founding Fathers.
Remember that compromise? The one that gave Alabama exactly the same number of senators as New York? It also prevented Congress from enacting a single civil rights law from 1875 until 1957.
The Civil Rights Act of 1875 was one of Congress’ final serious attempts to reconstruct the South. Enacted just over a year before Rutherford B. Hayes sold out black America in order to secure his presidency, the Act banned racial discrimination by “inns, public conveyances on land or water, theaters, and other places of public amusement.” It survived eight years before it was struck by the Supreme Court.
Though new civil rights legislation sometimes passed the House — five such bills did so in the 12 years following World War II — none of this legislation survived contact with the Senate. The same Senate malapportionment that, for many years, gave slave states parity with free states in Congress’ upper house, despite the fact that the free population in the North significantly exceeded that of the South, now gave the Jim Crow states a far louder voice in the Senate than their population warranted.
That thumb on the scale, combined with the filibuster, was enough to keep civil rights bills from becoming law.
Nearly six decades after the Senate finally ended its blockade of all civil rights laws, malapportionment continues to advantage conservatives and stymie progressives. To give just one example, the 54 senators who make up the current Republican majority (and who effectively kept the Supreme Court in Republican hands by preventing Chief Judge Merrick Garland from being confirmed to fill its vacant seat) represent fewer than 150 million people. The 46 senators in the Democratic majority, meanwhile, represent more than 170 million.
What’s more, according to the group FairVote, “the 46 Democratic caucus members in the 114th Congress received a total of 67.8 million votes in winning their seats, while the 54 Republican caucus members received 47.1 million votes.”
The ungovernable nation
Even setting aside the undemocratic Senate, the United States is an outlier among our peer democracies because of the unusual number of roadblocks our Constitution places before any bill that seeks to become law.
America’s separation of powers, which typically requires consensus among the president, two houses of Congress, and the Supreme Court — not to mention the cooperation of congressional leaders and committee chairs who have outsized power to hold up legislation — is generally taught to schoolchildren as if it were divine wisdom delivered to the Founding Fathers at Mt. Sinai. But it is a highly unusual system, in no small part because so many democracies that adopted similar models failed.
In his seminal essay “The Perils of Presidentialism,” the late Yale political scientist Juan Linz warned about the danger inherent in a constitutional system, like the one in the United States, which elects the nation’s chief executive separately from its legislature. In such a system, it is easy for two irreconcilable factions to each gain control of at least one veto point that enables them to halt the legislative process. Moreover, because both sides “derive their power from the votes of the people in a free competition among well-defined alternatives,” there’s no “democratic principle” that can be cited to break such an impasse.
“In some such situations in the past, the armed forces were often tempted to intervene as a mediating power.”
As one Republican lawmaker defended his party’s actions in the lead up to the 2013 government shutdown, “I too won an election. You want me to just disregard all of my voters and all of the promises that I made and how I got elected?” The shutdown happened because both our Democratic president and our Republican House had an equal claim to democratic legitimacy.
The shutdown is an unhappy memory, but it is hardly the worse case scenario for what can happen if the president and the legislature face a unsolvable disagreement. It is “no accident,” Linz recalled of other nations that have faced such an impasse, “that in some such situations in the past, the armed forces were often tempted to intervene as a mediating power.”
The United States, fortunately, did not reach the point where Obama and former House Speaker John Boenher (R) needed to start counting their loyalists among the nation’s generals and admirals. But there’s still plenty of evidence of the issues that Linz is referencing in U.S. government.
Our stagnant, imperfect democracy leaves many problems — crumbling infrastructure, a job market that still has not fully recovered from the recession — unaddressed or underaddressed. It also denies voters much of the feedback that they need in order to cast their ballots wisely.
A likely reason why Republicans felt hornswoggled when President Obama signed the Affordable Care Act into law is that they had good reason to believe that such a thing wasn’t possible. After all, every Democratic president since Harry Truman (as well as Republican Richard Nixon) promised a universal health plan. Yet, for more than six decades, they failed. Failed health care reform plans were as American as baseball and capitalism. It’s hard to blame Obama’s opponents for thinking they were safe from the horrors of affordable health care for the less fortunate.
Meanwhile, the Republican Party’s fiscal proposals, which include deep cuts to Medicaid and food stamps, a plan to charge seniors up to 40 percent more for inferior health coverage, and big tax cuts for the highest earners, are unpopular with the general public, unpopular with Republicans, and unpopular even with most Republican donors. Pretty much the only people who like these proposals are rich Republican donors.
And yet, somehow, the American people just elected a Republican Congress that is poised to enact these unpopular proposals and a president (albeit not with anything close to a majority vote) who is likely to sign them into law. How can this be? Why did so many voters condemn themselves to policies that they hate?
Vox’s Sarah Kliff offers one explanation for this dichotomy. In a recent trip to a Kentucky town that voted overwhelmingly for Trump, despite the fact that many of its residents depend upon Obamacare for health coverage, she heard a frequent refrain. In Kliff’s words, these voters “just couldn’t fathom the idea that this new coverage would be taken away from them.”
In one of the most heartbreaking interviews in Kliff’s piece, a voter whose husband is waiting for a liver transplant was able to get health insurance for her family thanks to Obamacare. Yet she told Kliff that she backed Trump because “I guess I thought that, you know, he would not do this, he would not take health insurance away knowing it would affect so many people’s lives.”
In 2012, a Democratic super PAC convened a focus group to assess whether Republican candidate Mitt Romney’s support for the GOP’s fiscal proposals could be used against him. Yet the focus group’s reactions to these proposals resembled the conversations Kliff had with Trump voters in Kentucky. When the super PAC “informed a focus group that Romney supported the Ryan budget plan — and thus championed ‘ending Medicare as we know it’ — while also advocating tax cuts for the wealthiest Americans, the respondents simply refused to believe any politician would do such a thing.”
The Constitution of the United States, in other words, built a nation where elections frequently don’t have significant consequences. In doing so, it lulled many voters into a false sense of security. It taught them not to believe politicians’ promises because, chances are, those promises won’t be implemented anyway.
And then, when a party actually does bring about sweeping radical change, the same voters seem flabbergasted that the government they elected actually did what it said it would do.
The risk of permanence
One good thing that can be said about unified Republican control of Congress and the White House is that it is likely to break this cycle. If Republicans succeed in repealing Obamacare, replacing Medicare with a voucher program, slashing Medicaid, cutting Social Security benefits by 20–50 percent, and using the savings to put more money in the wealthiest Americans’ pockets, then it will be hard to pretend that elections don’t matter. Or that voters shouldn’t pay attention to a party’s ideas before they cast a ballot for its candidates.
But the biggest danger arising from unified Republican government isn’t that it will enact bad policies that might be repealed later. It is that the GOP will use its moment at the apex of power to ensure that it can never be displaced from this position.
In many ways, this process began long before Donald Trump even declared his candidacy. Over the last several years, voter suppression laws thrived in Republican-led states. Meanwhile, these laws — many of which are unconstitutional — have survived judicial review thanks to a GOP-dominated Supreme Court that even went so far as to gut a key provision of the Voting Rights Act.
There are many good things in our Constitution. But they don’t mean very much if the Supreme Court is unwilling to enforce them.
There are also strong arguments that partisan gerrymandering violates either the First Amendment’s protections against viewpoint discrimination, or the Fourteenth Amendment’s guarantee of equal protection under the law. Yet Republicans on the Supreme Court also thwarted efforts to combat such gerrymandering in court. These decisions, combined with geographic factors that advantage Republicans, prevent Democrats from enacting legislation even when they win. In 2012, for example, Democratic House candidates won nearly 1.4 million more votes than Republicans. Yet the GOP kept control of the House.
There are many good things in our Constitution. But they don’t mean very much if the Supreme Court is unwilling to enforce them.
Once Trump adds another Republican justice to replace the late Justice Antonin Scalia, one of the Court’s first orders of business will probably be a long-pending dispute that seeks to hobble public sector unions’ ability to fund themselves — it is highly likely that Trump’s nominee will provide the fifth vote to inflict this wound on unions. That not only means lower wages for government workers in the long run, but also means Democrats will lose much of the political infrastructure that these unions provide.
And enabling voter suppression while carving up unions is really only a small part of the damage a truly partisan Supreme Court could inflict upon democratic governance. In the worse case scenario, a Supreme Court stacked with Trump justices could recreate the early twentieth century, when minimum wage laws, child labor laws, and much of the New Deal were blocked by an ideological Court that did not feel especially constrained by the text of the Constitution.
Despite all the obstacles laid by voter suppression and similar tactics, Democrats could claw their way back into congressional majorities and the White House — only to discover that their efforts to roll back Trump era legislation will be struck down by Republicans on the Supreme Court.
Learning the wrong lessons
If America holds a free and fair election in 2020, and if that election places a Democrat back in the White House, there’s a danger that liberals will learn the wrong lessons from four years of Donald Trump.
To be sure, some of the right lessons are obvious and unlikely to be missed. The Electoral College, for example, is a pathology that will have few informed defenders outside of the party that has twice seen its losing candidate declared the winner.
But conservatives also spent much of the last century spinning a fairly consistent narrative about what’s wrong with the American system of government. In their mythology, the problem with the United States is that it is too democratic. That it is too easy for the federal government to enact new programs and regulations. And that the way to save America is to erect barriers that make it harder for elected officials in Washington to govern.
This narrative is likely to have some appeal to liberals reeling from four years of Trump. The idea that Obamacare, or Medicare, or Social Security, could have been saved if only there’d been more veto points in our system will be appealing. We are likely to see just how bad things can get if government is able to move quickly.
If Brexit does prove to be a calamity, British voters will at least know who to blame.
But liberals will shoot themselves in the foot if they succumb to the appeal of a left-libertarian alliance whose sole goal is to keep future Presidents Trump from doing too much, too quickly. In the short term, they are likely to freeze government in the weakened state that four years of Donald Trump will produce. In the long term, such a single-minded alliance would exacerbate the constitutional defects that brought America to the point we find ourselves in today.
Today, as President-elect Donald Trump waits to take the oath of office, the nation of Great Britain faces a similar crisis. The Brexit campaign, which appealed to much of the same racism and nationalism that drove Trump’s campaign, is victorious. A web of alliances that helped end centuries of warfare within Europe is now at risk. British workers are expected to “make £38 less a week than their E.U. counterparts by the year 2030 once the country leaves the E.U.”
The British parliamentary system, which typically places a single party in charge of the entire government, did not prevent these outcomes. But if Brexit does prove to be a calamity, British voters will at least know who to blame. It was a Tory prime minister who allowed the Brexit vote, and a Tory government will manage the nation’s transition out of the European Union.
There can be no doubt in London that elections have consequences. And no further doubt about who foisted these consequences upon the British people.
And, if Tory candidates campaign on a plan to dismantle their nation’s universal health care system, British voters will know damn well that they better believe that these candidates will actually do it.
They won’t vote, as so many Americans did, to dismantle our social safety net by accident.
The United States Constitution was written over the summer of 1787 at a convention in Philadelphia. Fifty-five delegates from twelve states eventually signed the document that created the modern American government, but its main author was Virginia delegate James Madison. He later became the fourth president.
His plan included the basic institutions of our government—The Supreme Court, the U.S. Congress, and the presidency. These remain essentially unchanged today.
A national government had been created during the Revolutionary War. Most of the early Americans felt that the national government was dysfunctional. It had been accepted in 1777. The government lacked the authority to collect taxes. Each of the original thirteen colonies had an equal say in national policy. New York and Virginia, which had larger populations, were upset about the equal say. Small states were aware of this flaw in the Articles of Confederation. and they were wary of giving too much power to neighboring states. Rhode Island, for example, wouldn’t even participate in the Convention.
The new constitution formed the House of Representatives, whose seats would be allotted by population and the Senate, where each state had equal representation.
Slavery was still a huge problem for the Founding Fathers. Washington and others wanted to end slavery. Their southern brothers knew that the economy of the south was dependent upon the free labor from slavery. This moral question went around and around. The southern states threatened to withdraw and become their own country. The Founding Fathers did not want that to happen to the great experiment—democracy.
They came up with a compromise. It was called the Connecticut compromise and it removed the greatest obstacle to the success of the convention and our country. In a nutshell, a non-free person would be counted as three-fifths of a person for tax reasons and in determining representation in Congress. The delegates locked themselves in until the could come to an unanimous decision,
I think they should have ended slavery but Washington is quoted as saying, that perhaps it should be left for later generations to decide as we would be able to handle it better and with less strife. We clearly were not better equipped to handle it. The black man and woman were the ones who suffered from all of our lack of ability.
The electoral college was set up at this time to prevent the people from electing someone to be president who was illiterate and totally unable to run the country. Many Americans were illiterate at the time and the founding fathers sought to protect our new nation. The population of a state would determine how many delegates in the electoral college each state would have. The delegates were to vote on the candidate the state determined they wanted to be President. Historically, it served its purpose. Now in the twenty-first century, it has elected a President twice that the people did not want nor did they elect. Gore was the first person and Bush ended up in the White House and now Clinton with Trump ending up in the White House. The college needs to be altered because it is outdated by around 240 years. We could also dismantle the college which is my favorite option. We no longer have a need for this outdated balancing remedy. Almost all of America is now educated enough to be able to cast their ballot with out worry.
A fascinating read. From this side of the pond, your system does seem strange. Is there really any chance of it changing hereafter once Trump is in office? What suits is likely to remain and be further entrenched, as you highlight, once another Republican is on the Supreme Court.
I have no doubt that Brexit will be a disaster for Britain and am working for and holding on to the fervent hope that Scotland will be independent of the UK. Our paths and policies are too disparate to remain any longer as one.
I wish you and the rest of the US the same luck and determination we also need here in resisting the worst excesses of extremism.
Great article and thank you for posting. Well done!
Thank you for stopping by and leaving your message. I appreciate your comment. Please come and see me again. Hugs, Barbara
Well the first step is to make people aware of the problem and then we can talk about solutions. We may also be entrenched but it is worth the effort. The first time it happened and Gore won the popular vote but Bush landed in the White House most Americans thought it was a fluke. Now we know it wasn’t. We are stuck with an enormously unsuitable man in office. He is not my president. Hugs, Barbara
The constitution is aliving document and the amendments made to it are reflective of widening liberties through the years. The founding fathers could not contemplate the complexities of our current society, the way in which technology has influenced the way information is diseminated and manipulated among many other societal changes. I agree that voter reform is more than necessary -overdue in fact. I believe that this past election, as you suggest, will make people care about voting again. I would hope that both Democrats and true Republicans who both were left bereft by this election will finally see that the electoral college is no longer serving the purpose which it was designed to fulfill. Rank choice voting is a simple viable possibility. When one wonders why voter reformation has not been embraced by either party, I think the answer is simple. As a two party system, each has a 50/50 chance of being in power. Why rock that boat seems to be both parties reason to not want to actively take on voter reform. I think this last election willchange that. We need to widen the opportunity for other parties to participate in the process. I think with the incoming administration and president we will renewed voter interest (even activism perhaps?) but will also see great battles in the balance of powers between the branches of power. As a lawyer, I disagree partially that “they choose not to act” – it’s more complex than that. The change one justice may make one the Supreme court now does not really shift what we have had before Scalia died. It is the Justice being replaced after that one which will make the ost change in the court. Perhaps it is time to aslo consider why the court has so few justices where the loss of one or two can change the balance in such a drastic way. The possibility that the incoming administration will actually bring about new constitutional amendments is likely I think. The nepotism, the blatant conflicts of interest. I think a reuplican house and senate will still act to limit the new president’s actions as he has made many enemies in both arenas.Your artcle is a fine read. Many insightful remarks – but I think to say the constitution has failed is wrong. i do not consider it a devine text. I do see the great compromises made in putting it together. But it is not set in stone, it has developed along with this country’s populace and it for the most part has been to expand liberties. But any document created by human beings has flaws in the way that the draftrs are flawed. The fact it can be changed but still protect and expand inalienable rights is a great thing. I think constitutional lawyers will be more necessary than ever in the coming years. I am thankful every day I know intelligent and impassioned ones. Here’s to being a rebel. Here’s to not being quiet, here’s to voter reform. Here’s to exercising and expanding our rights in the face of a president elect who aims to do quashing all of the above!
Thank you so much for your excellent comment and you are right the Constitution is a living thing. The Founding Fathers struggled with what they wanted it to say and what it ended up saying. But the love and the optimism that they showed in planning this democracy is very moving and has moved many of us to be activists. I started in the 70’S. Though I am older now and on a cane I do volunteer work and write my blog to inspire others with my words and others to stand up for what they believe in and to work for the changes they envision for our country. Hugs, Barbara
What a thoughtful, insightful piece you have written. Should be required reading.
Thank you Cynthia, people seemed to look at the electoral college as a complete black and white issue and I thought that understanding some of the work and reasoning that went into the creation of the Constitution and college would help people to grasp the intense purpose that went into the framing of our country. It is not divine, but written by very wise men. Wise but not infallible. We can change what now in the 21st century needs to be adjusted. Hugs, Barbara