We were treated to something of a crash course in the US Constitution during the Trump administration, from impeachment to court appointments to the wrangling over the results of the presidential election. What do you think we’ve learned from all of this?
The main takeaway is that we have a constitutional system that is fundamentally flawed. The central eighteenth-century architects of the federal constitution were deeply suspicious of mass democracy. They therefore created a legal-political framework that placed massive roadblocks in the path of ordinary people using the vote to exercise majority rule. From the founding to the present, the result has been a system that fractures the power of the vote and makes it very difficult for the most marginalized within society to have their voices heard, let alone their needs met. At the same time, due to this system’s veto points and overall fragmentation, the larger order is especially conducive to capture by empowered elites — particularly corporations and forces of white supremacy.
I believe that this is one lesson of the recent Trump-led insurrection. The modern Republican Party, not unlike earlier reactionary entities, is deeply shaped by the incentives of the constitutional system. Given the nature of federalism, the Senate, the Supreme Court, the Electoral College, and gerrymandering in the House, the party has a disproportionate capacity to project power without a popular majority. This reality creates a drive within the party to view its strength as dependent on disenfranchisement and minority rule. It also means that actual multiracial democracy becomes an almost existential threat to party elites. And it is not that big a leap from systematically suppressing votes, particularly those of nonwhite minorities, to employing actual violence to overthrow elections. Indeed, from Southern secession to white resistance to Reconstruction and then later to desegregation, this has been precisely the defining and authoritarian move in the United States of entrenched white elites contesting democracy. Their mob actions and racist violence were both lawless as well as facilitated by the minoritarian tendencies of the constitutional order.
But of course, this is not the story about the Constitution that most Americans grew up with. The document was usually presented as a near-perfect distillation of liberal democracy. But whatever the myths of the past, I think the last few years have made clear that the existing constitutional system not only makes it hard for us to address the country’s many social crises but also critically exacerbates those crises.
In more mainstream quarters, the explanation for political dysfunction is often that we’ve gotten away from the wisdom of the founders and the solution is therefore to go back, not forward. This appeal to the eternal wisdom of the Constitution seems very particular to the United States. Why is this such a recurrent theme?
I believe that much of this has to do with the vision of politics that emerged during World War II and especially the Cold War. During these years, political elites organized their defense of the United States’ status as the world’s dominant power around the idea that the country was an open and free society unlike its totalitarian foes. American nationalism became wrapped up with the claim that what made the United States exceptional was how, from the founding, it had been committed to principles of liberty and equality. This deep cultural core, so the argument went, was why Americans had avoided the horrors of fascism or Stalinism.