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Can states’ rights save us from a second civil war?

The crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.
—Antonio Gramsci

Donald Trump’s presidency signals a profound but inchoate realignment of American politics. On the one hand, his administration may represent the consolidation of minority control by a Republican-dominated Senate under the leadership of a president who came to office after losing the popular vote by almost 3 million ballots. Such an imbalance of power could lead to a second civil war—indeed, the nation’s first and only great fraternal conflagration was sparked off in part for precisely this reason. On the other hand, Trump’s reign may be merely an interregnum, in which the old white power structure of the Republican Party is dying and a new oppositional coalition struggles to be born.

Illustrations by Taylor Callery

Trump has succeeded, in less than two years, in destroying the old regime of a conservative movement ascendant since the election of Ronald Reagan. Conservatives once claimed to believe in fiscal restraint and cutting deficits. Trump and the Republicans in Congress are now unapologetically adding trillions to the national debt, and will be for the foreseeable future. Conservatives used to believe in global alliances, free trade, and the institutions that support them, such as NATO and NAFTA. No more. As David Brooks noted in the New York Times in March 2017, “Trumpism is an utter repudiation of modern conservatism.” The right-wing columnist Charles J. Sykes believes that “American conservatism has entered a pseudo-Orwellian stage where weakness is strength” and “lies are truth.” Having demolished modern conservatism, Trump’s rule is a corrupt, nepotistic cult of authoritarian personality.

What if we think of Trump as an interrex, the Oliver Cromwell of American history? Cromwell ruled En­gland from 1653 to 1658. He, in literal fashion, killed off the old regime by signing King Charles I’s execution order, but his rule didn’t represent a new era. Driven by a belief that he was God’s chosen instrument of Protestant redemption, Cromwell purged Parliament of dissenters and royalists, many of whom fled to Ireland. He then invaded Ireland, massacring thousands of Catholics and deporting many more to the colonies. In En­gland, he imprisoned thousands of his political enemies without trial. When Cromwell died of an infection, he passed his title of lord protector on to his son, Richard. But Parliament rebelled, and within two years Charles II became king. In 1661, three years after Cromwell’s death, his body was removed from Westminster Abbey, and he was posthumously tried and “executed” for high treason, his severed head displayed on a pike outside Parliament. Out of this chaos, the modern En­glish constitutional system was born. By 1689, the British bill of rights had been signed, laying down limits on the powers of the monarch, setting out the rights of Parliament, and guaranteeing free elections and the freedom of speech.

If Trump is a transitional figure like Cromwell, then the new that is struggling to be born is a complete realignment of American party politics. Trump’s Republican Party could come to resemble the Whigs, who elected four presidents between 1841 and 1853 and then disappeared. Just as liberal Whigs such as Abraham Lincoln split from the party over their opposition to slavery and formed the Republican Party, so, too, do Never Trumpers like John Kasich and Ben Sasse have no real home in Trump’s GOP. We have already observed the defection of prominent conservatives such as George Will and Steve Schmidt, who now urge moderate Republicans to help create a Democratic majority in the 2018 midterm elections as a check on Trump, who Will has described as a “Vesuvius of mendacities.”

These Republicans are increasingly alienated in part because we are approaching an age of extreme minority rule, and their party is advancing a set of policies that fewer and fewer Americans actually support. Norman Ornstein of the conservative American Enterprise Institute recently shared data on Twitter about the extraordinary disconnect between the shrinking Republican popular vote and the party’s increasing control in the Senate. As Ornstein writes,

By 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent [of the voters] will choose 70 senators. And the 30 percent will be older, whiter, more rural, more male than the 70 percent.

The problems of minority rule are demonstrated by the Electoral College, which has awarded the presidency to the loser of the popular vote twice in the past twenty years. An individual citizen in Wyoming has more than triple the weight in electoral votes of an individual in California. Barring constitutional change, the rural South and the Midwest will essentially hold a veto over any progressive federal legislation supported by the metropolitan majority of Americans.

The recent Kavanaugh Senate hearings were a window into our coming civil war in an age of Republican minority rule. As David Wasserman of the Cook Political Report noted on Twitter, “To Dems who can’t believe what they’re watching, remember: a majority of the Senate now represents 18 percent of the population and answers to a subset of voters that is considerably whiter, redder and more rural than the nation as a whole.” It’s clear neither Kavanaugh nor the eleven white Republican men on the Judiciary Committee think like the majority of Americans. The effect this might have on rights that the majority of voters support is tremendous. A poll in July from NBC News and the Wall Street Journal showed that 71 percent of Americans believe that Roe v. Wade (guaranteeing a woman’s right to an abortion) should not be overturned. And yet Trump has said appointing justices who would help overturn Roe is a major priority. The same is true for the Supreme Court’s support of various states’ voter-suppression laws, including the conservative majority’s decision in 2013 to repeal key provisions of the 1965 Voting Rights Act. Despite there being in the past three senatorial elections 15 million more votes cast for Democrats than for Republicans, the Republicans continue to rule the Senate and thus the Court.

Progressives hoping that a so-called blue wave this month will solve these problems are mistaken. Capturing the House may allow Democrats to begin presidential-impeachment proceedings, but the chances of two thirds of the Senate voting to remove Trump from office are infinitesimal. David Wasserman has illustrated the difficulty of Democrats capturing both houses of Congress, which is due to Republican majorities in several small states:

If every state’s and district’s election results on Nov. 6 were a uniform eight-point swing in the Democrats’ direction from the 2016 presidential result, Democrats would gain forty-four House seats—almost twice the twenty-three they need to control the chamber. But with that same eight-point swing, the party would lose four Senate seats, leaving them six seats short of a majority.

Liberals counting on revelations of Trump’s malefactions to sway the vote, meanwhile, neglect the massive propaganda apparatus of Fox News, talk radio, and Twitter that the president has at his disposal, where pundits faithfully spin his misdeeds into harmless peccadilloes or inventions of a great liberal conspiracy. The question of whether or not the crimes of Michael Cohen or Paul Manafort implicate the president, or whether recordings of Trump spewing the N-word may emerge, are irrelevant when a huge swath of popular opinion is kept on Trump’s side by this unprecedented propaganda machine. Fox News commentator Geraldo Rivera told Sean Hannity he believed President Richard Nixon “wouldn’t have been forced to resign” if Hannity had been around during Watergate because of the sympathetic treatment Hannity would likely have given Nixon’s crimes. Rivera was probably correct.

The problem of minority rule has plagued the nation from its inception. In a sense, it led to our first Civil War. As secretary of state to President John Tyler, the ardent slavery advocate John C. Calhoun engineered the annexation of Texas in 1845 in order to add one slave state to the Union, giving the fifteen slaveholding states an advantage in the Senate over the thirteen free states. The 1840 census shows that before Tyler’s maneuver, the slave states had a total population of 7 million, compared with the 8 million of the free states. Given that the slaveholding states counted those in captivity in the census even though they had no right to vote, the ability of Calhoun and his compatriots to use minority rule to preserve their “peculiar institution” of bondage is even more egregious.

Could history be repeating itself? The national security expert Keith Mines estimates, as he told Foreign Policy, that the United States faces, over the next ten to fifteen years, a 60 percent chance of civil war—some variety of violent political conflict on a large scale.

There is a solution built into the Constitution for defusing tensions created by such imbalances of power that conservative Supreme Court justices have shown great deference for: the Tenth Amendment, which declares that any power not specifically reserved for the federal government is granted to the states. The origins of the amendment stem from Thomas Jefferson’s debates with his friend James Madison during the 1787 Constitutional Convention. After reading the first draft of the Constitution, Jefferson wrote Madison that the great fault in the document was “the omission of a bill of rights.” He believed that the modifications to the British constitution, enshrining a bill of rights in the wake of Cromwell’s excesses, were critical to a free society. Although Madison originally opposed a bill of rights, over the next two years of ratification of the document by the states he came to see Jefferson’s point that the greatest threat to both individual and local liberty might flow from an authoritarian federal government of the Cromwellian sort. The solution lay, in Jefferson’s words, in including an amendment making clear that “the true theory of our Constitution is that the states are independent as to everything within themselves, and united as to everything respecting foreign nations.”

It has taken two hundred and thirty years to put Jefferson’s defensive measure against an autocratic federal government to the test. While the press freedoms guaranteed by the First Amendment and the privacy protections enshrined by the Fourth Amendment are being tested, progressives are looking to the Tenth Amendment for relief. Since Trump took office, twenty-two Democratic state attorneys general have sued the Trump Administration. Nineteen attorneys general sued to stop Trump from putting an end to certain Obamacare subsidies, eighteen sued to stop the rollback of environmental protections, and sixteen sued to reverse Trump’s decision to rescind ­DACA protections for young immigrants. Although these lawsuits are working their way through the courts, the Trump Administration has lost many of the early cases, including a suit in August 2017 in which a California judge ordered the EPA to enforce its own clean-air standards.

So far in 2018, twenty-four states have passed thirty-seven bills to curb rising prescription drug costs, according to Trish Riley, the executive director of the National Academy for State Health Policy. And a suit has been recently brought by eight states and the District of Columbia to block the Trump Administration’s decision to allow a Texas company to publish downloadable blueprints for a 3-D-printed handgun.

Attorneys general are emerging as crucial players in the fight. The Massachusetts attorney general, Maura Healey, is a perfect example: Healey joined with seventeen other state attorneys general to sue the secretary of education, Betsy DeVos, for attempting to sabotage efforts by states to rein in student loan debt collectors. In September, a federal judge ruled in favor of the states, writing that DeVos’s actions were “arbitrary and capricious.” “It’s actually remarkable that the US Department of Education came into Massachusetts courts,” Healey said, “and challenged our authority to enforce state consumer protection law on behalf of students who were victimized by predatory lending practices.”

California’s attorney general, Xavier Becerra, has sued the Trump Administration thirty-eight times in the past twenty-two months and has won twelve victories in the lower courts. He understands these cases may go to the Supreme Court, where California would ultimately make Tenth Amendment claims. For Becerra, this is a long fight born out of an immigrant childhood. His father grew up in California in the 1950s, when restaurants posted signs with the words no dogs or mexicans allowed. Now Becerra is asking: Where does it say in the Constitution that the president or the federal government should control immigration or auto emissions? And, more profoundly, he’s posing the Jeffersonian question: Where does the power to govern reside?

The progressive states’-rights movement is also, in some instances, demonstrating a level of bipartisan cooperation missing in Washington. A case in point is Vermont’s decriminalization of marijuana. The legislature first passed a decriminalization law in 2017, which was vetoed by the Republican governor, Phil Scott. In January, the legislature passed a slightly revised law by an overwhelming margin, and Scott signed the law “with mixed emotions.” Scott’s cognitive dissonance arises from the realization that traditional Republican antidrug rhetoric was useless in the face of a bipartisan vote by the legislature to approve the decriminalization law. While Jeff Sessions may be able to maintain his anti-pot stance in Washington, such a position is political suicide in many states.

Progressives’ negative reaction to the words “states’ rights” was formed before the Civil War and reinforced during the Jim Crow era, but there’s a long tradition of progressives using the Tenth Amendment as a political tool, most notably, and successfully, in the 1850s, to resist the Fugitive Slave Act. Many Northern states abolished slavery decades before the Civil War. Wisconsin pioneered unemployment insurance for its residents twenty-four years before the federal government; Wyoming allowed women to vote in 1864, more than fifty years before the Nineteenth Amendment enacted suffrage nationwide.

The modern incarnation of this strategy, which one of its chief theorists, the Yale Law School professor Heather Gerken, calls “new progressive federalism,” has its origins in President George W. Bush’s reelection in 2004, when Republicans took control of all three branches of government. Gerken hoped a states’-rights strategy would serve as a counterweight to Republicans’ control of Washington, and that passing progressive legislation at the state level would be a way for “national minorities” to “constitute local majorities.” Since then, most major progressive reforms have been incubated and become law at the state level—commonsense gun control, tackling climate change, ensuring ­LGBTQ rights, marijuana decriminalization.

Citizens uninterested in living in Trump world should look to the recent heartening developments in California, Oregon, Vermont, New York, Massachusetts, and Washington State: local legislators taking on federal power in ways that have proved far more effective than rallies or federal legislative efforts at stalling or presenting alternatives to the Trump Administration’s agenda. The era when the federal government was a progressive force against reactionary states such as Alabama and Mississippi is dead, and progressive change is now flowing from the states, not from Washington.

Since the recession of 2008, the country’s citizens have been test subjects in an experiment being played out at the state level that pits two theories of government against each other: The conservative theory to revive growth, embraced by Trump and championed in Texas and Kansas, holds that cutting taxes on the wealthy and cutting regulations on business stimulates the economy. The progressive theory of development, championed in California and Oregon, favors raising taxes on the wealthy to pay for education and public infrastructure, and stronger regulations on pollution, privacy, and assault weapons.

By 2015, the results of the experiment were in. The California economy grew 4.6 percent, while Kansas’s grew by only 2.2 percent. In Kansas, both the K–12 system and the universities have undergone drastic cutbacks in spending, the state’s credit rating has been lowered, and the state has experienced a net out-migration of citizens. Despite this dubious precedent, Trump and the Republican Congress’s 2017 tax bill imposed the Kansas model on the whole country, cutting taxes on the wealthy and regulations on business. The true effect of the Trump tax cut has been to line the pockets of corporate executives even while real wages for workers are stagnant.

Meanwhile, as reported by the Congressional Budget Office, by 2030, the federal debt could nearly triple. Some analysts have suggested that Trump is leveraging up the US balance sheet like one of his old, bankrupt casinos. Historically indifferent to the threat of too much debt, Trump once wrote to one of the lenders suing him, “I told you, you shouldn’t have loaned me that money. I told you that goddamn deal was no good.”

While inspecting prototypes for his border wall in California earlier this year, Trump gloated, “Governor Brown’s done a very poor job running California.” The truth, as Bloomberg reported, is remarkably different:

California is the chief reason America is the only developed economy to achieve record GDP growth since the financial crisis of 2008 and ensuing global recession. Much of the US growth can be traced to California laws promoting clean energy, government accountability, and protections for undocumented people.

To be sure, this growth has come at times at the expense of poor and working-class people, and one of the contradictions of the California economic miracle is that it has given rise to staggering inequality in cities such as San Francisco and San Jose. In the Bay Area, wealthy families earn eleven times more than poor families—making it the third most unequal region in the United States. At a recent Federal Reserve conference in Jackson Hole, Wyoming, economists pointed out that the tech giants Apple, Google, and Facebook could be contributing to slower wage growth and income inequality in part because of their monopoly powers. As the Princeton economist Alan Krueger argued, when workers have few potential employers to choose from, it may be harder to command higher wages. “The gaping gully between the area’s rich and poor,” the Mercury News recently reported, “shows that wealth generated from the booming high-tech industry isn’t trickling down to the rest of the population.”

Ever since the first dot-com bubble during the Clinton Administration, Democrats have bought into the libertarian deregulation ethos. The contributions that flowed from Wall Street and Silicon Valley into party coffers, replacing dwindling union contributions, left them vulnerable to Donald Trump’s demagogic charade. Writing shortly after the 2016 election in the New York Times, Gretchen Morgenson pointed to this issue as one of the reasons for Hillary Clinton’s defeat:

There are many facets to the populist, anti-establishment anger that swept Donald J. Trump into the White House. . . . A crucial element fueling the rage, in my view, was this: Not one high-ranking executive at a major financial firm was held to account for the crisis of 2008.

With several notable exceptions, including Senators Bernie Sanders and Elizabeth Warren, that fear of regulation still exists on both sides of the aisle in Washington, but it has been banished in many states. In June, California’s Democratic legislators passed a sweeping data-privacy protection bill. Harvard Business Review noted that the law “might force significant changes on companies that deal in personal data—and especially those operating in the digital space.” Among other things, the law specifies that users can request their personal information be deleted and can opt out of data sharing.

The rise of Democratic Socialist candidates like Julia Salazar and Alexandria Ocasio-Cortez in New York, meanwhile, suggests the public’s appetite for regulation of big industry is vastly greater than it was in years past. To succeed in the next decade, Democrats might frame themselves as the party that rallies beneath the banner of a nationally unified anti-corruption and anti-inequality program while embracing a decentralized view of government as the vehicle for achieving that program. As Jonathan Chait pointed out in New York magazine, “Trump’s core proposition to the public was a business deal: If he became president, he would work to make them rich.” As Chait notes, demonstrating that the 2016 campaign was a massive con on the working and middle classes is a far more convincing narrative to voters than relying on the Russia investigation or Stormy Daniels.

The recent election of Democrats running in states Trump won, such as Conor Lamb in Pennsylvania’s Eighteenth Congressional District, suggests that a big-tent Democratic strategy focusing on economic inequality and corruption is a viable route to victory. Both Lamb and his Republican opponent supported the Second Amendment, and Lamb made it very clear that he would not vote for Nancy Pelosi to lead the Democratic caucus, because she is seen as a defender of the old, Clintonian guard. This strategy is working for Democrats in traditional Republican districts because, as a recent ABC–Washington Post poll found, “More than 6 in 10 Americans say Trump and the Republican Party are out of touch with most people in the country.” Although the Democrats fare better on that question, it is still a pitched battle in many districts.

If the Democratic Party embraced a decentralized model it would be able to reflect the regional differences that are one of the most enduring features of America. A new Democratic Party could be built from communities that celebrate their diversity and nurture good citizens willing to abandon the dogma of today’s partisan bickering. A party with room for George Will as well as Alexandria Ocasio-Cortez is one that can beat Trump and explode the stultifying Dem­ocratic Party status quo of Pelosi, Schumer, and Feinstein while also challenging the supremacy of the GOP.

The notion of an interregnum has classically been tied to those periods when one king has died and there is no clear successor—a hinge in time when the old order is dead but the new direction has not been determined. In the American context, the possibility that progress can flow out of such chaos was best demonstrated in the 1890s, the decade that ushered in the Progressive Era. Then, a potent mix of rapid technological change, militant labor strikes, religious revivals, and the worst depression of the nineteenth century paved the way for a shake-up of entrenched political power and the innovation of new ways of governance. The electric light bulb, the phonograph, motion pictures, and the automobile were all introduced. The bloody history of workers’ rights will record the 1890s strikes—Homestead, Leadville, Coeur d’Alene, and Pullman—as seminal events. But what emerged in America, after 1900, from this turmoil was a bipartisan commitment to reform led by a Republican president, Teddy Roosevelt, but backed by Democrats in Congress. The twenty-year era that followed—under Roosevelt, Taft, and Wilson—was driven by a cross-aisle belief that the Progressive movement was, as Richard Hofstadter wrote,

the effort to restore a type of economic individualism and political democracy that was widely believed to have existed earlier in America and to have been destroyed by the great corporation and the corrupt political machine.

We are at our present crossroads because of a similar transition. In 1989, the year the Berlin Wall collapsed and a computer scientist named Tim Berners-Lee delivered a research paper to his boss at the European Council for Nuclear Research outlining a plan for a World Wide Web, two quieter events contributed in their own way to sounding the death knell of the old order. In February of that year, the Court of Appeals for the D.C. Circuit affirmed the right of the Federal Communications Commission to abolish the fairness doctrine in the case of Syracuse Peace Council v. Federal Communications Commission. The fairness doctrine, introduced by the FCC in 1949, required broadcasters to present controversial issues of public importance and to do so in a manner that was—in the FCC’s view—honest, equitable, and balanced. President Reagan was determined to kill that rule, noting that “history has shown that the dangers of an overly timid or biased press cannot be averted through regulation, but only through the freedom and competition that the First Amendment sought to guarantee.” The effect was to subject the press not to the rules of regulators but to the distortions of the market, and the result was felt almost immediately. Most music programming had moved off the AM spectrum to the higher-quality FM, which left a hole in the market that AM stations began to fill with talk radio. The New York AM radio station ­WABC, which had moved to an all-talk format, had recently hired a Sacramento radio host named Rush Limbaugh. The elimination of the fairness doctrine allowed Limbaugh to conduct a totally partisan enterprise. As a right-leaning Wall Street Journal op-ed crowed, “Ronald Reagan tore down this wall”—the fairness doctrine—“in 1987 . . . and Rush Limbaugh was the first man to proclaim himself liberated from the East Germany of liberal media domination.” Within a few years, Limbaugh’s program was heard on five hundred stations across the country.

The second upending of media came on March 11, 1989, with the premiere on the new Fox network of a show called Cops. Fox, which was broadcasting just two nights of programming a week, commissioned Cops in a panic to deal with the Writers Guild strike in the spring and summer of 1988, which prevented the creation of new scripted dramatic or comedy shows. Since Cops was ostensibly unscripted and cheap to produce, it was the perfect answer to Fox’s dilemma, and the show would eventually become the second-­longest-running program in the history of the network.

The French philosopher Jean Baudrillard saw in this moment a phenomenon that would come to resemble Trump’s ascent to reality-TV fame and then to the presidency. He wrote, “It is the generation by models of a real without origin or reality: the hyperreal.” In the hyperreality of Trump, what is real and what is fiction are effortlessly blended together so that there is no clear line between where one ends and where the other begins. Trump, more than any politician before him, understands the dynamics of reality TV, having learned on The Apprentice that nothing has to be true. The only thing that matters is a constant state of tension and drama. Who will be fired this week? That’s what kept viewers tuning in, and of course he has applied that technique to his presidency. When pundits whine about the chaos in the White House, they seem to fail to understand that much of it is staged for this very effect. Many Democrats, of course, ignore the first lesson of social media: don’t feed the trolls. Every outraged reaction only amplifies the message on Trump’s propaganda channels.

In 2018, Americans spent more time in front of a screen, subject to hyperreality, than ever before. As the number of cable channels has proliferated and the internet has become a daily part of life, a profound change in our media consumption has occurred. According to a new Nielsen report, adults in the United States devote about nine hours a day to looking at a screen. Mark Zuckerberg, Larry Page, Peter Thiel, and Jeff Bezos have gotten bewilderingly rich off this so-called attention economy because they are controlling almost four hours a day of that screen time. As media has become more balkanized, first with the five-hundred-channel universe and then with the information bubbles of the web, the shared set of facts we used to have when Walter Cronkite ended his nightly news broadcast with “that’s the way it is” has been vaporized. Both NBC’s and ABC’s nightly news shows now receive 1.5 million viewers per night in the twenty-five-to-fifty-four demographic. Walter Cronkite had 30 million every night in the 1960s. Today, Facebook has 1.47 billion active users per day, and anyone can pretend to be a journalist on Facebook, as the Trump election proved. The social media tools that are sometimes touted as instruments of freedom against dictatorships turned out to be weapons capable of harming democracy. As Tim Berners-­Lee recently told Vanity Fair, the internet “ended up producing—with no deliberate action of the people who designed the platform—a large-scale emergent phenomenon which is anti-human.”

Berners-Lee’s solution is to “re-decentralize the web,” but for now the centralized internet is as much a problem as centralized political power. The platforms are unregulated and offer (relatively) cheap ways to publish articles, produce videos, and advertise. If Steve Bannon taught Donald Trump anything, it was likely that, gleaned from Bannon’s role as puppet master of the “alt-right” propaganda outlet Breit­bart. You could say anything on the internet, and you could say it millions of times to just the people you wanted to reach, for relatively little cost. For all his bluster about tech giants being biased against him, Trump will never regulate them, because they won him the election. Just as Reagan killed the fairness doctrine, Trump’s FCC chairman, Ajit Pai, has effectively killed net neutrality, an action that promises to consolidate power on the web in ever fewer hands.

Here again, the states wield the most potent—and, given the current political climate, perhaps the only—weapon of resistance. In September, Brown signed into law a net neutrality bill that will replace and strengthen the Obama-era federal regulations that the new administration’s FCC killed. Trump’s Justice Department is now suing. “When Donald Trump’s FCC decided to take a wrecking ball to net neutrality protections,” said Scott Wiener, a California state senator, “we knew that California had to step in to ensure our residents have access to a free and open internet.” An epic states’-rights battle looms, with governors like Jerry Brown and state attorneys general cast in defiant Bull Connor roles, a paradigmatic inversion that makes sense only in the upside-down world that is Trump’s America.

Some will suggest that while this new embrace of progressive federalism may drastically improve the lives of citizens in liberal cities and states, the residents of the rest of the country may suffer. But just as in the migration of African Americans out of the Jim Crow South in the 1930s and 1940s, citizens are already moving to the diverse cities where the new jobs are. That’s why an estimated 70 percent of Americans will live in just fifteen states in twenty years. If Kansas refuses to pay for a decent school system, folks will leave, just as they have been doing since the Republican governor gutted the state’s economy in 2012.

Now, it’s fair to ask: By embracing a progressive states’-rights strategy, are we accepting a diminished vision of America? One in which the shining city upon a hill is reduced to a disparate collection of neighborhoods run by antagonistic tribes? Perhaps. But that future is already upon us, and the antagonisms are real, as observers were reminded last summer when Roger Stone threatened that any politician who voted to impeach Trump “would be endangering their own life.” Living in a world where 30 percent of the population—old, rural, and white—controls the destiny of a new and diverse generation of Americans can lead only to civil strife, and perhaps even to civil war. Though the Founding Fathers may have made a mistake in creating a Senate and an Electoral College that were unrepresentative, they also gave us a way out—the Tenth Amendment. All over the country, citizens are overcoming the gridlock of Washington and making real progress toward a more inclusive society.

Trump didn’t create the extraordinary polarization, but he did exacerbate it. It is clear that the digital tools of our current attention economy make it very easy for someone like him, schooled in the reality-TV vernacular of mockery and boasting, to dominate the national dialogue. A majority of citizens may not want to live in Trump world, but because of design flaws in both our Constitution and our internet, we are temporarily forced to accede to his authoritarian impulses. Our pursuit of happiness lies in the freedom to create in our own communities the vision of progress we seek. For many of us that might be a low-carbon economy powered by solar and wind; a single-payer health care system; free community college; commonsense gun control. As much as a quarter of our population might want to live in a coal-powered, open-carry Wild West society. Progressives are not going to convince such people that our way is right, and so we must instead insist that they not have a veto on how the rest of us want to live. “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory,” the great Supreme Court justice Louis Brandeis wrote in 1932, “and try novel social and economic experiments without risk to the rest of the country.”

Of course, the possibility of realizing Brandeis’s vision of an experimental democracy depends on a subtler calculation. Are the conservative justices on the Supreme Court, who claim to be originalists, willing to respect the Tenth Amendment and support the progressive states’-rights movement? Many of the cases of states suing the Trump Administration will make their way to the Supreme Court. The Court can either further the power of Republican minority rule, or it can respect the originalism of the Founders’ vision and let states experiment under the Tenth Amendment. If it does the latter, we may be able to exit our current interregnum. If we are not able to let the old die and the new be born, we will likely be condemned to more years of Cromwellian chaos, which Winston Churchill described as a rule of “merciless wickedness” that “debased the standards of human conduct and sensibly darkened the journey of mankind.”

is director emeritus of the USC Annenberg Innovation Lab and author of Move Fast and Break Things: How Facebook, Google and Amazon Cornered Culture and Undermined Democracy (Little, Brown and Company).

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November 2018

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