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January 2019 Issue [Easy Chair]

The Crisis of Our Constitution


Lost in this past electoral season, one of the most vicious and frightening in American history, is how shaky the very foundation of our democracy is. Throughout Trump’s deformation of the American presidency, we have been told by one commentator after another that our institutions would save us, that not only the customs of democracy but also the legal infrastructure of our republic would see us through.

Nothing could be further from the truth. The United States remains mired in what is now a nearly twenty-­year-­long constitutional crisis, one that began with the infamous 2000 Supreme Court decision in Bush v. Gore and has continued ever since, affecting nearly every part of our government. And far from providing a remedy for this crisis, it is the Constitution itself that threatens to trap us inside a sort of Potemkin-village democracy, where reality has no more importance than it does in any dictatorship.

The American Constitution, we have been taught, was an ingenious series of compromises, not only singularly favored with checks and balances designed to keep any individual or any one branch of government from assuming too much power, but also capable of reforming itself indefinitely.

The Constitutional Convention that convened in Philadelphia in 1787 included many of the most brilliant men in America, and the Constitution itself was written in good part and ably defended by no lesser figures than James Madison and Alexander Hamilton. What they produced, in amazingly short order, was indeed a wonderful document—as far as it went. It managed to unite thirteen disparate, sparsely populated states, spread over a vast territory—binding the emerging mercantile states of New En­gland and the Mid-Atlantic to the agrarian slave empire of the South.

The Founding Fathers were uncomfortably aware of how precarious their wretched compromise was. Swallowing slavery meant writing a fugitive slave act right into the Constitution and defining an enslaved African American as “three-fifths of a man.” The issue of how and when and whether slavery would expand with the new nation dogged its progress at every step. This “momentous question,” Thomas Jefferson wrote during the Missouri Crisis in 1820, was the “fire bell in the night” that “awakened and filled me with terror. I considered it at once as the knell of the Union.”

Mostly, the Founders were hoping that slavery would just die out, which of course, it did after almost eighty years and a Civil War that killed more than 750,000 Americans. But at least they saw the question of human bondage as a looming threat to which they had no good solution. More striking now is how completely their other democratic safeguards—what they felt was some of their best work—have failed.

The most obvious failure of our Constitution is President Trump himself, of course, who is exactly the sort of corrupt, braying champion of the mob that our Founding Fathers devoted so much time and effort to keeping out of the presidency. Instead, Trump used the very device intended to stop the likes of himself from ever gaining the White House, winning the presidency in the Electoral College even as he lost by 2.9 million ballots in the popular vote.

By refusing to trust the people, the Founders betrayed them. The Electoral College created a sort of board of our betters that would approve or disapprove the choices of the electorate. Defending this plan, which he described in Federalist Paper No. 68 as “if . . . not perfect . . . at least excellent,” Hamilton argued that “a small number of persons, selected by their fellow-­citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations” as deciding who should be president. He foresaw Americans voting district by electoral district for these wise men, a system he thought would prevent “tumult and disorder” among the people and thwart “cabal, intrigue, and corruption” on the part of the candidates and their supporters.

Hamilton assured his countrymen,

These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.

Hamilton lived long enough to see his electoral system plunge the nation into its first constitutional crisis, in 1800, when confusion over just how electoral votes should be distributed between president and vice president brought about a tie between Thomas Jefferson and a certain Aaron Burr. But even after that affair was untangled, Hamilton and Madison both were shocked to see the whole system taken over by political parties that generally gave all of a state’s electoral votes to the winning candidate. Hamilton even penned an amendment designed to compel voters to choose electors district by district.

Nothing like Hamilton’s amendment ever passed, of course. Instead, the “excellent” document the Founders bequeathed us still allows “each state, in such manner as the legislature thereof may direct, to choose its own electors” (italics mine). In practice, this often meant, in the early years of the Republic, that the state legislature itself made the choice. Even in 2018, twenty of our fifty states—blue and red, from New York to Texas, New Hampshire to Arizona, Idaho to Georgia—still have absolutely no restrictions on whom their electors may vote for, regardless of the choice made by the rest of us, and only in nine states is an elector’s vote nullified if he or she goes against the expressed wishes of the people.

Over the years, 167 of these “faithless electors” have cast votes for president or vice president. In 2016, eight Democratic and two Republican electors refused to vote for either Hillary Clinton or Donald Trump, the largest number of faithless electors ever to abandon the candidates they were pledged to support. They cast their votes instead for Colin Powell, Bernie Sanders, John Kasich, Ron Paul, and Native-American activist Faith Spotted Eagle. Did anyone in a polling booth actually cast a ballot for Faith Spotted Eagle? It doesn’t matter. Constitutionally, our electors still could have made her president.

Nor is the design of the executive branch the only area where the Constitution has failed us. The Senate, for instance, was deliberately constructed to be a less-than-democratic institution, a “necessary fence” against the “fickleness and passion” of the people, as Madison wrote. Until 1913, Americans didn’t even get to vote directly for their US senators, who were, again, selected by state legislatures often renowned for their corruption. The provision that each state gets two senators further distorts the Electoral College and prevents equal representation in our government.

That madcap House of Representatives, by contrast, with all of its passionate lawmaking, remains much more the direct voice of the people. But even in the House, the Founders have undermined us. Without a directive for clear national standards to determine how all members of Congress throughout the United States are to be elected, our House races are at the mercy of the rampant gerrymandering and voter suppression that the Republican Party has taken to with such a vengeance.

Because of gerrymandering and demographic quirks, in every single House election after 2008, Republicans have managed to win a higher—often much higher—percentage of House seats than they did of votes for House seats. In 2016, Republicans barely won the cumulative nationwide vote for the 435 House seats, by 49.1 percent to the Democrats’ 48 percent. But they nonetheless took 247, or 55.4 percent, of all House seats. Winning back what is supposed to be the House of the people now means winning a supermajority.

Voter suppression has become not just a by-product of right-wing rule but its avowed purpose—a campaign blatantly directed at the poor and at people of color, whom the American right has always considered largely undeserving of the franchise. Egged on by constant conspiracy theories about voter fraud propagated even by President Trump, Republicans have striven mightily to keep people out of the voting booth whenever they gain power on the state level. Over the past decade or so, the American right has instituted dozens of rules designed to reduce voter turnout: drastically shortening voting hours; closing voter registration and voting sites, especially in minority areas; curtailing the ability of organizations to register voters; deliberately spreading false information on voting dates, times, and places; discarding Democratic registration forms; demanding expensive identification cards and photos from voters; using the Supreme Court to gut the Voting Rights Act; and adamantly denying attempts by ex-cons to regain their voting rights.

In 2016 alone, as Rolling Stone reported, Kansas Secretary of State Kris Kobach convinced authorities in twenty-eight states to subject the voter registrations of 7 million Americans to the review of the Crosscheck program, supposedly designed to root out “duplicate” voters from the rolls. But as the reporter Greg Palast discovered, the Crosscheck lists had little to do with actually matching and comparing voter data, and concentrated mostly on identifying (and eliminating) common black, Hispanic, and Asian-American names, such as Hernandez, Lee, Garcia, and—irony of ironies—Washington. Kobach, meanwhile, was rewarded for his efforts with his party’s nomination for governor.

This was not an isolated incident. This past election season, for instance, the man in charge of overseeing the voting process in Georgia was its Republican candidate for governor, Brian Kemp. Kemp’s office, the Associated Press reported, suspended 53,000 voter registration applications—70 percent of which just happened to come from African Americans. “Since the 2010 election, 24 states overwhelmingly controlled by Republicans have put in place new voting restrictions, such as tougher voter ID laws, cutbacks to early voting and barriers to registration,” Ari Berman wrote in the New York Times shortly before the midterms, reporting the massive disenfranchisement of mostly Democratic voters in Texas, Wisconsin, Florida, and North Dakota.

This only brings us back to the start of the crisis: the Bush–Gore presidential race in 2000, in which yet another mishandled, disenfranchising election was advanced by all sorts of “cabal, intrigue, and corruption,” presided over by active Republican partisans—including the Republican candidate’s brother, Jeb Bush—and finally rubber-­stamped by a one-vote Republican majority on the Supreme Court that attorney Alan Dershowitz would call “the single most corrupt decision in Supreme Court history.”

The debacle also handed the Republican-controlled Congress and George W. Bush, its chief beneficiary, the opportunity to make voting, the backbone of our democracy, more opaque and corruptible than ever by forcing the individual states to adopt computerized voting under the Help America Vote Act (HAVA) of 2002. ­HAVA, which provided billions of dollars for new voting machines but not one mandate to produce paper ballot trails or any other means of monitoring the machines, helped to set off another voting fiasco in Ohio, the pivotal state in the 2004 presidential election—and a state where, once again, the voting process was overseen by an active Republican operative, this time the co-chairman of the Bush–Cheney campaign in the state.

Since then, the situation has only deteriorated, as the New York Times conceded shortly before the 2018 midterms with perhaps the saddest headline in its existence: “Elections Could Be Hacked. Vote Anyway.” The editorial that followed detailed how our voting machines today are considered “woefully insecure” to just about anyone trying to hack them—including Russian operatives, who are now confirmed to have gained access to at least one Illinois voting site in 2016. So much for frustrating “the desire in foreign powers” to raise, as Hamilton put it, “a creature of their own to the chief magistracy of the Union.”

In short, the operatives of one party have, in the past couple of decades, systematically overcome every single barrier erected by the Constitutional Convention against the tyranny of mob or tyrant or foreign potentate. We are now given over to the worst of everything the Founders feared, an oligarchy allied with shadowy foreign autocrats, maneuvering behind readily fabricated crowds and demagogues.

There are any number of remedies we could apply to the particular shortcomings of our democracy today. To defuse the bitter fights over the Supreme Court, many have suggested that we no longer appoint justices for life but to staggered terms of eighteen years, which would allow every president to pick at least two justices in a four-year term. Other obvious improvements would be to abolish the Electoral College and elect our president directly, with a runoff to ensure that he or she gets at least 50 percent of the vote; to replace the partisan gerrymandering of our districts with a computerized system that would blindly generate legislative precincts; to set firm national standards for a transparent, easy-to-use, and accountable voting system; and to guarantee the right of all adult Americans to vote.

Yet every one of these seemingly self-evident reforms will be an extremely heavy lift, probably requiring years-long battles to install them as constitutional amendments, a task that may prove altogether impossible if we cannot even know whether our votes will be counted. An innate flaw in our Constitution is that it has always drained too much of our democratic energies just to change it, diverting the best efforts of our people to decades-long struggles simply to win the right to, say, form unions, levy an income tax on ourselves, extend the vote to women, prohibit lynching, or guarantee our civil rights and liberties. The time and the effort it has required to do all of that has brought us over and over to the edge of disaster.

The Constitution the Founders stuck us with was never really intended to serve as the unifying document of a large and splendidly varied people. It was, instead, a wary alliance among white men of property, intent on spreading their power over a continent. The rest of us—the small minority of us allowed to vote at all, that is—were supposed to go on deferring indefinitely to the big men in our little towns and hamlets, relying on them to show us the way and to decide who our leaders should be. For all their good intentions, the Founders ended up trapping us inside a political system with their own worst nightmares, and very little chance of finding our way out.

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