Crisis
America has deep structural problems.
“This is dramatically minoritarian rule—is it sustainable and how long will the majority endure this?”
“And we should remember that the US system was designed to protect a ‘minority of the opulent’ against democracy—this crisis of ‘excessive anti-democratic power’ was built into the system from the get-go.”
“SCOTUS lacks legitimacy when its rulings are a product of this ‘excessive anti-democratic power’.”
“We can hope that people will join activism in response to these terrible things—the ruling on gun safety, the ruling on abortion, and the effort to snuff us all out. This activism will determine America’s fate—the world’s fate as well.”
I’ve written previously about the federal judiciary. And I’ve written previously about the way in which the GOP is hard at work trying to use the federal judiciary to make sure that nothing can be done about global heating.
And we just saw some absolutely shocking SCOTUS rulings—this is a moment to reflect on the future of America’s system.
Structural Problems
Everyone should read Erwin Chemerinsky’s 25 January 2019 piece about American democracy—I took these note:
“Americans cling to many myths. One is that we live in a democracy.”
“We are governed by a president who lost the popular vote by three million votes.”
“There is no other democratic country in the world where that can happen.”
“Nor does any other democracy have an institution like the U.S. Senate.”
“These aspects of government cannot be reconciled with the claim that the United States is a democracy.”
“And the democratic process offers no hope of reforming a number of them.”
“I cannot think of any solution to the anti-democratic nature of the Senate.”
there are some “anti-majoritarian aspects of the Constitution and American government that can and should be changed”
“The two most important for our political process are the Electoral College and partisan gerrymandering.”
“There is no doubt that the Electoral College was created because of a distrust of the people and democracy.”
“Today, in fact, states with only 23 percent of the country’s population have enough electoral votes to choose the president.”
“Most fundamentally, the Electoral College is inconsistent with the core constitutional value of democratic governance.”
“But I want to go further than to argue that the Electoral College is undesirable: I believe that it is unconstitutional and should be declared unconstitutional.”
a provision of the Constitution “can itself be unconstitutional” if it “violates one of the subsequent amendments to the Constitution”
“The Supreme Court long has held that the Fifth Amendment’s assurance of due process of law includes a requirement that the federal government not deny any person equal protection of the laws.”
“And for over half a century, the Court has ruled that a core aspect of equal protection is one person, one vote, that every person must have an equal ability to influence the outcome of an election.”
“Because every state has two senators, smaller states have disproportionate influence in choosing the president.”
“Courts thus can and should declare that the guarantee of equal protection found in the Fifth Amendment modifies Article II of the Constitution and requires that electors be allocated strictly on the basis of population.”
“the judicial role is most important when the political system is incapable of reforming itself to comply with the Constitution”
“Amending the Constitution requires approval of two-thirds of both houses of Congress and then three-fourths of the states.”
“There is no way that smaller states that benefit greatly from the Electoral College ever will approve a constitutional amendment to eliminate it.”
“It is especially important for the Court to act because the political process never will deal with the clear unconstitutionality of the Electoral College.”
“The problem of the Electoral College is compounded by state laws that provide that electoral votes are awarded on a winner-take-all basis.”
“At the very least, the courts should hold ‘winner take all,’ provided by state law and not the Constitution, to be unconstitutional.”
“It is hard even to come up with a justification for a system for electing the president that is so inconsistent with basic principles of democratic governance.”
“A primary justification advanced in recent years is that the Electoral College causes presidential candidates to pay attention to smaller states, that presidential candidates would seldom campaign in such states.”
“I question whether this is sufficient reason to justify the profoundly anti-democratic Electoral College.”
“Besides, the Electoral College system compels candidates to largely ignore and not campaign in states where it is obvious who is going to win.”
“Partisan gerrymandering—where the political party controlling the legislature draws election districts to maximize seats for that party—is nothing new.”
“what has changed is the development of sophisticated computer programs and other techniques that make partisan gerrymandering far more effective than ever before”
“The political party that controls the legislature now can draw election districts to gain a much more disproportionate number of safe seats for itself.”
“Like the Electoral College, partisan gerrymandering is inconsistent with basic principles of democratic government, as well as constitutional guarantees of equality in voting.”
“Democracy enables voters to choose their elected officials, but partisan gerrymandering enables elected officials to choose their voters.”
“there is strong public support for eliminating partisan gerrymandering”
“as with the Electoral College and the malapportionment of legislatures before the one-person, one-vote court rulings, the legislative process will not fix the problem”
“Legislators who benefit from partisan gerrymandering are not about to vote for an alternative election system that has a likelihood of taking them and their political party out of power.”
“Partisan gerrymandering is undesirable whether done by Democrats or Republicans.”
“The Supreme Court should hold that challenges to it can be heard in the federal courts and explain that districting is unconstitutional when it disproportionately favors a political party with no other explanation besides partisanship.”
“This is a chance for the Court to take a huge step to having our democratic process work.”
“Partisan gerrymanders and the Electoral College make a mockery of the notion that the United States is a functioning democracy.”
“We have lived with these mockeries for far too long.”
“They can be eliminated, or at minimum, they can be significantly scaled back.”
“It can be done. It must be done.”
So Chemerinsky identifies two structural issues—the Electoral College and partisan gerrymandering—that actually might be fixable at some point if enough pro-democracy politicians take power. Who knows how many pro-democracy electoral victories will have to occur before these two things can be fixed—at least these issues are fixable, though.
But notice that Chemerinsky says about the Senate that he “cannot think of any solution to the anti-democratic nature of the Senate”—this is a major flaw in US democracy and he can’t even think of any solution to it. Here’s an excerpt from Chemerinsky’s piece:
Because every state, regardless of its size, gets two senators, the Senate is hugely unrepresentative of the country. California, with 39.5 million people, has the same number of senators as Wyoming, with a population of 579,315. A slight majority of Americans live in just nine states. They have 18 votes in the Senate, while the minority holds 82 seats.
This is dramatically minoritarian rule—is it sustainable and how long will the majority endure this?
Noam Chomsky has an interesting 24 July 2019 piece that discusses the structural issues—I took these notes and I replaced a dead hyperlink:
“the U.S. Constitution was in many ways a progressive document”
“The document has inherent problems, which are leading to a likely constitutional crisis.”
“The problems are serious enough for law professor Erwin Chemerinsky, writing on ‘America’s constitutional crisis,’ to entitle his article ‘The First Priority: Making America a Democracy’ (contrary to the intentions of the Framers).”
“He reviews some of the familiar problems.”
“One has to do with the Electoral College, which was designed by the Framers because of their distrust of popular government.”
“By now states with 23 percent of the population have enough electoral votes to choose the president.”
“Even more importantly, the same radical imbalance makes the Senate a highly undemocratic institution—in accord with the intentions of the Framers.”
“In Madison’s constitutional design, the Senate was the most powerful branch of government, and the most protected from public interference.”
“It was to represent ‘the wealth of the nation,’ the most ‘responsible’ men, who have sympathy for property and its rights.”
“though the Framers did not anticipate this of course, social and demographic changes have placed this excessive anti-democratic power in the hands of a part of the population that is mostly rural, white, Christian, socially conservative and traditionalist”
“Some of these undemocratic features were virtually unavoidable.”
“The Constitution would never have been ratified if the smaller colonies were not granted an equal voice.”
“But by now the effects are severe—and unchangeable by amendment because of the same radical imbalance in voting power.”
“these problems are exacerbated by the monopolization of politics by the two political parties and ‘winner take all’ state laws that bar proportional representation, which can permit a variety of voices to enter the political arena, sometimes growing to major parties”
“Some have argued, not implausibly, that if a country with the U.S. system tried to join the European Union, the application might be rejected by the European Court of Justice.”
“The impending crisis is becoming more severe because of the malevolence of the Republican leadership.”
“They are well aware that their formula of abject service to wealth and corporate power along with mobilization of a voting base of the kind that shows up at Trump rallies is not enough to overcome their growing minority status.”
“The solution is radical gerrymandering of the kind now authorized by the reactionary Roberts Court, and stacking the judiciary with far-right justices who will be able to hold the country by the throat for many years.”
“Here the evil genius is Mitch McConnell, who maneuvered to block appointments under Obama, a campaign of obstruction that left 106 vacancies at the end of Obama’s second term (including the scandalous case of Merrick Garland), and is now rushing through appointment of Federalist Society choices.”
So we have dramatically minoritarian rule—let me recap:
there’s a “likely constitutional crisis” due to the “inherent problems” in the US Constitution—the “excessive anti-democratic power” that the Framers set up is now “in the hands of a part of the population that is mostly rural, white, Christian, socially conservative and traditionalist”
“the effects are severe—and unchangeable by amendment because of the same radical imbalance in voting power”
the problems have been exacerbated due to “monopolization of politics by the two political parties and ‘winner take all’ state laws that bar proportional representation”
the “malevolence of the Republican leadership” exacerbates the “impending crisis”—the GOP knows that they can’t “overcome their growing minority status” through “abject service to wealth and corporate power along with mobilization of a voting base of the kind that shows up at Trump rallies”, so the GOP has turned to “radical gerrymandering of the kind now authorized by the reactionary Roberts Court” and “stacking the judiciary with far-right justices who will be able to hold the country by the throat for many years”
This is a remarkable situation. And we should remember that the US system was designed to protect a “minority of the opulent” against democracy—this crisis of “excessive anti-democratic power” was built into the system from the get-go.
SCOTUS’s Brazen Rulings
SCOTUS lacks legitimacy when its rulings are a product of this “excessive anti-democratic power”. You can expect the recent SCOTUS rulings to awaken tremendous backlash against such illegitimate—and such anti-democratic—infringements on people’s freedoms.
There’s a disturbing 25 June 2022 NYT piece about gun safety—I took notes:
“The Supreme Court this week embraced a vision of the Second Amendment that is profoundly at odds with precedent and the dangers that American communities face today, upending the longstanding practice of letting states decide for themselves how to regulate gun possession in public.”
“This decision reveals the vast gulf between ideologues on the court and those Americans—ordinary people and their representatives in Congress—who want this country to be safer from guns.”
“Gun enthusiasts and gun manufacturers have long sought a ruling like the one the court delivered on Thursday: Its decision in the case, New York State Rifle & Pistol Association v. Bruen, is an assertion that the Second Amendment trumps reasonable efforts to protect public safety.”
“The United States as it exists today—awash in insufficiently regulated, high-powered weapons and afflicted by staggeringly high rates of gun homicide and suicide—is the society that their preferred policies have created.”
“The best that gun control advocates can hope for after the Bruen ruling is what Congress passed: gradual legislative tinkering.”
This ruling is outrageous—why should right-wing ideologues be allowed to impose their ideology on Americans like this?
And there’s also an important 24 June 2022 NYT piece about abortion—I took notes:
“The practical consequences of the decision, Dobbs v. Jackson Women’s Health Organization, are enormous and severe.”
“Abortion, now one of the most common medical procedures, will be banned or sharply limited in about half the country.”
“Excluding miscarriages, nearly one in five pregnancies ends in abortion in the United States, and one American woman in four will terminate a pregnancy during her lifetime.”
“Two generations of women in this country have come of age secure in the knowledge that an unintended pregnancy need not knock their lives off course.”
“‘After today,’ as the dissent pointed out, ‘young women will come of age with fewer rights than their mothers and grandmothers had.’”
“What the court delivered on Friday is a requiem for the right to abortion.”
“As Chief Justice John Roberts, who declined to join Justice Alito’s opinion, may well suspect, it is also a requiem for the Supreme Court.”
“Five of the seven justices in the Roe majority—all except William O. Douglas and Thurgood Marshall—were appointed by Republican presidents.”
“The votes necessary to preserve the right to abortion 19 years later in Planned Parenthood v. Casey, the Roe follow-up decision that the court also overturned on Friday, came from five Republican-appointed justices.”
“In asserting that these justices led the court into grave error from which it must now be rescued, Justice Alito and his majority are necessarily saying that these predecessors, joining the court over a period of four decades, didn’t know enough, or care enough, to use the right methodology and reach the right decision.”
“The arrogance and unapologetic nature of the opinion are breathtaking.”
“The dissenting justices wrote on Friday, ‘The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.’”
“They observed, ‘The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.’”
“Those sentences are as terrifying as they are obviously correct.”
“Where do they leave the court, now having voluntarily shed the protection offered by its usual stance that it is simply the passive recipient of the disputes that the public brings to its door?”
“members of the new majority have been openly inviting opportunities to revisit Roe and Casey”
“the same justices, principally Justices Thomas and Alito, spent years inviting the gun lobby to bring cases affording an opportunity to expand on the Second Amendment analysis of the 2008 Heller decision; that campaign culminated on Thursday with the decision in the New York State gun-licensing case”
“The court engaged in no such outreach at the time of Roe.”
it “was the opposite of judicial activism” when SCOTUS established the right to have an abortion
“Friday’s ruling, meanwhile, was judicial activism’s epitome: A federal appeals court had blocked a Mississippi law on the ground that the law’s ban on abortion after 15 weeks of pregnancy was obviously inconsistent with Roe and Casey.”
“The state originally asked the justices to decide whether a ban on abortion before viability was always unconstitutional.”
“Over Chief Justice Roberts’s objection, the majority opinion went further, eliminating the right to abortion in its entirety.”
“the story isn’t over”
“Justice Brett Kavanaugh proclaimed with evident relief in his concurring opinion that the court was now bowing out of the picture”
“that is not likely to be the case”
“Those pesky women will keep coming up with problems: What about pregnancy-related medical issues short of imminent death? Rape? Incest? Fetuses doomed to die in the womb or shortly after birth? Will young teens be forced to bear children? Will women who receive a prenatal diagnosis of a serious fetal anomaly be forced to bring a child into the world whom they can’t care for adequately and in whom the state has little postnatal interest? What happens when states start prosecuting not only doctors but women?”
“the dissenting opinion asks, ‘What about the morning-after pill? IUDs? In vitro fertilization?’”
“Or medical management of miscarriage, often by the same methods used for abortion?”
“No, justices, your work isn’t done.”
“What you have finished off is the legitimacy of the court on which you are privileged to spend the rest of your lives.”
This ruling is an outrageous and extreme and profound assault on women’s rights—it’s shocking to contemplate the consequences that this ruling will have and it’s amazing how brazen this ruling was.
Activism
There’s so much that can be done to democratize America—it’s true that it’s hard to imagine a solution to the Senate’s anti-democratic nature, but there are so many avenues that activists can pursue, including the two ideas that Chemerinsky put forward. And we should remember that the Democrats—with enough electoral victories—will have the opportunity to add two new states to the country and get four new blue senators as a result.
We can hope that people will join activism in response to these terrible things—the ruling on gun safety, the ruling on abortion, and the effort to snuff us all out. This activism will determine America’s fate—the world’s fate as well.
Chemerinsky is spot on as usual.