The political reality of a US Democracy in crisis is a byproduct, not only of the master storyteller Donald Trump, but more fundamentally it has to do with both a broken fourth estate and society.
In the case of the former, democracy cannot survive without a common set of facts as The Economist’s James Bennet, a former editorial-page editor of The New Times argues that based on a deep data analysis of more than 600,000 pieces of broadcast and written journalism, the NY Times is no longer honoring its pledge to pursue the news “without fear or favor.” Instead, like other American media they too are increasingly speaking to their own political camps.
In the case of the latter, as I shared the other day with TCR readers, Civil Rights Lawyer Sherrilyn Ifill has underscored that while Trump “did not create racism, he did unleash a particularly virulent brand of it, giving millions of Americans permission to be their worst selves.”
In the process, Trump has not only normalized calls to violence in public spaces, but he also continues to stoke violence against vulnerable populations.
Like Ifill and many others, including Thom Hartmann the progressive radio commentator has been addressing what is at stake or at risk should the Insurrectionist-in-Chief be elected to the POTUS for a second time. Namely, the far “right’s fever dreams of gutting the US Constitution of checks and balances.” While at the same time officially turning the nation “into a legal oligarchy with a strongman presidency, a nearly bullet-proof immunity for the morbidly rich, and full personhood for corporations.”
This new authoritarian regime is being brought to the United States by the American Enterprise Institute, the Federalist Society and the American Legislative Exchange Council (ALEC). Earlier this month ALEC completed its winter National Policy Summit get-together in Scottsdale, AZ with Speaker Mike Johnson as its keynote speaker, where they were busy fine-tuning their efforts to change the US Constitution.
For those of you who may not know ALEC is the same group that brought “Stand Your Ground” and voter suppression “model” legislation to Red states across America. ALEC is also the group that for the past fifty years has been “bringing together corporate lobbyists and Republican state-level politicians to make state after state more corporate- and billionaire-friendly,” as Hartmann puts it.
Once again, Ifill’s bottom line was this: if we can “make it out of this moment with the rudiments of our democracy still in place,” then “we will be facing an opportunity that we have not had in decades; a chance to build a truly healthy democracy.”
So let me now turn to what needs to be done and to describe what the struggle for a new American democracy looks like. In the United States, there are two constitutional traditions: one derived from the federal constitution and the other derived from 50 state constitutions. The former tradition has been largely static, even stagnant, and has not been meaningfully amended since 1971 when the voting age was lowered from age twenty-one to eighteen. Comparatively, the state constitutional tradition has been a dynamic history of change, revision and innovation.
During the 2022 midterm elections, for example, by way of referendums or initiatives and propositions, voters across the nation decided constitutional matters by general votes on abortion and healthcare, elections and voting, firearms, marijuana, minimum wage, and sports betting.
Specifically, voters in California, Michigan and Vermont amended their state constitutions to effectively secure the right to an abortion; voters in Oregon amended their Constitution to give every resident a fundamental right to affordable health care; voters in Nevada amended their Constitution to allow open primaries and ranked-choice voting; and voters in Iowa amended their Constitution to affirm the right to keep and bear arms.
In contrast to the U.S. Constitution and the convening of national conventions that are quite limited or restrictive when it comes to amendment or change, the state constitutions are far more flexible and directly accessible to the people. They have been “a forum for reconsidering, and ultimately revising or rejecting, a number of governing principles and institutions that were adopted by the federal convention of 1787.”
In other words, while the federal constitution does not permit citizens to play a role in lawmaking beyond voting for representatives in Congress, many state constitutions require certain measures to be submitted to the people before they can take effect. Similarly, other state constitutions may allow for the enactment of some, or even all, statutes based on the outcome of a popular vote.
Let me be clear and underscore before continuing that the prevailing economic and political arrangements of democracy are more than a matter of individual agency or politicians doing the morally right thing. Within the presently constructed federal republic of the Constitutional United States, the increasingly divisive polarities and episodic paralyzes of governing are also a matter more importantly of the structural arrangements that reflect the reproduction of a symbiotic political economy as well as an orchestrated system that favors the interests of a minority over the interests of a majority.
In other words, both the bipartisan and hyperpartisan arrangements of American democracy have always supported a “tyranny of a minority” as the byproduct of the undemocratic rules of the political contests derived from the Electoral College, gerrymandering, the filibuster, and more recently Citizens United v. Federal Election Commission, as well as the Uber bourgeois legal infrastructure from its regressive taxing policies to its lack of universal health care to its inadequate ecological protocols to its contradictory policies of debt relief or to international humanitarian engagement.
Under the current political-economic system of selecting a presidential party nomination as well as electing a president every four years, there are many negative consequences that we could talk over and ironically “election security” or “rigged elections” should not be one of those as confirmed by more than sixty lawsuits challenging the legitimacy of the 2020 presidential election.
In any case, I want to emphasize the length of the process involved in picking a nominee for president as one negative effect deserving of long overdue electoral reform. As Hans Noel, a professor of government and the author of “Political Ideologies and Political Parties in America,” has written, “The long primary process is not the most democratic system” especially because,
“Voters choose candidates in a sequence of state-level primaries and caucuses. Those contests select delegates and instruct them on how to vote at a nominating convention. It’s an ungainly and convoluted process, and politicians begin positioning themselves a year in advance to succeed in it.”
Noel continues, “It wasn’t always this way, and it doesn’t have to be.” Political parties in most democracies have the power to nominate and choose their leaders in much less time and for far less money than in the United States. There are several models and alternatives to choose from. For example, open primaries rather than closed primaries would reduce polarization and facilitate bipartisan majoritarianism.
Another example of democratic structural change called for would be to expand the number of House of Representatives. As Danielle Allen has argued, “growing the House of Representatives is the key to unlocking our present paralysis and leaning into some serious democracy renovation.”
Originally, the House was supposed to grow with every decennial census. James Madison had even proposed in the Bill of Rights an amendment laying out a formula forcing the House to grow from 65 to 200 members and to expand after that as well. Moreover, the one and only time that George Washington spoke at the Constitutional Convention was on its final day when he endorsed an amendment lowering the ratio of constituent members to 30,000.
The rationale was that responsive representation requires allowing representatives to meaningful know their constituents and vice-versa as a means of taking care of business. Presently, House members represent approximately 762,000 people each, a number that is projected to become one million by 2050.
The second sentence of the 14th Amendment reads:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Unfortunately, as the historian Eric Foner demonstrated in the 2019 “The Second Founding: How the Civil War and Reconstruction Remade the Constitution”, the justices of the Supreme Court in a series of rulings culminating with Plessy v. Ferguson in 1896 had narrowed the scope of the 14th Amendment to the point that it was little different than it was before the Civil War.
And despite Brown v. Board of Education of Topeka in 1954 and the passage by Congress of the Civil Rights Act of 1964 that prohibited discrimination on the basis of race, color, religion, sex or national origin, we find ourselves once again thanks to an alt-right Supreme Court and the passage of ensuing discriminatory legislation in red states, returning to the pre-Civil War period unrestricted by federal intervention.
Transitioning away from the old tyranny of the minority and toward the new and improved tyranny of the majority requires that we transform the rules of these political and economic arrangements. Dialectically, this involves pushing back against and resisting those Republican forces that have been doubling down on contracting the tyranny of the minority by using the “counter majoritarian features of the system to build redoubts of power, insulated from the voters themselves.”
For example, there is the Supreme Court that has been using “its iron grip on constitutional meaning to accumulate power in its chambers, to the detriment of other institutions of American governance.” There is also an authoritarian movement “led and animated by Trump, that wants to renounce constitutional government in favor of an authoritarian patronage with Trump’s family at its center.” As James Bouie of the NYTimes has been arguing, each of “these forces are trying to game the current system. But there’s nothing that says we have to play this anti-democratic game or that “we can’t write new rules.”
For legal, political, and economic reasons, limiting terms for Supreme Court Justices from life appointments to 10 to 12 years is one necessary reform of that institution that currently sees the highest court of the land at a historically low in respectability. The process of becoming a nominee should resurrect the former American Bar Association as the vetting mechanism of potential nominees rather than the politically reactionary and financially enriched Federalist society.
Not to mention the need to ameliorate the juridical issues of SCOTUS becoming a court of first resort, ignoring the coveted tradition of legal standing, and usurping the power of the executive and legislative bodies to make policy rather than settle law. For example, over the past couple of decades, the Court has been restricting bribery statutes and other types of public corruption.
There are many institutionalized changes in the political and economic organization of American life that would benefit the interests of the People and society rather than the special interests of corporate greed, corruption, and immorality, such as publicly financed campaign elections lasting no more than 60 to 90 days. Other kinds of structural reforms would ameliorate the current and long-lasting problems that have been hurting democracy and immobilizing the legislative, executive, and judicial branches of government.
These include transformative structural changes that would ideally include the elimination of uber-capitalists, multibillionaires, mega monopolies, the electoral college, filibusters, upper chamber supermajorities, super PACs, Citizens United as well as the “invisible” party primaries that precede the People casting their votes for selected nominees during the overly long and financially expensive marathon season of primaries, caucuses, and general elections.
All these necessary changes on behalf of a New Democracy seem like monumental challenges on so many levels especially because they will be resisted tooth and nail by the powers that prevail and by the rest of those people captured by the political status quo. And that is assuming that American democracy survives the autocratic wannabe Donald Trump and the 2024 presidential election.
For more than a half century this nation has been frozen in a kind of constitutional stasis of democracy.
As historian and director of the Amendments Project, Jill Lepore, has been arguing the best way to save American democracy and stave off constitutional extinction is to amend the original document. Reform and change of that charter and related matters are well past due. As Steven Levitsky and Daniel Ziblatt have argued in their recent book “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,”, the United States will either “become a multiracial democracy” or it will “cease to be a democracy at all.”
One way to facilitate a multiracial democracy would be to establish a multiparty democracy. These two developments in tandem would go a long way toward fixing polarization and escaping from the current zero-sum game of U.S. politics or winners-take-all. By contrast, a system of proportional representation with larger districts in the lower chambers of Congress that would elect multiple representatives each with seats parceled out according to the percentage of the vote that each party received would be less polarizing.
These reforms would also help to transform the US political system from a two-party or bipartisan democracy to a multiparty and less partisan democracy that naturally moves power away from minority rule and toward majority rule.
Of course, this takes us full circle back to the existential threat of electing the former president in 2024 because of the fact that Republicans who plan to vote for Trump in the upcoming primaries “know that he has promised to be a dictator.” They also know that he is not joking. In fact, they are “just thrilled, because they loathe America’s multiracial democracy and want to bring it to an end.”
Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and author of “Criminology on Trump.” His sequel “Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy,” will be published April 1, 2024.
