This year has given us many reasons to reflect on the constitution and its origins. The election, and the way it has revealed the fragility of American democracy, as well as the country’s ongoing reckoning with its racial past, have pushed many of us to consider the founders’ accomplishments and failures, both practical and moral. They were of course a flawed bunch, by the standards of their day and our own. And yet however one views their actions, motivations, hypocrisies and so on we must give them credit for one thing at least: they were not complacent.
Faced with a constitutional status quo which seemed to them deeply improper, they felt moved to respond. They argued, bitterly at times, over the precise nature of the injustices they faced living under British rule. They found ways to act collectively. They took personal risks, put their lives and fortunes on the line, and did their best to craft a more principled form of government. The shortcomings of the system they created were obvious, even at the time. The better part of a century would pass, and hundreds of thousands of Americans would die fighting each other, before the most morally reprehensible flaws in the constitution were addressed; as Jamelle Bouie writes here, we very much ought to see the amendments of the Civil War era as a second founding, a crucial reimagination of our founding documents. But even as we keep this history front of mind, we ought to give the founders credit for the bold action they took and the spirit that animated it.
It seems strange that of all the legacies they have left us, we seem least moved by the example of their initiative in the face of an unsatisfactory system. We damn their moral blindspots or worship them for their foresightedness, but we do not celebrate their vigilance. I don’t think that imagining the founders’ judgment of our actions today is a useful way to assess those actions’ rightness or wrongness, but one nonetheless strongly suspects that they would be deeply disappointed in us, for the kid-glove reverence with which we now treat the product of their labors, and our simple reluctance to do as they did: identify injustice for what it is and reinvent our society and our government in an effort to create a better world. We’re Americans! We’re not supposed to allow ourselves to become the meek prisoners of a broken system imposed on us by historical circumstance. We’ve become a bunch of Tories!
This is, to be fair, partly the fault of the founders themselves. They understood that for the government they had created to endure it had to be treated with a certain veneration. They proselytized on the constitution’s behalf despite full awareness of its weaknesses. In a recent piece at the Atlantic, Danielle Allen quotes Benjamin Franklin, who said of the constitution that:
The opinions I have had of its errors, I sacrifice to the public good. I have never whispered a syllable of them abroad. Within these walls they were born, and here they shall die. If every one of us in returning to our Constituents were to report the objections he has had to it, and endeavor to gain partizans in support of them, we might prevent its being generally received, and thereby lose all the salutary effects and great advantages resulting naturally in our favor among foreign Nations as well as among ourselves, from our real or apparent unanimity.
The young nation’s leaders scrapped and clawed for political victories, yet they could also put self-interest aside to reinforce the overarching power of the constitution. James Madison vetoed measures he himself supported, including funding for desperately needed internal improvements, because he believed such measures to be unconstitutional. Respect for the constitution and the achievements of the founders—the heavy weight of accumulated history—has rested on the shoulders of legislators, justices and presidents for more than two centuries, pushing them to think carefully about their actions and to take into consideration the way their choices might affect the grand civic legacy handed down from past generations. Legislators, justices and presidents have bent or broken the rules despite this, and in too many occasions have done terrible things in the name of the American people. But they very easily might have done worse. And what is, in retrospect, an absurd and almost inherently dysfunctional system of democratic government has managed to survive for nearly a quarter of a millennium thanks largely to the collective will to ensure that it does.
And yet, constitutional veneration has brought America to a strange place. On the one hand, very nearly any substantive reform proposal is likely to be declared too radical for consideration—not simply by the factions which stand to see a loss of political clout as a consequence but also by the sensible center. Consider arguments today in favor of the addition of seats to the Supreme Court. This would not even require constitutional change. But the moderate leading the Democratic ticket, many moderates within the party, and much of what constitutes the centrist establishment in Washington treats the idea as simply a step too far. Yet on the other hand, we have politicians in positions of extraordinary power who seem to believe that American constitutional democracy is sufficiently secure that no amount of norm-shredding is too much when it comes to preserving the political upper hand. Mitch McConnell, the man who engineered what is now a 6-3 conservative majority on the Supreme Court by denying Merrick Garland the courtesy even of a hearing, does not seem to believe that American democracy is about to collapse. If he did, he wouldn’t be so keen to seat a young justice on the Supreme Court, because...why would it matter? And yet he also takes no responsibility at all for the maintenance of the legitimacy of America’s democratic institutions.
This is not a sustainable state of affairs. Indeed, we are slipping toward constitutional crisis—a political fracture which can only be resolved extra-constitutionally. Not long ago, it seemed that the dam might finally burst on or immediately after November 3rd. President Trump has repeatedly refused to commit to honor the results of the election and leave the White House peacefully. He and others in his orbit have worked to undermine public confidence in the vote. Many of his supporters will not recognize a Trump loss as legitimate, and a small minority—but not nearly small enough—are prepared to resort to intimidation and violence to disrupt the election or prevent Joe Biden from taking office in the event Trump loses.
Worries about this sort of scenario seem to have diminished as Biden’s polling lead has grown. The conventional wisdom, I believe, is that refusing to go would be much harder for Trump given a blow-out loss, and that’s probably right though not at all something to be taken for granted. If Biden does win big and Trump and his supporters accept defeat, American democracy will have dodged a potentially fatal bullet. But that will not mean that the threat of constitutional crisis is gone.
Even a landslide victory may not translate into any more than a small majority in the Senate for Democrats. And a small majority in the Senate will not be enough to allow Democrats to enact much of their agenda unless they are willing to scrap the filibuster—and traditionalists within the Democratic party may make certain that this does not occur. Even a massive majority would not shield Democratic legislation from the Supreme Court. If democratic majorities are unable to govern, then the system is doomed, one way or another: perhaps because the majority decides it cannot accept inaction on critical issues any longer, or perhaps because the minority finds illiberal ways to enact its own agenda, or perhaps because paralysis in the face of serious crises eventually backs the country into a corner.
Perhaps fortune will intervene. It could happen. Perhaps somewhere in the system, someone makes a fateful decision to put the integrity of American democracy and the public good above his or her narrow personal or political interests, steering the country clear of the abyss. Or, who knows, perhaps the Democrats will win an overwhelming victory, enact radical political reforms, and then pass into law a popular agenda which helps secure the legitimacy of those reforms, thereby buying America some time to sort itself out.
But simply hoping for the best is not much of a plan. It is also not very American. We don’t need to be a passive audience. Are the people sovereign in this country or not? Do we deserve a janky system in which political rights are distributed in wildly unequal fashion, leading to national stasis and the end of our long effort to build a more perfect union? If we accept these circumstances, then perhaps we do. But we don’t have to accept these circumstances.
What options do we have? It is not much good waiting for Congress to act. Even if Democrats win a landslide well beyond all expectation they will not hold the two-thirds of both houses they would need to send proposed amendments to the states for ratification. Republicans, thinking first of their own grip on power, would not help such measures through. Political reform would be possible: expanding the Supreme Court, admitting new states, taking steps to protect voting rights, and so on. Perhaps that would be enough to defuse the constitutional time bomb. It would not be enough to deliver true political equality. It would leave divisive constitutional questions unaddressed, and the ground still littered with veto points. Protection of minority rights is critical. But we have learned from recent history that too many obstacles to majority rule create opportunities for minority blocs to hunker down and abandon efforts to compete for the support of most Americans. We don’t want minority rights to be crushed. We do want groups holding minority preferences to have to come to the table and strike deals with the majority if they wish to see policies which accommodate those preferences.
There is a way to put these questions on the table and subject them to public debate, all without involving Congress:
The I’s had been dotted; the T’s were crossed. The 55 delegates to America’s first and so-far-only constitutional convention had hammered out compromises on the separation of powers, apportionment of seats in the legislature and the future of the slave trade. But on September 15th 1787 George Mason, a plantation owner from Virginia, rose to his feet to object.
Article V of the draft text laid out two paths by which future amendments could be proposed. Congress could either propose them itself, or it could summon a convention of representatives from the states to propose them. Mason warned that if the federal government were to become oppressive, Congress would be unlikely to call a convention to correct matters. To protect the people’s freedom, he argued, convening power should instead be vested in the states. Should two-thirds of their legislatures call for a convention, Congress would have to accede to their demand: a convention they should have.
So there you are, all we need is for 34 state legislatures to call for a convention, and then we can have a national discussion about how to resolve the problems we face and establish a functional and truly representative democracy.
Oh, you don’t like that idea? Why not? Don’t just say because it’s stupid; perhaps it is, but think about precisely why. Is it because you think that crazies will run away with the convention? Or because there’s a risk that a majority throws its weight behind something horribly destructive, like a balanced-budget amendment? Because the whole thing might fall apart, leaving America in a bizarre constitutional limbo?
Do you not have confidence that society’s civic guardrails will keep the thing on the rails? That a lattice of civic institutions might moderate a public discussion, solicit views from across society and help shape a consensus? That an independent press might provide important information, analysis and context in ways that help establish a shared public understanding of the facts surrounding key questions? That the weight of duty and responsibility will guide the actions of the delegates and prevent them from prioritizing their own personal or factional interests over the welfare of the country as a whole?
Well here’s the bad news: you don’t just need those things to run a non-catastrophic constitutional convention. You need them to keep an established democracy in working order. If we have lost those things then we have not just lost the opportunity to salvage ourselves through a constitutional convention. We have lost the capacity for self-governance. Because while it is certainly true that the structure of our political institutions matter, and that some forms of democratic governance are more brittle or unreliable than others, the institutions always require a supportive social infrastructure. We seem to have convinced ourselves that a self-governing society is one in which the masses go about their business and leave political decisions to a select few. Or perhaps something more like a professional sports league—there for our entertainment and maybe even our passion but not for our participation.
But no, a self-governing society is one in which the people govern themselves. They do the work. The masses may not pass the bills, but they set the agenda. They issue the marching orders to their representatives, rather than waiting to hear what they believe from a party leader or a partisan talking head or a social-media algorithm. But the realization of that sort of self-governance is impossible in an atomized society, in which the interstitial civic institutions, from the bowling league to the labor union, are not there to facilitate public debate and direct public energies in a productive way.
We’ve experienced a hollowing out of our civic institutions. Just why is an important question too big to answer here. I think we’re beginning to recognize that this hollowing has occurred and to take small steps to address it. But it has to be a whole thing, not just an increased interest in political organization, although that does matter. If we want to build a healthy society which is capable of governing itself effectively on a sustained basis we need to reconstruct an entire ecosystem of overlapping institutions. It would be good to do that anyway, a boon to our communities and to our collective mental health. The question is whether we’re up for it, or whether it’s just too...hard.
Many of those of us who live in capital cities and write for a living have become accustomed to a sort of democratic governance in which technocrats play an outsized role, and white papers are wielded like weapons. Within this world there is an almost reflexive mistrust of the general populace: who can’t be expected to understand a CBO score, or what an elasticity is, or things of that nature. I often think of Barack Obama’s stimulus, in 2009, in which the administration chose to deliver aid to families through a subtle tweak to withholding (as opposed, say, to a giant check with OBAMA STIMULUS written on it). The strategy was rooted in part in the ideas of behavioral economists, some of whom argued that households would mentally categorize a windfall payment as something like an asset, and would therefore be less likely to spend it right away in the demand-boosting fashion the economy required. An almost invisible rise in take-home pay, in contrast, would just be experienced as extra pocket money, and would quickly translate into spending. Many people cite this as an example of Obama’s commitment to public service over personal aggrandizement: he cared more about the bang for the buck than whether or not he received credit.
But setting aside the technical merits of the strategy, the policy abandoned any notion of governance as a cooperative effort between elected representatives and the people they serve. Better to try to manipulate them. That makes Obama’s efforts sound sinister. They weren’t; and of course the use of social science to try to bring a destructive recession to a quicker end is in no way comparable to the dishonestly and demagoguery of a Donald Trump. And maybe, one could argue, the deterioration in America’s civic infrastructure was already so complete in 2009 that other courses of action were unlikely to work much better.
And yet this can’t be how democracy operates. This is not to say that expertise doesn’t matter; of course it does. But the people are not there to be governed around: with a Supreme Court majority or a nudge unit or an independent central bank. They are necessary to the process. They’re the ones who keep and exercise the civic values that prevent a system of government from collapsing toward authoritarianism. The fact that many Americans can’t explain how a marginal tax rate works or what radiative forcing is, or are happy to tell reporters that they support Trump because he fixed health care, doesn’t change matters. We seem to have forgotten how all of this is supposed to work. Democracy isn’t about ensuring that every single individual has all the expertise needed to govern as an enlightened social planner, or indeed about engineering a voting system so that people delegate a small cadre of elites to do that for them. It is about building a healthy society. It’s about maintaining—I repeat myself, I know, but it’s important—the civic institutions that help individual Americans with the daunting task of information processing and moral reasoning, as a complement to a democratic political structure operating on principles of political equality.
I suppose it was easier for people in the 18th century, in some ways. If you wanted relief from your boredom, you essentially had to leave your house and associate with others, in a church or a tavern or a public square. Convening a public assembly to argue about a new tax or a new law was a proper good time. If you wanted to dunk on a politician you had to get off the couch and go find some folks to help you build an effigy. Now, comfort and endless distraction are rarely more than arm’s length away. Tuned out Americans have enabled busybodies in Washington to rule just as much as busybodies in Washington have enabled tuned out Americans to stay tuned out.
I just don’t know that democracy can be sustained in this way, though. The new institutions don’t have to be the same as the old ones, although I don’t quite know what the modern alternatives might be. But those overlapping networks that connect very different groups of Americans in meaningful ways need to be there. And we need to create them, if we want to continue to consider ourselves a free and self-governing people. Whatever happens on November 3rd, and however the next president and Congress choose to govern, there will be public initiative and renewal, or complacency and the continued decline of American democracy.