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We have one party, in other words, currently out of power in the national government, trying to legislate a future in which it can lose elections but legally acquire or hold on to power. We have a second party, currently in power, doing little to stop the first.
While scholars warn of fascism on the one side and pundits bicker over wokeness on the other, the larger and longer view reveals how blinkered both of these assessments are. The right’s road to power does not run through street violence, mass rallies, fake news or lawless coups. The left’s weakness has nothing to do with critical race theory and cancel culture. Both claims suffer from the same shortcoming: They focus on the margins rather than the matrix.
Driving the initiatives of the Republicans and the inertia of the Democrats are two forces. The first is the right’s project, decades in the making, to legally limit the scope and reach of democracy. The second is the Constitution, which makes it difficult for the national majority to act and easy for local minorities to rule. What happened on Jan. 6 is far less significant than what happened before Jan. 6 — and what has and has not happened since then.
The conventional wisdom among journalists and scholars, recently expressed by Thomas Edsall in the New York Times, is that “democracy — meaning equal representation of all citizens and, crucially, majority rule — has, in fact, become the enemy of the contemporary Republican Party.”
Equal representation of the citizenry hasn’t become the enemy of the contemporary Republican Party. It has been the enemy for more than a half-century. Ronald Reagan opposed the 1965 Voting Rights Act from the beginning, explaining later that he believed it was “humiliating to the South.” When the act came up for its third renewal in 1982, Reagan’s lawyers in the Justice Department, led by a twenty-something John Roberts, mightily resisted it and much needed amendments to it. When it came up for renewal again, in 2006, the act nearly broke the House Republican caucus in two.
At the center of Republican opposition to the Voting Rights Act is Section 5, described by the historian J. Morgan Kousser as “one of the most innovative governmental mechanisms since the New Deal.” Section 5 stipulates that states, counties and localities with a history of discriminatory voting rules and practices must get permission or “pre-clearance” from the federal government to make any changes to an electoral “standard, practice, or procedure.” With the burden of proof falling on these jurisdictions, it is up to them to demonstrate that the intent or effect of their change is not racial discrimination.
Well-versed in the ingenuity and initiative of white supremacy, the authors of Section 5 understood that equal representation for all citizens required the nationalization of voting standards and preemptive action by the federal government to protect those standards. If local white officials were not stopped, in advance, from “stacking” or “cracking” the Black vote — concentrating Black voters in one district and reducing their power elsewhere or diluting their power by spreading their votes across districts — African Americans would not be guaranteed equal representation in the polity.
When the Voting Rights Act came up for its first renewal in 1970, Nixon’s attorney general, John Mitchell, immediately set his sights on Section 5. A proposal for the elimination of Section 5 made its way into a bill in the House. Led by Minority Leader Gerald Ford, 129 Republicans (nearly three-quarters of the GOP caucus) joined 79 Democrats, overwhelmingly from the South, to pass the bill. While the bill ultimately failed in the Senate, the campaign to eliminate Section 5 was taken up again, unsuccessfully, by the Ford and Reagan administrations. When Reagan’s lawyers met opposition in Congress, they did what Nixon’s lawyers did, narrowing Section 5 through internal memos and briefs.
In 2013, with Roberts now at the helm of the Supreme Court, the Republicans finally achieved their goal, effectively killing Section 5 in Shelby County v. Holder. Though the Cornell political scientist Suzanne Metler tells Edsall that the GOP is “a longstanding party that helped to protect democracy until recently,” the wave of Republican racial gerrymanders and voting rights restrictions that we are seeing today was set in motion by leading members of the party more than fifty years ago.
Democracy is not just the enemy of the Republican Party. It is also the enemy of the Constitution. Americans associate the Constitution with popular liberties such as due process and freedom of speech. They overlook its architecture of state power, which erects formidable barriers to equal representation and majority rule in all three branches of government. The Republicans are not struggling to overturn a long and storied history of democratic rules and norms. They’re walking through an open door.
The 20th century lulled many Americans into thinking that the Electoral College was a vestigial organ like the appendix. Citizens of the 21st century know better. Having witnessed two presidential elections in which the candidate with the most votes lost, they know that rule by the majority or plurality is not a necessary feature of the presidency. Nor is equal representation: In the Electoral College, the vote of a citizen in Wyoming is worth three to four times as much as that of a citizen in California.
The division of Congress into two houses also reflects the Constitution’s antipathy to equal representation and majority rule. Too many states, Alexander Hamilton complained, are “governed by a single democratic assembly or have a senate constituted entirely upon democratic principles.” In unicameral legislatures, the democratic majority — described by James Madison as those who “labor under all the hardships of life and secretly sigh for a more equal distribution of its blessings” — has too much power to pursue its “leveling” designs. If the legislature is divided in two, however, with an upper chamber reflecting the interests of the wealthy minority “who are placed above the feelings of indigence,” the majority’s designs will be frustrated.
Though the Framers rejected the idea of a hereditary body like the House of Lords, they did accept a compromise in which the Senate would represent states rather than individuals. Contrary to popular lore, Madison thought the central concern of those states had less to do with the size of their populations than with the source of their labor, whether it was enslaved or free. The consequence of that divide is still present in the Senate, which Jonathan Chait has aptly characterized as “the most powerful source of institutional racism in American life.”
While some longstanding, wealthy democracies do have upper chambers, the United States is one of the very few to grant its upper chamber equal power to its lower chamber. The extreme inequality of representation in the Senate, in which the vote of one citizen in Wyoming is equal to that of 67 citizens in California, is even more unique. The combined effect of these twin features of Congress, wrote the distinguished Yale political scientist Robert Dahl, is “to preserve and protect unequal representation” and “to construct a barrier to majority rule.”
American racial politics, past and present, demonstrates the power of this observation. Between 1800 and 1860, the will of the voting majority was repeatedly expressed in the House, which passed eight anti-slavery bills. The will of the slaveholding minority was repeatedly enacted in the Senate, which stopped those measures. In the first half of the 20th century, the majoritarian House passed multiple civil rights measures — from anti-lynching bills to abolition of the poll tax. Each time, those bills were killed in the Senate.
Now the popular majority has elected to Congress and the White House a party that seeks to pass legislation protecting the right to vote, particularly among descendants of the enslaved, and the integrity of democratic elections. That democracy-promoting legislation is meant to counter the anti-democratic actions of Republican politicians, who, in 12 states, control one or both branches of the state legislature despite having won only a minority of the ballots cast or who hold power with disproportionately sized majorities far in excess of the ballots cast for them. Though the House has passed one iteration of this legislation, it seems likely that the Senate will kill any version of it — with a coalition of senators representing millions fewer citizens than the coalition that is backing the bill.
Should the bill get enacted into law, it will have to face the Constitution’s final counter-majoritarian test, on the Supreme Court, where it could easily be struck down by five or six of the Court’s conservative justices. All those justices were put on the Court in accordance with constitutional procedures — which is perfectly consistent with the fact that three of those justices were appointed by a president elected with fewer votes than his opponent and five of those of those justices were approved by a group of senators representing fewer voters than the senators who voted against their confirmation.
If there is any solace to be gained from this sorry story, it is that it is a typical American story. We are not facing the importation or imposition of a new mode of rule. We need no labored analogies or showy theories to make sense of it. We are in the same constitutional steeplechase that generations past have had to hurdle across or hurl themselves through. Whether we are at the start, middle, or end of that course is now, as always, an open question.
This content was originally published here.