08.09.2022

Collection of Euclidean axioms

Daniel Lazare welcomes Joe Biden’s Philadelphia speech on the danger posed by Maga Republicans, but the idea that democracy can be won by upholding an antiquated, undemocratic constitution is risible

It’s official: US democracy is on the brink. As Joe Biden put it in Philadelphia last week,

… as I stand here tonight, equality and democracy are under assault. We do ourselves no favour to pretend otherwise … Maga Republicans … look at the mob that stormed the United States Capitol on January 6, brutally attacking law enforcement, not as insurrectionists who placed a dagger at the throat of our democracy, but they look at them as patriots. And they see the Maga failure to stop a peaceful transfer of power after the 2020 election as preparation for the 2022 and 2024 elections. They tried everything last time to nullify the votes of 81 million people. This time they’re determined to succeed in thwarting the will of the people.

With half of America’s two-party system at war with the very idea of free elections, there is no doubt that America is at a crossroads and that Biden is correct in pointing it out. But why is democracy on the edge? According to the president, it is simple:

Maga Republicans do not respect the constitution. They do not believe in the rule of law. They do not recognise the will of the people. They refuse to accept the results of a free election, and they’re working right now, as I speak, in state after state to give power to decide elections in America to partisans and cronies, empowering election-deniers to undermine democracy itself.

All of which is deeply incorrect. Fans of Donald Trump’s ‘Make America Great Again’ movement do not ‘dis’ the constitution. On the contrary, they respect it every bit as much as Democrats do. The trouble is that the constitution they respect is different - or, to put it more precisely, it is the same document, but one that is so tired and incoherent at this late date that it is all too easy to draw different conclusions as to what it means. One side says it means democracy within certain limits, while the other says it means minority rule within certain limits as well. The problem is that both interpretations are equally valid.

Back to 1850s

This is not unprecedented. If 43% of Americans say that civil war is “somewhat likely” in the next decade,¹ it is because the country now finds itself in straits that are almost eerily similar to those of the 1850s. America was still a democracy in the days leading up to the 1861 Battle of Fort Sumter, more or less. The press was still free, elections were still noisy and vociferous, and people could still speak their minds - outside of the deep south, that is, where abolitionists were liable to be lynched.

But a small number of major slave-owners - just 2,400 planters in the entire country owned a hundred or more slaves each - were using the constitution’s numerous pro-minority provisions to turn democracy on its head.

The ‘three-fifths’ clause in article I, section two, is the most notorious. By allowing slaves to be counted for purposes of congressional representation, it gave slave-owners as many as 25 extra seats in the House of Representatives. Despite accounting for less than 30% of the free population, slave states thus wound up controlling nearly half of the lower chamber. This was enough for a slave-owning minority to bring government to a halt, whenever it thought its interests were in danger.

That is not all. The principle of equal state representation gave them control of roughly 45% of the Senate - enough for effective veto power in the upper chamber as well. Because votes in the Electoral College are based on the number of representatives and senators each state sends to Congress, the ‘three-fifths’ clause gave them as many as 25 extra electoral votes, which allowed them to effectively dominate the executive branch. This is why every president from 1789 to 1853 was a slaveholder with just two exceptions: John Adams of Massachusetts and his son, John Quincy - neither of whom did much to disturb slavery while in office.

Finally, all that extra clout gave them control of the judiciary, since the constitution says it is up to the president and Senate to nominate and confirm members of Supreme Court. By the time the all-important Dred Scott case came up for review in 1857, the court’s nine members included five slave-owners plus a couple of pro-slavery justices from up north. It was a foregone conclusion, therefore, that it would rule seven-to-two that Scott remained a slave despite being transported to a free territory and that black Americans had “no rights which the white man was bound to respect”.

The south had it all sewn up. Despite growing outrage, there was nothing the democratic majority could do, since the ‘rule of law’ - a concept that today’s liberals view as nothing less than sacred - was firmly on the planters’ side. Northern industrialists had a long list of legislative initiatives they wanted to see enacted: federally-financed colleges and universities to train a new generation of farmers and engineers; a coast-to-coast rail system; a national bank; a homestead act aimed at expanding western grain production; and so forth. But they were stymied by a ‘solid south’ determined to block any measure that might broaden and diversify the economy and thus knock King Cotton off his throne.

Since a dysfunctional amending clause rendered constitutional reform impossible, extra-constitutional action was the only way out. As Marx observed a year and a half into the conflict: “So far, we have only witnessed the first act of the Civil War - the constitutional waging of war. The second act - the revolutionary waging of war - is at hand.”

The parallels today are striking. The ‘three-fifths’ clause is no longer an issue, obviously. But rampant gerrymandering has given Republicans roughly a 12% advantage in the House since 2010, in terms of the number of votes needed to win each seat. The Electoral College’s growing bias in favour of rural white states - it as much as triples the clout of ‘rotten boroughs’ like Wyoming and the Dakotas - has allowed the party to steal the presidency twice - once in 2000, when George W Bush used a Republican-controlled Supreme Court to seize the White House despite trailing by half a million popular votes; and again in 2016, when Trump prevailed over Hillary Clinton despite lagging by even more - 2.8 million.

The story is the same in the Senate, where Republicans enjoy 50-50 parity despite representing 12% fewer people: ie, 145 million versus the Democrats’ 186 million. Ditto the judiciary, where five of the Supreme Court’s six conservative members were nominated by ‘unelected’ presidents - ie, Donald and Dubya - and confirmed by a no less undemocratic Senate.

This is ‘minority dictatorship number 2’, and there is nothing the least bit unconstitutional about it. To the contrary, it fully reflects the constitution’s central organising principle, which is that entrenched minorities should have special powers to check and balance the majority, so as to stop untrammelled democracy from slipping through the door. After losing the popular vote in seven out of the last eight presidential elections, the Republicans are sinking into what looks like permanent minority status. Yet a 235-year-old plan of government provides them with seemingly endless opportunities to wield more and more power.

No return

‘We, the people’ should have abolished such provisions years ago. But, since the barriers to constitutional reform are even more insuperable than they were in the 1850s, they are powerless. Anger is growing and polarisation continues to mount, as Americans load up on more and more guns - 400 million at last count (more than 1.5 per adult). Yet, once again, there is no constitutional way out.

This is what makes Biden’s September 1 speech in Philadelphia’s Independence Hall so important. It amounts to official recognition that the US is near the point of no return, as Congress winds up ever more lopsided, the Supreme Court grows ever more conservative and anything resembling free presidential elections threatens to vanish into the mists.

But Biden’s speech was important for another reason. It was so stuffed with clichés about “the greatest nation on earth” and “a beacon to the world”, so packed with absurd non-sequiturs about Americans fighting disunity by pulling together, that it is plain that critical thought is also nearing the vanishing point.

Biden’s casual equation of law and democracy especially stood out. As far as the president is concerned, rule of law and the will of the people are two sides of the same coin, because, hey, it is “the life and the essence of who we are”, It is what America is all about and, since everyone says it, it must be so. In truth, the two have never diverged more widely.

After all, how can law reflect the democratic will, when the demos has never had an opportunity to vote on the constitution - the foundation of US law - in its entirety? Never has the constitution been put to a referendum as a whole or been subject to any sort of official debate. On the contrary, it has been regarded as a fait accompli since its inception - a collection of Euclidean axioms that are beyond debate and therefore must be taken as ‘givens’. And, sorry, the special state elections that led to the constitution’s ratification in 1787-88 do not count, since only 160,000 voters took part (less than the population of today’s Upper West Side of Manhattan) - every last one of them a property-owning, white male.²

The constitution’s democratic standing is therefore nil. The people are as paralysed as ever - indeed, more paralysed - when it comes to a long train of abuses, such as a wildly unrepresentative Congress or a far-right Supreme Court. They are subject to a double imprisonment by a permanent and unchanging 18th century plan of government and a bourgeois political class whose raison d’être is to implement it in full - even though they have less and less idea as to what it actually means.

The last time this happened, the northern bourgeoisie was able to cut short the extra-constitutional revolutionary process, once it got what it wanted. But, for a number of reasons, history is unlikely to repeat itself. Capitalism - youthful and vigorous in the mid-19th century - is played out and exhausted as of the early 21st. The American empire is in deep crisis, while the constitution is played out as well. Where previously the northern bourgeoisie was content to suspend it for the duration of the Civil War and then restore it in somewhat revised form, such sleight of hand will no longer do. Given a form of government as frozen as the US system, imposing change from without will cause it to shatter like fine crystal. Since the constitution is the foundation of all political, legal and economic life in America, the effect will be to reduce the social structure to ruins, leaving society with no choice but to rebuild, restructure and reconstitute itself from the ground up.

An iron law of history is that change cannot be indefinitely forestalled. The more one tries, the more one ensures that it will be all the more sweeping, when it finally arrives. The United States could find itself facing its own ‘Tennis Court Oath’, once the constitution falls from its pedestal or - better still - its own February Revolution. October will have to follow if the working class wishes to see democracy survive.

today.yougov.com/topics/politics/articles-reports/2022/08/26/two-in-five-americans-civil-war-somewhat-likely.↩︎
F McDonald E Pluribus Unum: the formation of the American republic 1776-1790 Indianapolis 1965, p319.↩︎