The events of the last three days suggest that the nation is in a serious constitutional crisis, with no immediate way out. On Friday, the loser of the popular vote, but the winner of the constitutional process, was inaugurated as our 45th President. And on Saturday millions of Americans, feeling a deep sense of disenfranchisement, took to the streets in protest. These two irreconcilable forces, represented by the Inauguration on one day and massive protests on the next, each have roots in the Constitution….and that is the nature of our crisis. We cannot depend on the Constitution to resolve its own internal contradictions.
Conservatives are fond of insisting that the United States is a republic, not a democracy. Their view of American citizenship is rooted in the institutional processes created by a 19th century propertied, white, male, slaveholding class whose definition of universal human rights excluded African-Americans, Indians, women, and occasionally white men without property. The conservative defense of “original intent” is embedded in the constitutional authority of the states to define voting rights, enforce slavery and the exclusion of Native Americans, elect Senators, select delegates to the Electoral College, and—most important for understanding our current predicament—the stranglehold of small population states on the ability of the citizenry to amend the Constitution to keep pace with our evolving political values.
Despite their zeal for the infallibility of the Founders, the foundational values of the nation were transformed over time in the text of constitutional amendments. History, and a ferocious Civil War, intervened to overthrow the original language and meaning of the Constitution. The mechanics of the original Constitution were replaced by a more fundamental value: “One Citizen, One Vote”, and embedded in the Constitution in a series of post-Civil War Amendments that ratified our new commitment to democracy.
The 14th Amendment explicitly limited the power of the states.
The 15th Amendment gave African-Americans the right to vote. The second sentence of the 15th A. is critical. It gave Congress, not the states, the authority to make any laws necessary to implement the amendment. This single sentence provided the legal justification for the Voting Rights Act of the 1965 that overthrew the voter suppression laws of the apartheid states.
The 17th Amendment mandated the direct election of Senators.
The 21st gave women the right to vote.
I tend to obsess on words and the meaning of words, which I realize puts me at a distinct disadvantage in the Trump Era. But it is of no small consequence that in the formal language of the Constitution, amendments are listed as “Articles” to honor the fact that they are not “add-ons” of second class status, but rather, new provisions of equal standing with the original Articles.
By amendment to the Constitution, Americans over several generations changed the foundation of how we understand citizenship. But two sections of the Constitution have never been amended, and they are at the root of our current constitutional crisis.
Article 1, Section 1 paragraphs 2 and 3 outline the procedures of the Electoral College. As long as the popular vote was consistent with the Electoral College, no one made much of the clash between the authority of the states and the will of the people. After all, there had only been three times in the history of presidential elections until 2000 when a President lost the popular vote but won the Electoral College. In the last 16 years it has happened twice (2000 & 2016), and it is going to happen more and more frequently as citizens move from declining rural states like South Dakota (population 850,000) to modern urban states like California (population 39 million).
The simple idea that we should be governed by the will of the people, based on each citizen having one vote, is now deeply embedded in popular political culture. All state and local elections are based on one-citizen-one-vote (much to the chagrin of Republicans). It seems absurd to modern sensibilities to retreat to an arcane 19th century formula for selecting our president, especially when the original formula was written with the intent of protecting the power of the southern states to enforce slavery. Without the justification of slavery, why would anyone support a system where a voter in South Dakota has twice the voting power of a citizen in Minnesota, or three times the voting power of a citizen in Texas?
Conservatives are quick to argue that the Founders had other philosophical reasons for sustaining the authority of the states in a federal system. Government that is closest to the people is most responsive to the people. The de-centralization of authority provides a natural blockade against the emergence of a national aristocracy. My own view is that both Madison and Hamilton, surveying the failure of the Articles of Confederation, argued for a stronger national government, not a weaker one. But they were men of compromise, not purity, and the malevolent fact is that the slave states demanded that the Founders create a system of de-centralized state authority that guaranteed their ability to enforce slavery even as the northern states turned against slavery.
It was the slave states that rallied to the cause of “nullification” and state’s rights on the eve of the Civil War. It was the slave states that created state-sanctioned segregation after the Civil War. It was the slave states that fled from the integration of public schools after the 1954 Supreme Court decision in Brown v. The Board of Education of Topeka, Kansas. And it is the former states of the Confederacy that now form the rigid foundation of the Republican Party and Donald Trump’s ascendency.
After the Civil War, the low-population, agricultural states of the Great Plains enthusiastically embraced the logic of state’s rights. These states form that massive red block in the middle of all electoral maps. It’s a daunting graphic. But the reality behind the red is that nobody lives on the Great Plains. If we remove the eastern half of Texas, and the City of Denver, the ten states of the Great Plains have a population that is half of California’s. And yet, California, with twice the population, has two Senators and the Great Plains have twenty!
The paradox of the Great Plains is that for all our pretense of rugged individualism we are the most dependent states on federal programs, and we defend our largesse with our disproportionate power in the Senate. We are fierce advocates of state “sovereignty” at the same time we maneuver behind closed doors for increased federal support.
Historically, Americans favored amending the Constitution to do away with the Electoral College. According to Gallup, in the late 1960s, upwards of 80% of the electorate found the Electoral College antiquated and ready for the dustbin of history. But after Donald Trump’s victory, Republicans swung overwhelmingly against reform. Based on that swing, Gallup now reports that 47% favor keeping the Electoral College and 49% favor getting rid of it. Yet another signal that we are a divided and paralyzed nation. (http://www.gallup.com/…/americans-support-electoral-college…) Like gerrymandered legislative districts and state level voter suppression statutes Republican support for the Electoral College is a desperate attempt to hold back history.
But even if the public favored reform by a large margin, Americans cannot change the basic dysfunction of the Electoral College because Article 5 of the Constitution, the Amendments Clause, is the last bastion of 19th century state’s rights, and it guarantees that the least populated states hold veto over the will of the majority. It takes 2/3 of both houses of Congress for an amendment to be introduced, or 2/3 of the states to convene a constitutional convention. If, by miracle, an amendment to abolish the Electoral College ran the gauntlet, it would take an overwhelming 3/4 of the states to ratify the amendment. We have, as an example of this stifling dynamic, the struggle to ratify the Equal Rights Amendment, which fell three states short of ratification in the 1970s. Which state legislatures opposed the ERA: the states of the Confederacy.
The southern states in combination with the states of the Great Plains form an impenetrable wall against reform of the Amendments Clause, which forms an impenetrable wall against reform of the Electoral College.
Not all is dark…despite President Trump’s characterization of John Lewis’s congressional district. Atlanta is Democratic. The Research Triangle in North Carolina is Democratic. The northern suburbs of Virginia are Democratic. Economic innovation and jobs are concentrated in Democratic counties. If Democrats can develop a program and new leadership that speaks to working class issues and rural poverty, North Carolina and Georgia may flip over the next decade. Such a strategy would require an intense organizing commitment from the Democratic National Committee.
The states of the Great Plains are a more difficult challenge. They cannot stand on their own in the Senate without an alliance with the South, and as the South changes, the states of the Great Plains will find themselves increasingly isolated.
The Great Plains is America’s Serengeti. I would argue that its greatest national purpose is to NOT be heavily populated. But Democrats will need a multi-tiered organizing strategy, and all of these efforts will require support from the coasts. We cannot do it on our own.
(1) George McGovern’s South Dakota Democratic Party was built on progressive agricultural policy (as we understood it in the post-war period), and intensive grassroots organizing. That strategy was abandoned two decades ago, and the contemporary problems of agriculture are not the same as they were a half-century ago. Going forward, the Democratic Parties of the Great Plains will require national support at a time when the natural drift of the Party will be towards the working classes of the industrial Midwest and the South. Organizing on the Great Plains will require a long view.
(2) The Democratic Party has taken the Native American vote for granted for far too long. Essentially, Democrats are afraid of Indians, and do not offer a serious programmatic strategy for Indian Country built on native sovereignty. Supporting the budgetary needs of tribal governments is not the same as supporting treaty rights and native sovereignty. This is a distinction often lost on Democrats who are eager to provide one more patrol car for a tribal police force, but are unwilling to support the protests at Standing Rock.
What the tribes cannot deliver in numbers they more than make up for in direct action. Indians know how to fight a guerrilla war…both real and metaphorical. The protests at Standing Rock are the 21st century equivalent of sitting at a lunch counter in North Carolina in the early 1960s. Both President Trump and the Democratic Party should beware the power of a new generation of Native American leaders to rally the nation. Their cause is righteous. They are educated and disciplined. They have learned how to build alliances. They know how to use social media. They are well trained in direct action tactics. They will be essential to a revival of the Democratic Party on the Great Plains, and that scares white Democrats to death.
(3) With wind and solar, the Great Plains can become the power cell of the nation, and can make the transition from a low-skill, low-wage rural economy based on agriculture and fossil fuel extraction to a high-tech alternative energy economy. A new generation of Plains farmers could re-invent American agriculture and put it on a more sustainable and healthy foundation. As these themes are engaged, the Plains states could be low-cost models for the future. But this would have to be a national priority with national participation and capital. The economic, ecological and sociological problems of Plains agriculture are complex, and cannot be resolved without regional planning and support from the cities. That’s a heavy lift.
To their own disadvantage, conservatives continue to insist on the constitutional framework of the Founding Fathers while Democrats insist on the constitutional framework of the “Second American Revolution” of the 1860s and 1960s. That’s why Donald Trump hangs his legitimacy on the Electoral College, and Democrats hang their legitimacy on the popular vote.
A friend sent me a Facebook post last Friday. She said, “Today is Inauguration Day. Don’t forget to set your clock back 200 years.” Funny. But that is precisely the nature of our constitutional crisis, and it will not be resolved by constitutional reform. The arc of history bends away from state’s rights toward popular sovereignty. But history teaches us that there will be long and oppressive twists and turns. The engine of change over the next four years will not be constitutional amendment or the institutions of government, but rather, direct action in the streets and at the front doors of neighbors. Saturday was a beginning.
Water is sacred. Defend the River. Organize. Follow the women.
– Published with permission by author Sam Hurst