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Tyranny of the losers and the politics of gun control

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This is a guest post by Lisa L. Miller. Lisa is a (freshly promoted!) Professor of Political Science and the 2015-16 John G. Winant Visiting Professor of American Government at the Rothermere American Institute at the University of Oxford. Her most recent book, The Myth of Mob Rule: Violent crime and democratic politics, is published by Oxford University Press.

Growing up in the United States means learning that the Framers of the Constitution were preoccupied with tyranny of the majority and thus created a system of “checks and balances” designed to mitigate its possibility.

Yet, what Americans call “checks and balances,” political scientists call “veto points” – structurally embedded political opportunities for the electoral losers to block or override the winners – and the U.S. is rife with them.

The vilification of the American public and its political leaders for not enacting gun control obscures this fundamental cause of gun control failure, tyranny of the minority, which is made possible by the very checks and balances that Americans so routinely celebrate.

The disproportionate Senate – where each state has two representatives regardless of size – is a particularly stark example of just how easily and routinely political minorities override political majorities, and its impact on gun control policy is profound. A 2015 bill, for example, which was proposed after the shooting deaths in San Bernadino, California that killed fourteen people, would have extended FBI background checks to every gun purchase, including currently unregulated gun shows and online sales. The bill went down to defeat with just 48 yea votes to 50 nays.

But the 48 Senators that voted in favor of the bill actually represented 58% of the American population. The 52 who voted against the bill represented just 42%. A very similar bill was defeated in 2013, despite 54 votes in favor, due to an arcane Senate rule known as the filibuster. In that case, the 54 yea votes represented a full 62% of the population.

In other words, all the talk of Americans’ attachment to guns and demands that Congress act overlook the fact that a pro-gun control majority exists and, but for the undemocratic structure of the Senate, the United States would have substantially more gun regulations

And the Senate is not the only veto point that makes it hard for the pro-gun control majority to see its policy preferences enacted. Separation of powers means that opponents of any type of gun control measure need claim only one of the three branches of government at the national level (the House of Representatives, the Senate or the Presidency), since all three are required for passage of legislation. If all else fails, there is always the Supreme Court, which, after more than a century of upholding gun control legislation as perfectly consistent with the Constitution, has begun to strike down legislative acts aimed at reducing gun violence (e.g., U.S. v. Lopez, D.C. v. Heller and McDonald v. Chicago).

Some will say that gun control is precisely the type of policy that was intended to be addressed by state governments, not the national government, and that allowing Congress to increase the scope of its jurisdiction on this issue is precisely the sort of governmental and majoritarian mission creep that the Framers of the Constitution were trying to guard against.

But even if we think we should emulate the intent of 18th century Englishmen in the 21st century American context (and it’s not at all clear we should), such claims give us little guidance as to which subnational majorities should be able to override national ones or when. When and why, that is, should non-majority policy views be permitted to disrupt or downright override the majority? We might all agree that there are times when political losers should be granted such extraordinary power, but that is quite a different matter from allowing them to override majorities as a matter of routine politics.

Moreover, gun control is the worst type of policy to leave to state governments because it falls prey to precisely the kind of inter-state activity that individual states cannot regulate without cooperation from others. Far from being so-called ‘laboratories’ of democracy, states are cross-contaminated by free and open borders, meaning that strict gun laws in one state are routinely thwarted by liberal laws in another. Ironically, spiraling violence was a major impetus for the Constitutional Convention, which sought to strengthen the capacity of the national government to solve national problems, not to hamstring it.

Enacting public policy is harder than simply blocking it and the U.S. system of separation of powers, mal-apportionment in the Senate, federalism and judicial supremacy allows extremist views to maintain the status quo, even when a sizeable majority of the public wants change.

Let’s start a new narrative: Majority rule is not tyranny and losing is not oppression. The American political narrative of checks and balances is overly preoccupied with the dangers of political majorities when the true threat to American democracy is the ability of electoral losers to nonetheless defeat the policy preferences of the winners.

This, in turn, creates enormous frustration among the electorate and delegitimizes politics and politicians, driving people even farther away from the political process and making it even more likely that political minorities will have disproportionate influence on policy.

Recognizing this may leave the electorate even more pessimistic about the prospects for gun control than before. But without acknowledging how our constitutional system facilitates rule by a virulent political minority, we risk pouring large amounts of political energy into efforts to change hearts and minds when, in fact, a majority of minds don’t need changing. What we need is to undermine the idea that rule by the few is the American way and to identify ways to overcome obstacles to implementing majority preferences.

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  • AMK

    The answer is more federalism, because it’s the only answer. Amending the constitution to neuter the “veto points” is not a realistic option.

    If Massachusetts wants to ban assault rifles and Mississippi wants to hand them out like candy, well fine. That’s better than where we are now, because at least it would save people in MA.

    • JG

      I think lefties should embrace federalism more. It’s a lot easier to enact your agenda in blue states and you can get some really ambitious stuff in big blue states (which are generally pretty rich).

      • AMK

        Exactly. And the best way to teach is by example. Eventually, it will be hard for the red states to deny things like assault weapons bans are good when Massachusetts’ homicide rate looks like Japan’s and Mississippi’s looks like Afghanistan. And if they don’t, well, that’s natural selection. You can only do so much to protect people from their own stupid….but you can make sure they don’t drag you down with them.

        • Pseudonym

          Except assault weapons are used in a very small percentage of homicides. Handgun restrictions like required background checks or non-shall-issue concealed carry permits would probably make a much bigger difference in homicide rates. Also, as mentioned, it’s not exactly difficult to transport guns across state lines anyways.

          • AMK

            Ok so you make it illegal to posses an assault weapon in the state, and you hire more state troopers to enforce the law. Not rocket science.

          • cpinva

            “Also, as mentioned, it’s not exactly difficult to transport guns across state lines anyways.”

            true enough. but, one gun isn’t so much the problem as is a dozen, or 50, or 100. years ago, the FBI did an analysis, tracking the sources for guns used in crime. as it turned out, there were a few gun stores responsible for most of those guns. one I believe not far from me in VA, Clarke Bros., was selling guns in numbers way out of proportion to the local gun using population. gun runners would buy in bulk, no questions asked, and distribute them up and down the east coast, FL to (mostly) NY. and, Clarke Bros. were breaking no laws, at the time.

            VA passed a law limiting gun purchases to one or two a month (I forget which), and the flow dried up almost immediately.

        • AMK

          ….It’s alot like dealing with, say, Afghanistan. What really differentiates people is (of course) not race or sexual orientation or any of the other superficial categories…but it is ideas and values. And many liberals just refuse to acknowledge those differences are real. Afghanistan is the way it is not because the 30-some million people there are all victims of this or that; it’s the way it is because a critical mass of people there want to continue killing each other. This is the society they choose. Is that a function of history and all these other macro factors? Yes. but it does not make it any less true. Pointing out the effects of geography creating tribalism, creating wars and invasions and poverty and imperialism etc etc is all well and good and true, but it is not going to make the Afghan teenager any less likely to join the Taliban.

          So it is with guns (and abortion, and homophobia, and racism) in Mississippi. And insisting those of us in the blue states who want progress must limit ourselves to what’s possible in America’s Afghanistans is not much of an argument…..especially when many of the people in Mississippi (or Afghanistan) could not actually care less what happens in places that are as foreign to them as they are to us.

          • ThrottleJockey

            +1

        • Origami Isopod

          Awesome, fuck all the PoC, LGBT people, and women in red states, right?

          • Pseudonym

            Heightening the contradictions is always most popular among those who it doesn’t affect personally.

      • Pseudonym

        On the other hand, the people in the red states are then left out in the cold by state governments more empowered to screw them over… And the biggest issue that comes to mind where federalism allowed states to have very different policies, slavery, wasn’t exactly resolved peacefully.

        • AMK

          Slavery wasn’t resolved peacefully because the issue wasn’t so much slavery in the South as the expansion of slavery beyond the south. If the western states were allowed to become plantation aristocracies, it would ultimately create a permanent slave power in Washington that could threaten the free states.

          • Murc

            So what you’re saying is, we need more federalism, except when it would lead to policy outcomes you dislike.

            • i8kraft

              Yes. That appears to be the position.

            • ThrottleJockey

              No, not at all. It a recognition that half a loaf is better than no loaf. Vermont requires food companies to label which products contain GMOs. That’s good for Vermont and its also good (if you’re the anti-GMO sort, I’m not) for the rest of the country.

              California requires its eggs to be produced by cage free chickens. That’s good for California and its also good the country. California requires the California ignition. That’s good for California and good for the rest of us.

              If liberals were more imaginative we could really take advantage of federalism.

              • Murc

                Except that the dark side of federalism is that if the traitor states decide “hey, we’re not only not going to mandate cage-free eggs, we’re going to mandate that all eggs sold here MUST be non-cage free, because fuck you, libtards” then if you’re actually respecting federalism you’ve no choice but to shrug your shoulders and say “nothing we can do.”

                • ThrottleJockey

                  Except that no one in this country–even federalists–agree with 100% federalism. The question is the balance of power. Actually the question is which argument best wins my political preferences today.

            • crownwave

              I mean yeah, this strikes me as a reasonably strong position. The goal is progressive policy outcomes, and there’s a case to be made that federalism is currently an underused tool to that end. Doesn’t mean we need to support it when used to undermine those outcomes.

          • cpinva

            “Slavery wasn’t resolved peacefully because the issue wasn’t so much slavery in the South as the expansion of slavery beyond the south.”

            kind of. the two are mutually inclusive. that slavery was not allowed in the new states obviously pissed off the major slave holding states. but it was the fear that (however unrealistic it actually was, in practice) the non slave holding states would eventually force abolition on them, through the law, that finally caused them to go off the deep end, accomplishing in 4 years, what the abolitionists hadn’t been able to do in 100 years.

            • so-in-so

              Also the economics, that without markets for “new slaves” the plantations would lose money.

    • Sly

      Federalism doesn’t work here because of unrestricted travel between states. Massachusetts bans all firearms, Mississippi allows everyone to own any kind of firearm they want. Someone from Massachusetts who wants a firearm travels to Mississippi and purchases one, then returns to Massachusetts and uses said firearm to kill someone. Massachusetts law has effectively been subverted.

      And this is exactly one of the major stumbling blocks with current gun control efforts. Cities with lots of violent crime are trying to remove guns from their streets, but those guns aren’t magically appearing from the ether. They’re being brought into the city from places that don’t impose a similarly burdensome gun control regime. This is why Mayors Against Illegal Guns was formed in the first place.

      • Gregor Sansa

        They don’t even have to travel to Mississippi. They can go to New Hampshire. Federalism might work for California or Texas or even Minnesota or New Mexico, but in New England states are just too small for it to offer a meaningful solution to gun control.

        • ThrottleJockey

          Its not clear that a majority of New England states want gun control. How popular is gun control in Vermont, New Hampshire and Maine?

      • Chicago is a prime example. A lot of the guns come in from Indiana.

        • N__B

          Most of NYC’s guns come from Virginia.

        • ThrottleJockey

          And Mississippi!

          But its really more of a Illinois, cross-city issue, than a US cross-state issue.

          But more than 15,000 of the guns traced by the police came from just outside the city limits in Cook County and in neighboring towns that permit gun stores.

          Illinois 22,051
          Indiana 7,747
          Mississippi 4,296
          Wisconsin 1,647
          Kentucky 1,226
          Ohio 1,121
          Tennessee 1,090
          Alabama 1,070
          Arkansas 944
          Texas 937

      • cpinva

        “Someone from Massachusetts who wants a firearm travels to Mississippi and purchases one, then returns to Massachusetts and uses said firearm to kill someone.”

        burn that strawman down I say! you know, if I really, really, really want to build a bomb, even though building bombs is illegal, i’ll find a way. it’ll take me longer, and cost more money, but I can do it. no law can completely stop me from doing it. however, it can make it a hell of lot more difficult for me. the longer it takes, and the more difficult it is, the higher the likelihood that: 1. i’ll get tired and stop., 2. someone might notice what I’m trying to do, and report me to the authorities.

        many, many moons ago, when cocaine was the popular drug of choice, and I95 was the main route between NY & FL (the source), the police started noticing certain vehicles, with FL plates, making frequent trips between Miami & NYC. either these people had lots and lots of relatives/friends in NYC, that they were constantly going to visit, or they were doing something else. many had no visible means of support, as it turned out, making it even odder that they could somehow afford to be making these trips. the police began stopping these vehicles, for various vehicular infractions, and checking out the cars. they found tons of coke. arrested the car occupents, impounded both the vehicles and the coke. the volume of cocaine getting to NYC dropped like a stone.

        the dealers found other, more difficult means of moving product, at greater expense, and greater risk of seizure. it didn’t all dry up, but came close to it. the same approach can be taken with bulk gun running. and, because the gun shops are required to be licensed and keep meticulous records, if we beef up the ATF, they will have to become less a source of those guns, if they want to stay in business.

    • Matt McIrvin

      Gun fans like to point out that cities with a lot of gun crime usually have tough gun-control laws. They’re ineffective because it’s impossible to keep guns out of an area with no border controls.

      There are already lot of gun stores on the New Hampshire side of the border, along with fireworks stands and various businesses taking advantage of the sales-tax difference. Stronger gun bans in MA would just get them more business. Anything effective has to be national.

      • N__B

        Where are the economic sanctions? Where is the MA air force? Why is there not a mined no man’s land? These are questions a New Englander must answer for me.

        • Matt McIrvin

          To be fair, our state’s heroin-trafficking industry does a lot of business in the opposite direction.

        • Aardvark Cheeselog

          Just limit insterstate transport to foot traffic, horseback, or bullock cart.

      • cpinva

        again, those gun stores are federally licensed, and required to keep meticulous records of their sales. all it takes is an ATF audit to shut them down. of course, this also requires a congress not controlled by lunatics, to provide ATF with the resources needed to accomplish this.

    • NewishLawyer

      Except there is no such thing as a sincere Federalist. The Gun Nuts will use the 2nd and Incorporation to defeat federalist gun control policies.

      • ThrottleJockey

        Very true. Conservatives love Federalism, except when they hate it.

        See also: DOMA, California Egg laws, California environmental laws.

        • rea

          See also: DOMA, California Egg laws, California environmental laws.

          Fugitive Slave Act. (This is not a new controversy)

          • Origami Isopod

            Minimum-wage laws in liberal cities, abortion laws, LGBT protections, etc. etc.

            • cpinva

              the list could go on forever.

      • Yankee

        Many of us hippies are Localists. Many non-gun nuts think the New World Order is pernicious.

        • Origami Isopod

          I would prefer a strong national government to protect me from the bigots at my local level.

    • Murc

      The answer is more federalism, because it’s the only answer.

      Federalism is never the answer to anything. Ever.

      … okay, that was a bit strong, but on balance federalism has done way, way more harm than good. Embracing it over this one issue where it is not even clear it would do any good at all seems counterproductive.

      The answer is to win. Veto points are hard to overcome, but not impossible.

      • n8chz

        Yes. The fact that we are held to a higher standard makes us stronger in the long run. History will remember us well, and people in other countries probably already admire us as underdogs who are in the right or something.

    • a_paul_in_mtl

      Um…the article ACTUALLY ADDRESSES the point of why leaving the issue to the states is unlikely to be effective. Given that there are no border controls between states there is a limit on what stringent gun controls can accomplish in any state if “anything goes” in other states, particularly neighboring states.

      How can people post this kind of claim on an article without even acknowledging the fact that the article they are commenting on has pointed to serious problems with their claim?

    • Barry_D

      “If Massachusetts wants to ban assault rifles and Mississippi wants to hand them out like candy, well fine. That’s better than where we are now, because at least it would save people in MA.”

      Read the original post, please.

    • JonH

      “If Massachusetts wants to ban assault rifles and Mississippi wants to hand them out like candy, well fine. That’s better than where we are now, because at least it would save people in MA.”

      Not really, because there isn’t a gun-impermeable force field at the state line.

    • DrDick

      Which completely ignores the fact that the vast majority of guns used in crimes in NYC (and many other major urban areas) were purchased out of state and smuggled in. In Chicago, they come in from the suburbs and rural areas. Gun control cannot work piecemeal within the country.

    • alex284

      I see what you’re saying, but that’s kind of missing the point. When a blue state enacts sensible gun control and the SCOTUS knocks it down, it doesn’t matter how much liberals like federalism or how much conservatives pretend to like it – the law is knocked down.

      Also, many states modeled their governments on the federal government and have the same veto points.

      So…. not really seeing what the point of your comment is.

  • BobBobNewhartNewhartSpecial

    the U.S. system of … judicial supremacy allows extremist views to maintain the status quo, even when a sizeable majority of the public wants change

    Judicial supremacy gave us gay marriage, even when a sizeable majority of the public was voting against it (even in California).

    • Pseudonym

      Yeah, gun control seems like an issue where judicial supremacy is bad, gay marriage one where it’s good. Maybe there’s a more complete analysis of how it affects different issues in Miller’s books, but they seem focused more on crime specifically than politics in general.

      • ForkyMcSpoon

        Anthony Kennedy supremacy.

        • Pseudonym

          Do you think it’s a coincidence that the first comment in this thread is from a certain “AMK”?

          • It would certainly be wrong not to speculate!

          • cpinva

            no, not at all, but that’s mere speculation on my part.

    • Joe_JP

      Judicial supremacy gave us gay marriage, even when a sizeable majority of the public was voting against it (even in California).

      California passed Prop 8 (which banned “marriage” while leaving in place a broad domestic partnership regime) 52/48. Not that “sizable.”

      The legislature was open to passing same sex marriage if the state Constitution allowed them to do so. But, a special state-wide constitutional veto stopped that route as it did in most states. Many states would have not voted for same sex marriage anyway but that barrier in California and probably a few other places mattered.

      • JL

        In Massachusetts, where we first showed that the sky wouldn’t fall with same-sex marriage, neither side had a majority at the time of the original court ruling in favor of same-sex marriage, but at the time of the first contitutional convention to decide whether to put an anti-same-sex-marriage amendment to the voters, the majority of voters opposed same-sex marriage (and pro-LGBTQ people were definitely trying to prevent the possibility of anything going up for a vote).

        And then there was Iowa, where the last poll I could find before their court ruling showed a clear majority against same-sex marriage.

  • aidian

    including currently unregulated gun shows and online sales.

    I’m pretty certain there are no (legal) internet gun sales without background checks. Anytime a firearm is sold over the internet (or via old-school mail order catalog), it has to be shipped to a Federal Firearm License holder who performs the Brady Bill background check before delivering the gun to the buyer (and charges the fees plus a few bucks for the trouble).

    after more than a century of upholding gun control legislation as perfectly consistent with the Constitution, has begun to strike down legislative acts aimed at reducing gun violence (e.g., U.S. v. Lopez, D.C. v. Heller and McDonald v. Chicago).

    My understanding is that previous SCOTUS decisions endorsed limits on certain types of guns (U.S. v Miller from 1939 OK’d ban on sawed off shotguns and Tommy guns; there was IIRC another similar case in the late 60s) and on certain classes of people buying them. The recent Heller & McDonald cases on the other hand overturned local laws that effectively prevented private ownership of firearms.

    The regulatory system that D.C. had in place was the sort of thing we rightly deplore when it’s used against, say, reproductive health providers. It would be nice if our courts had the sort of intellectual, legal, and moral consistency to hold that if regulating away the 2nd amendment is unconstitutional than something like anti-abortion TRAP laws are, too.

    The disproportionate Senate – where each state has two representatives regardless of size – is a particularly stark example of just how easily and routinely political minorities override political majorities

    This is dead-on. Until the malapportionment of the U.S. Senate is changed, the U.S. government lacks all democratic legitimacy.

    • Sly

      Until the malapportionment of the U.S. Senate is changed, the U.S. government lacks all democratic legitimacy.

      Except, under Article 5, malapportionment of the U.S. Senate cannot be changed. “… no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

      The only constitutional way to “fix” the Senate is to effectively abolish it by either (a) stripping the Senate of its powers, (b) giving each state an equal number of zero Senators.

      • Murc

        You can change anything with a Constitutional amendment. Anything. You could make it legal to hunt gingers for sport.

        • Gregor Sansa

          No. To make the Senate proportional, you’d arguably need two constitutional amendments: one to change the “without its consent” clause, and a second to actually make the change. Sure, I said “arguably”, but even if you can overcome that “arguably”, it is yet another hurdle in an amendment process that’s already stacked in favor of small states.

          • LeeEsq

            You could theoretically do both in one amendment with multiple clauses.

            • Gregor Sansa

              … if you can get the Supreme Court on your side. In any case, it’s an extra hurdle.

        • That’s an interesting question. Does it require two (as Gregor suggests)? I don’t think it’s clear that that would work. E.g., separate amendments doesn’t seem any better than one amendment with two clauses. So if the latter is forbidden so is a 2 amendment solution. The text is reasonably read as saying that it cannot be repealled by the normal amendment mechanism. So you would need an *unanimous* amendment to repeal it.

          • Murc

            The text is reasonably read as saying that it cannot be repealled by the normal amendment mechanism.

            I don’t really think it is. The Amendment mechanism doesn’t specify that there are things untouchable by it. If you could repeal the whole Bill of Rights with an amendment (and I think it’s unambiguous that you could) why can’t you touch Article V?

            • provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

              So take the time limited clause. Could you pass an amendment to repeal that in 1807 and then pass an amendment to touch the protected clauses of the first article? I’d argue no. There’s no functional difference between passing 2 amendments and 1, so this constraint would be meaningless under that reading. So too for the equal suffrage clause. If you can just repeal it, then it’s meaningless. These clauses are *clearly* constraints on the amendment power, thus they cannot be amended away.

        • vic rattlehead

          Incorrect. Read Article V. The best bet is to turn the Senate into a House of Lords via amendment stripping it of its powers. So the Senate still exists, states still get their equal representation, it’s just mostly castrated. Some right wing scholar will probably find a way to object to that but there you go.

          • Gregor Sansa

            My fantasy version of the neutered Senate requires a supermajority to override the House or WH. Live by supermajorities, die by supermajorities.

            Now if I could just think of some extra ingredients for the bucket of warm spit that is the office of VP…

            • Murc

              Now if I could just think of some extra ingredients for the bucket of warm spit that is the office of VP…

              Having a VP seems valuable to me if you’re going to directly elect your executive, because then you have backup executive, of the same party and sharing mostly the same politics, ready to step in if something happens and ensure continuity of the politics and policies that were voted for.

              Without a VP in our current system the line of successions actually runs through the legislative branch, i.e directly to someone that wasn’t elected nationally and might be of a very different party than the person voted in by the whole country.

              Put it another way; if Hillary Clinton keeled over William Henry Harrison style, do we want the person she picked as her Veep succeeding her, or do we want Paul Ryan? And, if the shoe is on the other foot, are we committed to the idea that if a Republican wins an election, mischance should be allowed to reverse that?

              • Gregor Sansa

                I agree. That’s why we need extra powers for the VP office. Because having a politician with the qualifications to be president sitting around waiting for their boss to die is a waste.

                The VP’s was given Senate-related powers by the constitution. The filibuster has reduced those powers to approximately zero, and neutering the senate would finish the job. So what powers should we give the VP?

                I think that if the Senate is neutered, the VP should get to do a cabinet job. If they’re not qualified for at least one of those jobs, they’re not qualified to be president.

                • Murc

                  Because having a politician with the qualifications to be president sitting around waiting for their boss to die is a waste.

                  Well, the amount of time they spend sitting around waiting for their boss to die is entirely up to the President, isn’t it? Bush delegated a lot of power to Cheney. Gore was deeply, deeply involved in policymaking.

                  I think that if the Senate is neutered, the VP should get to do a cabinet job.

                  I’m curious, is there anything stopping that from happening right now? Like, are you not allowed to be Vice President and a Cabinet Secretary?

          • Joe_JP

            Speaking of the House of Lords …

            the UK had a sort of non-amendment rule to protect its powers but first it removed the rule & then reduced its power.

            So, yes, I do think you can first remove the Amendment V barrier and then re-apportion the Senate. Anyway, the Articles of Confederation required unanimous consent for major amendments. The Constitution said otherwise. It would be ironic if this ban couldn’t be worked around.

        • Matt McIrvin

          Senate representation is the one and only explicit exception to that. Now, you could argue that an amendment could amend that clause itself, but if so, the clause doesn’t mean anything, so why was it even written?

          • Murc

            Senate representation is the one and only explicit exception to that.

            It is not. Nowhere in Article V does it say “this Article is immune to the normal amendment process.”

            Now, you could argue that an amendment could amend that clause itself, but if so, the clause doesn’t mean anything, so why was it even written?

            To politically mollify the smaller states who were demanding countermajoritarian protections built into the Constitution before they’d sign onto it.

            The 9th Amendment exists for similar reasons. It doesn’t actually guarantee any additional rights, it’s mostly there to reassure people “no, just because we haven’t mentioned something in this Bill of Rights, it does not mean that thing is automatically forbidden.”

            I don’t see why the Senate gets to be immune from the normal Amendment process just because equal suffrage in it is specifically dialed out in the Constitution. Like… hmm.

            The Constitution specifically empowers Congress to create Post Offices and Post Roads. Do you think an amendment couldn’t strip them of this power, because it was specifically called out in the Constitution? And if not, why can’t it also strip the states of equal suffrage in the Senate?

            • It is not. Nowhere in Article V does it say “this Article is immune to the normal amendment process.”

              But it does say that Equal Senate representation is immune to the normal amendment process. If that is amendable, then it’s pointless.

              I don’t see why the Senate gets to be immune from the normal Amendment process just because equal suffrage in it is specifically dialed out in the Constitution. Like… hmm.

              The Constitution specifically empowers Congress to create Post Offices and Post Roads. Do you think an amendment couldn’t strip them of this power, because it was specifically called out in the Constitution? And if not, why can’t it also strip the states of equal suffrage in the Senate?

              It’s not the specificness, it’s the fact that it’s explicitly carved out as outside of the normal amendment process. I’m not sure how “You can amend this document by xyz but you need unanimity to change equal senate representation” *isn’t* saying “you can’t modify this by the other amendment process”.

              Furthermore, Article V doesn’t grant equal representation in the Senate, article 1 does. Article V puts a constraint on how that particular power might be changed. It says nothing about post offices.

        • cpinva

          “You could make it legal to hunt gingers for sport.”

          hunting rednecks would be way more sporting, and actually accomplish a public good.

    • Pseudonym

      I’m pretty certain there are no (legal) internet gun sales without background checks. Anytime a firearm is sold over the internet (or via old-school mail order catalog), it has to be shipped to a Federal Firearm License holder who performs the Brady Bill background check before delivering the gun to the buyer (and charges the fees plus a few bucks for the trouble).

      This seems relevant: https://www.thetrace.org/2016/01/internet-gun-sales-background-checks/

      If I have to go to a brick-and-mortar store and get a background check before picking up the gun I bought on the internet, then why the fuss over online gun sales?

      Because of the other category of such transactions, where sales are sales arranged online but actually conducted in person. These are the deals that concern law enforcement and gun violence prevention activists.

  • Jackov

    Excellent post minor quibble

    According to Schoolhouse Rock the three branches of govt are: executive, legislative and judicial.
    Are academic hipsters and/or neoliberal political scientists revising the meaning?

    • vic rattlehead

      I think the Senate and House technically make up one branch, Congress. But for all intents and purposes it is 4-the House presents its own challenges re gerrymandering. So technically part of the legislative branch but requires its own special attention. And the Courts are something you get through control of the Senate and Presidency so I think House-Senate-Presidency are the three electoral challenges you need to conquer to (attempt to) control the veto points in getting legislation passed. The Courts are a related but separate issue. So I think for the guest post’s purposes she’s correct if not Schoolhouse Rock correct.

      • cpinva

        “The Courts are a related but separate issue.”

        but most assuredly represent a (mostly) non-elected veto point. since the Supreme Court has the ultimate say in constitutional issues, and (per the Roberts court) can ignore precedents that conflict with how it wants to vote on a case, it has the ultimate veto power, elected or not.

    • i8kraft

      Yes, this was a bizarre problem for an otherwise excellent post.

    • Hogan

      “Three elected branches.”

  • I think it is easy to pick gun control as an issue where tyranny of the minority is indeed troublesome. But this leaves out cases where minority views became majority views only after the minority drew a line on the sand. And since the majority can be said to represent the establishment, these veto points are important for allowing minority voices a means to move the establishment in directions that are unpopular at the time. Slavery, segregation, limited women’s rights, marriage along racial and gender lines, and many other ideals were perfectly fine with the establishment majority until those pesky minority voices made themselves heard.

    What we are seeing now is perversion of these veto points by concentration of money and power in the hands of a very small minority, whether through gerrymandering, paid access, or legalized bribery. I would call this autocracy of the few instead of tyranny of the minority. I would focus on those issues before restricting the right of the minority to have a voice in democratic affairs.

    • i8kraft

      Well, the slavery issue was decided extra-constitutionally…

      • rea

        No, it was decided completely in accordance with the Constitution, e.g., by a properly-ratified amendment.

        • Turangalila

          You mean ‘i.e.’

          Overall the 1860s don’t stand out as federalism’s finest hour…

      • cpinva

        “Well, the slavery issue was decided extra-constitutionally…”

        13A is on the phone, and would like a word with you. the civil war, while ultimately about slavery, was fought as a war to save the union. Lincoln sincerely believed in this, though he personally loathed slavery

    • JL

      This (though I don’t think the majority always represents the establishment). Most causes of social justice are minority, losing views for a time, and one of the ways that they’ve built power is by using non-majority-based avenues – the courts (I am aware that the courts have a long history of going against such causes as well; that doesn’t change the fact that such causes have made good use of them), regulatory policy, protest. Post-9/11, civil liberties as relate to the security state have often been a minority cause. When we first got same-sex marriage in Massachusetts it was opposed by a majority. According to polling, a plurality right now are against trans people’s right to use appropriate bathrooms, and a majority think states should decide the issue. The majority favors voter ID laws.

      The OP seems to understand this with the statement “We might all agree that there are times when political losers should be granted such extraordinary power…” but I think it is undercut by “Let’s start a new narrative: Majority rule is not tyranny and losing is not oppression.” Sometimes it is. Oppressing people through sanctioned political channels is still oppressing them.

      Which doesn’t mean that there’s something inherently oppressive about majority rule either. I think getting rid of the electoral college, for instance, would be a fine idea. Gregor Sansa already wrote a nice comment about how governance might be made more majoritarian. And having lots of veto points is both anti-majority-rule AND has often not done a great job protecting the rights of minority groups.

      • Agreed. The Constitution itself acknowledges majority rule by allowing the normal business of the government to be decided by a simple 50+1 vote, while reserving supermajority votes for larger issues, such as structural change of the Constitution.

        Some of my concern with limiting the power of the minority to shape legislation is the extent that people who engage in civil disobedience might be motivated to radicalism. A civil disobedient generally believes that the establishment can be peacefully changed through the exercise of peaceful disobedience. Radicals believe that the system must be broken and replaced with something else. If we start to remove too many veto points, we might wind up generating more radicals who feel that violence is the only option.

        I think the system works as designed. I think the problem is perversion of that system by those who have access to highly concentrated sources of money and power. It’s the tyranny of the 0.1% :-)

        • cpinva

          the constitution also recognized that majority rule could easily become majority tyranny, hence the Bill of Rights.

  • Gregor Sansa

    The disproportionate Senate is, as others have pointed out, probably the single hardest thing to change in the entire US government. At best, we could enact voting rules that strengthen the Median Voter Theorem (such as Approval Voting); but that would mean fewer like Sanders just much as it would mean fewer like Cruz.

    However, the House and Presidency could both be made significantly more majoritarian.

    For the presidency, we could use approval voting and the National Popular Vote Interstate Compact for the presidency. We could reform the primary system to unseat Iowa and New Hampshire, both of which have gun politics significantly right of center.

    For the House, we could use proportional representation. I favor open list MMP systems like Germany’s, but with the ability to write-in across district borders and some delegated choice aspect in ordering the list (so if you voted for a leftier Dem who didn’t win, they could choose to transfer those votes to another lefty, and the intraparty ideology of your vote would be to some degree preserved). Such systems have various advantages: they use simple ballots like today, end natural and artificial gerrymandering, maintain significant geographic representativeness, and keep representatives more accountable.

    Of course, I’ve brought these points up here before. In several cases, people (including FPers) have responded by arguing that PR would actually create new veto points by ensuring that no single party has a majority. I think that view is wrong, for several reasons. First, the US already has very low party discipline, so it’s not as if a House majority is always on board for every plank of the party platform. Second, a PR system and house rules could both be designed to encourage majoritarian politics rather than splintering. For instance, in an MMP system, you could have a high quota for direct votes, so that even a party with 15% statewide still couldn’t get seats without also reaching a higher quota (such as 33%) in some district(s). This would allow strong small parties, but would tend to leave the two largest parties with over two thirds of the seats between them (though it would ease transitions, so that major parties wouldn’t catch the nation in their interminable death throes, ahem). Third, if the role of Speaker still had agenda-setting power, parties would be pushed to form coalitions to get the gavel. I understand that the game theory of that scenario is not perfect — minor parties would have some hostage-taking power — but I believe that on the whole it would be at least as productive as the current system.

    And aside from how productive it was in the abstract, it would also demonstrably shift the median several points to the left, by ending natural gerrymandering which consistently favors Republicans. Does that also make it a lost cause? Under Republican governance, probably yes. But it is unforgivable that the Democrats don’t have this on their agenda. Republican activists surely have a wish list for whenever they can take over, by hook or by crook, and their list very much includes making the voting system less small-d democratic. Why don’t we have the same kind of big idea in the other direction?

    • Breadbaker

      We could start by simply doubling the House, and therefore lowering the tyranny of the overrepresentation of Wyoming (and Vermont) versus California (and Texas) by a significant number.

      • Gregor Sansa

        The extra half a representative that WY has above what it deserves is literally a rounding error. Dealing with gerrymandering would have at least 10 times the effect.

        • Turangalila

          Wouldn’t increasing the size of the house significantly decrease the effects of gerrymandering?

          • Gregor Sansa

            That really depends on how skillful the gerrymandering is. My SWAG is that it would cut the effects by less than half, but more than a quarter. Not nothing, but still a pretty minor effect compared to the difficulty of getting something like that passed.

  • Gun control at the federal level works pretty well.

    We’ve had federal regulation of fully automatic (Class III) weapons since the 1930s. Nobody has shot up a bank with Tommy Gun since anyone can remember.

    • Matt McIrvin

      I’ve heard it pointed out that these mass spree shooters would probably kill fewer people with a full-auto weapon, because they’d spray-and-pray and run out of ammo.

      • Gregor Sansa

        Spray and pray probably works all too well in a nightclub.

      • I’ve fired the M-16, Uzi, MAC10 and Beretta M12 on fully automatic.

        They’re all fairly tough to control, although the MAC10 was the worst due to its small size.

        The key is to fire in bursts of 3-4 rounds instead of just mashing the trigger.

    • celticdragonchick

      The North Hollywood bank robbery and shootout featured full auto weapons.
      https://en.wikipedia.org/wiki/North_Hollywood_shootout

      The Symbionese Liberation Army also had submachine guns during their bank heists.

      • It’s still exceedingly rare for a Class III weapon to be used in a crime.

  • It seems to me worrying about majorities in the context alluded to by the OP is mostly about letting “them” get too much power, the assumption being that “we” are the elite and obviously would be overrun if “they” had their way.

    The J.S. Mill idea that if the majority had their way, they’d make the public libraries replace Wordsworth with dime novels and keep women out of the universities (or shut down gay bars), seems like a different concern, but probably gets mixed up with it. The worry about majorities in this context doesn’t seem unwarranted, for a variety of reasons.

  • a_paul_in_mtl

    I am actually sympathetic to checks on the “tyranny of the majority” in some cases. Human rights as recognized by the constitution should not be subject to a vote, since even democracy takes place within the basic “rules of play” established by the constitution. So, even if Donald Trump were to be elected President, he would not be legally entitled to bar people from entering the United States due to their religion. The argument made by opponents of gun control is that the “right to bear arms” as they interpret it (belonging to every individual, and subject to few if any limits) is one of the rights guaranteed by the constitution. I think they are willfully mis-reading the wording and intend of the Second Amendment, but unfortunately Supreme Court judges have been willing to do that.

    Still, I agree that generally speaking there are too many “checks and balances” in the American system.

  • xq

    What’s the way out? The barrier to constitutional amendment is probably too high. I see two plausible pathways:

    1. Executive continues to accumulate power until it can essentially govern without input from the other branches. Platinum coin, recess appointments, court-packing.
    2. Long-term one-party rule–The Republicans get taken over by the Trump/Tea Party types, which prevents them from reacting to new demographic realities. Democrats get enough votes to overcome structural disadvantages. Might start in 2040 or so.

    • Gregor Sansa

      That could happen as soon as Texas flips Blue, which is probably around 10 years from now. 2040 is way too far out. By 2040, the Republicans could be on their way to recovery, strengthened by their ranks of newly-“White” Latinos.

      • xq

        I’ve seen analyses that suggest a considerably later date, but I’m no expert so I won’t argue. If you’re right and one-party rule is the reality by 2026 then the veto point issue is not so important (in the medium term at least–predicting how Republican recovery will look is hard); basically just means Clinton will have a relatively unproductive presidency.

  • Quite Likely

    Worries about “tyranny of the majority” are pretty much always about the propertied minority worrying that their wealth will be expropriated by the propertyless majority.

  • Gwen

    The problem isn’t so much that there are veto points, it’s that there are interlocking veto points.

    For example, it’s not too upsetting that it would require 60 votes for cloture in the Senate.

    But add on the fact that the Senate is malapportioned.

    And then add on the fact that it’s unconstitutional to change that malapportionment.

    And add on the fact that while Senators are chosen by voters, voter suppression and registration requirements disproportionately hurt certain voters.

    And add on the fact that we have a fairly rigid two party system that tends to amplify the voices of extremists.

    Add all that together and a simple proposition, like “protect minority rights by requiring a supermajority”, starts to look more and more like tyranny of the minority.

    • Aardvark Cheeselog

      For example, it’s not too upsetting that it would require 60 votes for cloture in the Senate.

      But add on the fact that the Senate is malapportioned.

      One of these is a Constitutional constraint, the other is a procedural rule of the Senate and could in principle be fixed.

  • Yankee

    And the Senate is not the only veto point that makes it hard for the pro-gun control majority to see its policy preferences enacted.

    Makes it hard, not a cast-in-concrete “Forbidden”. It would be ugly if there were only one such point, such as the President allowed to block whatever in his own right *, but as you say these things are scattered about. In mechanical engineering, you use dampers, governors, thermostats, and the like to make the thing more stable. You can certainly say the Constitution As Evolved doesn’t implement a good set of control laws, but unlimited democracy would be the equivalent of one man rule: no telling where it will go next.

    The commenters here want to focus down on the gun control issue, but in other contexts progressivism demands the right to put a spanner in the works: labor strikes, public demonstrations, civil disobedience. Try to be consistent, people.

    * By a “signing statement”, eg

  • Editor of the Fabius Maximus website

    Congratulations to Professor Miller. This essay shows that her appointment was well deserved.

    She’s too kind to our system, imo. However necessary, the Senate has become dominated by the equivalent of Britain’s “rotten boroughs”. Combined with effective and pervasive gerrymandering and activist judges (more so than usual, I suspect), the result is a dysfunctional Federal government.

    Local and state governments are unrepresentative due to limited oversight by the news media and low levels of engagement by voters. How many elected officials can a citizen engage with? I “vote” for well over three dozen.

    We’ll probably stumble along until a crisis forces change (the worst time for making thoughtful structural changes).

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