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The failing Constitution


The right-wing freakout over the Times’s 1619 story is supposedly based on the idea that a critical look at the history of slavery in the Americas will lead inevitably to a “delegitimization” of the the USA’s constitutional order, which in turn will lead to revolution:

The USA’s constitutional order is being undermined by many things, although it’s safe to say that the Times’s publishing something about the history of slavery doesn’t make the top 1000 items on the list of actual causes.

#1 on that list is of course the election of a farcically unqualified aspiring autocrat to the presidency. But Trump’s election, as many people have noted, is more a symptom than a cause of constitutional decline, although it’s the latter as well.

Immediately after Trump was elected, Ian Millhiser pointed out that the U.S. Constitution is a seriously flawed document, that has produced many moral and political disasters over the past 230 years, among which Trump’s election is merely the latest, although admittedly one of the most spectacular:

What kind of nation allows the loser of a national election to become president — and then does it again 16 years later?

What kind of nation retains an electoral process that was originally designed to inflate the influence of slaveholders?

What kind of nation permits its Congress to write a time bomb into law that periodically forces rival factions into a game of chicken that could wreck the world economy?

What kind of nation fights a civil war over the question of whether people of African descent are people or property, and then looks the other way when the loser ignores the resolution of that war? What kind of nation waits until 1965 to guarantee black people’s right to vote?

And so on and on.

Trump’s election via the electoral college was a direct historical consequence of the appeasement of the Slave Power 230 years ago:

The new Constitution explicitly protected slavery. It allowed slave states to count each slave as three-fifths of a person for purposes of calculating representation in the House and the Electoral College, even though those slaves could not vote. And it created the Senate, an anti-democratic body which today counts each person in Wyoming as 67 times more important than each person in California.

The good men in Philadelphia agreed to these terms in service of a singular goal: peace through Union.

The original Constitution failed so badly that an exceptionally bloody civil war had to be fought in order to amend it (The amendment itself took place at literal gunpoint: a historical detail that our rhapsodes of the original document tend to pass over in discreet silence).

As Millhiser also points out, that amendment process then failed again in short order, as the South won the peace after losing the war.

We are very much living with the consequences of that postbellum victory today, in the form of increasingly extreme forms of minority rule. In twenty years, 35 states full of old white people will send 70 senators to a body in which 70% of the nation’s population — the relatively younger, relatively non-white, relatively economically productive part of the population — will be represented by all of 30 senators.

This is not an accident. It is, like the election of Donald Trump, a direct product of the original constitutional design.

If you want to call the recitation of simple historical facts “delegitimization” then I suppose it is.

The question then becomes, what follows from that? Erickson and his ilk think the answer is “revolution,” or more likely they use that word to themselves delegitimate any honest discussion of the role of slavery in the constitutional order, since any such discussion would, if taken seriously, have bad consequences for the Republican party.

But what can be done about our failing constitutional order? For much of the last century, the absurdity of expecting a modern developed nation to be run along the lines laid down by an 18th-century agrarian elite was finessed by constitutional judicial review. In American law and politics, judicial review is the jurisprudential equivalent of what in the worlds of science and technology is called a kludge: “a workaround or quick-and-dirty solution that is clumsy, inelegant, inefficient, difficult to extend and hard to maintain.”

That is a good description of the increasingly baroque and incoherent structure of various lines of constitutional doctrine, that have to be invented and extended in order to keep the whole rickety enterprise from collapsing on itself in an anachronistic heap.

Constitutional kludges give reactionaries endless opportunities to violently criticize — but not delegitimate, surprisingly enough! — the actually existing constitutional order, while insisting that we return to the pure vision of the Framers. But of course that can’t happen as a practical matter, and these same reactionaries inevitably toss their fidelity to constitutional originalism out the window whenever it interferes with the pursuit of their political objectives.

At this point neither the original nor the amended Constitution, nor its constant informal revision through the federal courts, is working any more, if by “working” one means the maintenance of both a tolerably just, tolerably democratic, and tolerably stable political order.

The obvious formal solution to this problem is a constitutional convention. But that’s not a practical solution either, both because such a convention would itself suffer from the same anti-majoritarian characteristics that are causing the current Constitution to fail, and because, in perhaps its single most remarkable oversight, the Constitution itself provides no rules for how such a convention would operate, meaning that any serious attempted revision via convention would be treated by all losing parties as lacking — what’s that word again? — legitimacy.

Beyond these practical problems, significantly revising or totally replacing the current constitutional order runs into the problem that the United States’s entire national identity is inextricably tied up with the current Constitution. This isn’t France: In many peoples’ minds — and not just of those of reactionaries like Erickson — “America” and “the Constitution” are practically synonymous.

Which means that America itself is failing.

Anybody got any ideas?

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