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The failing Constitution


This country’s political system is suffering a slow motion breakdown. The reasons are structural, to the point where, if Donald Trump didn’t exist, he certainly would have been invented:


As Lilliana Mason, a political scientist at Johns Hopkins, explains in her 2018 book, “Uncivil Agreement: How Politics Became Our Identity”:

The election of Trump is the culmination of a process by which the American electorate has become deeply socially divided along partisan lines. As the parties have grown racially, religiously, and socially distant from one another, a new kind of social discord has been growing. The increasing political divide has allowed political, public, electoral, and national norms to be broken with little to no consequence. The norms of racial, religious, and cultural respect have deteriorated. Partisan battles have helped organize Americans’ distrust for “the other” in politically powerful ways. In this political environment, a candidate who picks up the banner of “us versus them” and “winning versus losing” is almost guaranteed to tap into a current of resentment and anger across racial, religious, and cultural lines, which have recently divided neatly by party.

Most recently, these questions have been pushed to the fore by two political scientists at Harvard, Steven Levitsky and Daniel Ziblatt, who published “Tyranny of the Minority” a month ago.

Their thesis:

By 2016, America was on the brink of a genuinely multiracial democracy — one that could serve as a model for diverse societies across the world. But just as this new democratic experiment was beginning to take root, America experienced an authoritarian backlash so fierce that it shook the foundations of the republic, leaving our allies across the world worried about whether the country had any democratic future at all.

This authoritarian backlash, Levitsky and Ziblatt write, “leads us to another unsettling truth. Part of the problem we face today lies in something many of us venerate: our Constitution.”

Flaws in the Constitution, they argue,

now imperil our democracy. Designed in a pre-democratic era, the U.S. Constitution allows partisan minorities to routinely thwart majorities, and sometimes even govern them. Institutions that empower partisan minorities can become instruments of minority rule. And they are especially dangerous when they are in the hands of extremist or antidemocratic partisan minorities.

. . .

In an essay published this October, “Vetocracy and the Decline of American Global Power: Minority Rule Is the Order in American Politics Today,” Francis Fukuyama, a senior fellow at Stanford’s Freeman Spogli Institute for International Studies, argues that

America has become a vetocracy, or rule by veto. Its political system spreads power out very broadly, in ways that give many individual players the power to stop things. By contrast it provides few mechanisms to force collective decisions reflecting the will of the majority.

When combined with the extreme degree of polarization in the underlying society, Fukuyama goes on, “this leads to total gridlock where basic functions of government like deliberating on and passing yearly budgets become nearly impossible.”

Fukuyama cites the ongoing struggle of House Republicans to elect a speaker — with the far right faction dead set against a centrist choice — as a case study of vetocracy at work:

The ability of a single extremist member of the House to topple the speaker and shut down Congress’ ability to legislate is not the only manifestation of vetocracy on display in 2023. The Senate has a rule that gives any individual senator the right to in effect block any executive branch appointment for any reason.

In addition, the Senate requires “a supermajority of 60 votes to call the question, making routine legislating very difficult.”

I asked Fukuyama whether America’s current problems stem, to some extent, from the constitutional protection of the interests of minority factions (meant here the way it’s used in Federalist 10).

He replied by email: “The large numbers of checks and balances built into our system did not present insuperable obstacles to governance until the deepening of polarization in the mid-1990s.”

Sanford Levinson, a law professor at the University of Texas, makes a different argument: “I think that our current problems are directly traceable to deficiencies in the formal structures of the American political system as set out in 1787 and too infrequently amended thereafter.”

In his 2008 book, “Our Undemocratic Constitution,” Levinson writes, “I have become ever more despondent about many structural provisions of the Constitution that place almost insurmountable barriers in the way of any acceptable notion of democracy.”

In support of his thesis, Levinson asks readers to respond to a series of questions “by way of preparing yourself to scrutinize the adequacy of today’s Constitution”:

Do you support giving Wyoming the same number of votes in the Senate as California which has roughly seventy times the population? Are you comfortable with an Electoral College that has regularly placed in the White House candidates who did not get a majority and, in at least two — now three — cases over the past 50 years did not even come in first? Are you concerned that the president might have too much power, whether to spy on Americans without any congressional or judicial authorization or to frustrate the will of the majority of both houses of Congress by vetoing legislation with which he disagrees on political ground?


The perverse genius of the nihilists in control of the Republican party is this: By causing a gradual systemic breakdown of the entire system, they are destroying faith in the liberal democracy that impedes the empowerment of an authoritarian white Christian nationalist minority government.

The paradox of the moment is this: if a radically dysfunctional democratic — or “democratic” — process empowers a party that is dedicated to the destruction of democracy going forward, what is the appropriate democratic — and Democratic — response to that?

If the rule you followed has led you to this, of what use was the rule?

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