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Democratizing the Constitution: an Idea Worth Considering

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The grandees of the Republican Party are on the ropes. Donald Trump has them by the balls, but, even without Trump, they would be in what Bush the Father would call deep “do-do.”

Any Republican candidate for President whom two-thirds of the electorate could abide would be anathema to the one-third that Republicans have recruited into their rank and file. Mitt Romney was the final straw.

The establishment’s situation is so pitiful that even Chris Christie is starting to look good to them. If his candidacy survives into the Spring, late night TV comedians will rejoice; others, not so much.

Ted Cruz remains beyond the pale, but seeing an opening, he might try to find a way to insinuate himself into the establishment’s favor. They would have to forgive him for challenging their authority in the past, and he would have to make himself less obnoxious in the future.

This would be hard for them both: Republican grandees expect respect, and Cruz’s mean-spirited arrogance is ingrained. There is nothing he could do that would keep the gentlefolk he would have to brownnose from abhorring him in any case; though it might not matter because, in Republican circles, greed conquers all. But his current supporters would be less forgiving. Were Cruz to try to placate the pillars of the Party, his inauthenticity would become so transparent that he would lose the Republican base. Their one redeeming virtue is that they despise phonies.

And so, with Cruz a tough sell, and with the fall of the House of Bush a done deal, the smart money, having nowhere else to go, seems to have settled on Marco Rubio, the most risible pipsqueak in the bunch. Remember Scott Walker, the good-for-nothing the grandees doted on before they cut him loose? Rubio makes Walker look good.

To help his case, Rubio has taken to advocating Constitutional amendments that would mandate timeworn libertarian nostrums – a balanced federal budget, for example, and term limits for elected officials and judges.

To fast track these changes, he has called for a new Constitutional convention, a “Convention of States.” So far, though, this has not been a central issue in his campaign. Maybe he is not serious; maybe he has not thought the idea through.

The one sure thing is that he didn’t think of it all by himself. The idea has been kicked around for years on rightwing talk radio shows. Its most ardent proponent on Capitol Hill lately has been an Oklahoma Senator who makes the buffoons running for President on the Republican side seem almost plausible, Tom Coburn.

Then, just a few days ago, Greg Abbott, successor to Rick Perry and George W. Bush in the Texas Governor’s office, took up the call as well. With Abbott on board and Rubio breathing down his neck, can Cruz be far behind?

Before long, therefore, the call for a Convention of States could become an “issue” in the Republican primaries, and maybe in the November election as well.

Abbott wants Amendments that would prohibit “unelected bureaucrats” from creating federal laws or preempting state laws; and that would allow a two-thirds majority of the States, to override U.S. Supreme Court decisions.

He also wants Amendments that would require a seven-Justice super-majority vote before Supreme Court decisions would invalidate democratically enacted laws.

And he wants Amendments that would prohibit the federal government from exercising powers not expressly delegated to it by the Constitution; and that would give state officials the power to sue federal officials who “overstep their bounds” in federal courts.

Last but not least, he wants an Amendment that would allow a two-thirds majority of the States to override federal laws and regulations.

Abbott’s proposals are tailored to the interests of his backers in what is euphemistically called “the business community.”  He probably wouldn’t oppose amendments requiring budget balancing, term limits, and other causes dear to the hearts of the GOP’s formerly useful idiots, but his heart belongs to the semi-enlightened capitalists who call the shots in Austin and Washington DC.

This could change, however, if Rubio’s star keeps rising and if Cruz signs on too. There are more than enough possible amendments around to satisfy both the predator class and the numbskulls who do them service.

Indeed, if anything remains of the Republican Party after Trump, if it survives in more than a skeletal form, changing the Constitution may become the next big Republican cause.

The Constitution changers are not likely to get their way; but, as has happened with other Republican initiatives, we can expect their efforts to drag the center of gravity in American politics even farther to the right – especially if America’s other semi-established, pro-business Party is led by Hillary Clinton.

***

We Americans get weird over our Constitution.

Descendants of America’s first European settlers no longer predominate in the upper echelons of the federal judiciary or in the academic and media institutions that shape public opinion on legal affairs; this has been the case for many years.

Nevertheless, we think of the Constitution in much the way that our Pilgrim Fathers – we still call them that and think of them as ours – regarded Holy Writ, as a repository of Truth and infallible guide to life.

But sacred texts are ambiguous and vague, and sometimes even contradictory; they must be interpreted to be understood. The only way that “fundamentalists” can think that they are following the Bible’s teachings literally is by deceiving themselves.

This is even clearer with the Constitution; a text that is, at key points, so deliberately vague that its authors established (judicial) institutions to interpret what its words imply.

Rightwing jurisprudes who uphold doctrines that mimic Protestant notions of Biblical inerrancy understand this too.   Even they realize that, at some level, lawmakers and judges pick and choose, and that what gets picked and chosen is often arbitrary.

America’s gun laws can hardly be justified on their merits; this is plain as can be. Nevertheless, there are large swathes of the American public that defend them by appeal to the Second Amendment. For them, the Second Amendment might as well be God’s Eleventh Commandment.

Even so, it takes a mind-boggling hermeneutical leap to get from “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” to an infrangible right to own and flaunt all the lethal weaponry a gun nut can afford.

And it takes gall to promote that policy on Constitutional grounds, while not minding in the least that, in clear and unequivocal violation of Constitutional provisions, the United States makes war on other countries, and on “terrorists,” whenever its President takes a notion, without obtaining formal declarations of war from Congress, and sometimes without any semblance of Congressional assent at all. One point on which the authors of the U.S. Constitution were emphatic is that only Congress can commit the country to war.

The inconsistency is remarkable, but not surprising in view of the theological origins of the regnant frame of mind. Godly folk who consider the Bible the final word on nearly everything have always been quick to justify and condemn whatever suits them, regardless what the Good Book says.

Neither is it surprising that Coburn, Rubio and Abbott want to change the Constitution by amending it, rather than by starting over from scratch. We Americans are as disinclined to abandon our Constitution as those Pilgrim Fathers were to give up the King James Bible.

The conventional wisdom in liberal and centrist circles has long been: be wary of efforts to tamper with the Constitution, even around its margins, because, once the Right gets involved, as it inevitably will, it will seize opportunities to put basic rights and liberties in jeopardy.

That argument made more sense a decade and a half ago – before the Bush and Obama administrations put basic rights and liberties in jeopardy anyway, without changing anything in the Constitution at all.

In the post-9/11 world, the old concerns no longer count as much as they did, because the courts and the public generally, having been scared to death by War on Terror propaganda, are more tolerant than they used to be of government intrusions into privacy rights and of other restrictions on individuals’ liberties.

And so, it must be said that notwithstanding the fact that Coburn, Rubio and Abbott don’t mean well, the idea that they have been promoting might just have merit; that changing the Constitution could actually do some good. This possibility is worth considering.

***

It must be said too that some of Abbott’s ideas aren’t all that bad. Those that empower the legislative branch at the judiciary’s expense could enhance (small-d) democracy – not in the world as it now is, but in easily imaginable circumstances.

To be sure, his gestures towards democratization are disingenuous; were Rubio’s proposals more specific, his would be too. What those two want is to serve and protect their billionaire and millionaire patrons and, if possible too, to pander to the Republican base. They could care less about (small-d) democracy.

But why not turn the tables on those Constitution changers?   The Constitution genuinely does impede democratization; it was drawn up in part for that purpose. It would not be a bad idea at all for (small-d) democrats to put democratizing it high on the agenda.

To some extent, this is already happening – with efforts to overturn the Supreme Court’s “Citizens United” ruling. That travesty, built on Supreme Court rulings going back to the mid-seventies, licenses virtually unbridled political corruption in the guise of defending First Amendment “free speech” rights.

Seeking to overturn the Court’s decision is well and good, though, not surprisingly, the activists promoting that cause — the people behind the “End Citizens United” PAC, for example — seem only a tad less disingenuous than Rubio and Abbott. Their concern, quite obviously, is getting (big-D) Democrats elected.

But Constitution changing can be pursued in good faith because there is an ideal that nearly everyone endorses or, at least, does not, and cannot, reasonably oppose: political equality, equality of citizenship.

Can anyone truly believe that citizens are equal as citizens when there is merely formal equality in elections – each voter having one and only one vote?  It would not be hard to convince nearly everybody that for political equality to be real, everyone who so chooses must be able in principle to affect outcomes equally.

The United States is, of course, a union of States, of partially sovereign mini-countries. This made sense in view of the geographic, political, and economic exigencies in effect at the time of the country’s founding. But it is no less irrational on that account.

States include rural, suburban and urban areas that have little in common. Also, many metropolitan areas spill over into two, three or more state jurisdictions. Insofar as the idea is to govern efficiently, this makes no sense.

Ancien régime France was also a hodgepodge of administrative units. The French Revolution ended that, introducing an order that could be efficiently administered from the center.

Nothing that radical seems feasible in the United States today – not just because there is no political constituency pushing for it, but also because the American ancien régime is, by now, so deeply entrenched that the efficiency benefits of moving to more rational arrangements would be outweighed by the costs of getting from here to there.

Moreover, administrative inefficiencies are less of a problem than one might think because, over the years, ways have evolved that mitigate some of the inevitable coordination problems that arise when integral geographical entities spill across State lines. There is therefore little reason to change the status quo on efficiency grounds.

But there are ample (small-d) democratic reasons for restructuring the ways that the federal government’s legislative branch depends upon the division of the country into States; and therefore good reasons to think about amending the Constitution as a remedy.

The Senate is a glaring problem: each state, regardless of size, has two Senators; no matter that more than 37 million Americans live in California and barely half a million live in Wyoming.

Even Californians are well represented, however, compared to residents of Washington DC, the home of “taxation without representation.” More people live in the District, by the way, than in Wyoming. Montana, North and South Dakota, Alaska, Delaware and Vermont are not much bigger than Washington either. How is that for equality of political influence?

The Senate is as it is because, at the time of the country’s founding, it was politically necessary to accord each state equal representation in the upper house of a bicameral legislature. Had the founders not negotiated that arrangement, there would have been no federal government at all.

The situation was even worse than it now is, from a (small-d) democratic point of view, before 1913, when the Seventeenth Amendment, requiring that Senators be elected by popular vote, came into effect. Until then, Senators were chosen by state legislatures, many of which were effectively controlled by local oligarchs.

There would be little point trying to change or limit the powers of the Senate. But there would be enormous benefit were Senators elected, not two per state, but, say, two per functionally integral and more or less equally sized Senatorial districts. Those districts could be resized periodically as demographic conditions change.

This way too citizens of Washington DC could have the same level of representation as other Americans.

Senatorial districts could then be broken up into Congressional districts according to mandated impartial principles, making gerrymandering impossible. Thanks to the gerrymandering of Congressional districts by State officials, the House of Representatives, these days, is arguably an even less (small-d) democratic institution than the intentionally undemocratic Senate.

In conjunction with Constitutional amendments that would confer a non-defeasible right to vote upon all citizens who have reached the age of majority, and that would prohibit governments from suppressing voter turnout or in any other way discouraging the exercise of the franchise, these changes could also lead to the demise of America’s stultifying duopoly party system.

Were ballot access rules at the federal, state and local levels eased by Constitutional mandates, it would become reasonable too to push for proportional representation within Congressional districts, so that voters would have a better chance than they now do of voting for what they want, and getting some semblance of it elected into office.

It goes without saying too that, for the sake of (small-d) democracy, Presidents should be selected by popular vote, and the Electoral College should be abolished.

Finally, some form of instant runoff voting — where voters vote not only for their favored candidate or party, but also for their second choice — could be mandated, when necessary, for elections, such as those for the presidency and the Senate, in which there can be only one winner.

Needless to say, delegates to the Convention of States that Rubio and Abbott have in mind would not be interested in fast-tracking Constitutional amendments intended to democratize the federal government – unless, of course, an enraged citizenry, determined to make political equality substantively real, made them an offer they could not refuse.

It is also plain that none of these measures, or others that might be added on, are panaceas. Because the exigencies of capitalist development constrain what states in capitalist societies can do, there is a limit to how (small-d) democratic they can become.

This is how it is even in countries that insulate the political sphere from direct intrusions by economic elites — through public funding of elections and in other ways. The problem goes far beyond Citizens United.

But the limit is movable, and the kinds of measures that a Constitutional Convention called by (small-d) democrats might promote could be useful for moving that limit forward. A Rubio-Abbott Convention of States would, of course, move it back.

But the idea they are floating is worth thinking about, and maybe appropriating. It is not out of the question that, in better hands than theirs, some good could come of it.

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ANDREW LEVINE is the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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