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Does The Constitution Screw California?

GUEST COMMENTARY - So, when does MSNBC talking head and former US Senate staffer and hit show West Wing writer-producer Lawrence O’Donnell call for a referendum to call a Constituent Assembly to re-write the 18th century aristo-republican charter that disastrously governs US politics and policy in the 21st Century United States?

Having recently returned to an apartment equipped with cable television, putting me back in touch with the great pearls of wisdom tossed on the airwaves by the imperialist likes of Anderson Cooper and Rachel Maddow, I am struck by O’Donnell’s recent discovery that the U.S. Senate – wherein every US state gets two representatives (US Senators) – is absurdly malapportioned in ways that vastly over-represent the most rural, white, and reactionary states and regions of the United States and that Republicans are using to crush “American democracy.” O’Donnell recently observed that California is home to nearly 40 million people and gets two US Senators while “the Dakotas” – the two right-wing states North and South Dakota – have four US Senators between them despite a combined population “less than [bright blue and progressive] Brooklyn.” This, O’Donnell feels, is a gross “minority rule” violation of “American democracy,” which is based on the egalitarian notions of one person, one vote and majority rule.

Ya don’t say.

I’ve been writing and speaking about this and other huge problems with the nation’s deeply reactionary 18th Century charter forever, with no great claim to originality.

If I had the prime O’Donnell’s broadcast slot, I would have said “a lot less than Brooklyn.” That New York City borough is home to 2.6 million, nearly one million more people than the total population of the Dakotas (1.67 million). I would have added that if Brooklyn was a state and had the same populace-to-US Senator ratio as North Dakota it would have six US Senators. And then I would have repeated a calculation that I have published more than twice on CounterPunch: if liberal and progressive, multiracial and multi-ethnic California (home to 39,237,836) had the same populace-to Senator ratio as super white, rural, and far-right Wyoming (pop. 578,803, less than 5% of the total population of Los Angeles), it would have – wait for it – one hundred and thirty-five (yes, 135). US Senators. If progressive Brooklyn were a state and US Senators were apportioned there with the same populace-to-Senator ratio as red Wyoming, it would have none 9 U.S. Senators.

Think about that. And then think about this: due to “a growing population shift from the agricultural interior to crowded corridors along the coast,” the left US Constitution critic Daniel Lazare noted five years ago, it had by 2018 become mathematically possible to “cobble together a [Republican] Senate majority with states that account for just 17.6 percent of the popular vote.” The US Senate is loaded with giant de facto “rotten boroughs” that abhorrently inflate the power of the nation’s most reactionary sections.

That’s the real statistical shit on this matter. But I am never going to be invited onto MSNBC to talk about it since I’m a Marxist and connect all of this constitutional stuff to the underlying system of bourgeois class dictatorship at the end of the day. Neither in all likelihood is Lazare, who has published two important books on how the United States is a “frozen republic” locked into reactionary place by a Minority Rule governance structure.

Liberal Democrats like O’Donnell rightly complain about more than the anti-democratic Senate apportionment regime. They also worry, as they should, about the undemocratic and right-leaning Electoral College, which also over-represents the nation’s most backwards regions and states while reducing US presidential elections to a small handful of contested states, rendering millions of popular presential votes superfluous, making it possible for candidates who don’t win the popular vote (examples include George W. Bush in 2000 and Fuhrer Trump in 2016) to be “elected” as chief executives of the world’s most powerful nation, and compelling the Democrats to attain far more popular votes than the Republicans to win or keep the presidency. Look at this passage (apologies for its length) from two distinguished liberal political scientists writing in the Sunday New York Times in late October of 2020, just two weeks short of that year’s presidential election and as the anti-abortion Handmaid justice Amy Coney-Barrett was about to be approved by a US Senate that stood far to the right of the US populace:

‘Democracy is supposed to be a game of numbers: The party with the most votes wins. In our political system, however, the majority does not govern. Constitutional design and recent political geographic trends — where Democrats and Republicans live — have unintentionally conspired to produce what is effectively becoming minority rule…Our Constitution was designed to favor small (or low-population) states. Small states were given representation equal to that of big states in the Senate and an advantage in the Electoral College. What began as a minor small-state advantage evolved, over time, into a vast overrepresentation of rural states. For most of our history, this rural bias did not tilt the partisan playing field much because both major parties maintained huge urban and rural wings.’

‘Today, however, American parties are starkly divided along urban-rural lines: Democrats are concentrated in big metropolitan centers, whereas Republicans are increasingly based in sparsely populated territories. This gives the Republicans an advantage in the Electoral College, the Senate and — because the president selects Supreme Court nominees, and the Senate approves them — the Supreme Court. Recent U.S. election results fly in the face of majority rule. Republicans have won the popular vote for president only once in the last 20 years and yet have controlled the presidency for 12 of those 20 years. Democrats easily won more overall votes for the U.S. Senate in 2016 and 2018, and yet the Republicans hold 53 of 100 seats. The 45 Democratic and two independent senators who caucus with them represent more people than the 53 Republicans.’

‘This is minority rule. An electoral majority may not be enough for the Democrats to win the presidency this year either…Minority rule has, in turn, skewed the composition of the Supreme Court. Under Mr. Trump, Neil Gorsuch and Brett Kavanaugh became the first two Supreme Court justices in history to be appointed by a president who lost the popular vote and then be confirmed by senators who represented less than half the electorate. Amy Coney Barrett is likely to become the third…In America today, then, the majority does not govern. This disjuncture cries out for reform. We must double down on democracy.’

The concerns are hardly new. Why is O’Donnell voicing anxiety over the Minority Rule US governance regime this week? Because the recently leaked draft of a likely near-term right-wing Supreme Court decision (Jackson v. Dobbs) cancelling women’s half-century constitutional right to an abortion – established in the 1973 Roe v. Wade ruling – is making his corporate Democratic Party look completely feckless in the face of a vicious onslaught on human, civil and democratic rights by a Republican Party that has crossed over from standard conservative space to radical and neofascist territory. As the left historian and journalist Terry Thomas writes:

‘They’re only “talking a bunch about the absurdity of the US Senate” because the system is now kicking their ass and making them look like fools. When the Republicans were normal, run-of-the-mill Neo-liberals, slightly to the right of center if contaminated by some regrettable racism, the MSDNC talking goofs bitched some, but they could live with it all. Either way, Republican or Democrat, it all still worked: do some identity politics and let it go. The sponsors were happy; their beloved Biden, Pelosi, and Obama were spouting wonderful rhetoric and properly serving the masters, while the McConnells, McCains, and Romneys were spouting some pretty offensive rhetoric but nonetheless doing likewise. No more. The system they loved so much has set the stage for its own immolation. Now the Republican Party is no longer filled with same tolerable and useful guys, it’s a wrecking crew that’s pounding the crap out of their beloved system and its army of Orange-hued goose steppers are now using the beloved system to blow everything up.’

That’s exactly right. For at least fourteen years now, the white-nationalist, eliminationist, arch-sexist and Christo-fascist Republikaners have been calling off the old bipartisan ruling class game. They have decided to go after bourgeois democracy, bourgeois rule of law, and basic civic and human rights decency. Full far-right partisanship has taken complete hold and the GOP has become the neofascist APoT – the Amerikaner Party of Trump. It has decided to get Biblical 4 real and turn back the clock[1] to re-entrench steep gender, race, and gender hierarchy in a whitewashed Saxon Fatherland. It has gone full on “honey badger” to try to take full sadistic advantage of a racist Minority Rule structure that goes back to the nation’s slave-owning origins. Democrats didn’t mind that structure during the New Deal era, when the Democrats passed and sustained labor and social reforms for northern workers while turning a blind eye to Jim Crow racism to keep the less populous and Solid(ly Democratic) South – home to persistent Black disenfranchisement, formal racial segregation, and general white racist terrorism – on board with their party. After Lyndon Johnson was forced by the Civil Rights Movement to honor Black citizenship rights and the Fourteenth Amendment by signing the Civil Rights and Voting Rights Acts in the mid-1960s, the South and much of reactionary, rural and small-town white America realigned fully with the ever more socially and politically revanchist party of Nixon, Reagan, the Bushes, Gingrich, Q, Trump, Tucker, and Taylor-Greene.

Meanwhile, the Democrats triangulated right and fell more completely under the control of Big Business as the briefly triumphant industrial workers’ movement faded into oblivion under the pressures of global competition, corporate-re-structing, and top-down “class war.” The New Deal Dems became the Neoliberal-era Dems and moved more and more starboard (the decisive shift taking place during the second half of Jimmy Carter’s failed presidency), rendering ever more transparently and dangerously inauthentic their fading claim to be the party of ordinary working- and middle-class people. With their claims to be raising and protecting the American Standard of Living for the masses undercut by a global and neoliberal capitalism they fully embraced, something that demobilized millions upon millions of voters, the dismal dollar Dems’ most consistent and urgent call for votes focused on the need to keep the White House and the Senate in their hands to safeguard civil and human rights won during the 1960s and 70s – and above all to protect women’s right to an abortion. Their main vote-begging/-commanding cry was “don’t let us lose control over the appointment of Supreme Court justices in the White House and the Senate.” The biggest claim of all was the need to protect Roe v. Wade.

And so it went for many years. But then the “heartland” GOP went full-on patriarchal white-nationalist and even indeed fascist under Obama (whose Blackness drove the Tea Party-Amerikaner-Trumpist base insane) and the great white Redeemer Trump. It wielded its absurdly disproportionate power in the US Senate – a wildly over-representation worsened by demographic shifts to the coasts and metropolitan area – to prevent Obama from even getting hearings to put the vapid and lifeless centrist Merrick Garland (the current US Attorney General who unwilling to prosecute Trump for merely trying to overthrow bourgeois democracy and rule of law) in the Court seat left vacant by the overdue death of the reactionary reptile Anton Scalia in 2016. Their fascist candidate Trump rode into the White House on (among other things) a (politically smart) promise to white Christian fundamentalists to appoint reactionary judges who would kill (among other things) Roe. Thanks to Court deaths (Scalia and Ginsburg) and resignations (Kennedy) and APoT control of the absurdly apportioned US Senate, which possesses critical constitutional veto power over Court appointments, Trump installed no less then three far-right anti-Roe Supremes! – the last one a literal Handmaid (Amy “Coat-Hanger” Barrett) rushed on to the Court just a few weeks before the election Trump tried to steal and overthrow (a crime for which he deserves life in prison if not a more rapidly final punishment)!! The longtime sexual predator Trump and his Senate allies created a 5-4 neofascist Court majority primed to “constitutionally” obliterate a major half-century human and civil right that has been consistently backed by two-thirds to three-fourths of the US populace for the past half-century.

The APoT is hardly content merely to reverse Roe, thereby ending legal abortions in half of the nation’s states. It expects to and could very well take back the US Congress and White House over the next three years and pass a national abortion ban. At the same time, the Christian white-nationalist Republikaners aim to lethally attack other hard-won personal, civil, and democratic rights “going forward” (into the abyss of MAGA backwardness). The leaked draft Jackson v. Dobbs ruling contains an assault on all liberal legal precedent. The far-right justice Sam Alito’s draft opinion opens the door for smashing precedent to eliminate other personal rights including the right to interracial marriage (Loving v. Virginia), the right to contraception (Griswald v. Connecticut), and the right not to be forcibly sterilized (Skinner v. Oklahoma) and the right to gay marriage (Obergfell v. Hodges). By Alito’s cold-blooded reasoning, all of these rights lack historical and legal legitimacy and can be liquidated simply because he and his fellow reactionary Court members don’t like them.[1]As Jeffrey St. Clair notes, “Overturning Roe is just the first thread pulled in what will be a much greater unraveling.”

What does that kind of horrific outcome mean for the liberal lifetime legacy of longtime Democrats like Chuck Schumer, Nancy Pelosi, and the multimillionaire Lawrence O’Donnell (former chief advisor to the right-wing Democratic US Senator Daniel Patrick Moynihan)? Having kept mum about the authoritarian absurdities of the American System of governance until that system’s built-in anti-democratic characteristics had been employed by the other major party to wipe out their claims to having lived and fought good liberal and progressive lives, the elite O’Donnells of the world have suddenly gone public with the late breaking news bulletin publicly determine that “our Constitution” has some deep structural and authoritarian flaws!

I wonder if the O’Donnells will soon deepen their critique of the Founders’ handiwork by noting the unnecessary nature of its upper chamber – the Senate – and the democratically dysfunctional nature of that upper chamber’s extreme power in the American System, wherein the Senate has veto power over the president’s appointment of Supreme Court justices. (What in the Hell does bicameralism have to do with democracy?) Will they admit that the nation’s venerated charter was never “our Constitution” if by that we mean a constitution of and for the popular majority – that the Senate apportionment system, the Electoral College, the extreme Simon Says judicial review power of the Supreme Court and indeed the broad design of the Constitution reflect a scheme for propertied elite dominance crafted for and by slaveowners, merchant capitalists, landed gentry, and publicists for whom democracy and popular sovereignty were the ultimate nightmares? Will they acknowledge that Democrats were perfectly fine with the Minority Rule Senate and Electoral College and judicial review for as long as they saw these undemocratic features of the American system working for them? Will they confront the deeply reactionary nature of the nation’s federal system, whereby fifty individual states – each with their own executives, legislatures and judiciaries – are remarkably free to defy national majority opinion under the cover of “states’ rights” by enacting reactionary policies most of the nation rejects? Will they take a hard look at judicial review, whereby the Simon Says Supreme Court gets to veto hard-won human and civil rights and undermine the rule of law from within because it’s absurdly right-wing majority wants to – and where it has antidemocratically ruled (under the combined impact of the 1976 Buckley v. Valeoand the 2010 Citizens United decision) that no serious limits can be set on the power of concentrated private wealth to purchase campaigns, candidates, parties, and policy? Will they acknowledge that changing these basic features would require full-on Constitutional amendments that are nearly impossible (by design) under Article V of the holy US Constitution?[2]

Really, a new charter (imagine!) is required, something that could only happen in the wake of a mass popular uprising. That is of course the last thing the dismal dollar drenched Democrats wish to see break out. They fear the mob far more than they fear the nation’s descent into neofascism. They have long understood their primary superstructural assignment in the US-American class dictatorship: contain and coopt popular anger; keep the people off the streets and out of the public squares. They are loathe to mobilize ordinary people for basic things like health care, labor rights, voting rights, abortion rights, and gun reform, much less for fundamental changes in the nation’s overall governance system. They are the conservative major party now, clinging to a very peculiar, historically “frozen republic” model of bourgeois-democratic class rule that the radicalized neofascist post-republican Republican Party is more than happy to wield and then blow up in the interest of white-nationalist authoritarianism and apartheid. Neoliberal Weimar and West Wing Wet Dream Dems like O’Donnell briefly bring up real structural problems like the absurd Senate apportionment system not to advocate a new and genuinely democratic form of government but to advance excuses for their own failure to use the existing government to protect human and civil rights when they had the chance to do so – and for continuing to insist on their right to the benighted masses’ votes, money, ears, and eyeballs atop the nation’s hollow party and media outlets of hollow resistance and inauthentic opposition. Keep writing checks to the DNC and Planned Parenthood. Keep voting for depressing centrist, fascism-normalizing candidates and officeholders like Chuck Schumer and Tim Kaine. Keep watching MSNBC and Liberty Mutual commercials with that goofy moron and his stupid f’ng emu. That’s right: send money, votes, and attention forever to Dem politicos and media and maybe they’ll get women’s reproductive freedoms back in 2035, right before the US-China nuclear war in New Zealand and the last big climate change drought that turned three-fourths of North America into a year-round desert, right after the fourth great climate-driven pandemic. In the meantime, keep watching MSNBC and listening to Democrats to learn why tens of billions of US taxpayer dollars need to be spent on fighting a reckless, potentially nuclear war with Russia in (and perhaps beyond) instead of being invested in social uplift, welfare, and protection in the savagely unequal “homeland” (a lovely and revealing term) – home (among numerous horrific socioeconomic indicators) to the highest maternal mortality rate in the so-called developed world.

Notes

+1. It is difficult to exaggerate the reactionary horror of Alito’s draft decision. As David Horsey writes in The Seattle Times: ‘Alito bolsters his argument by reaching far back into legal history — not just to the early days of the republic, but to England in the 17th and 13th centuries. With admiration, Alito cites the opinions of Sir Matthew Hale, an eminent English judge and lawyer who lived in the time of Oliver Cromwell and King Charles II. Hale believed that termination of a pregnancy after ‘quickening’ — the first stirrings of a fetus in the womb — was tantamount to murder…Critics of Alito’s draft have been quick to point out that Hale held decidedly misogynistic views about women, regarding them as, essentially, the property of men. It is Hale who can be credited for two long-standing principles in rape cases that only in recent decades have been discredited; one, that juries should be suspicious of any woman’s claim of being raped and, two, that a husband cannot be charged with raping his wife. Hale also set the legal precedent for the Salem Witch Trials having, himself, sentenced two women to death for the crime of “witchcraft.”…Henry de Bracton is the other jurist Alito calls upon to establish that abortion has been considered a crime far longer than it has been seen as a woman’s right. Bracton, who lived in the good old 1200s, set rules for determining if a woman was faking a pregnancy by locking her up in a castle and giving her intrusive daily exams. He was all for punishing rapists by poking out their eyes and cutting off their testicles, but only if the female victim were a virgin at the time of the incident…Bracton also equated abortion with homicide.’

+2. As the White House Website notes: “An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the states request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification.” Good luck coming anywhere close to fixing Senate apportionment and getting rid of the Electoral College via a Constitutional Amendment in today’s Congress and state governments! And, of course, right wing money and operatives would be all over any amendment process

 

(Paul Street is a writer for CounterPunch where this story was first published.  His latest book is This Happened Here: Amerikaners, Neoliberals, and the Trumping of America (London: Routledge, 2022).