‘Fools, drunks, and the United States of America’

Whether or not Bismarck ever said that God looked after creatures in these categories, it's a way of asking whether the U.S. has relied too long on providence and sheer luck.

From a cartoon by William Charles during the War of 1812, President James Madison, at right, teaching John Bull and the invading forces of King George III a lesson. Twenty-five years earlier, Madison had played a leading role in drafting a Constitution that suited U.S. realities of the 18th century but is a more and more awkward match for the 21st. (Getty Images)

The purpose of this post is to suggest a way to fit the political developments of the past weeks into recurring and destructive patterns of the past decades. It’s also meant to provide some facts and background that should play a larger part in news coverage and public debate. If you just notice some of the charts and figures, you’ve done your part!

I have one pattern mainly in mind. Naming it and laying it out obviously does not cure it. But it helps me think about where to push back.

The pattern I want to discuss is the growing mismatch between the formal structure of the U.S. government, and the quicksilver nature of modern U.S. society.

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An open and adaptable society has been and remains America’s glory and strength, relative to the rest of the world. That is what observing the U.S. from overseas for many years has taught me, along with reporting from inside the country for more years than that.

But an out-of-date structure of national government, which is very difficult to change but alarmingly easy to abuse, has become America’s great handicap.

I’ve always thought (and have often said) that only a country with so much in its favor as the U.S. enjoys, could withstand a system as flawed as the U.S.’s has become. The question is whether that luck can last.

This is not a remotely “new” issue or insight. Practically from the time the Constitution appeared, people have had ideas for improving it. That is, after all, how we got the Bill of Rights. I have a whole bookshelf full of more recent calls to re-think the rules of American governance, with specific ideas about doing so. For instance, one by Rexford Guy Tugwell, nearly 50 years ago; or another by Larry Sabato, nearly 15 years ago; or one from the American Academy of Arts and Sciences, just last year.

These tensions aren’t new, but they’re behind each day’s news. I find that awareness of them is useful in deciding what deserves most attention and worry, and why.

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The main problem: A modern society, running on antique rules that are too hard to change and too easy to abuse

The team that drafted the Constitution signing the document 234 years ago. We’re still living with the trade-offs that made sense to them in those times. (Getty)

Nearly 80 years ago, during some of the fiercest fighting of World War II, the Swedish economist Gunnar Myrdal wrote what became one of the most influential books of mid-20th century America.

It was called An American Dilemma, and its subject was the contradiction built into America society from the start. That was the tension between, on the one hand, the stated American ideals of democracy and equality, and, on the other, the American realities of race-based oppression and inequality.

The point may seem obvious, but Myrdal’s work had such clarity and power that it was cited a decade later in the Supreme Court’s Brown v. Board of Education ruling, which overturned the “separate but equal” premise of segregated schools.

If Myrdal were around to explore the dilemmas and contradictions of modern America, he would still write about race. But he could also talk about the worsening dilemma of constitutional government. The nation reveres, as it should, the ideals that are timeless in a document composed more than 230 years ago. But the modern nation is trapped by many of the loopholes and specific provisions in that document, which have become ever harder to correct and ever easier to abuse.

• Some parts of the compromises that went into the Constitution in 1787 were so blatantly mismatched to changing American realities that they were eventually changed, through the intentionally onerous process of Constitutional amendment.
  
  These included issues as sweeping as the Constitution’s embrace of slavery, which was ended only through the horrors of the Civil War, and the omission of women’s right to vote, which was finally recognized by the 19th amendment in 1920. And also issues as technical as how the President and Vice President are chosen. (Until the 12th amendment, the runner-up in the presidential election became the VP, which if in force in 2020 would have given us the Biden-Trump administration.)
  
  

• Some technical provisions that might have made sense in the 1700s persist as annoyances or oddities that no one has bothered to change. For instance, the requirement that presidential candidates be “natural-born” citizens, which had some logic for an infant country worried about foreign tampering but is just pointless nativism now. Or the denial of Congressional representation to the 700,000+ U.S. citizens who live and pay federal taxes in Washington D.C.

But some of the provisions have morphed, through time, into distortions of effective governance so profound that people in the 1780’s would never have considered them, if they had imagined circumstances like today’s. They’re what I want to focus on.

Mostly these add up to a shift from protecting minority rights, which a diverse society should and must do, to enabling minority rule, which ultimately means a denial of democracy. The likes of James Madison, Alexander Hamilton, and John Jay, who had worked through grim scenarios of “how democracies fail” in The Federalist Papers, would have understood this immediately. A system that is not ultimately steered by its majority cannot survive as a democracy.

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The shift away from ultimate democratic accountability has been driven by changes in realities, and in behavior and norms.

Changing realities…

(1) The first reality is the changing nature of big vs. small.

When the compromises at the heart of the Constitution were hammered out, two of the main axes were big states versus small states, and slaveholding states in the south versus non-slave states in the north.

A cold-eyed, mathematical deal-making precision went into these arrangements. Thus we have the stark “three-fifths of a person” clause of the Constitution, to bolster slave-state representation in Congress without allowing those enslaved people to vote. And thus we have the balance between the Senate and the House, with two Senators per state in one chamber, and a population-based delegation in the other.

But in those days, the big states were not that much bigger than the small ones. The most populous state at the time was Virginia. The least populous was Delaware. Those biggest-and-smallest rankings apply, whether you’re counting the states’ entire population, including slaves, or just the “free whites.” And the difference between the biggest and smallest populations was about ten-to-one.

The same was true on a larger scale. Taken together, the three most populous original states also had around ten times as many people as the three smallest. It was in awareness of those proportions that the two-Senators-per-state deal was hammered out.

Today the most populous state, California, has around 70 times as many people as the least populous, Wyoming. Each of course has two votes in the Senate. Taken together, today’s three most populous states—California, Texas, and Florida—have about 45 times the population of the three least populous, which are Wyoming, Vermont, and Alaska. The three big states come to roughly 90 million people, versus roughly two million for the three smallest. Those 90 million Americans, and the two million, are each represented by six U.S. Senators.

There is no chance whatsoever, zero, that the practical-minded idealists who came up with “three-fifths of a person” would have agreed on anything like today’s Senate representation, if they were dealing with anything like today’s population extremes. But that was 234 years ago, and we’re stuck with rules from their times.

US population density at the time of the first Census, in 1790, when the rules that still govern a very different country were set out. (Getty Images)

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(2) There’s a related reality, much less often mentioned. It’s the ceiling on the size of the House of Representatives, which should be much larger than it is now.

When the country was founded, there were 65 members of the House. For the next century-plus, the size of the House increased after the Census every decade, as the size of the U.S. population did. But just before World War I, the number was capped at its current level, of 435. The U.S. population is about 90 times larger than it was at the time of the Constitution. But the House is not even 7 times as large.

As the US population grew, so did the number of Representatives in the House—until it was capped at the current 435, a century ago. The only dip in House membership was because states seceded during the Civil War.

Why does this matter, in governance terms—and apart from the pressures on individual Representatives? Because of the Electoral College.

As a reminder, Electoral College votes are a combination of each state’s Senate and House representation. As House membership expanded through the 1800s from 65 to 435, House seats became relatively more important in Electoral College totals, and Senate seats relatively less so. To spell it out, in the first presidential election, Electoral Votes based on Senate seats made up nearly 30% of the Electoral College total. By 1912, the first election after House size was frozen, they made up only 18%.

If the House were re-expanded, then the small-state bias of the Senate would matter less, and the Electoral College outcome would more closely track the national vote. That does not automatically mean it would be more Democratic (or Republican) in partisan terms. Remember: the second and third most populous states are Texas and Florida. It means that the results would be closer to small-d democratic rule.

Again, no one drafting the Constitution foresaw a 70-to-1 difference in state populations. None of them imagined that, 120 years after they finished their work, and even as the country’s population kept booming, their successors would cap the size of the House.

The United Kingdom reformed its Parliament in the 1830s because of the scandal of “rotten boroughs”—places whose voice in Parliament far exceeded their share of the electorate. But they had the advantage of no written Constitution to hold them back. The Senate is today’s rotten borough.

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Segregationist Sen. Strom Thurmond, of South Carolina, after a filibuster against Civil Rights legislation in 1957. In those days filibusters were rare. (Getty Images)

… and changing behavior

The second development is a change in behavior and norms.

(1) The Constitution has no provision for the filibuster. With a few clear exceptions, like treaty ratification or impeachment, the Senate was set up as a straight majority-rule operation, just like the House.

The filibuster was first used in the 1800s; became a mainstay of segregationists in the 1900s; but was routinized only in recent times, starting mainly with Mitch McConnell 15 years ago. Turn to Adam Jentleson’s excellent Kill Switch for the evidence and the blow-by-blow.

As recently as the Bill Clinton era, for most votes on most measures, 51 Senators was what it took to get legislation passed. Now we take for granted that a Senate “majority” means 60 votes. Given the small-state bias of the Senate, that means that Senators representing around a quarter of the U.S. population can muster the 41 votes it takes to block an administration’s measures.

For instance: soon after the gun massacre of schoolchildren in Newtown, Connecticut, in 2012, Barack Obama pushed hard in his State of the Union address for background checks and other gun-safety measures. Polls showed overwhelming support from the public, and more than 50 Senators—a bipartisan majority — voted for it as well. But Mitch McConnell exercised the filibuster, and the plan died.

This is not what the founders had in mind. They had seen enough of structural dysfunction in the Articles of Confederation years.

(2) Another important change in practice involves “separation of powers,” which was supposed to provide “checks and balances.” A basic concept of tripartite government—executive, legislative, and judiciary—is that each branch would have institutional loyalty, rather than purely partisan motivation. The Congress would rise above party to guard its powers against presidential over-reach, notably in the power to declare war. The judiciary would not be of any party, and would play an arm’s length role.

Isn’t it pretty to think so! For the past generation, we have not had three branches of government. We have had three arenas for the same partisan power struggle. The result is a system with all the drawbacks of parliamentary government, without its advantages. The drawback, to spell it out, is unchecked one-party rule. The advantage of a parliamentary system is the ability to govern, and accountability to democratic will. We have the bad without the good.

Perhaps it’s just a coincidence that of the scores of new democracies that have emerged in the past 50 years, not a one has copied the U.S. governance model.

(3) Then there is pushing things in to the hilt. To my mind, Bush v Gore was a modern turning point. On the one side, a recount in a state whose governor was one candidate’s own brother. Plus a recount team that turned out to include three eventual members of the US Supreme Court. (Roberts, Kavanaugh, and Barrett.) On the other side, a candidate who said this, soon after the Supreme Court ruled against him:

“I accept the finality of this outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”

It might not have been “smart” of Al Gore to go down without an open-ended fight. It is certainly not the path Donald Trump has chosen. But such willingness to concede is what democracy depends on. It is the lubricant that our creaky and structurally flawed system has required, and that it now lacks.

During the 2016 campaign, I wrote frequently about the “Vichy Republicans”—the members of the party who had fiercely mocked and denounced Trump before the nomination but then uncritically stood with him.

In the wake of everything since, especially the January 6 insurrection, you could just say “Republicans.” It is wise for Joe Biden to decline comment on the latest reports that Trump knew he was infected with Covid when he showed up for their close-range, face-to-face debate last year. It is craven for party leaders to shrink from criticizing Trump for even that, even now.

74-year-old infected Covid patient (right) at lengthy, unmasked indoor meeting with 77-year-old man. (Getty Images.)

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A resilient society, a calcifying system

Where this takes us is the strain on a system where the rules no longer reflect the check-and-balance, big-vs-small design conceived in the 18th century, and where practice is pushing those rules to their limit.

Thus we have Democratic candidates for president winning the national vote in seven of the eight past elections—but appointing only three of the nine current members of the Supreme Court. Thus we have Senators representing less than one-third of the population blocking proposals supported by most of the public. Thus we have even worse failure-of-democracy structures in many state governments, for instance as laid out by David Pepper here. Thus we have the voting-restrictions and gerrymandering plans I needn’t detail but that we read about every day.

“Majority rule” should not inherently be a partisan issue, though the Republican party obviously now benefits from this imbalance—and may bluntly believe that minority rule is the party’s main hope. For the country, it’s a question of governing viability. Democracies depend in the long term on democratic processes. The U.S. system is now structurally so anti-democratic that it survives only with something like public-spiritedness of all parties.

Which we can’t rely on.

The society has great powers of recuperation. About the system, I’m not so sure.

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Do I end with a “plan”? Not in this post. But plans start with understanding the problems, and I’ve laid out the way I think about them. And the next installment in this vein will go into some practical measures that could hold hope. Spoiler: they include important duties for all of us who work in the press.