Our Fragile Polis

 

It was one year ago today that the trajectory of American history changed - perhaps permanently. Unexpectedly for many, January 6, 2021, revealed the radical fragility of our republic.

Of course, the warning signs were actually already abundant - signs warning about the immediate insurrectionist threat, and signs warning about the underlying, long-term decline in constitutional norms and our increasing "democratic deficit." History tells us, however, that we are seldom prepared for challenges we have not yet experienced and hence don't explicitly expect.

History also warns us of the fragility of all political systems. The Framers of the U.S. Constitution were well acquainted with ancient history and with classical political theories about the almost inevitable decline of political systems - in particular the decline of democratic constitutions into populist-based tyrannies. They were well acquainted as well with the historical attempt to remedy that dynamic by means of what has traditionally been termed a "mixed constitution." Hence, their move to counterbalance the revolutionary radicalism of 1776 with the stabilizing constitutionalism of 1787. At its best (as my onetime academic mentor wrote), "Aristotelian constitutional theory might be defined as the attempt to encourage political stability and moderation, not by denying class rule, but by ameliorating or restraining class power by the rule of law and by 'mixing' the basic elements so as to promote inclusiveness, lessen resentments, and moderate the exercise of power" [Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought, expanded edition, 2004, p. 404].

Historically, the Roman Republic (at least as memorialized by political theorists like Polybius) had been the classic example of this effort. In the end, however, even the Roman Republic proved insufficiently equipped to cope with the challenges of having become an enormous empire. It was left to James Madison to reimagine a large republic as actually an advantage. "Extend the sphere," Madison famously asserted in The Federalist, 10, "and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other."

The challenge of 21st-century political space is very different, however, from that of 18th-century political space. Modernity has outpaced the supposed advantages Madison inferred from size, and it may be therefore that 18th-century institutions are proving less fit for the task - not unlike the Roman Republic's failure to cope with the challenges of an increasingly extended empire. Indeed, didn't Machiavelli himself, recalling Rome's experience, warn against the inevitable difficulty in trying to manage a republic that expands into an "empire" [The Discourses, I, 6]?

An important illustration of this is evident in the fact that, whereas Madison and his fellow Framers worried about an out-of-control majority, our current predicament reflects rather the unbalanced power of an out-of-control, politically panicked minority. The faction that sought to overthrow constitutional government on January 6, 2021, both those who violently invaded the Capitol from outside and those on the inside who voted to overthrow the results of the 2020 election, represented only a minority - never a majority - of Americans. In fact, the Republican party has become so unrepresentative of this country that it last won the popular vote in a presidential election almost 20 years ago in 2004, and before that had not done so since 1988. So both Republican presidents who have thus been installed in the White House in the last 30 years have represented only a minority of voters and were installed contrary to the expressed will of the majority of those who voted (and, in one case, thanks also to the connivance of our out-of-control Supreme Court).

So, whereas Madison, et al., were worried about an imagined tyranny of the majority, the violent insurrection one year ago represented the opposite. It was, in fact, just the most dramatic manifestation of a much more clear and present danger, the tyranny of a minority, which being less and less capable of winning power by means of elections and less and less able or willing to attempt to persuade others, now seeks to delegitimize and corrupt the electoral process itself. The alienation of this minority from constitutional norms is culturally conditioned, of course, by numerous factors. But this increasing tyranny of the minority is facilitated by certain specific institutional defects, some rooted in the constitution itself. These defects have rendered constitutional governance increasingly ineffective, ultimately depriving it of its main sources of moral and political legitimacy, with obviously catastrophic consequences for constitutional government and for the society that constitution and government are supposed to serve.

Unlike the notoriously problematic Electoral College and the much more unjustifiable equality of states in the Senate, some anti-majoritarian institutional defects are not constitutionally mandated at all and actually contradict the clear intent of the constitution. Gerrymandering, while largely legal, goes against the clear constitutional intent underlying the House of Representatives, which was obviously intended to be the primary democratic element in the federal system. As for the filibuster, that largely 20th-century aberration directly contradicts the constitution's clear expectation that the Senate would make decisions by majority vote - with the explicit exceptions of overriding presidential vetoes, ratifying treaties, expelling fellow Senators, and amending the constitution. A two-thirds "supermajority" is required for such special activities, but for ordinary matters - e.g., lawmaking and confirming presidential nominations - the constitution presumes an ordinary majority vote (hence the provision for vice-presidential tie-breaking). The Senate's inability to eliminate the filibuster reflects not constitutional constraints but the majority's timid indifference to the intent of the constitution even in the face of the minority's increasingly unrepresentative character and dangerously despotic aspirations. The Democrats have deservedly been criticized for failing to try to reform the Electoral Vote Count Act, for example, but in fact no such necessary reform can be enacted without first eliminating the filibuster!

Admittedly, Donald Trump presented an almost unprecedented crisis situation. Even so, our sorry situation is more than - and worse than - the short-term aberrations of one particular pied-piper "populist" president.

These are serious, built-in, systemic, institutional failings which have been long-term problems for constitutional government's ability to serve society, with all that such failure implies for popular legitimacy and support. January 6, 2021, however, highlighted a more immediate fundamental crisis for American society. The Republican party authoritarian minority has set out on a dangerous path, the likes of which we have not seen before - at least not since the Confederate refusal to accept Abraham Lincoln's election. (Unlike Trump, et al., the Confederates did not deny that Lincoln had actually been legally elected. Even so, they experienced his victory as such an existential threat to their slaveholding way of life that they rejected the constitutional system and quit the country.)

It is dangerously tempting to dismiss some of what has happened and what is still happening, as just a Trump clown show, which it is in many ways. But the attempt to overthrow our political system was not, is not, funny. And Democrats and other non-Republicans continue to ignore or trivialize this threat to constitutional government at their - and the country's - peril.

And indication of our constitutional timidity and institutional inertia is the trajectory of constitutional amendments in the 20th century - from the 16th amendment in 1913 to the 26th amendment in 1971. The general trajectory of those amendments was an expansion of the democratic dimensions of our system - the graduated income tax, the poplar election of senators, the extension of the vote to women, to residents of the District of Columbia (at the presidential level), and to citizens aged 18-20, and the elimination of the poll tax. But then that trajectory stopped. The last such amendment took effect in 1971. Then came the disastrous election of 1980 and the 40-year process of diminishing the democratic dimensions of our system, which has brought us to where we are now.

The Pearl Harbor syndrome - an understandable inability to anticipate something that had never happened before - may explain some of the unpreparedness for January 6, 2021. But it cannot excuse unpreparedness on the way to January 6, 2025. Just as the Confederates' "Lost Cause" continued to corrupt American politics for a full century after the Civil War, Trump's "Lost Cause" will continue corrupting American politics until either it triumphs on January 6, 2025, or Democrats and other non-Republicans respond with measures to protect elections in particular and constitutional and democratic norms in general.