Brett Kavanaugh was nominated to the Supreme Court by an unpopular president who won 3 million fewer votes than the runner-up. He was confirmed by a Senate majority that represents a minority of the country. He was confirmed despite most Americans telling pollster after pollster they did not want him seated on the Supreme Court.
Nothing about Kavanaugh’s ascension breaks the rules of American government. Donald Trump is the duly elected president of the United States. Republicans hold a majority in the US Senate. Elected officials bear no responsibility to follow public opinion. Yet the left sees Kavanaugh’s confirmation as illegitimate, and they’re turning their ire on the composition of the US Senate and their focus to the possibilities for future court-packing and judicial impeachment.
American politics is edging into an era of crisis. A constitutional system built to calm the tensions of America’s founding era is distorting the political competition between parties, making the country both less democratic and less Democratic.
Since 2000, fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.
Kavanaugh now serves on a Supreme Court where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office, and where the 5-4 conservative majority owes its existence to Senate Majority Leader Mitch McConnell’s extraordinary decision to deny Merrick Garland a hearing. This Court will rule on the constitutionality of gerrymandering, voter ID laws, union dues, campaign finance, Obamacare, and more; that is to say, they will rule on cases that will shape who holds, and who can effectively wield, political power in the future.
“The party that is trying to keep minority rule is also going to be the party that has less interest in true democratic representation,” says Lilliana Mason, a political scientist at the University of Maryland. “You have to break some rules of democracy in order to keep minority rule.”
If these dynamics were at least split — if the geography of the House boosted Democrats while the Electoral College leaned toward Republicans — perhaps the dissatisfaction would be diffused, or the dueling interests of the parties would permit a compromise.
But that’s not the case. America’s growing zones of anti-democracy buoy Republicans, who, in turn, gain more political power to write the rules in their favor. As the left realizes it’s playing a rigged game, it’s becoming determined to rewrite those rules itself. If they succeed, the right will see those rewritten rules as norm-defying power grabs that need to be reversed, matched, or exceeded. It is difficult to imagine, from here, the construction of a political system both sides believe to be fair.
“At some point, people will get so angry that they will either talk about secession or start engaging in more direct measures, whether it takes the form of rioting or violence,” says Sanford Levinson, a constitutional law professor at the University of Texas Law School.
Political systems depend on all sides believing in the legitimacy of outcomes. In America, that legitimacy is in danger. And it’s only going to get worse.
“In countries where we see a lot of minority rule, it comes with a lot of violence,” says Mason.
How a compromise to unify our states is splitting our parties
America is not, and never has been, a democracy. The architects of our political system feared majority rule and withheld the vote from women, African Americans, and Native Americans. They wanted representation for some, not democracy for all. And their beliefs about how a political system should work were further complicated by the compromises they made so it could work.
To be adopted, the Constitution needed to be ratified by states. The small states feared, reasonably, that entering into a political coalition with large states would lead to their domination. As protection, they demanded equal representation in the Senate, and disproportionate representation and power elsewhere.
The centrality of states in America’s political system never made much sense from the perspective of ideal political theory. “As states are a collection of individual men, which ought we to respect most: the rights of the people composing them, or the artificial beings resulting from the composition?” asked Alexander Hamilton. “Nothing could be more preposterous or absurd than to sacrifice the former to the latter.”
But it made sense — indeed, it was necessary — from the perspective of actual politics. Gunning Bedford Jr., one of Delaware’s delegates to the Constitutional Convention, warned that if the large states did not do as the small states wanted, “the small ones will find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.”
This is one argument you hear for the system as it exists today: America is built of compromises between big and small states, between urban centers and rural areas, between those who sought more democracy and those who feared it, and those compromises must be honored in perpetuity.
But another way of thinking about our founding compromises is to think about the fears that led to them. The threat to the United States of America has always been disunity. At the time of the founding, the strongest and most politically important identities were state identities, and the central tension was between those who feared the (white, male) public and those who trusted it, and so we built a system meant to calm those divisions.
Today, the strongest and most politically important identities are partisan identities. We don’t talk about big states and small states, but about red states and blue states. If there is a threat to American unity, it rests not in the specific concerns of Virginians or Alaskans, but in the growing enmity between Democrats and Republicans.
A simple thought experiment reveals how the fundamental units of political competition in America have changed. Imagine a bill to make DC and Puerto Rico into full states, giving them representation in the House and Senate. Would Wyoming and Vermont vote the same way on that bill, because the inclusion of two small states would add to the power of their small-state bloc? Or would they vote differently because the inclusion of the two new states would add to the power of the blue-state bloc at the expense of the red-state bloc? The question answers itself.
A central problem in any free political system is how to ensure a balanced competition. The problem in our system is that what we balanced for is no longer what’s competing.
“If the competing groups are states, you need a set of rules to make sure that competition is fair,” says Mason. “If the competing groups are parties, you need a set of rules to make sure the partisan competition is fair.”
The compromises made to calm the divisions between places is exacerbating the divisions between the parties, as Republicans dominate rural areas while Democrats cluster in urban centers.
Some of the original compromises have ceased to make sense at all, as with the Electoral College, which was designed to ensure the final selection of the president would be “made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.” Instead, it has become a bizarre distortion of democracy where party hacks slightly warp the outcome of the popular vote. That this is the body that put Donald Trump in the White House is a supreme irony.
The electoral college is a disaster for a democracy.— Donald J. Trump (@realDonaldTrump) November 7, 2012
“Because everything is collapsed down to just partisanship, the main question is: Do Democrats have fair rules of representation? And they don’t,” says Mason. “That’s just the unavoidable answer to that question. But then do we rewrite our system of government?”
To do nothing, however, is to court a different kind of disaster. GovTrack notes that the divergence between the percentage of senators voting yes on important roll call votes and the percentage of the population they represent has spiked to record levels — a reflection of both the Senate’s composition and the hardball tactics Republicans are using to pass policy. The gap could explode from here. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.
It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.
If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.
How long will a Democratic coalition that has more numbers but less political power accept this system? And what will happen when they fight back?
If Democrats win power, should they rewrite the rules?
In his book It’s Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics, political scientist David Faris argues that Democrats worrying about their programs and their campaign strategies are missing the point. “You cannot win, in the long term, a policy or messaging fight on a playing field that is tilted hopelessly against you,” he writes.
Faris goes on to recommend a slew of ways Democrats can “fight dirty,” by which he means rewrite the rules of American politics so Democrats have an even chance, or better than that.
He recommends statehood for DC and Puerto Rico, as well as breaking up California into seven states, each with two senators; packing the Supreme Court with more justices so liberals can crack its conservative majority; replacing winner-take-all elections in the House with ranked-choice voting and expanding the size of the body to 870 members; passing a raft of voting rights reforms; and more.
“Some of the recommendations in this book will strike readers as so radical that they might precipitate a rupture of normal politics, or even a major constitutional crisis,” writes Faris. “Worrying about the damage these proposals might do is a genuinely adorable way to think about our politics, but it’s kind of like fretting about whether you should shoot the terrorist sitting next to you on your flight after he’s already blown a hole in the hull.”
Faris wasn’t always a radical. When I reached him at his home in Chicago, he described a process of radicalization that will sound familiar to many Democrats.
“The 2000 election was my coming-of-age election,” he says. “It was the year I graduated college.” Even so, he says he remained a “pragmatist.” The American political system was what it was. He voted for Hillary Clinton over Bernie Sanders in the Democratic primaries. And then the Electoral College took a second presidency away from the candidate he supported.
“It was so frustrating, in 2016, to go through another election we basically won but that we lost because of the way the mechanisms of American government translate election results into institutional outcomes,” he told me.
What was worse, he said, was thinking about the election after the Merrick Garland affair. Republicans had simply refused to consider President Barack Obama’s nominee to the Supreme Court. It was a stunning power grab. And it worked.
“Republicans weren’t punished for it,” Faris marvels. “They were rewarded for it. They got all three branches of government. It made me think Democrats can no longer act as if older rules about norms and expectations and comity in the political arena effect when they’re not.”
That’s what led him to write It’s Time To Fight Dirty. “The book was inspired by two things,” he says. “Total depression on election night and then thinking about what it would take for Democrats to recapture power given these structural obstacles.”
I’ve seen a lot of liberals go through roughly the evolution Faris went through. Court-packing, for instance, has become a common topic of discussion on the left. The rise of Michael Avenatti — with his slogan “when they go low, we hit harder” — is a reflection of the frustration Democrats feel. In his case for Avenatti’s 2020 candidacy, New York magazine’s Eric Levitz writes, “Avenatti’s presence in the 2020 race could spark a much-needed debate over whether his party should see the GOP’s ruthless approach to governance as a malignant force worth condemning — or as a model worth emulating the next time Democrats take power.”
Even Eric Holder, President Obama’s former attorney general, is taking up the battle cry. “When they go low, we kick ’em,” he says. “That’s what this new Democratic Party is about.”
This is where we are now. Imagine where we’ll be if four of the next five presidential elections are won by a Republican who lost the popular vote, if geography and gerrymandering locks Democrats out of anything but fleeting House majorities for the next 20 years and persistent Republican dominance in the Senate leads to a 7-2 conservative Supreme Court that tosses out Democratic laws and buttresses the GOP’s electoral advantages.
On the other hand, if Democrats take power and run some version of the Faris/Avenatti playbook in 2020 or 2024, there will be an equal and opposite reaction among Republicans; they will see their Supreme Court majority ripped from their grasp, their chances in House elections fall, Democratic Senate majorities as far as the eye can see. What will they do in response?
Indeed, the title of Faris’s book betrays the problem. While some of his reforms are clearly power grabs, like cutting California intro seven slices to rack up Senate majorities, most are simply ideas for improved governance. Proportional voting systems really are preferable to winner-take-all designs; DC and Puerto Rico should have congressional representation because it’s the right thing to do. That literally any change to the political system of a fast-changing country will be seen as a grubby scheme for partisan advantage creates a lock-in problem that imperils our future.
America’s political legitimacy crisis
In his book How Democratic Is the American Constitution?, the late political scientist Robert Dahl proposes a five-part test to judge how well the Constitution is working:
To what extent, if at all, do constitutional arrangements help to:
1. maintain the democratic system;
2. protect fundamental democratic rights;
3. ensure democratic fairness among citizens;
4. encourage the formation of a democratic consensus; and
5. provide a democratic government that is effective in solving problems?
I found this passage shocking when I first read it. It was not that Dahl’s criteria were so transcendent; it’s that he dared to propose criteria at all. As obvious as the exercise is, it is almost entirely absent from the Washington political conversation, which treats our political system as if it were etched on stone tablets and carried by George Washington down from Mount Sinai. We do not judge our constitution, we venerate it.
As a result, there’s little clarity on the principles we believe should undergird America’s political system. We explain elections using the language of democracy, but we are clearly not a democracy. We reach back to the Founding Fathers for succor, but the system we have is no longer the one they designed. Oftentimes, the governing principle we actually seem to be following is status quo bias — we do it this way because this is the way we do it, and to change the rules would be unfair — but that’s a rigid way to run a country, and it has left us in a dangerous place.
America is in an unstable equilibrium. Its current political system is producing outcomes that feel illegitimate to the left. Any effort to reform that system would produce outcomes that feel illegitimate to the right. We cannot stay here, but we cannot move.
What’s strange is that it’s not how we traditionally managed American politics, and it’s not how we run state politics. The US Constitution is devilishly difficult to amend, but even so, the pace of amendments is slowing as we move further from the date of ratification. There were 27 amendments before 1992, but there have been zero since then, and none appear on the horizon.
States, meanwhile, routinely amend and even rewrite their constitutions. “Each state has its own constitution, and the typical state has had three constitutions,” says Levinson. “A couple of them have had 10 or 11. There’ve been about 235 state constitutional conventions and zero new national conventions since 1787.”
It’s only at the national level, and only in this generation, that we have come to believe our political system should be frozen in amber, and puzzlingly, we have come to that conclusion not at a moment of confidence in its genius but at a moment of despair in its performance. I suspect our true belief is not that our system of governance is performing so well that it should be immune to change, but that we are performing so poorly that we do not trust ourselves to change it.
The political scientist Jennifer Victor keeps a stark missive pinned to the top of her Twitter account. “Remember: Democracy doesn’t mean majority rules. It means we all agree on the rules.” The problem right now is we don’t all agree the rules are fair, but the depth of that disagreement has made it impossible to imagine agreeing to other rules, either. And since we haven’t even tried to agree to the principles that are meant to guide our rules, every question, in every case, comes down to the raw exercise of power.
Perhaps the only way out of this mess is for the stakes to be raised, for Democrats to respond to Republican provocations and an increasingly tilted playing field by striking back and pushing the system to a breaking point. Perhaps then a compromise will come clear to both sides. But that’s a treacherous path to walk in a country that already feels near fracture.
“Legitimacy, at its heart, is the feeling that the authority being wielded over you is being wielded fairly and justly,” says Faris. It is that feeling of legitimacy that he and many other Democrats have lost. It is that feeling of legitimacy that their counterattack would rip from Republicans. This is the feeling that is draining out of the American political system, and as bad as it is now, it can, and likely will, get much, much worse.