Commentary, Defending Democracy

Today’s must read: National courts and law expert on mounting threats to American democracy

Ian Millhiser

While it’s clear that the age of Trump is a profoundly dark period in American history, as a general rule, caring and thinking Americans would do well to steer clear of conspiracy theories and alarmist assessments of where things stand and what lies ahead. After all, the nation has weathered many terrible, even existential, threats during the last 240+ years and will certainly survive the present one.

That said; burying one’s head in the sand is no solution either. The better we appreciate the depths to which the powers-that-be are dragging the nation during the current regressive spasm, the better our chances of fashioning an effective resistance and pulling out of the national nosedive as soon as possible.

With this in mind, today’s “must read” is a brief essay by courts and law expert Ian Millhiser of the Center for American Progress. As Millhiser explains in “American democracy is failing. The courts are finally starting to notice.” the current mess is deep and dangerous:

“There is something profoundly wrong with the United States of America’s system of government.

For proof, briefly take stock of the last ten years in American democracy, in which a combination of factors — the filibuster, the way we draw legislative districts, Senate malapportionment, and the Electoral College — converged to rob American voters of a meaningful ability to choose their own leaders.”

Millhiser then goes on to flesh out this list by reminding us of the details — including the Republican minority’s use of the filibuster to undermine the Obama presidency, the extreme gerrymandering that helped transform Congress and numerous state legislatures (including North Carolina’s) in 2010, and the outrageous blockade of Merrick Garland’s nomination to the U.S. Supreme Court. As he sums it up:

“The government of the United States no longer derives its powers from the consent of the governed. And by the time voters head to the polls in November to elect a new Congress, America will have existed in this state of profound undemocracy for nearly a decade.”

And while Millhiser sees rays of hope in the growing trend (in the courts and elsewhere) to combat gerrymandering and the move to abolish or render obsolete the Electoral College, he worries that the problems posed by geographic clustering (in which progressives tend to gather in a handful of states and large urban areas) combined with the undemocratic Senate (in which Wyoming gets the same number of votes as California) may be too large to overcome without some important constitutional amendments. Here’s is sobering conclusion:

“Even if there were a supermajority of states willing to amend the Constitution to eliminate Senate malapportionment — and there won’t be, because small states would effectively be voting away their own over-representation — the Constitution forbids amendments that deny states ‘equal Suffrage in the Senate.’ At best, that means that the Senate can only be fixed with two constitutional amendments: one to amend the amendment process itself, and the other to amend the Constitution again to fairly apportion the Senate.

There is a grave danger that American democracy’s lost decade may become a lost century. There is an equally grave danger of a crisis of legitimacy, as the 70 percent of Americans who no longer have a voice in their own government grow tired of being governed by a rural minority. But the biggest problem facing the nation is also one of the most difficult ones to solve.

While the courts are starting to wake up to the decline of American democracy, they’ve allowed this problem to fester for a very long time. And many of the most significant challenges, such as the malapportioned Senate, are beyond the reach of the judiciary.”

 

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