David Brooks's unwillingness to connect the dots

David Brooks has a column  in today’s NYTimes entitled “One Reform to Save America.”  Briefly, he calls for the adoption of the (uncited) FairVote proposal to get rid of single-member congressional districts in favor of multi-member districts elected with proportional representation, plus adoption of the alternative vote to assure that winners in First Past the Post systems will in fact have a plausible claim to have garnered majority support (and, therefore, an incentive to try to attract some centrist support).  From one perspective, neither raises any basic constitutional issues.  States tomorrow could, as Maine has recently done, adopt the alternative transferable vote, and Congress could tomorrow simply vote to repeal the 1842 legislation, reaffirmed in the 1960s, that requires single-member congressional districts.   

So two cheers for Brooks, who is clearly correct about the consequences of our dreadful electoral system.  But Brooks also demonstrates the obtuseness of the punditry by utterly failing to confront the fact that there is not a snowball’s chance in hell of Congress (i.e., the House of Representatives) actually repealing the 1842 act, which by definition would be a monumental disruption of the status quo and go a long way to challenging, if not eliminating, the present two-party duopoly.  Indeed, the Republicans who control the Maine legislature are apparently resolutely doing what they can to avoid complying with the wishes of the people of Maine to reform their electoral system (just as, incidentally, they refuse to accept the people's verdict, in a referendum, to join Medicaid).  I have quoted many times what I believe to be the late John Roche's useful addendum to Lord Acton's famous comment about power and corruption.  According to Roche, "Power corrupts, and the prospect of losing power corrupts absolutely."  Nothing demonstrates this more than the unwillingness to those who benefit from a status quo to accept the possibility that the political structures that reinforce their power need to be radically transformed.  

If we were, say, California or a number of other largely western states, then “We the People” could try to achieve Brooksian reform by initiative and referendum, and I suspect there would be a good probability of success.  That is how California adopted the so-called "jungle primary" system, where everyone competes for selection in the top two, who then fight it out in the general election.  There is much panic, especially in California, that fragmentation among Democrats will lead to two Republicans being at the top of the heap in several otherwise easily contestable congressional districts.  Does this demonstrate the problems with the jungle primary or, instead, with egoistic candidates unwilling to forego their moment in the sun?  After all, there is no serious possibility that Donald Trump, who failed to gain a majority of the Republican vote in the overall Republican primaries, would have been nominated had the egos on parade throughout the campaign season ever been able to agree on who among them should be chosen to stop the Trumpian menace.  Or if the Republican primaries had adopted single transferrable votes, then one suspects Trump might have been headed off.  But, of course, none of this was possible.  Among other things, the demonstrates the importance of formal structures. 

 But, alas, as I have repeatedly noted, our Framers had only contempt for the actuality of popular sovereignty and created a national constitution designed to eliminate the very possibility of rule by the people instead of elite representatives.  So if one agrees with Brooks that electoral reform is necessary to “save America,” then it is basically logically entailed that one also support a new constitutional convention inasmuch as that is literally the only way to bring about the presumptively necessary reform in the absence of a Tinker Bell-like belief that the House would ever agree, in complete contradiction of Roche's dictum, to repeal of the current legislation and the "creative destruction" of the political system that allowed them to get to the House in the first place and then to assume positions of leadership.   Brooks, like, say, Bernie Sanders, offers an altogether accurate diagnoses of the pathologies of our political system, but both have a quite stunning incapacity or unwillingness to connect the dots by suggesting that we have to address basic constitutional realities, including the possibility of a new constitutional convention. 

I am well aware that almost all of my friends, family—the book that my wife and I co-authored, Fault Lines in the Constitution, concludes with a debate between the two of us on the desirability of a new constitutional convention—and professional colleagues are appalled by the very idea of a constitutional convention, and most are equally appalled by any suggestion of direct democracy.  (This reflects, I believe, a fundamental loss of faith in democracy itself, inasmuch as it requires some degree of genuine regard for the ability of one’s fellow citizens to engage in Publian “reflection and choice” about fundamental issues facing the polity.  The Trump phenomenon, of course, does nothing to enhance faith in democracy on the part of the left.)  

So instead we (especially those of us in the legal academy) spend all of our time making “Herculean” arguments on how judges, correctly coached, could cure our ills.  For some this involves expansion of the welfare state; for others, like devotees of Richard Epstein and Randy Barnett, it could lead to the invalidation of the New Deal, but both the Federalist Society and the American Constitution Society seemingly agree that the focus of our attention should be on the judiciary and on reinforcing the view that the Constitution is just terrific and needs only correct interpretation by honorable judges. I am outraged by the theft of the seat that should have gone to Merrick Garland by the GOP, but it is simply silly to say that a more progressive Supreme Court would be the cure for our national ills.  But to accept the limitations of the judiciary, whether one is a liberal or a conservative, requires accepting the possibility that the Constitution itself needs significant non-judicially-imposed amendment, which only promotes feelings of despair and hopelessness given the true awfulness of Article V.