Sandy Levinson, my
former teacher whom I respect enormously, reads my post on the increasing
opacity of the congressional appropriations process and asks
whether I would agree that Congress has rendered itself illegitimate. He goes on to ask what is to be done, given
my opposition
to convening a new constitutional convention under Article V. These are thoughtful and thought-provoking
questions that deserve a response. As I
pondered my answer, it occurred to me that a similar theme runs through the
Article V debate and other contemporary visions of progressive reform. This post attempts both to respond to Sandy
and to sketch those broader themes.
First, although I
find Congress frustrating and sometimes reprehensible – certainly in its
failure to act on climate change but in many other areas, too – I do not see it
as illegitimate. Indeed, to a first
approximation, this country’s electorate has the Congress that it
deserves. We are a sharply divided nation,
with roughly equal numbers of progressive and conservative voters. In a system built to require some
supermajority to enact legislation, it makes sense that we can change very
little of substance.
Much of the public
disdain for Congress reflects voters on each side of this division refusing to
acknowledge the existence of an equally numerous group on the other side – and
hence imagining that Congress is obstructing the will of a “clear sensible
majority” of people like themselves.
For example, progressives
seem never to tire of pointing out that Hillary Clinton won more popular votes
than did Donald Trump. Narrowly
speaking, this is true – but very right-wing candidates (and Gary Johnson and Evan McMullin were both very right-wing) won slightly more votes
than progressives. Moreover, a small but
clear majority of the electorate voted for someone other than the only
candidate who could keep Donald Trump from the White House.
Similarly, progressives
celebrate Democrats’ increased share of congressional votes in the 2018
mid-term election. They fail to note
that a substantial portion of those gains result from a greater number of serious
Democratic candidates running in – and losing – solidly Republican districts while
fewer serious Republicans took fliers at deep blue seats.
When I travel to red
states to oppose an Article V convention, I hear the same thing, in reverse: Republicans denying that
roughly half of the country genuinely supports policies that they would like to attribute to small coastal elites.
I firmly believe
that the Right’s social, economic, and environmental positions put it on the
wrong side of history, but it is demonstrably not on the wrong side of much of
the current electorate. Given the current electorate's views, the consistently
progressive Congress producing legislation that Sandy and I could welcome would be
much closer to illegitimate than the deadlocked Congress we actually have.
My response to
Sandy’s second question – what is to be done? – flows from my response to his
first. The only remedy to the current
situation is to change the hearts and minds of a significant fraction of the
electorate. This involves both changing
their approaches to crucial issues and changing the ways we form
coalitions. This second point is crucial
to understanding the seemingly positive results of issue polling. On some important individual issues, the majority
of voters favor progressive positions, but some
of those progressives are also fiercely
anti-abortion and hence unwilling to vote for Democrats who would espouse
their positions on other issues. Other support
for progressive
positions
comes from voters whose white identity makes them strongly prefer
the Republican Party. This identity makes
them easy prey for pseudo-populists
like the current President.
The (still
incomplete) transformation of attitudes toward LGBTQ people, propelled in part
by people coming out to their friends and relatives, is an example worth noting
of how attitudes can change, but it also is a difficult one to replicate. Rep. Alexandria Ocasio-Cortez’s Green
New Deal – seeking to heal the age-old disconnect between redistributionists
and environmentalists – is another exciting effort to broaden the numbers of
people feeling a stake in progressive policies.
And I was heartened when, after the 2016 election, several of my best
students at Georgetown and Yale shelved their plans to move to Washington in
favor of returning to their home states to become active in politics
there.
But as we should
have learned by now, no clever lawyers’ tricks will sustainably transform us into
a more progressive, or environmentally responsible, nation while about half of
the electorate is prepared to vote for, or fail to vote against, someone like
Donald Trump. The continued search for
that legalistic holy grail is distracting at best and dangerous at worst.
Enthusiasm for an
Article V convention seems a manifestation of a broader habit of imagining, and
wanting to reach, a halcyon zone free from politics as we know them. For many non-lawyers, that idyllic zone is
the courts, particularly the Supreme Court.
Friends of great political sophistication – people who can accurately
predict congressional votes on the subtlest of amendments – repeatedly ask me “how
can the Court do that?” and become indignant when I respond “because it has five
votes.”
Congress,
remarkably, can seem that zone of dispassionate decision-making, at least on
large issues, for some who do not follow it carefully. Many were shocked and surprised that the
Senate never came close to holding hearings on Merrick Garland’s nomination to
the Supreme Court or that it could conduct such a superficial investigation
into the allegations against Justice Kavanaugh.
People involved with numerous federal programs frequently ask me “how
does Congress expect us to do our jobs with this level of funding?” and refuse
to believe that estimates of programs’ needs play only a small part in the
appropriations process.
My superficial
impression is that international law (or particular organs of international
law) and macroeconomics (or the Federal Reserve) are other places that some non-experts
falsely endow with trans-political Solomonic wisdom.
The search for a
realm above our current political ugliness seems to drive enthusiasm for an
Article V convention among both progressives and many sincere conservatives. Proponents have adroitly seized on this romanticism,
calling it a “convention of the states” and suggesting that it is a place where
concerned citizens from across the country come together in a non-partisan
spirit of good will and respect to solve problems that politicians cannot. Yet the campaign
for an Article V convention is anything but a model of candor and respect for
democracy.
Article V
enthusiasts assume that the ordinary rules of politics will somehow be
suspended for a constitutional convention, yet they never even begin to explain
how that would occur. Without a
compelling reason to believe that a convention will rise above politics, we have
a clear moral obligation to analyze the likely political consequences of what
we advocate.
And for
progressives, the answers about an Article V convention are not
pretty. Currently, thirty
state legislatures are controlled entirely by Republicans. Surely they will appoint solidly Republican
delegations to any Article V convention, likely composed of their own most
ambitious members. Even if those
delegates somehow are not ideologues, they will be beholden to moneyed interests
whom they hope will bankroll their future campaigns. With more than two-thirds of the states gaining
more power under a one-state-one-vote system, it is difficult to believe that
the convention will agree to award states votes based on population. Even if it did, however, unified
Republican legislatures represent 59% of the states’ population. Moreover, many of the modest laws we do have restricting
the role of money in politics might not apply in the unfamiliar setting of an
Article V convention.
We should not
succumb to the response that things are so bad that we must try something,
anything, even without a plausible reason to believe it will make things
better. History abounds with truly horrible, anti-democratic leaders who
nonetheless proved not to be the worst their countries had to offer. “It can’t get any worse than this” is almost
never true and almost always irresponsible.
We can and must take
back our country. But we have to do it
the hard way: by winning
over our fellow Americans one at a time.
There is no magic bullet nor, in a democracy, should there be.
@DavidASuper1
@DavidASuper1