Photo by Randy Fath on Unsplash
How is that polls consistently show —- sometimes by a margin of 70 to 30 — that Americans favor stricter gun control measures such as comprehensive background checks, but there is no chance that Congress will pass stricter gun control legislation?
Is it some sort of fluke? Not really. Americans consistently favor — by equally large margins — a woman’s right to choose, but that right was taken away last June.
I spent over twenty years explaining to students in my American Government class how the founding fathers created a system of government that was based on majority rule while at the same time providing institutional safeguards — checks and balances — to ensure that the rights of the minority were preserved.
Now, more than 200 years down the road, we find that the problem ailing the body politic it is not the “tyranny of the majority” that the founding fathers feared, but the “tyranny of the minority” that they never anticipated.
They were fearful, to be sure, of factions which might gain disproportionate power, but they didn’t foresee (no blame intended) the “faction” of interests groups, especially well-funded interests groups with access to the social media that did not exist in the 1780’s. And they didn’t anticipate the disproportionate influence of money which has come to define modern American politics. They were well off themselves, being as they were “the well-bred, well-fed, well-wed and well-read,” but for them, holding political office was a public service, something to be done for a public good, not for remuneration.
And it is, of course, a well-funded interest group that provides the answer to the first question above, and to part of the second question. No meaningful gun reform legislation will happen, polls be damned, as long as politicians are beholden to the gun industry which keeps them employed; that is to say, the gun industry, the people be damned, that they represent in Congress.
This blight on the body politic is aided by the Senate filibuster, an institution not found in the Constitution. Passing legislation creating reasonable gun laws requires more than a simple 51 votes; in fact, 59 isn’t even enough. The minority rules. An institution which was once one of the world’s great deliberative bodies, graced with serious thinkers and fiery orators, has been reduced to a pitiful chamber where legislation goes to die.
Fortunately for conservatives, the filibuster does not apply to the confirmation of federal officials such as federal judges. If it did, none of the six conservative justices on the US Supreme Court would be on the US Supreme court.
And it illustrates the reason why the Senate Majority Leader, Mitch McConnell, in one of the most craven abuses of power in American history, was hell-bent on preventing hearings on Obama’s presidential nominee for US Supreme Court in 2016. With 54 republican senators and 46 democrats, losing five Republican votes would have been enough to confirm a very qualified judge as a supreme court justice whom he didn’t like. It would have also made it more difficult to get enough justices on the court to overturn Roe v Wade, the policy supported by the majority of Americans, but not by him or most of his party.
Another abnormality which undermines the democraticness of our democracy is the electoral college. Refined and added to the Constitution by the 12th Amendment in 1804, it allows for the person who gets the most votes in a presidential election to lose the presidency. Until 2000, it only happened twice, so it was easy to dismiss it as an occasional glitch. But of the seven presidential elections beginning in 2000, it has happened twice.
And it has altered the way that candidates seek the office in ways never imagined by the founding fathers. They were astute and forward-thinking enough to know that new states would be admitted to the union and provided an efficient mechanism in Article IV of the Constitution to accomplish that when such a situation presented itself.
But did they imagine a situation in which the eight least populated states have a combined population less than New Jersey, which gives them 16 senators to New Jersey’s two. To put it another way, did they envision or want a situation in which the three least populated states (equaling six senators) have a combined population less than the population of Queens, one of the five boroughs of New York City?
And these numbers don’t include the District of Columbia which has a population greater than each of the two least populated states but no representation in the Senate at all.
It’s true that the electoral college “glitch” can work both ways. A second-place democrat could be elected president as easily as the second-place republicans who were elected in 2000 and 2016.
But it’s also true that if the majority’s choice had actually become president in those years rather than the two # 2’s who lost the popular vote, then there would have been no Iraq War and no opportunity for one of them to stack the Supreme Court with three justices who would defy the will of the majority of the American people by overturning Roe.
Each of those justices professed in his and her Senate confirmation hearings an aversion to overturning an established policy. They claimed they were not interested in overturning Roe, but, of course, they were. That’s why they were nominated — to destroy a policy supported by the majority of Americans in the service of the minority.
It’s worth noting that the US Constitution does give the minority important powers by requiring a 2/3’s vote on a number of issues, such as the presidential veto and the ratification of treaties. In fact, it requires a 2/3 majority seven times, five in the original constitution and twice in amendments. But the issue here is the usurpation of power by the minority by working around the constitution.
One issue that the US Constitution has left the door open for a tyrannical minority is its Laissez Faire treatment of apportionment and redistricting. It leaves it to the states to decide how their districts will be created based on a state’s population as reflected in the most recent census. This in fact has led to perhaps the most egregious and insidious way that the will of the people in individual states has been thwarted.
The manner in which districts are redrawn varies by state. In the case of half the states, they are redrawn by the legislator, which means by the political party which controls the legislature. Whenever a state loses or gains an electoral vote and therefore needs to have districts redrawn, it is usually the state legislature that has the power to gerrymander districts so that voters of the opposing party can be clustered into one district, while voters affiliated with the party in power can be dispersed throughout more districts, thereby increasing the number of representatives in Congress for their own party. This, in essence, means that politicians choose their voters, not the other way around, a situation not intended by the founding fathers.
So how can all of this be remedied? Well, all of It can’t. The filibuster can be thrown overboard and citizens in states can challenge dubious redistricting plans by challenging them in the courts, but the electoral college is here to stay. Changing it would require amending the US Constitution, but the amending process is one of the issues in the Constitution that requires a 2/3 vote (2/3 of the House and Senate, followed by ratification in 75% of the 50 states; i.e. 37.) That’s not going to happen.
I used to shout to my students “Why did the founding fathers make the amending process so difficult?” And then I would shout out the answer “Because they were afraid that people — with their passions inflamed — would do dumb things.” And they succeeded. Unfortunately, the process also prevents dispassionate people from doing smart things too.
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