The Tyranny of the Superminority
Ever wonder why we are the ‘United States of America’, and not the ‘United Citizens of America’?
245 years ago, the conjunction of 13 independent colonies into what became the United States was a bold and extraordinary event. I’m no student of history, but I’m not sure that such an experiment had ever been seen before, anywhere on the globe, nor, to my knowledge, has it ever happened again. The historical underpinnings of most nations of the world have been based on something of a monoculturalism, with the interests of the nation consistent and uniform. Whether based on religion, ethnicity, race, or some other common factor, the longest surviving nations still have that same uniformity.
While it could be argued that the same factors were what stitched together a nation out of the original 13 colonies, I’m not so sure that it was really the case. Each colony had distinctive foundations; religion, in the case of many (including Pennsylvania, Rhode Island, Massachusetts) was common, but the colony in Georgia was originally established with the idea that it would be a good place to put English debtors, instead of letting them rot in prison in England.
The only true common goal, among the colonies, was the eradication of subjugation by the British Crown… a noble effort, if there ever was one. However, beyond that successful event, it fell upon the colonies to organize a nation out of interests that were either extant at the time, or would be incipient in the following decades. The agrarian slaveholding southern states had interests distinct from the more densely populated northern colonies who were only a few decades away from a profound industrial revolution.
The Founding Fathers, with what would much later be described as enlightened liberalism, conceived of a nation founded on a handful of key moral values, such as freedom of speech, freedom of the press, and so on. After an unsuccessful start with the Articles of Confederation, they finally achieved what they considered to be a better exposition of those values, with the Constitution… although almost instantly, ten amendments were required to articulate those key values.
It was no easy task, and the Federalist Papers provides insight to their thought processes.
One key attribute of a free nation, they thought, was that government ought to be ‘of the people, by the people, and for the people’, and while the end result, a republic, fell short of the idealistic goal, it was nonetheless true that they all felt that the majority interests of the people would be supreme. The idea of a democracy, indeed, requires and demands that this be the case…
…yet, 245 years later, that goal and objective has been an abject failure.
The Founders wrestled with the idea of majority rule, and it became apparent to them that one potential problem might be a ‘tyranny of the majority’ (I’m not sure if that phrase was coined by them, but it is common today). While they may have put a great deal of thought into the problem, they provided little in the way of provisions within the constitution. To this date, the only recognition of the potential for a tyranny of a majority, in the Constitution, is the requirement for a supermajority in cases of amendments to the constitution, or in the case of impeachment. There is no other requirement for a consensus rising above a simple majority in any legislative deliberation…
…other than what Congress decided to impose, by right of its ability to define it’s own rules… and there is where the problem is.
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We can measure how successful a democracy is by whether its legislative actions reflect any reasonable assessment of the will of the people, and by that measure, we have failed miserably. There are countless issues we could look at to prove the case.
What about ‘Medicare for All’? 70% of the population supports it.
What about abortion? 61% of the public supports a woman’s right to choose.
Citizenship for illegal immigrants? According to Gallup, 87% of the public are generally in favor of it.
These issues are more nuanced that the statistics above might imply, but it is nonetheless true that there is a massive disconnect between the ‘will of the people’, and the will of the people we send to Washington to represent us.
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There are a number of reasons for this disconnect, and they especially include gerrymandering. Anyone who has examined this issue knows about the ability of a state legislature to draw impossibly convoluted congressional districts to give an advantage to one party, and historically, it’s been a bipartisan corrupt practice… but more recently, almost the exclusive tool of Republicans. The result: the party which does the gerrymandering ends up with representation in congress significantly in excess of the support within the state; not exactly a recipe for fair representation of the constituent’s interests.
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The real problem, however, lies in the filibuster.
Many people falsely think of a filibuster as a single parliamentary technique, but the word actually implies any rules-based technique designed to delay or obstruct the ability of Congress to vote on an issue. The days of the ‘talking filibuster’ (think James Stewart, in ‘Mr. Smith Comes to Washington’) are long over. Nowadays, the power of the filibuster resides in something called cloture.
The founding Fathers felt strongly that Congressional debate should be ‘unlimited’, and dreamed, I suppose, of a deliberative body capable of sustained, intelligent, and impassioned debate on the issues of the day, before resolving the question via a vote. This principle of ‘unlimited debate’ becomes the key issue, when thinking about the filibuster.
Of course, the notion of ‘sustained, reasonable, and impassioned’ debate is today a complete joke. Anyone watching CSPAN knows that the senator giving a speech in the well of the senate is speaking to a completely empty room; I suspect that few other senators bother to listen, or even read what is said, since policy is determined by the majority and minority leaders, who expect the members of their respective caucuses to step in line.
The Constitution gave Congress the ability to define it’s own rules of conduct, and stated that the adoption of rules would be decided by a simple majority vote… but that left Congress free to impose constraints on virtually all other business, by rulemaking. Decades ago, the Senate voted to impose ‘Rule 22’, which basically stated that in order to cut off debate and move to a vote, there needed to be a supermajority of assent; initially, a 2/3rds majority, later amended to a 3/5ths majority.
This is now the means by which a filibuster works. When the Senate is divided such that the majority party does not reach a 3/5ths majority, the minority party can permanently prevent ANY deliberation from coming to a vote, by preventing a cloture vote… and this is how it works today. Anyone wondering how it was possible for Mitch McConnell to prevent Merrick Garland from getting an up or down vote of confirmation in the senate should realize that ‘debate’ never ended, on Garland’s nomination… because no cloture vote was possible.
Cloture has given way to the ‘nuclear option’, basically an acknowledgement that a party with the slimmest possible majority could simply re-write the senate rules (which require only a simple majority) to permit passage of a bill… or to lower the cloture threshold to a simple majority. It’s called the ‘nuclear option’, however, because the party which resorts to it may end up being it’s victim, in the next election cycle.
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It’s all the fault of the states.
In 1776, the 13 colonies were essentially isolated islands of civilization and commerce, separated by not quite ‘wilderness’, but not far from it. My own hometown, half way between Boston and Providence, was the stopping-off point for travelers transiting between the two cities; Billings Tavern was where they would often break up what was a two day journey by horse, or coach.
Today, the only way anyone would know they were crossing from one state, to the other, would be if there was a sign; the border between South Attleboro, MA, and Pawtucket, RI, doesn’t exist.. it’s just a continuation of exurban landscape. Those signs are probably even more important, when crossing from New Mexico, to Arizona. Exactly how different are the interests of the residents of Kansas City, KS, from those living in Kansas City, MO, just across the river?
Yet, representation in congress differs dramatically, when counted on a ‘number of persons per senator’ basis. The two senators from Wyoming represent 1/70th of the number of people that the two senators from California represent.
This might have made sense… but only if the aggregate interests of each state were distinct from each other state. This might have been the case, in 1789… but certainly isn’t the case now. What makes Georgia politically monolithic? The far right residents of Northern Georgia share virtually nothing, politically, from those Georgians living in the suburbs of Atlanta.
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I could go on and on, and bore the hell out of everyone… but I think we all have to recognize that our ‘more perfect union’ isn’t really getting any more ‘perfect’… and the imperfections are baked into the Constitution. Could those imperfections be corrected and improved with constitutional amendments?
Sure. Likely to happen? Of course not.
"Reason and facts are sacrificed to opinion and myth. Demonstrable falsehoods are circulated and recycled as fact. Narrow minded opinion refuses to be subjected to thought and analysis. Too many now subject events to a prefabricated set of interpretations, usually provided by a biased media source. The myth is more comfortable than the often difficult search for truth."
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Originally Posted by Norman Bernstein
