The US Constitution
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The US Constitution
December 1, 2023
Lawrence Douglas’s review of Tyranny of the Minority by Steven Livitsky and Daniel Ziblatt, on the American Constitution (November 3), is infected by presentism. In the 1940s people criticized the electoral college because it was thought to give an advantage to the large-population states, in which narrow majorities were worth dozens of electors.
The roots of present evils rest not with the “Maga loyalists”, but with half-baked “liberal” reforms. For example, the direct election of senators from 1913 – which ended “filtering” (allowing the state legislatures to choose senators) – was justified by its elimination of bribery in the legislatures, which could just as well have been eliminated by requiring the legislatures to vote by secret ballot, as with the German presidency. The direct primary, also destroying “filtering” (by party managers), was decried by William Howard Taft, all of whose prophecies came true. Its first presidential fruit was John F. Kennedy’s victory in the 1960 primaries over three better-qualified candidates. Reapportionment (in 1964), as Justices Harlan and Frankfurter predicted, gave rise to partisan gerrymandering and suburban “neighborhoods of strangers and jurisdictions without traditions”, while aggrandizing the power of our concentrated mass media.
Other mistakes include the abandonment of judicial restraint, as practised by Oliver Wendell Holmes and Learned Hand; campaign finance “reform”, limiting contributions by individuals who know the candidate in favour of “bundling” by interest groups, political action committees (PACs) and the wealth of self- nominated billionaire megalomaniacs; and the second Voting Rights Act (1982), promoting racially defined districts, white as well as black, at the expense of efforts to change the minds of electors.
The necessary reforms do not require constitutional amendments. The political parties can provide for conventions of elected office-holders, so-called superdelegates. The Supreme Court can back off its 15 per cent rule defining allowable size differences among districts in favour of a rule validating the representation of counties or groups of counties, provided that subdivisions with at least 42.5 per cent of the electorate are needed to elect a majority of legislators (this was very nearly done in the 1980s in a case called Brown vs Thomson involving the Wyoming Senate). Congress can remove limitations on fully disclosed individual contributions, which would destroy the rationale of the Citizens United case, while rendering more stringent the ban on corporate contributions.
Shortly before his death in 2005 George Kennan noted that the movement toward Caesarism in the United States was not duplicated in the parliamentary democracies of western Europe, with their disposable ministries. But the British have impaired their system by transferring the final choice of party leaders from parliamentarians to party activists, thus giving themselves Iain Duncan Smith, Jeremy Corbyn and Liz Truss as party leaders.
The authors’ agenda, endorsed by Douglas, would lead to the destruction of federalism, and all power to New York’s Park Avenue, Washington K Street lobbyists and Los Angeles’s Wilshire Boulevard. It does not have universal appeal.
George W. Liebmann
Baltimore MD
Posted in: Judiciary and Legal Issues, State and Local Politics, Urban Affairs