One of the distinguishing characteristics of the Trump
presidency is that it was attained with a minority of the votes cast for the
office. This is an indication of the
biases built into the electoral college system which favors low-population
states relative to high-population states.
The bias is even more pronounced in the Senate where states receive
equal representation regardless of population.
A relatively small fraction of the population could control the Senate,
thus controlling the passage of all legislation and determining the makeup of
the Supreme Court. This minority could
also preclude any constitutional amendment that might threaten its
dominance. How such an enshrined minority
control might play out over time is the topic of a thought-provoking article be
Jonathan Taplin in Harper’s Magazine:
Rebirth of a Nation.
Taplin begins with this eye-catching lede.
“Can states’ rights save us from
a second civil war?”
That statement derives from a comparison of a potential future
history with the past history that led to the secession of the slave states.
“Donald Trump’s presidency
signals a profound but inchoate realignment of American politics. On the one
hand, his administration may represent the consolidation of minority control by
a Republican-dominated Senate under the leadership of a president who came to
office after losing the popular vote by almost 3 million ballots. Such an
imbalance of power could lead to a second civil war—indeed, the nation’s first
and only great fraternal conflagration was sparked off in part for precisely
this reason.”
The ability of the Republican Party to control the Senate even
while being outvoted by the Democrats is based on being the dominant party in a
number of low-population states. To illustrate
how powerful the arithmetic becomes because of the low population bias, Taplin
quotes some analysis from David Wasserman of the Cook Political Report.
“If every state’s and district’s
election results on Nov. 6 were a uniform eight-point swing in the Democrats’
direction from the 2016 presidential result, Democrats would gain forty-four
House seats—almost twice the twenty-three they need to control the chamber. But
with that same eight-point swing, the party would lose four Senate seats,
leaving them six seats short of a majority.”
The Republican advantage in the Senate will only increase
as urbanization continues in future years.
Taplin quotes these numbers attributed to Norman Ornstein.
“By 2040 or so, 70 percent
of Americans will live in 15 states. Meaning 30 percent [of the voters]
will choose 70 senators. And the 30 percent will be older, whiter, more
rural, more male than the 70 percent.”
Would 70 percent of the population be willing to be
controlled by the 30 percent? Taplin
thinks it unlikely, which leads him to raise the specter of a second civil war,
though not necessarily one waged with guns.
“These Republicans are
increasingly alienated in part because we are approaching an age of extreme
minority rule, and their party is advancing a set of policies that fewer and
fewer Americans actually support.”
“A poll in July from NBC News
and the Wall Street Journal showed
that 71 percent of Americans believe that Roe v. Wade (guaranteeing
a woman’s right to an abortion) should not be overturned. And yet Trump has
said appointing justices who would help overturn Roe is
a major priority. The same is true for the Supreme Court’s support of various
states’ voter-suppression laws, including the conservative majority’s decision
in 2013 to repeal key provisions of the 1965 Voting Rights Act. Despite there
being in the past three senatorial elections 15 million more votes cast
for Democrats than for Republicans, the Republicans continue to rule the Senate
and thus the Court.”
Taplin suggests that there is a peaceful tactic for
waging war that could be quite successful at disarming this coming majority-minority
split. In fact, blue states are already
using it to counter the repression under which they suffer from the red-state
minority. They are taking to the courts
to argue that edicts emanating from Washington are impinging on the
constitutional rights accorded to the individual states. The long-term basis for escaping from
minority control derives from the Tenth Amendment.
“…the Tenth Amendment,
which declares that any power not specifically reserved for the federal
government is granted to the states.”
State attorneys general have been waging war on
Republican edicts in the courts.
“Since Trump took office,
twenty-two Democratic state attorneys general have sued the Trump
Administration. Nineteen attorneys general sued to stop Trump from putting an
end to certain Obamacare subsidies, eighteen sued to stop the rollback of
environmental protections, and sixteen sued to reverse Trump’s decision to
rescind DACA protections for young immigrants. Although these lawsuits are
working their way through the courts, the Trump Administration has lost many of
the early cases, including a suit in August 2017 in which a California judge
ordered the EPA to enforce its own clean-air standards.”
“California’s attorney general,
Xavier Becerra, has sued the Trump Administration thirty-eight times in the
past twenty-two months and has won twelve victories in the lower courts. He
understands these cases may go to the Supreme Court, where California would
ultimately make Tenth Amendment claims. For Becerra, this is a long fight born
out of an immigrant childhood. His father grew up in California in the 1950s,
when restaurants posted signs with the words no dogs or mexicans allowed. Now
Becerra is asking: Where does it say in the Constitution that the president or
the federal government should control immigration or auto emissions? And, more
profoundly, he’s posing the Jeffersonian question: Where does the power to
govern reside?”
Using states’ rights as a political tool will seem
uncomfortable for many liberals who have learned to associate the term with
racism and suppression of rights, but there are plenty of precedents for its
use.
“…there’s a long tradition of
progressives using the Tenth Amendment as a political tool, most notably, and
successfully, in the 1850s, to resist the Fugitive Slave Act. Many Northern
states abolished slavery decades before the Civil War. Wisconsin pioneered
unemployment insurance for its residents twenty-four years before the federal
government; Wyoming allowed women to vote in 1864, more than fifty years before
the Nineteenth Amendment enacted suffrage nationwide.”
And in recent years, many significant societal changes
have emerged from “social experiments” conducted at state and local levels.
“…most major progressive reforms
have been incubated and become law at the state level—commonsense gun control,
tackling climate change, ensuring LGBTQ rights, marijuana decriminalization.”
Basically, what Taplin would like is for time to heal
some of our wounds. Let the blue states
contend with the red states in terms of demonstrating the best form of
governance, and over time perhaps a new consensus will emerge; political
dispute will retreat to dealing with mere details because the existential
issues will have been resolved.
Let us hope there is reason for optimism, because the
alternatives could be dire indeed.
The interested reader might find the following articles
informative:
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