When at Times the Mob Is Swayed
ALSO BY BURT NEUBORNE
Madison’s Music: On Reading the First Amendment
Civil and Political Rights in the United States (4th ed.),
vol. 1 (with Norman Dorsen and Paul Bender);
vol. 2 (with Norman Dorsen, Paul Bender, and Sylvia Law)
Unquestioning Obedience to the President (with Leon Friedman)
When at Times the Mob Is Swayed
A Citizen’s Guide to Defending Our Republic
Burt Neuborne
For my wife, Helen—
My brilliant friend for sixty years
So when at times the mob is swayed
To carry praise or blame too far
We may choose something like a star
To stay our minds on and be staid.
—Robert Frost, “Choose Something like a Star,” 1916
CONTENTS
1 How Good Are the Brakes on the Democracy Train?
2 Why the Sudden Concern About Fixing the Brakes?
3 Would You Buy This House? Repairing the Cracks in Democracy’s Foundation
4 Do the External Judicial Brakes Work Anymore?
5 The Fortas Fiasco: How Not to Maintain the Brakes
6 What’s Law Got to Do with It? Please Don’t Kill All the Lawyers—Yet
7 In Praise of Seventh-Grade Civics: Separation of Powers in the Time of Trump
8 Applying Separation of Powers in the Time of Trump: Five Test Cases
9 Which Shell Is the Power Under? Federalism as a Protection of the Weak
Epilogue: Night Sweats—What If It All Comes Apart?
A Note on Notes
Index
When at Times the Mob Is Swayed
1
How Good Are the Brakes on the Democracy Train?
In more than fifty-five years of practicing law, I’ve sued every American president since Lyndon Johnson, most of them more than once. When I wasn’t suing presidents, as national legal director of the American Civil Liberties Union and founding legal director of the Brennan Center for Justice, I sued governors, mayors, police chiefs, FBI directors, generals, school boards, city council members, judges, cops, and any other government official I could get my hands on who appeared to be violating the Constitution.
The constitutional enforcement business was pretty good. I never experienced a shortage of customers. Much of the time the judicial system worked just as advertised, shielding vulnerable targets from unfair abuse at the hands of the politically powerful. I’ve learned from bitter experience, though, that without an excellent set of constitutional brakes, American democracy can quickly morph into an angry, fearful mob—a runaway political train fully capable of crushing anyone in its path.
Faced, as we are these days, with a charismatic, authoritarian president named Donald Trump, whose genius for creating scapegoats, bending the truth, and fomenting divisiveness poses a profound threat to many of our constitutional values, it’s long past time to check the brakes on the twenty-first-century American Democracy Express. Are the brakes strong enough to stop a runaway Trumpist train fueled by racism, misogyny, envy, and fear?
The short—and disturbing—answer is that the brakes on the first-class cars, especially the gilded private cars at the head of the train, are still in pretty good shape. But if you’re traveling in coach, or riding outside because you can’t afford a ticket, you run a serious risk of being the victim of an ugly train wreck—because the brakes on the low end of the Democracy Express are in terrible shape. I hope that you will treat this book, in part, as a warning from your neighborhood constitutional cop about the faulty brakes; and, in part, as a repair manual for folks willing to get their hands dirty fixing them.
I am confident that sustained political and legal effort can get us back on track. My most important message, though, is that there is no constitutional mechanic in the sky ready to swoop down and save American democracy from Donald Trump at the head of a populist mob. The fate of American democracy is up to us.
The legendary group of Founders—George Washington, James Madison, John Adams, John Jay, and Alexander Hamilton—who built the railroad were so concerned about runaway democratic trains that they installed a dual braking system—internal and external. In 1787, they designed an “internal” set of self-checking electoral brakes designed to prevent an overheated electoral majority from picking up too much speed in any one direction. As a backup, in 1791, they installed a second, “external” set of brakes empowering independent, politically neutral judges, headed by the Supreme Court, to slow or stop the democracy train if, despite the internal brakes, the electoral majority threatened to run roughshod over vulnerable individuals and groups.
The sad truth is that, today, neither braking system is working well enough to stop a runaway populist train fueled by racism, religious intolerance, and ideological fervor from jumping the constitutional tracks and harming the weak and poor. Anyone who tells you differently either doesn’t understand how the brakes work, doesn’t care who gets run over, or is working for Vladimir Putin.
THE INTERNAL BRAKES
The Founders’ internal brakes haven’t been overhauled in more than two hundred years. They are in dreadful shape. As originally designed, the internal brakes relied on multiple, relatively equal voting blocs with differing, often conflicting, interests to check each other automatically. The theory was that the interaction of competing voting blocs would prevent any single group of voters from accumulating enough governing power to run roughshod over the losers.
As a matter of history, the Founders’ internal electoral braking system worked tolerably well for a long time, with the tragic exception of the Civil War. Today, though, the Founders’ electoral brakes are in shambles. Instead of a self-regulating system based on checks and balances, two dominant political parties—Republican and Democratic—provide a ready path for a single, ideologically linked group of voters to gain complete control of the government and, once in power, to abuse that control by crushing their opponents, along with any other scapegoats that happen to get in the way.
The Founders were remarkable visionaries who literally invented the idea of a mass democracy governing a large geographical area. Much of this book is devoted to their brilliant political innovations. The one thing the Founders didn’t foresee, though, was the crucial role of political parties in organizing and operating the democratic process. In fact, the Founders hated the idea of political parties, disparagingly calling them “factions.” It turns out, though, that you can’t run a mass representative democracy without some coordinating mechanism to organize the process. That’s where political parties come in—like it or not.
For most of our national history, the Founders’ failure to have anticipated the need for political parties didn’t do much harm to their internal braking mechanism because nineteenth- and twentieth-century American political parties tended to be either small regional groupings capable of checking each other, or “big tents” that included a bewildering array of self-checking interests crossing ideological, economic, and racial fault lines. Once upon a time, liberal Republicans were to the left of conservative Democrats, and just as many blacks supported the Republican Party, the party of Abraham Lincoln, as supported the Democrats, long the party of racial segregation.
Today, the Republican and Democratic parties have evolved into competing ideological brand names, functioning as closed political silos with virtually no points of overlap. Too often, adherents of each party demonize their political opponents, receive their political information from diametrically opposed media outlets, and view politics as an apocalyptic struggle between right and wrong. Even worse for the i
nternal braking system, today’s political parties also predictably divide by particularly incendiary criteria such as race, religion, ethnic origin, and economic status, setting the stage for ferocious partisan competition to win bitterly contested elections by narrow margins, followed by ruthless efforts to ram an ideological agenda down the throats of the electoral losers. Thus, instead of organizing a self-checking mechanism governed by compromise, our current hyper-partisan political parties function as accelerants, enabling extreme partisans to set the throttle at full speed without caring much who gets run over.
I’m confident that the current hyper-partisan nature of the Republican and Democratic Parties can be ameliorated by tweaking the rules governing the nomination process, which currently artificially empower the parties’ extreme wings. As we’ll see, the democracy repair manual in chapter 3 calls for changing the nominating ground rules to do a better job of reflecting the preferences of moderates in each party, and even opening the way for potential third-party challenges to the current legally protected political duopoly enjoyed by the Republican and Democratic parties.
The unforeseen impact of ideologically defined political parties is not, however, the only reason the Founders’ electoral brakes don’t work anymore. The real problem is much deeper. The Founders imagined a fair representative democracy where a diverse body of elected “representatives” would accurately reflect the mosaic of American life. In twenty-first-century America, however, the Founders’ ideal of fair political representation has all but fallen apart. In fact, it’s hard to imagine a system of electoral representation more unfair, unequal, and distorted than ours that would have the chutzpah to call itself a real democracy.
We start with the appallingly undemocratic United States Senate, where Wyoming, with fewer than 600,000 residents, elects the same number of senators as California, with 40 million residents—a one-person one-vote distortion of sixty-five to one—and where, in a worst case scenario, senators representing only about 18 percent of the country’s population can cast 51 percent of the votes in the chamber. Current reality is not quite that bad. In the 116th Congress, Republican senators representing just under 40 percent of the population control the upper chamber. That’s not as undemocratic as it could be, but it’s nothing to be proud of if you believe in political equality and majority rule.
It would be bad enough if the Senate’s representational distortion were random. But it’s far from random. It’s structurally biased against urban America, where 80 percent of Americans live, including the vast bulk of Americans of color. Face it. Under the existing Senate structure, sometimes it feels as though New York City is a colony of Wyoming.
How did such a distortion of the Founders’ democratic dream come about? We all remember the story of the “Connecticut Compromise,” where the smaller states agreed to a House of Representatives based on population in return for a Senate where each state would have “equal suffrage” regardless of population. Madison accepted the Connecticut Compromise, but he understood that equal state representation in the Senate regardless of population contravened the principles of representative democracy. In 1787, the Confederation Congress had provided in the Northwest Ordinance that future states formed from the territories would each have about the same population. Despite the compromise with principle, Madison reluctantly went along with the Connecticut Compromise because he believed that modestly overrepresenting several of the original smaller states in the Senate would protect a politically weak minority against possible oppression by the politically powerful majority.
The original compromise with principle was modest. In 1790, Delaware, with about 60,000 residents, elected the same number of senators as Virginia, with more than 750,000 people. Since almost half of the 750,000 Virginians were enslaved people who could not vote, the actual representational deviation was about 6.5 to 1. The one thing Madison never imagined, though, was that a 6.5-to-1 representational deviation in 1790 would metastasize tenfold into a sixty-five-to-one deviation today, empowering a rural, predominantly white minority of the national voting population to dictate policy in the Senate to the nation’s urban majority.
As with the need for political parties, here’s what the Founders did not—and could not have—foreseen. Over more than two hundred years, the United States has evolved from a small agricultural nation hugging the Atlantic coast with fewer than 4 million people (more than one-third of whom were enslaved) into the world’s preeminent industrial and financial power with more than 326 million people spanning the North American continent. Massive, densely populated urban centers dedicated to finance and industry emerged in many states; while other, more sparsely populated states remained primarily rural and agricultural. But, no matter how the national population has grown, and has ebbed and flowed from state to state, from farm to factory, and from town to city, the Constitution’s mandate that each state continue to elect the same number of senators regardless of population currently awards an enormous representational advantage to the folks living in rural America. This edge is particularly dramatic when it comes to electing presidents via the distorted Electoral College and confirming Supreme Court justices in the malapportioned Senate.
Short of scrapping the entire Constitution and starting over, though, there’s probably nothing that can be done about the profoundly undemocratic Senate. The 1787 Constitution has only three explicitly non-amendable provisions: a right to import enslaved people until 1808; a ban on per capita taxation (to protect slave owners against being taxed out of existence); and the right of each state to enjoy “equal suffrage” in the Senate. While, under Article IV of the Constitution, it would be theoretically possible—and perfectly constitutional—for states with large urban populations such as California, Illinois, Texas, Florida, Pennsylvania, and New York (the six states currently suffering a 20-1 representational deficiency in the Senate) to divide like paramecia into multiple states with two senators each giving urban America fairer Senate representation, don’t hold your breath waiting for the moving parts to align. Congress would have to grant permission and the affected states would have to agree on boundaries. Although it’s happened five times in the nation’s history—Vermont from New York (1791); Kentucky from Virginia (1792); Tennessee from North Carolina (1795); Maine from Massachusetts (1820); and West Virginia from Virginia (1863), I doubt that we have the will or ability to act as modern Founders to rescue the Senate from its current undemocratic swamp. While I hope I’m wrong, I’m afraid that we will almost certainly limp into the future with the Founders’ internal electoral brakes warped by the utter collapse of fair and equal legislative representation for urban America in the United States Senate.
The drastic imbalance in the Senate translates into a troubling representational imbalance in the Electoral College, established by the Founders to choose the president indirectly in place of a nationwide popular election. Under the Founders’ system, voters in each state choose presidential electors, who then meet in Washington, DC, as the Electoral College to select the president. It takes a majority vote in the Electoral College to win the presidency. The Constitution awards each state as many electors as it has representatives in Congress. That’s fine when it comes to members of the House of Representatives, all of whom are allocated according to a state’s population. But it’s a representational disaster when applied to the Senate, which, as we’ve seen, is radically unrepresentative. The net result is to tilt the Electoral College toward the same sparsely populated rural states that benefit from the Senate’s failure to reflect democratic principles of one-person one-vote.
That means there is no guarantee that the winner of the national popular vote will become president. In fact, twice in the last sixteen years, Republican candidates for president—George W. Bush in 2000 and Donald Trump in 2016—have won a majority in the Electoral College while losing the national popular vote. Can you imagine what we would say about another nation’s democratic legitimacy if that country chose powerful presidents who ha
d been repeatedly rejected by a clear majority of the voters?
When you combine the representational unfairness in the Senate with the representative distortion in the Electoral College, you emerge with Donald Trump, a minority president who lost the national election by three million votes, representing a Republican Party that lost the popular vote in six out of the last seven national elections—1992, 1996, 2000, 2008, 2012, and 2016—empowered to appoint Neil Gorsuch and Brett Kavanaugh as swing Supreme Court justices, who are then confirmed by fifty-one Republican senators representing fewer than 40 percent of the nation’s population. What would Washington, Madison, and Jefferson think about such sustained representational failure?
And it gets even worse. The one place where the Founders’ internal electoral braking system should still work is the House of Representatives, elected every two years to provide an accurate mirror of the incredibly diverse society it is intended to “represent.” Since 1962, under Article I, Section 2 of the Constitution and the one-person one-vote principle of Baker v. Carr, every member of the House of Representatives must represent an equal number of constituents (currently, about 700,000 persons). So, ideally, the House should function as the Founders’ classic self-limiting democratic institution, a body fairly representing diverse interests of relatively equal political weight, no one of which can dominate the others. The result should be a legislative body characterized by shifting coalitions, moderation, and compromise.
There’s only one catch. The representational integrity of the House of Representatives has been poisoned by an epidemic of excessive partisan gerrymandering—the hyper-partisan drawing of distorted electoral maps designed to lock large numbers of rural and suburban Republican candidates into office, while systematically depriving their Democratic opponents of fair representation in the Congress and the state legislatures. Democrats would love to do it, too, of course, but, except for Maryland, they have lacked the opportunity in recent years.
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