Because of the U.S. Senate, which denies the principle of one person, one vote, it is unsurprising that we have one of the lowest voting rates in the world—far lower than other democracies, whether in Europe or Asia, whether rich or poor. For all the rage over vote suppression in the red states, the Constitution itself is a form of vote suppression. The vote suppression built into the Constitution by frustration of majority rule just makes more tempting the overt suppression of which we justly complain. By design, every single American has a different and arbitrarily weighted vote, by virtue of the Senate structure laid out in the Constitution. Understanding that the odds are against their self-government, it’s easy to see, in part, why 100 million Americans choose not to vote, which in turn makes each vote even more arbitrarily weighted.
That is especially true of the young, including the activist young, now bitter about the defeat of Sanders, who was incapable of bringing new voters to the polls. But if Sanders had brought out these new voters—and been elected—he’d be one more Democrat who ended up betraying them. Enacting his progressive agenda would have been impossible without a big flip of the Senate, or a change in the Constitution. For the socialist left, it would be far better to have a Sanders-type of Congress than to have Sanders as president. But neither Sanders nor any other Democrat will tell the truth: “Unless you also elect a radical Congress, which won’t happen until we change the Constitution, I can’t deliver on anything at all.” The GOP nominees can deliver on their promises: the Senate is set up to suit what they need to do. The Democratic presidential nominees, all of them, even the best, have to mislead, if not lie. So deceit becomes part of the culture and even the language of Democratic Party politics. As Foucault might point out, we have a discourse of representation that must ignore the Constitution, which does not permit certain things to be said.
A good example of this deceit is the filibuster: “The Senate voted down S.R. No. xxx,” we say, when in fact the Senate passed it, fifty-five to forty-four, but could not overcome a minority filibuster. We don’t even have the language to resist our oppression. I revere Barack Obama, but when he said in 2008 that he would change the way Washington does business, without any intent even to take on the filibuster, he was deceiving us—and was engaged in a form of self-deception. It may not be outright lying, but the failure of even our best leaders to tell the truth helps to normalize the far more outlandish lying of Trump.
The Senate, for all its good manners and sophistication, is a greater threat to individual liberty than the raucous and badly behaved U.S. House.
We’re all part of that lying, and the left, which thinks so well of itself, is probably the worst offender. On the left, Sanders proposed to overhaul our particular form of capitalism, as if that could come before, or without, changing the structure of the Constitution, including the Senate where he’d built his own career. Both Sanders and Biden owe their years in power to the systematic denial of one person, one vote. Neither can even conceive of the existence of the Senate as a problem—much less the fundamental problem. And this leads to a more general failure to think of freedom in the right way—for we think of freedom primarily as freedom from the state. But there is a different view of freedom: it is to recognize that our freedom as individuals depends on the state being free. In Liberty before Liberalism (1998), the historian Quentin Skinner described an earlier idea of liberty, an idea of freedom, which came partly from Machiavelli and writers like John Milton and others writing at the time of the English Civil War. Skinner wishes to distinguish our modern sense of liberty, as an individual freedom from the state, from these writers’ view of liberty, which depended on the freedom of the state to act on behalf of the entire people, as they really were: “If a state or commonwealth is to count as free, the laws that govern it must be enacted with the consent of all its citizens, the members of the body politic as a whole.” It must be the will of that people, the actual people, and not a faux version of the people, or a fun house mirror image of the people. “For to the extent this does not happen, the body politic will be moved to act by a will other than its own.” And if the body politic is deprived of liberty, then none of us has any individual liberty. Rather, there is individualism without liberty. It is a fitting, Dante-like punishment for the United States that for the sin of hyper-individualism, we are currently locked down in our homes without the liberty to move. It is a natural consequence of our thinking of liberty as being free of the state when the state in turn is not free to represent or protect us.
The young grow up in a country that’s a dysfunctional family, where no one is saying out loud what is wrong. No one—no presidential contender, not Clinton, Obama, Biden, or Sanders—is willing to speak against the Constitution. Eventually, of course, the young—who worked for Sanders and march now against racism—will marry and move into middle age, and one day, grudgingly, half-consciously, may vote for a trimmer like Biden, as I will. But some will never entirely lose that particular sense that the young often have that somebody is lying about something—the sense that in this land of the free, there is something terribly wrong.
The first step, as in any dysfunctional family, or country, is to start telling the truth—and the truth is that the Constitution does not represent us, and we the people are subject to a will other than our own. It is to stop elevating the president as an omnipotent agent of change—which both the right and left do—because even in the glory years of Franklin Roosevelt, the Congress has been more important, far more important, unless there is rule by decree. As Ira Katznelson argues in Fear Itself: the New Deal and the Origins of Our Time (2013), the New Deal was limited to what horrifically racist senators from the South were willing to permit. The New Deal existed on the condition that many of its landmark laws would not apply in the South, usually by exempting agriculture. That’s how we lost organized labor in this country. The New Deal was based on a compromise with the Senate that the labor movement stay locked up in the North. Years later, the U.S. economy moved to the union-free South and West and we soon stopped having much of a labor movement at all.
The more the Constitution delegitimizes the left, the harder it becomes to criticize it—to demand checks on the Constitution’s minority rule. Thus, ironically, the only language we have to oppose the Constitution is to say: Defend the Constitution! So lawyers on the left like me form the American Constitution Society, when in reality the Constitution is the very thing we should be opposing for its rejection of the one person, one vote rule enshrined in every other democratic constitution in the world.
Both Sanders and Biden owe their years in power to the systematic denial of one person, one vote. Neither can even conceive of the existence of the Senate as a problem.
Yes, the Senate’s departure from one person, one vote is mindboggling—in the case of the filibuster, forty senators from states representing 9 percent of the population are capable of blocking a bill. Perhaps a better measure of our lack of liberty, senators from states representing 16 percent of the people are enough to enact a bill (assuming no filibuster). And like the Senate in the New Deal, today’s Senate overrepresents the worst parts of the country, albeit in the most genteel way—creating a sense that we have lost control of our own country. Let’s put aside the percentages set out above or even the hope that demography will flip Texas or Florida blue. Look at the map of the country: compared to the coasts, the vast interior of the country can seem relatively empty. In my own state—downstate Illinois—there is no one there. If it weren’t for the cars it would be easy to think it was still the 1940s, and of course people are leaving the area, without others moving in, as the rest of the country grows. To be sure, Illinois is far from the worst example of this phenomenon because it has Chicago, our biggest city of the interior, the only major American city that is not hugging up against an ocean as if scared to go too far inland. This vast interior, like the old South, becomes a bigger player in the Senate as it loses its relative importance in the country. There is every reason to think that in the next thirty years, the country will be more ungovernable than ever—and the country will have even less freedom or liberty to act.
It is the Senate, even without the filibuster, which has kept in place throughout our history an especially reckless form of capitalism, in which a relative few of us, like Tom and Daisy in The Great Gatsby, can smash up the economy and just drive on. The Senate was their legal guardian long before anyone heard of Mitch McConnell. In our first fourscore and seven years, the Senate had the effect of over representing the slave states, and locking in slavery, until the South made the colossal error of firing on Fort Sumter and starting the Civil War. Then, in the Gilded Age, thanks to the corrupt state legislatures that “elected” senators, and railroads that bought them, the Senate had the effect of locking in our current form of capitalism; and this was the real era of Dark Money. Of course, in the South, the Senate locked in Jim Crow, and a new form of slavery, and a racist authoritarian government in those states. Then the Senate blocked, and then slowly rolled back the much more egalitarian New Deal; and then in our own time, on at least three occasions since 1976, a Senate filibuster blocked labor law reform, a true right to unionize, that had been passed by the House; and so we have the inequality of the Gilded Age. The function of the Senate, from 1787 on, has been to threaten free labor. And thanks to the filibuster, it has not mattered that the Democrats from time to time get a simple majority in the Senate. At the start of the Obama Administration, there was high hope for labor law reform. At the AFL-CIO, people high fived each other: “We have sixty votes,” that is, enough to beat a filibuster. But sixty votes are never sixty votes, because the Senate—or at least one senator—is always for sale, and it is an illusion to think that so long as the filibuster exists, sixty votes can ever lead to an end of our new Gilded Age. Nor will sixty votes be there to stop the burning of the planet."
I've said it before and I'll say it again, "Where there is no repentance, there can be no remission."
We are only just starting to grapple with systemic white supremacy. We haven't even begun to address the brown people we've terrorized across the Middle East and the war on terror we exported to other countries, like China.