The Year in Review
By Luke Pickrell
Thanks to everyone who read, wrote for, shared, and engaged with the Democratic Constitution Blog this year. Also, thanks to everyone who came on the podcast to discuss various topics, including monumental changes to Mexico’s Supreme Court, debates within DSA around democratic constitutionalism, the lasting influence of Tom Paine, and Trump’s second victory. Here are some of my favorite quotes from each interview.
José Luis Granados Ceja and Kurt Hackbarth on Mexican Politics and Supreme Court Discourse
José Luis: “Taken together, [AMLO and Morena’s] policies have lifted more than 5 million people out of poverty. It's about following through on the mandate. And I think what makes me feel really optimistic is that they have wasted no time. They are going through with what needs to happen to continue to deepen the transformation. Claudia Scheinbaum talks about the second floor… It's her way of saying we're going to go further. We have to go deeper. We have to do more. I think about, sometimes, the very legitimate enthusiasm that we saw from so many people when Syriza was first elected in Greece on that anti-austerity, anti-neoliberal mandate. But they betrayed it. They betrayed it, and they let down the working class. The opposite is true here in Mexico. They're following through on that. There's a reason why judicial reform is first and foremost; that's the barrier. The obstacles to the deepening of the transformation are not necessarily in the political realm anymore because they have the supermajority. They have the mandate. The obstacles are going to come from what I call the conservative strongholds: the judicial branch of government, the media acting as a political actor, and also the influence of U.S. imperialism in Mexico.”
Daniel Lazare on Worshipping the Constitution
Dan: “When Nancy Pelosi prattles on ridiculously about the beautiful, exquisite, and awesome genius of the Constitution, someone's got to say, Nancy, what exactly do you mean? What exactly is the beauty of the Constitution? Is it the three-fifths clause? A Senate based on equal state representation? An Electoral College that no one likes but is absolutely unchangeable? The Second Amendment, which gives us a right to carry automatic weapons and blow away kindergarten classes whenever we're in the mood? What is so exquisitely beautiful about this Constitution?… I have no doubt that this argument favors us; that however tiny and insignificant these forces are, they have the argument on their side. The abolitionists were utterly tiny and insignificant, disreputable, and totally beyond the pale as far as the great majority was concerned. And they won because of their argument. They set in motion certain social forces, which essentially accomplished a semi-quasi-revolution. I think that, essentially, we are in the same situation today.”
Rashad X on DSA, FORC, and Working Toward a Democratic Constitution
Rashad: “People understand [the phrase “winning the battle for democracy”] in different ways. On one end of the spectrum, winning the battle for democracy is about expanding political freedoms but not necessarily changing the actual governing structure of the United States. I think winning the battle for democracy means changing the governing structure of the United States. The democratic constitution is one step towards creating a democratic socialist republic as the form of our working class rule and beginning the transition to socialism.”
Aziz Rana on SCOTUS and Reactions to 'The Constitutional Bind'
Aziz: “What we're getting from the mainstream of the Democratic Party is indicative of a kind of response that I've received from some liberal constitutional law professors and lawyers. The response goes something like this: Yes, all of these problems with the Constitution are real. In fact, it's even worth noting that [Nancy] Pelosi, in the piece she wrote in the Times in response to my op-ed, did not defend the Constitution, which is remarkable. There was no explicit, full-throated defense of the Constitution, its checks and balances, and its institutional framework. The critiques were taken for granted. More or less, the liberal law professors I interact with, and who have engaged with my book, also take the critique for granted. The disagreement was basically over what to do now. The most common kind of response or pushback is that in the past, the best way to achieve progressive change has been by remaining faithful to these institutions, investing in certain kinds of national narratives, and pushing forward for ameliorative change—whether it's Brown v. Board of Education or Roe v. Wade or whatever else in the mid-20th century—and that the large-scale, structural, institutional change that I would support, and that the two of you would support as well, has failed politically in the past.”
Oren S on Proportional Representation and the Path Toward Democracy
Oren: “If the Democrats still had this bad policy and bad position on Palestine, [but] if we were in a multi-party system, they would face more serious pressure from an alternative political force that would increase the pressure on them to moderate their stance on this issue. Even if they don't fully adopt our perspective of an arms embargo, a free Palestine, et cetera. And so I guess that's how we were connecting it. Suppose we want to change our government's position on [Israel]. In that case, we need, and the Palestine movement specifically, to advance a vision of American democracy where our political representatives and the Democratic Party are actually responsive to voters, which means we need a multi-party system in which these parties are genuinely at risk of losing support to other political entities and forces… ”
Caleb Brennan on Reimagining the Constitutional Order
Caleb: “There’s a broader cultural cynicism about people in this country that says Americans are dumb and disengaged. Not only is it not helpful, but I don’t think it's true. People haven't been given a chance to sit and think about [political and social concerns] because they are overworked or underworked and stressed about trying to get by. And then, again, there is this really deep fixation on voting being democracy. If we could come together with more referendums and new systems of participation in corporate governance, for example, people would be surprised. Look at [support for healthcare], organized labor, or taxing the ultra-rich. These things are supported. I think those are the backbone of what we would call the progressive viewpoint in America. I think people have a lot more (I don't want to call them left-wing tendencies because it makes it seem so partisan) social democratic impulses that would surprise people.”
Michael Klarman on the Constitution's Origins and Contemporary Problems
Michael: “Just as the Constitution was illegal under the [Articles of Confederation] but became legitimized through public acceptance, you could imagine us ignoring the Constitution and legitimizing that action taken in defiance of the Constitution through popular acquiescence. I'll give you a specific example. One feature of the U.S. Constitution that is quite distinctive in the world today and is very difficult to justify is the fact that every state has two senators. California, with 39 million people, has the same two senators as Wyoming, with 600,000. That's a malapportionment of something like 71. California has 1/170th of the voting power in the U.S. Senate compared to Wyoming, which makes the U.S. Senate probably the most malapportioned legislative body in the world today. Now, the Constitution also provides that this provision can't be amended by the usual article process of securing amendments. It can only be amended if all 50 states agree. I, for one, don't see Wyoming volunteering to give up its disproportionate power in the Senate. So, imagine we convince our fellow citizens today that this doesn't make much sense. We should not be bound by the dead hand of the past, and there wasn't a very good argument even in 1787 for why an enormous state like Virginia should have the same two senators as a tiny state like Rhode Island. Imagine we convince the American public to support an amendment to reapportion the U.S. Senate, and then we submit it for a national referendum. Suppose 70% of the country agrees. Well, that's violating the Constitution. The Constitution doesn't say anything about amending the Constitution through a popular national referendum. But I would argue that, just like we ignored the original Articles of Confederation to both write and ratify the Constitution, we could ignore the Constitution by doing something that I think is both mandated by democracy and very popular.”
Harvey J. Kaye on the Lasting Influence of Tom Paine
Harvey: “The powerful, the property, the prestigious, and the pious, they all wanted to suppress Paine’s memory. The problem is they repeatedly failed to do so because in every generation from the revolution, post-revolution, all the way through the 19th century into the 20th century, every single liberal, progressive, radical, socialist, you name it, every movement to transform America for the better had laid hold of Paine's story (and especially his writings) and made him and his work part of their own movement… I had this conversation with Eric Foner, and I said, Eric, I think we're all wrong. Paine's memory was never forgotten. The working men's movement of the early 19th century, the abolitionists, the women's rights movement, the labor movement around the time of the Civil War and ever after, the populists, the progressives, the socialists, and the anarchists [all took from Paine]. I have these plastic tubs you pick up in discount stores, filled with primary evidence of Paine's importance to these groups in every generation.”
Samuel Moyn on the 'Devil You Know' and Liberalism Against Itself
Sam: “Relative to the Cold War lockdown that Aziz [Rana] wrote about, the late Cold War period, even after the Cold War and the 90s and early 2000s when Aziz and I were in law school, [the change in constitutional discussions] is night and day. Then, when we showed up for a constitutional law class, the Cold War cult of the Constitution that Aziz chronicled was completely alive and well. Critics were kept to the margins, yet we've seen some of our professors, like, in my case, Lawrence Tribe, basically say, ‘You know what? I spent 50 years teaching how great the Constitution was. I changed my mind.’ [Erwin] Chemerinsky changed his mind. So many liberals basically realize that the wind has shifted, and you can sit around and ask why it took them so many decades to get the memo, but you can also welcome them to the fray.”
Robert Overtz on Going Beyond the Constitution
Robert: “When I was in high school, I used to think that someday I wanted to be a U.S. senator. I realized I couldn't afford it… I learned that we live in a representative democracy where the majority rules and we elect our representatives, who are beholden to us to make decisions. I call this the “origin story” of our system that students still learn. They learn it on the news. They learn it from their parents and their history and civics teachers. They learn it from their textbooks, and they learn it from magazines and newspapers. But there's something fundamentally wrong with it. While we're told we have a system of democracy, virtually everybody realizes it's not very democratic. You don't have to have taken a political science class to know that those making the decisions on our behalf are not acting in the interests of the supermajority.”
Dan: “More articles and more podcasts are both great. But the process is just beginning. Hopefully, we're moving into an era of political and intellectual ferment. Political ferment will mean the growth of a revolutionary socialist movement based on the working class… Gone are the days when the Constitution was automatically assumed to be this divine revelation. You know, people stopped thinking that about the Bible centuries ago, but they still think of it in terms of the U.S. Constitution. And that is changing. So we're kind of entering a period of a new Enlightenment, which is very important and exciting.”
Thomas Geoghegan on the Infernal Senate
Thomas: “In the course of living this life as a union-side lawyer, it became clear to me that there's one obstacle in the way of a labor movement, and that's the existence of the United States Senate. Because at least four times, including the Biden administration, Carter, Clinton, and Obama, substantial labor law reform passed the House. It always dies in the Senate. And it dies in the Senate because the Senate is not representative. It is not the real United States. It's a funhouse mirror version of the United States in which North Dakota has the same representation as California. Sixty thousand people have the same voting rights as forty million people. The Senate is not only unrepresentative but has also increased that unrepresentative nature over time through the persistent use of filibusters.
Sam and Tyler on Proportional Representation and the 'Voters Deserve More' Project
Sam: “The [two-party] duopoly encourages a degree of political myopia among the populace wherein, as Tyler said, people are mostly voting for what they consider the lesser of two evils rather than their actual beliefs, which discourages any sort of revolutionary thinking, optimism in the political system, and hope. It reinforces a stagnant, always somewhat declining status quo by virtue of not having many other options due to the nature of our current first-past-post-voting system. The public largely just accepts this. The duopoly is a means of neutering public opinion to not challenge capital. If we are ever to challenge capital, we must challenge the foundational systems that keep the public docile, which means embracing multi-party democracy.”
Lucas and I will talk with many more people in the new year, including William Forbarth about his co-authored book The Anti-Oligarchy Constitution and its relationship to Aziz Rana’s The Constitutional Bind; Lisa L. Miller about “constitutional myths” and “veto exceptionalism”; Alexander Gourevitch about a unity (that I think exists) between ideas of “freedom” and “nondomination” and a democratic constitution; Richard Albert about the difficulty of using Article V; Osita Nwanevu about his forthcoming book, The Right of the People; and maybe Erwin Chemerinsky about his latest book, No Democracy Lasts Forever.
The podcast exists to critique the Constitution and center the struggle for democracy. But dozens of critiques don’t necessarily add up to anything more significant than dozens of critiques. Everyone knows things are bad. We want to describe the problem and start working toward building a political organization capable of being the vanguard for a democratic constitution. With that goal in mind, we hope the podcast can complement the blog in forming connections between people from various backgrounds interested in similar subjects. We also hope our new reading group, centered around this text, will form connections. As this year comes to a close, our work is, in many ways, just beginning. As always, please reach out if you’d like to be more involved, including joining the reading/discussion group.