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The Democrats’ trashing of the Constitution did not end with the Kavanaugh confirmation battle but now rambles on with their denunciations of the fundamental institutions of American republican government. They will continue their attack on the electoral process with their disparagement of the Electoral College. Next up, we hear rumblings about the supposed “undemocratic” nature of the Senate.
Can anyone imagine the winner of the World Series being determined by which team scored the most runs in seven games, and not who won the most games? Then it would no longer be baseball. Scrapping the Electoral College would have the same effect—it would transform not just the election but also campaigns and the conception of the voter and citizen—all for the worse.
Spawned by the now familiar cries of outrage about the Electoral College is this year’s attack on the Senate. The Left now would like to sack the Senate because it gives too much power to smaller and, as they see it, “unimportant” states. Forget flyover states! All power to New York and California! But why stop with the Senate? Why not give “people of color” extra votes, to compensate for past discrimination?
All this dwelling on the sheer power of numbers as the measure of justice reminds us why ancient philosophers—up to and including our own American founders—regarded pure democracy as a corrupt form of governance. Yet here we are. Once demagoguery—as in what passes as reporting in most mainstream news outlets—became regarded as just another form of communication, there was no reason for many observers to stigmatize direct democracy.
All this acrimony boils down to opposition to the Constitution—not just the 1787 Constitution as amended but the very idea of a Constitution as a set of rules beyond the latest social trends. After all, the argument goes, why remain captive of a document allegedly created by dead, slaveholding, rich white men designed purely for their own interests? This reprises the Marxist critique of America in the Progressive Era, pitting the old, oligarchic Constitution against the revolutionary (and allegedly egalitarian) Declaration of Independence. This is sheer nonsense, of course—Lincoln had nothing like this in mind when he revived a political awareness of the centrality of the Declaration to our politics in the 1850s. Lincoln’s concern, as should be ours, is the question of sovereignty.
Even the Progressive model of “reform,” the 17th amendment which provided for direct election of senators from each State, at least kept the institution, though severing the state legislators from election of the nationalizing upper house and weakening the refining properties the founders had in mind for it. There’s a difference between bad amendments, however, and the latest attacks from the Left on the heart of the Constitution. They have gone leaps beyond their progressive forbears in their contempt for our founding modes and orders
In fact it’s not only the leftist mob but, I’ve found, thoughtful conservatives are surprised to be informed that the Constitution itself declares two clauses that are unamendable. There is a limit to amendments, as Article V on amending the Constitution specifies.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
The Constitution demands that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” (The first restriction on amendment power specified 1808 as the year Congress could first end American importation of slaves via the international slave trade.) Equal representation in the Senate is the political pillar of federalism—the distinction, however disputable, between the powers of the national government and those of state governments. While it is an exaggeration to say the states created the Union, there can be no United States of America without the states and institutions such as the electoral college.
The founders created a new, republican government that mitigates the evils of democracy and strengthens its virtues. The senators would be chosen by state legislatures, not voters, thus tying the election of local representatives to the Senate. This refinement prevents citizens from defining the common good solely in terms of majorities of voters.
Moreover, by giving senators the longest terms (six years), while limiting their turnover to a third of the body each two-year election cycle the Constitution provides stability in at least this one governmental body. Yet the distinctiveness of the states within the Union is diluted by having two senators from each state, not one. So a state’s two senators might disagree or, as now, belong to opposing political parties.
Starting with only 26 members and the vice president, the Senate could develop a collegiality that would guide its practices through today. The filibuster is one example of such a practice which was readily abused. But whatever particular policies come out of the Senate, from senators of small or large states, the equal representation of states cannot be altered. The principle that having numbers of people is not the only criterion of justice leads to practices of civility and deliberation about how to make just laws.
Today, with Congress having delegated many of its powers to the bureaucracy and its intellectual mentors (a.k.a., the administrative state) and the direct election of senators, the Senate reflects the ills of society more than it transcends them. The mobs disrupting the Kavanaugh Senate confirmation hearings were a noisier version of the Left’s assault on the very notion of a Senate of constrained powers reflecting the true diversity of the nation in the plurality of the states—that’s what the motto of America, e pluribus unum, “from many one,” is supposed to be about.
As the Kavanaugh hearings showed, the bold enemies now inside the gates are on both sides of the confirmation hearing dais—senators and members of the mob. The nation founded in a revolution for preserving fundamental rights and the “safety and happiness” of the people is now betrayed by those obligated to defend these principles. Neither respects the abiding constitutional principle at the heart of the Senate—nor any other beyond what advances their own immediate interests.
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