Paul Campos flags and analyzes a piece about how the Constitution is so dysfunctional it's leading us towards authoritarianism. Having recently read a phenomenal book on John Marshall Harlan, it strikes me that Arthur Schlesinger's "cycles of reform" might be at play here. Certain epochs tilt right or left, but eventually progress is made.
Where my faith in that cycle breaks down is obviously in a Supreme Court as "lawless" as any in history and the specific presence of Donald Trump in our national electoral politics. In calling the Court "lawless" what I mean, at any rate, is a Court unbound by precedent or even the text of laws. How does one mend a system when you have an undemocratic body able to destroy reform for shits and giggles?
There are some obvious if fraught work-arounds to the current lawlessness of the Supreme Court, however, they require working majorities in both houses and a Senate majority ready to move beyond the filibuster. Let's say we get a complete implosion from Trump and Democrats win a landslide and have a 53 seat Senate majority. That slim majority ends or modifies the filibuster so that Court reform can pass, including ethics reform and perhaps even an expansion of the Court. That latter part opens a nasty can of worms for win Republicans retake the reins of government, but the alternative is to somehow strip the Court of some elements of judicial review - which is itself fraught.
Ultimately, the anti-democratic nature of the Constitution - seen most clearly in the Senate, the Electoral College and the tenure of judges - was intended by the Framers. You might be able to work around the Electoral College with the National Popular Vote Interstate Compact, but that would be held hostage to the current lawlessness of the Courts. We did see the Court change its ways under the threat of "court packing" by FDR, but again, that's a fairly extreme measure.
The Senate is largely unfixable without a Constitutional amendment and that's simply an impossibility right now. The Electoral College feeds off that same dynamic and population dispersal problem.
You can help the situation by giving Washington DC two Senate seats (I'm more skeptical of Puerto Rico than most). It's prohibited in the Constitution to award Senate seats disproportionate to population, because the biggest hurdle ratification faced was allegiance to state governments and suspicions of other states - even neighboring states. New Hampshire never ratifies if it worried that Massachusetts or Virginia might swamp its sovereignty with one-man; one-vote.
In my perfect world the Senate would be a proportionally elected body that does not represents states at all. That's arguably the most anachronistic aspect of the Constitution. States are local administrative units that can account for regional differences. Mississippi does not to spend money on snow plows. They are not petty republics being bound together in an experiment of republican governance, the way they were in 1787. Making the Senate majoritarian (as opposed to super-majoritarian) addresses only part of that problem. You have to complete the divorce of the Senate from state governance that began with the 17th Amendment.
If you make the Senate more representative of the popular will, then the next issue is the electoral college. Simply subtracting the Senate seats from the Electoral votes of states like Wyoming and Vermont does tilt the field a bit more towards majority rule, but I don't think it would have prevented the 2000 or 2016 elections from unfolding the way they did.
In both 2000 and 2016, neither candidate got 50%+1 of the popular vote. The idea that the Electoral College solves this issue as opposed to exacerbates it is crazy. Some states have moved towards a majority (as opposed to a plurality) requirement for their elections. This is why we had the run-off Senate elections in Georgia in 2020. I doubt, though, that fixing this will be possible without another amendment. Georgia, for instance, cannot require a majority to award its electoral votes.
Sadly or not, the clearest way out of this morass is the collapse of Trumpism, but also McConnellism. Mitch McConnell and Newt Gingrich combined to create legislative chokeholds by creating parliamentary levels of party voting (Gingrich) and exploiting the rules of Senate (McConnell). When Democrats had a Senate supermajority they were still wedded to the "Old Senate". I think that mindset is largely dead.
Basically, the cure for what ails our democracy might be more democracy. The Court, though, remains a real problem - a lawless supermajority of jurists appointed by people who did not win the popular vote.
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