“It’s not just Trump, it’s the entire philosophy that underpins the—I’m going to say something, it’s like semi-fascism.”
“Well, folks, in just 46 days [from September 23, 2022], democracy will be on the ballot. Americans will have to choose between the MAGA Republican platform who have [sic] embraced extremism and the Big Lie; Democrats, independents, mainstream Republicans who believe in the rule of law.”
“But if you give me two more Democratic senators in the United States Senate, I promise you… we’re going to codify Roe. We’ll once again make Roe the law of the land. And we’ll once again protect a woman’s right to choose.”
The quotes above encapsulate President Joe Biden’s rhetoric with respect to the dangers of right-wing extremism in the United States, as well as what he believes to be the cure—more Democratic representation in government. This certainly has some truth to it; Donald Trump’s presidency and the rise of Republican leadership that followed it permeates today’s air like an obstinate gray fog. Shattering the Democrats’ supposed utopia that was the Obama administration, Trump and his retinue of sycophants pursued their vision of a nationalistic and intolerant America. Trump himself would go so far as to endorse and catalyze a violent insurrection on the Capitol Building after his defeat in the 2020 election. In this past year, the Supreme Court’s conservative majority overturned the previously settled precedent of the right to an abortion, establishing as the law of the land an ideology unsupported by a majority of Americans and striking a heavy blow to reproductive health and justice.
Biden’s approach isn’t a unique one. In response to this growing autocratization, many political pundits (both now and especially during the unified Republican control of government between 2017 and 2019) proposed that total Democratic control of government was necessary to reverse this concerning trend. On this note, the Editorial Board of The New York Times published an opinion piece on July 3, 2018, in response to Anthony Kennedy stepping down from the Supreme Court. The Board argued that the Constitution and its amendments were now in danger of being misinterpreted by a new conservative majority which would actively disobey the intentions of the more modern Framers (especially those of the 14th Amendment), turning back time to originalism. It specifically mentioned the passage of the 14th Amendment as a “second founding” of America as a democracy, marked by the addition of the power to protect the rights of marginalized groups not explicitly listed in the Constitution; under a right-wing Court, however, the Board claimed that these protections could vanish. But how true is it that a more liberal Court could guarantee the re-fortification of America’s democracy? Moreover, what did the Framers truly intend as they drafted the Constitution and its revisions? The 14th Amendment can certainly be considered a step toward a more race-conscious and tolerant society, but what does this look like in practice?
In this article, focusing on two noteworthy statements from the NYT Opinion piece, I argue that the tendency of American institutions to disenfranchise the most vulnerable members of our society cannot easily be undone by changes of leadership or politics. Furthermore, it is my belief that the original Framers’ vision for the Constitution resulted in a document that, from its inception, would inevitably become a tool for oppression; it would require more than just the words of the 14th Amendment to protect disenfranchised communities. In that sense, conservative leadership—and the Supreme Court majority that it has created—is interpreting the Constitution exactly as intended.
Compromises as Disenfranchisement
First, I wish to examine the original intent and framing of this document, which has long been co-opted by conservative leadership and corrupted to the country’s detriment, as the Editorial Board contends. The Board does acknowledge that “for all its genius, [the Constitution is] a deeply self-contradictory document.” But how much of it is contradictory, and how much of it is written deliberately to adhere to the principles of its time? In How Democratic is the American Constitution?, Robert Dahl examines the consequences of the inevitable limits that the Framers encountered when drafting the “supreme law of the land.” He expounds on the specific elements of the Constitution that make it undemocratic. I will elaborate on three of these: slavery, suffrage, and the Senate.
From its conception, the Constitution was limited by the requirement that it establish a “republican form of government.” According to Dahl, the Framers were emboldened not only by their fervent support of such a system, but also by the belief that all other American citizens shared their thinking. A governing document that purportedly derives its power from the people must necessarily appeal to as many of those people as possible. Thus, the notion of compromise also came into play, with the most contentious of these being the decision to not abolish or weaken the institution of slavery—a choice made out of an understanding that Southern states would never ratify the Constitution should it threaten slavery’s legal status. This practice of compromise inaugurated the precedent of institutional powers being limited by a vocal, unrelenting subset of the population.
In addition, the Constitution did not provide a universal guarantee of suffrage, but rather allowed the individual states to decide who could and could not vote instead. Given the prevailing ideologies of the time, this was equivalent to explicitly denying women and people of color the right to vote. Here, the idea of equal vs. equitable treatment results in the needs of these groups going unaddressed. This also manifests itself in the form of ‘equal’ representation that the Senate provides: equal representation per state. When one hears about efforts to increase representation in government, this is usually expressed in relation to underrepresented identities like race, gender, and sexual orientation; a person’s state of residence is generally not included in this list, but it serves as the great equalizer for one-half of the legislative branch of the U.S. government. This supposedly unbiased structure also carries a hidden form of discrimination; in 26 states (enough to be considered a Senate majority), racial minorities account for less than 30 percent of the population, according to data from the 2020 Census. Therefore, the group that is truly represented by the “equal Senate” is White Americans.
From this, we can see how the Constitution has ultimately become an anachronistic fragment of history that, without the necessary amendments, would have lost all relevance to our ever-changing society long ago. The conscious decision of the Framers to exclude certain groups from the protections of the Constitution, combined with the unknown consequences of their newfound model that have since emerged, have resulted in a weak governing document that can be taken advantage of in order to marginalize targeted communities.
Hijacking the Constitution
In Boundaries of Blackness, Cathy J. Cohen develops a complex model of marginalization that addresses the “historical experiences of exclusion and marginalizations that have so forcefully shaped the consciousness and actions of African Americans.” Rather than simply making distinctions between those with power and those without it, she explores the locations of power and which groups are granted access to it, as well as how these entities evolve over time. In this section, I aim to place the Constitution and its consequences in the context of Cohen’s well-defined framework of exclusion, which begins with the emergence of marginal groups—“those who exist outside of dominant norms and institutions”—through four processes. I want to focus on one of these processes, institutions, defined as the state-sponsored and organized regulation and oppression of marginal groups, commonly performed without malice and considered “the normal processes of everyday life.” Historically and contemporarily, institutions have functioned to exclude marginal groups from dominant society and limit their access to certain resources. The Constitution and its compromises, for instance, seem to treat voting rights and representation as a limited resource, as a commodity to be regulated, as a good to which access must be controlled.
From this understanding of the emergence and consequences of marginalization comes a better understanding of its varied and ever-evolving patterns. Cohen describes one type, categorical marginalization, as the “practices that seek to exclude [a group of people]” from dominant institutions. In African American history, she gives the example of the institution of slavery, fortified by the Slave Codes and the racial ideologies that formed out of a need to somehow justify the practice. In time, Cohen argues, sanctioned institutions become a way for ideologies to disseminate within society. With respect to the rights granted and withheld by the Constitution, people came to truly believe that marginal groups do not deserve the commodities of citizenship and suffrage, and that if they did happen to obtain them, they must have stolen them from the more deserving dominant groups; this is an observable phenomenon in the present day (seen in conservative responses to affirmative action and LGBTQ+ movements) and throughout history. Finally, Cohen explains how the development of ideologies and institutions revolving around marginalization, in turn, leads to social conflicts within groups, which can endure well beyond the repeal of laws and norms. At this stage of advanced and secondary marginalization, negative traits and behavior observed in these disenfranchised communities are then thought to be originating from themselves with the context and history of their oppression being forgotten and ignored. In this way, the practice of believing a group of people to be inferior has come to be central to the American identity—much more so than a genuine belief in democracy.
Capturing a Population
With this fuller understanding of how institutions form long-lasting societal changes from deep-rooted biases, we can now consider the hypothetical capacity of a Democratic Supreme Court, Congress, and presidency to reform and improve America. This is the solution that the NYT Editorial Board implies is necessary for the betterment of the nation, stating that “as an increasingly hard-right majority settles in, it’s reasonable to fear that the court will move in the wrong direction for years to come.” It is certainly the case that there have been numerous examples of conservative power structures advancing the vulnerability of BIPOC communities in recent years. But when we look at examples from history, what can we say that a Democratic majority government entails?
Princeton Professor Paul Frymer, in his work, Uneasy Alliances: Race and Party Competition in America, directly challenges the notion that a competing political party is necessary to acknowledge marginalized groups and improve their conditions. He contends that it is unnecessary for a party to address the concerns of these groups and, moreover, that it actually benefits them not to. To prove this point, Frymer draws from historical examples during the Reconstruction and post-Reconstruction Eras in the South; in response to the Democratic Party once again becoming nationally competitive, there was an understanding among the leaders of the Republican Party (then considered more aligned with Black interests) that appealing to Black voters by advocating for their civil rights would result in the loss of reliable White voters. This did have a basis in reality at the time; the state-by-state passage of the 15th Amendment by Republicans resulted in Democratic victories in state elections. As a result, the conservative wing of the Republican Party was strengthened, as they hoped to build and maintain ties with southern White voters. But even with reliable support from this group, and even with comfortable victories in Congress in the early 20th century, Republicans’ desire to pursue southern White voters persisted and their previously vested interests in Black issues became invisible; this paved the way for racial discrimination and disenfranchisement across the country, as it was no longer considered electorally viable to fight against it.
The concept of electoral capture plays a heavy role in the leeway that political parties have in neglecting the interests of certain groups that support them, especially when one considers the Democratic Party of today. As described by Frymer: “By electoral capture, I mean those circumstances when the group has no choice but to remain in the party. The opposing party does not want the group’s vote, so the group cannot threaten its own party’s leaders with defection. The party leadership, then, can take the group for granted because it recognizes that, short of abstention or an independent (and usually electorally suicidal) third party, the group has nowhere else to go.” With the current status of the Democratic Party being the more progressive option favored by Black Americans, what can they get away with? What have they gotten away with?
The post-Civil Rights era has seen overwhelming support for Democrats among Black voters, a phenomenon originally stemming from the opposition of Republicans to the Civil Rights Act; for Black voters at the time, the choice to vote Republican was a vote directly against their best interests. Consequently, this situation has left Black voters entirely at the mercy of the Democratic Party in a two-party system. Having established a presumed bastion of support, Democrats then began to appeal to swing voters by abandoning the platforms that drew the support of Black voters in the first place. Hence, the political agenda became an optimization problem, to which the improved treatment of Black Americans is never a feasible solution.
Which Party Stands for Democracy? Neither.
From this, we understand that when parties compete against each other, their primary audience will inevitably be the White moderate; any radically progressive change and its aftermath will not be centered on those who need it most. Whether an administration willingly acquiesces to more intolerant ideologies or is effectively vetoed and undermined by local administrations, race-blind and even BIPOC-favored policies can lose power and be more harmful than helpful to marginalized groups, all while simultaneously benefitting the privileged in either circumstance.
When it comes to discussions surrounding certain laws and policies, oftentimes the response to these laws and ideas is ignored—such as is the case with certain “race-neutral” mechanisms of voter suppression, such as poll taxes, literacy tests, and gerrymandering. With current forms of marginalization, and with the people that are presently in power, there is no guarantee that a dedicated response to these laws will not harm BIPOC communities. On the contrary, the persecution of these vulnerable groups is arguably the only certainty. Thus, I cannot find myself agreeing with the Editorial Board that a conservative majority court is the root cause of our democratic backsliding. Nor is it entirely accurate to say that the core principles of democracy are somehow a staple of U.S. governance. Rather, our ‘supreme law of the land’ is marred with deliberate inconsistencies and oversights that prioritize the maintenance of harmful, bigoted institutions. Furthermore, we have observed the continuity of this problem throughout U.S. history, where the issues of vulnerable communities have nearly always been sidelined in favor of a “more general” interest. Democracy has never been on the ballot, and rampant (semi-) fascism has been at best ignored if not cultivated. The leaders of disenfranchised groups are in a unique position to reverse this trend, however, and their growing representation in government is very promising. But they must not fall into this trap of marginalization. No matter the progress we have made through civil rights movements, we must acknowledge that the challenges we face can evolve as well—and that sometimes, these challenges can even present themselves as the solution.
Bibliography
Dahl, Robert A. (2003). How Democratic is the American Constitution? New Haven, Conn.: Yale University Press.
The NYT Editorial Board. (2018). “America started over once. Can we do it again?” The New York Times.
Cohen, C. J. (1999). The Boundaries of Blackness: AIDS and the Breakdown of Black Politics. Chicago: University of Chicago Press.
Frymer, P. (1999). Uneasy Alliances: Race and Party Competition in America. Princeton, NJ: Princeton University Press.
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