Abstract
A majority of Americans agree that our democracy is at risk, but they disagree about the location of these threats. This article examines how debates about who constitutes the “we the people” seeded a politics of resentment that raised the saliency of the many antidemocratic tendencies and institutional features of the American political system. As the American electorate becomes more diverse, questions about whose voices, histories and votes should count have become increasingly fraught, and Donald Trump’s presidency exacerbated these tensions. The growing political divide and the public’s increased awareness of and attention to the anti-democratic features of our political system are pushing us closer to a political precipice as a minority of Americans seek to maximize their power at the expense of an increasingly frustrated majority. This is problematic in a democracy where confidence in the system requires individuals to believe that their participation matters and counts.
Introduction
An overwhelming majority (eight in ten) of Americans agree that our democracy is at risk, but they fundamentally disagree about the location and causes of these threats.Footnote1 Central to these disagreements is a question about who our democracy is intended to represent, serve and protect. In two of the past six presidential elections, the winner of the popular vote did not win the presidency which is something that had only happened two prior times in US history raising questions about the integrity and ongoing viability of the electoral college in a democratic system of government.Footnote2 Similarly, gerrymandering and malapportionment have distorted representation in Congress with, for example, Senators from smaller states representing significantly fewer people than those elected from large states which allows the predominantly white and Christian rural voters living in the former to exercise outsized influence in one of the two houses of Congress. At the same time, voting rights are under attack which decreases opportunities for some Americans to vote, while other Americans are questioning the integrity of our elections and whether the votes they cast are being counted at all (despite no evidence of fraud or improprieties). Finally, an unelected conservative majority on the US Supreme Court is transforming the law in a series of cases that run counter to public opinion on a broad array of issues. The combined effect of these antidemocratic developments is to raise growing concerns across the political spectrum about the health and viability of American democracy in the twenty-first century.
While the Constitution’s Framers intended to create a federal government that was insulated from the whims of the majority, it is increasingly clear that the institutional and structural parameters for mitigating against “an unjust and interested majority,” have now, in our politically polarized environment, manifested as tools for allowing a minority of Americans to actively thwart and undermine the will of the majority.Footnote3 These developments are problematic in a democratic system where participation in American politics and confidence in the system require individuals to believe that their involvement and input actually matter in determining the outcomes of elections and informing government policy outputs.
To that end, this article examines how debates about who constitutes the “we the people” in the contemporary US seeded a politics of resentment that raises the saliency of the many antidemocratic tendencies and institutional features of contemporary American politics. As the American population, and subsequently its electorate, become more diverse and more progressive, questions about whose voices, histories and votes should count have become increasingly fraught, and the election of Donald Trump in 2016 and then his refusal to accept defeat in 2020 brought many of these long simmering tensions to the surface and changed the nature of American discourse and politics in ways that seem likely to resonate for years to come. The discussion that follows posits that the growing divide between different political factions in the US and the public’s increased awareness of and attention to the anti-democratic nature and features of our political system are pushing us closer to a political precipice as a minority of Americans seek to capitalize on opportunities to maximize their power at the expense of an increasingly frustrated majority. That being said, the question of whether or not we are on the cusp of a constitutional crisis is difficult to answer. To that end, this special issue endeavors to engage the topic of the American Constitution in Crisis from a variety of different theoretical and methodological perspectives.
The Politics of Resentment in a Changing United States
The population of the United States is rapidly changing. According to the 2020 US Census, the white population in the US decreased by 8.6% compared to 2010 while the multi-racial population increased 276% from 9 million people in 2010 to 33.8 million people in 2020.Footnote4 With the exception of the white population, all other racial and ethnic groups—measured alone or in combination with other groups—experienced increases.Footnote5 Notably, the Hispanic/Latino population—members of this community can be of any race—grew 23% from 2010 to 2020 while the non-Hispanic/Latino population grew just 4.3%.Footnote6 This data makes clear that the US population is becoming less white and more racially and ethnically diverse, but of particular interest are the changing demographics of America’s youth. While the white adult population (18 and over) decreased from 74.7% in 2010 to 64.1% in 2020, the white youth population decreased from 65.3% to 53% in the same time period which suggests that by the 2030 census, white individuals will constitute less than half of the US youth population.Footnote7 Similarly, while the percentage of Hispanic adults increased to 16.8% in 2020, the percentage of Hispanic youth increased to 25.7% which means that more than one quarter of the US population under the age of eighteen is Hispanic.Footnote8 This census data interacts with other demographic data to suggest that “[t]he mostly white baby boomer culture that defined the last half of the 20th century is giving way to a more multihued, multicultural nation…[and] past projections of increased racial and ethnic diversity may have been too cautious given the accelerated aging and decline of the white population.”Footnote9
In addition to these racial and ethnic demographics, religious identification in the US is rapidly changing as well. According to the Pew Research Center, the percentage of Americans (to include children) identifying as Christians has decreased from approximately 90% in the 1990s to 64% today, and this precipitous decline is largely attributed to adults leaving their Christian faith in order to identify as “religiously unaffiliated.”Footnote10 This decrease is not spread equally across the population because younger generational cohorts are disaffiliating at higher rates than older generations, and it seems likely that many children now and in the future are likely to be raised outside of the church as newly unaffiliated adults opt out of bringing up their own children as Christians.Footnote11 Projections suggest that by 2070, Christians will comprise somewhere between 35 and 54 percent of the American population while those who identify as “nones” will increase to somewhere between 34 and 52 percent.Footnote12
These changing demographics carry significance for American politics as younger more racially and ethnically diverse generations trend more politically liberal in comparison to older and predominantly white generations. For example, Millennials—those individuals born between 1981 and 1996 make up 28 percent of the US population and are 56 percent white—are “the most liberal and Democratic of the adult generations” when compared to Gen Xers (1965–1980), Boomers (1946–1964) and Silents (1928–1945).Footnote13 In fact, “Millennials are the only generation in which a majority (57%) holds consistently liberal (25%) or mostly liberal (32%) positions across these measures [e.g., ‘opinions about the role of government, the environment, societal acceptance of homosexuality, as well as…items on race, immigration and diplomacy’]. Just 12% have consistently or mostly conservative attitudes, the lowest of any generation. Another 31% of Millennials have a mix of conservative and liberal views.”Footnote14 Similarly, younger Americans are more likely than older Americans to be religiously unaffiliated, and those who identify as unaffiliated adults are more likely to embrace liberal politics: “Seven-in-ten adults who were raised Christian but are now unaffiliated are Democrats or Democratic-leaning independents, compared with 43% of those who remained Christian and 51% of U.S. adults overall. Some scholars argue that disaffiliation from Christianity is driven by an association between Christianity and political conservatism that has intensified in recent decades.”Footnote15
Thus, age, race, ethnicity, and religious identification intersect in powerful ways to shape contemporary American politics. Millennials are more likely than older generations to believe that “racial discrimination is the main reason why many black people cannot get ahead these days” (52 percent versus 40% of GenX, 36% of Boomers, and 28% of Silent).Footnote16 Notably, among white Millennials, half agree that racial discrimination is the main obstacle to Black advancement in comparison to only 35 percent of white GenXers.Footnote17 Similarly, when asked about LGBTQ rights, seven in ten Americans say that “homosexuality should be accepted by society” including 83 percent of Democrats/Democratic leaners and 54 percent of Republicans/Republican leaners, but once again “[a]ge is strongly correlated with support for acceptance of homosexuality. Overall, 83% of those ages 18 to 29 say homosexuality should be accepted by society, compared with 72% of those ages 30 to 49, 65% of those 50 to 64, and 58% of those 65 and older.”Footnote18 The same variations hold true when individuals are asked about abortion. While 61% of respondents agree that “abortion should be legal in all or most cases,” 74% of adults under thirty agree with this statement in comparison to 62% of those ages 30 to 49, 55% of those 50 to 64, and 54% of those 65 and older.Footnote19
As the US becomes a less white and less Christian country and as younger Americans embrace more progressive political views on issues like Black, LGBTQ and women’s civil rights, these changes are unsettling and/or threatening to a number of Americans; particularly those who have benefited from their majority status as white Christians. Since its founding, the US political, legal and socio-cultural systems have worked in tandem to facilitate white power—e.g. the enslavement of Black people, Native American genocide, Jim Crow, disenfranchisement, the prison industrial complex, redlining and discriminatory housing and lending laws, etc.—and those who benefit from these structures and institutions are invested in their maintenance. At the same time, however, many white Americans do not understand or recognize that they are the beneficiaries of centuries of institutionalized white supremacy and see any attempts to change the status quo as attacks on their way of life. Yet, the reality is:
all white people to varying degrees are complicit in the maintenance of norms that allow them to benefit from their whiteness; benefits that they accept and do not deny. Institutionalized white supremacy is powerful precisely because it is facilitated via broadly shared norms and tactics promulgated by the white masses as a way to justify and explain ongoing differences between whites and people of color not “as the outcome of a history of political oppression but rather as just ‘the way things are.’”Footnote20 Yet, it is essential to draw attention to the myriad ways in which white complicity works to sustain institutionalized white supremacy in the US. Because de jure discrimination is prohibited does not mean that racism ceased to exist. Instead, racism as a political system morphed and adapted, and white individuals in the contemporary US are the complicit enforcers and beneficiaries of institutionalized white supremacy whether we realize it or not.Footnote21
That being said, debates about who constitutes the “we the people” have always been central to the American political experiment, and across two centuries of conflict the Constitution was amended to add protections for civil rights, the expansion of suffrage, and institutional changes to facilitate a more democratic system of government. These textual constitutional guarantees have been supplemented by landmark legislation at the national and state levels across the decades including the 1964 Civil Rights Act, the 1965 Voting Rights Act, and Title IX among others as well as a series of US Supreme Court cases that expanded civil rights protections for Black Americans, women, LGBTQ individuals, and others.Footnote24 It is, however, precisely these advances in civil rights and the subsequent expansion of democratic citizenship that have produced what Dudas calls “a politics of resentment” understood as a white nationalist backlash that reframes underrepresented and historically marginalized groups’ calls for equal rights as demands for special rights and situates white Christian Americans as the defenders of America’s, and arguably the Constitution’s, “real” values.Footnote25
The politics of resentment manifest in opposition to a broad array of civil rights initiatives and US government and state policies including affirmative action, prohibitions on discrimination against LGBTQ individuals, protections for voting rights, and US commitments to tribal sovereignty and treaty promises. In addition, the politics of resentment facilitated the birth of the Make America Great Again movement and the election of Donald Trump who then used his position as president of the United States to traffic in anti-democratic, white supremacist, and conspiracy theories. While the politics of resentment predated Donald Trump, he was able to wield and channel these frustrations and grievances into a successful presidential campaign in 2016 and later into a powerful threat to American democracy in response to his defeat in the 2020 election as exemplified by the unprecedented attack on the nation’s Capital building on January 6, 2021.
The Legacy of Donald Trump and the Threat to American Democracy
As a candidate and as president, Trump regularly engaged in racist, sexist and xenophobic speech beginning with his campaign announcement when he called Mexican immigrants “rapists” to his gleeful bragging about sexually assaulting women—“grab em by the pussy”—to his explicit endorsement of white supremacists—“very fine people on both sides”—in the aftermath of the violent protests in Charlottesville, VA. Throughout his presidency, Trump continued to double down on his racist rhetoric by calling African nations “shithole countries,” telling the white supremacist Proud Boys to “stand back and stand by,” and directing four women of color in Congress—three of whom were born in the US—to “go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how it is done.”Footnote26 While Trump is not the first candidate or elected leader to traffic in racist and offensive language, the frequency and ease with which he does so and without any consequences appears to have changed contemporary American political discourse as other politicians are emboldened to follow suit.
Yet, it is important to understand that Trump was not limited to racist, sexist and xenophobic rhetoric. He capitalized on white grievances and deployed the politics of resentment to substantiate a broad array of policies and actions that targeted racial and ethnic minorities including building a wall between Mexico and the US, separating families at the border and other problematic immigration regulations, banning Muslims entering the US, attempting to deploy the military to break up and disperse Black Lives Matter protests, and providing cover to contest his defeat in the 2020 presidential election. In addition, Trump was able to lean on his support among white evangelical Christians—a religious minority that aligned itself with Trump in order to achieve its goal of capturing control of the US Supreme Court to advance its policy priorities, particularly overturning Roe v. Wade, via the least democratic and counter-majoritarian branch of the federal government—to leverage support for his judicial nominees including three US Supreme Court justices each of whom was confirmed in highly unusual political contexts.Footnote27
Arguably, Trump’s efforts to overturn the results of the 2020 election and the subsequent attack on the US Capital on January 6, 2021, would not have been viable in an environment absent the politics of resentment. It was (and perhaps still is) Trump’s ability to tap into the frustration of many Americans who believe that they have been left behind or left out of the American Dream that explains much of his political success as exemplified by their unifying cry to “Make America Great Again.” In the lead up to the 2020 presidential election, President Trump worked to sow seeds of doubt among his base about the integrity of US elections and to introduce the idea that the only legitimate result would be a Trump victory. As Susan Glasser explained in The New Yorker in September 2020:
We already knew that this fall’s campaign, with Donald Trump fighting for his political survival, would be crazy, overwhelming, and exhausting. But, no matter how much we’ve come to expect the worst, it’s still a shock when it happens. At least it should be. On Wednesday, Trump was asked what should have been a simple question: “Do you commit to a peaceful transfer of power?” There is only one answer to this question in America. The answer is yes. But not for Trump. “Well, we’re gonna have to see what happens,” he responded. “You know that I’ve been complaining very strongly about the ballots. And the ballots are a disaster.” Further pressed, he added, “We’ll want to have—get rid of the ballots and you’ll have a very—we’ll have a very peaceful … There won’t be a transfer, frankly. There’ll be a continuation.”Footnote28
On election night as the votes came in indicating a likely Biden win, Trump explicitly called the election “a fraud on the American public.”Footnote29 He went on to say “[w]e did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list. Okay? It’s a very sad moment. To me, this is a very sad moment, and we will win this. And as far as I’m concerned, we already have won it.”Footnote30 In the face of defeat, Trump did not hesitate to claim victory, vow to pursue litigation, and name anything other than a Trump win a “fraud in our nation.”
Trump’s two prong approach to contesting the election—litigation in the courts and public appeals to his supporters and the public at large—ended with different results. The American legal and political systems “worked” in the sense that Trump’s outlandish and unmerited legal claims were repeatedly shut down in the courts, state actors more often than not rebuffed Trump’s efforts to cheat the system as exemplified by Georgia Secretary of State Brad Raffensperger and Vice President Mike Pence’s refusal to capitulate to Trump’s demands that they throw the election to him, and Congress reconvened the night of an unprecedented violent attack on the US Capital to in order to finish the certification of the US election results.
In contrast, Trump’s claims appear to have resonated with and persuaded large swaths of the American public. The unprecedented invasion of the US Capital to “stop the steal” might be the most obvious manifestation of this, but polling data makes clear that large numbers of voters believe the 2020 election was stolen. According to the aforementioned poll of self-identified Make America Great Again supporters conducted in the immediate aftermath of January 6th, 98% of respondents believe Trump’s fraud claims,Footnote31 and as recently as March 2023, a CNN poll of Republicans and Republican-leaning Independents, “found 63% of respondents believe Biden did not legitimately win the 2020 election, while 37% believe he did. Of that 63%, only 52% say they think there’s ‘solid evidence’ the election was stolen, while 48% say they’re going based on ‘suspicion only.’”Footnote32 Thus, even as Republicans increasingly agree that there is no evidence of election fraud, they continue to believe that the election was stolen.Footnote33
As Kathleen Sullivan’s contribution to this issue—“234 pages of Sworn Affidavits: Legalism without Politics in the Attempt to Overthrow the 2020 Election”—makes clear, it is a mistake to discount all of these individuals who believe that the election was stolen as frauds, opportunists or liars. Her analysis of the Republican election challengers who produced sworn legally binding affidavits about the “cheating” they witnessed in the counting of ballots in Detroit demonstrates that we are at a real crossroads in American democracy. Unlike many elites who trafficked in the language of election fraud for their own personal or financial gain—e.g. the release of emails and text messages among Fox News employees in the Dominion Voting Systems lawsuit suggests that these elites did not believe that the 2020 election was fraudulent but they perpetuated these myths in order appease their viewers and maximize audience size and profits—many average Americans believe that the election was problematic largely because they do not understand election processes and procedures and have been primed by Donald Trump (and now others who are following this template such as Arizona Republican gubernatorial candidate Kari Lake) and the echo chambers of today’s polarized political media to understand any outcome that is not a win for their candidate as evidence of cheating. This widespread and inaccurate perception threatens to undermine future democratic elections in the US.
While questions abound about whether or not New York State’s indictment of Trump will jeopardize his attempt to secure the Republican presidential nomination and/or the viability of his candidacy if he is selected as the Party’s candidate for the 2024 presidential election, Trump’s unorthodox candidacy in 2016 and his presidency created cover for a broad array of political actors to engage in speech and behavior that previously was relegated to the margins of politics including congressional representatives such as Marjorie Taylor Greene, Matt Gaetz, and Lauren Boebert among others. In addition, previously “mainstream” Republicans in Congress have embraced increasingly extreme and anti-democratic postures in order to maintain favor with Trump and his political allies, and candidates seeking to compete with Donald Trump for the Republican presidential nomination are trying to “out-Trump” Trump in order to appeal to his supporters.
For example, Florida Governor Ron DeSantis’s explicit attacks on core democratic values like free speech and a free press as well as capitalism and economic free enterprise—e.g. his battle with Walt Disney World over control of its tax district board despite the fact that this company is integral to tourism and his state’s economy—and his pandering to Russia and Putin by calling the invasion of Ukraine a “territorial dispute” that the US should not be involved in would have been unthinkable for a Republican just a decade ago.Footnote34 As such, it seems clear that Donald Trump has left an indelible mark on the Republican Party and American political discourse and strategies that is likely to carry on in some way, shape and form regardless of whether or not he is the Party’s presidential candidate in 2024. Furthermore, President Trump’s orchestrated attacks on the integrity of American elections continue to resonate and pose a threat to our democratic system of government and free, fair and open elections as exemplified by a 2021 Marist Poll that found “Just 1 in 3 Republicans say that they will trust that the 2024 results are ‘accurate’ even if their preferred candidate doesn’t win. (By contrast 82% of Democrats and 68% of independents say the same.)”Footnote35 Thus, a majority of Republicans are reporting that any election where their candidate does not win is fraudulent.
The Politics of Hate
One of the legacies of Donald Trump’s candidacy and tenure as president is the ease with which politicians are now able to deploy the politics of hate and explicitly engage in racist, sexist, xenophobic, Islamophobic, homophobic and transphobic discourse in pursuit of laws and policies with little to no consequences. It is easy to forget that Speaker of the House Kevin McCarthy’s close ally Marjorie Taylor Greene—McCarthy recently declared “I will never leave that woman…we’re going to stick together all of the way through”—was disavowed by leading Republicans to include McCarthy during her first campaign for Congress due to her bigoted comments.Footnote36 In fact, not only is this type of rhetoric and behavior not a detriment to many candidate campaigns and elections, it is increasingly informing the legislative goals of Republicans at all levels of government in the US.
Conservative politicians at the local, state and national levels are introducing and/or passing laws that oppose the teaching of Black history as US history, prohibit Critical Race Theory in all schools to include institutions of higher education, outlaw diversity, equity and inclusion trainings and programming in the workplace, dismantle voting rights and simultaneously disenfranchise American voters, sanction discrimination against LGBTQ individuals including a broad array of bills that target trans people for discrimination, and criminalize those who provide aid to undocumented individuals.
These explicit attacks on some of our most marginalized communities and individuals coincide with a growing awareness of the myriad ways in which the state continues to facilitate and allow discrimination and violence against people of color. The Black Lives Matter movement born out of yet another senseless murder of a Black man at the hands of the police brought millions of people together in the midst of a global pandemic to protest police violence against people of color. Arguably, the specter of a nationwide multiracial coalition of Americans coming together to declare that “Black Lives Matter” unsettled many political and economic elites and white Americans who benefit from a system of institutionalized white supremacy. The current nonsensical and contrived attacks on Critical Race Theory must be understood in the context of and as a backlash against the broader push for Black civil rights. These egregious attempts to remove any and all discussions of slavery, structural and systemic racism, the struggles for and against Black civil rights, and individual and institutional violence against people of color from school curriculums, textbooks, library bookshelves and so on are nothing less than an assault on the advancement of Black civil rights in the US; civil rights that are guaranteed by the Fourteenth Amendment of the Constitution. Quite frankly, whitewashing American history in this way is to deny US history in its totality and creates a narrative that is not only factually and intellectually wrong, but harmful as well.
For example, on March 17 2023, The New York Times reported that Studies Weekly revised its Social Studies curriculum to try and get approval in the state of Florida as follows. The initial curriculum stated “In 1955, Rosa Parks broke the law. In her city, the law said African Americans had to give up their seats on the bus if a white person wanted to sit down. She would not give up her seat. The police came and took her to jail” (emphasis added). Then, Studies Weekly revised it to say “Rosa Parks showed courage. One day, she rode the bus. She was told to move to a different seat because of the color of her skin. She did not. She did what she believed was right” (emphasis added). But, concerned that this revised version might fail to pass muster under the Stop WOKE Act which prohibits “instruction that would compel students to feel responsibility, guilt or anguish for what other members of their race did in the past,” Studies Weekly produced the following discussion of Parks: “Rosa Parks showed courage. One day, she rode the bus. She was told to move to a different seat. She did not. She did what she believed was right.”Footnote37 Here, in this last iteration of the story of Rosa Parks, there is no mention of Jim Crow/segregation or her identity as a Black woman. Furthermore, there is no indication that Parks was arrested and jailed for failing to comply with the law. Instead, “she did what she believed was right.” The end.
This absurdist whitewashing of Rosa Park’s civil disobedience is not only harmful because it fails our commitment to educate our youth about our history and produces nonsensical content, but also because it must be understood as a direct attack on and erasure of the experiences, identities and existence of Black Americans. To remove the history of racism and the fight for civil rights from our educational systems is a full-frontal assault on Black Americans, and the fact that these attacks on Black history and literature are being coordinated by white Americans further cements that these efforts are intended to maintain a dominant white narrative and power structure much like Southerners’ efforts to rebrand the Civil War as a fight for state rights via the Lost Cause narrative. This is not hyperbole. A lawsuit surrounding banned books in a public library system in Llano County Texas in April 2023 prompted a public and government discussion about whether or not the library should be shut down rather than provide the censored books to readers while the litigation continues or perhaps in perpetuity.Footnote38 This type of “solution” is on par with white communities’ resistance to desegregation where city governments closed public parks, golf courses, and pools rather than comply with the law.
When these attacks on Black history are situated in the broader American political context in which people of color are being systematically disenfranchised, white nationalism is on the rise, police violence against Black Americans continues unabated despite increasingly assertive demands for reform, and civil rights legislation and protections are under attack in the courts ranging from the US Supreme Court’s case-by-case gutting of the Voting Rights Act of 1965 to the likely demise of affirmative action in higher education this term, it is easy to understand why many media outlets are increasingly asking if the US in on the cusp of a second civil war. Particularly because this hateful rhetoric and attacks on Black civil rights are out of sync with the preferences and priorities of most of Americans.
In a press release celebrating and announcing that he had signed House Bill 7, Governor Ron DeSantis’ office explained: “The bill includes provisions to prevent discriminatory instruction in the workplace and in public schools and defines individual freedoms based on the fundamental truth that all individuals are equal before the law and have inalienable rights. This legislation is the first of its kind in the nation to take on both corporate wokeness and Critical Race Theory in schools in one act.”Footnote39 Yet, an overwhelming majority (61%) of Americans agree that the US needs to continue to do more to advance and give Black Americans equal rights in comparison to only 35 percent who believe that the necessary changes have been made to give Black and white Americans equal rights.Footnote40 This disparity is larger when Democrats/Democratic leaners (81%) are compared to Republicans/Republican leaners (36%) who support the idea that more work needs to be done.Footnote41 The fact that a majority of Americans support continued efforts to address and advance Black civil rights at the same time that we are witnessing states like Florida ban teachings in classrooms and trainings in workplaces that might cause white people “discomfort, guilt or anguish on account of their race” is evidence of how concerted efforts by a shrinking white population are being utilized to maintain white privileges and power in the US.Footnote42
The fact that positions and policies supported by a minority of Americans are dominating the political discourse and agenda is evidence of the anti-democratic structural and institutional features of our political system.
The US is Not a Democracy: Obstacles to Majority Rule
The reality is that the US is a not a democracy; it is a republic with myriad institutional obstacles built into the system to mitigate against majority rule. Yet, as the discussion above endeavors to make clear, it feels like the US is at a critical tipping point because it seems as if a minority of Americans are capitalizing on these anti-democratic constitutional and structural entities to advance their own interests at the expense of others. In “Beyond Gerrymandering: A Structural Crisis of the American Electoral System,” Bernard Tamas’s contribution to this issue, he introduces the concept of asymmetrical disproportionality to explain the development and maintenance of the two-party system in US electoral politics and illustrates how Republicans and Democrats utilize gerrymandering and voter suppression to maintain their dominance in ways that work against our democratic interests.
For example, states with Republican controlled legislatures are able to further consolidate their power and pass legislation that makes it harder for their perceived opponents—the poor, the young, people of color, and those situated at the intersection of those identities—to vote and participate in electoral politics and utilize gerrymandering to consolidate Republican Party control of state legislatures and facilitate the election of Republican candidates to the House of Representatives. When this is combined with the outsized influence that smaller predominantly conservative states (that also tend to be more white and Christian than their larger neighbors) such as Wyoming, Montana, North and South Dakota exercise in the Senate, and subsequently the electoral college, it is clear that representation in the US is not equal and that the Senate has a strong pro-Republican bias.Footnote43
For example, in 2020 when the Senate was evenly divided between Democrats and Republicans, the 50 Democratic Senators represented 186 million Americans in comparison to 145 million Americans for the 50 Republican Senators.Footnote44 Put another way, a Senator from Wyoming represents 290,000 people in comparison to 19,600,000 for a Senator from California.Footnote45 This is noteworthy not simply because of the disparities in total numbers, but because of the distinct differences between the populations of larger and smaller states where the latter are disproportionately white and Christian and the former tend to be significantly more diverse. Using Wyoming as an example again, one white voter in Wyoming has similar Senate representation as one white voter in North Dakota, but that same white voter in Wyoming has the same representation as five white and two Black voters in Alabama; 13 white, 2 Black, 1 Asian, 1 Hispanic and 1 Other voter in Michigan; and 21 white, 3 Black, 9 Asian, 23 Hispanic, and 3 Other voters in California.Footnote46 One can imagine that it is difficult for voters who live in more urban areas to take seriously the appeals of white conservative voters to “take our country back” when the latter are already exercising disproportionate influence in many areas of American electoral politics.
Thus, growing anti-democratic politics and tendencies are proliferating not only across the public but among our elected officials and institutions of government as well, and the chaos created when counter-majoritarian forces are able to wield the democratic institutions of government as tools to thwart democracy itself has brought us closer to the precipice of an American constitutional crisis. Yet, these developments are also leading to widespread calls for all different types of reform. While state legislatures are passing laws that make it harder to vote under the auspices of preventing fraud, many Americans oppose these laws because they will make it more difficult for some individuals—particularly, the poor, people of color, the young and those situated at the intersection of these identities—to exercise their right to vote. As such, at the same time that efforts are being made to limit the franchise in some places, others are organizing to ensure that US elections more accurately mirror the popular vote. For example, as William L. Niemi explains in “Should Progressives and Democrats Fight or Welcome the Republican Effort to Call a Constitutional Convention?”, efforts to amend the electoral college vote to reflect the popular vote have gained in popularity and might be a reason for progressives to get behind the momentum for a constitutional convention in the US; something that has not happened since the original 1787 Constitutional Convention in Philadelphia.
In addition to the antidemocratic features that are becoming more readily apparent in American elections, the US Supreme Court’s recent decisions have attracted a great deal of attention to the judiciary’s counter majoritarian tendencies. The federal judiciary is a coequal branch of the national government comprised of unelected individuals who serve life terms and exercise outsized, and often unchecked, power and influence in contemporary American politics. The conservative majority on the current Supreme Court has no reservations about using its authority to issue decisions that are drastically changing and explicitly overturning precedents in all areas of law. Most notably, the US Supreme Court’s decision Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade put the justices in the spotlight. As noted above, a majority of Americans believe that “abortion should be legal in all or most cases,” Footnote47 but six Supreme Court Justices (5 of whom are men) overturned a nearly 50-year-old precedent and ruled that there is no constitutional protection for abortion in the US Constitution. In doing so, the Court returned the regulation of abortion to the states where in less than a year 13 states banned all abortions and a number of other states drastically limited access to surgical abortions.Footnote48 These bans and regulations impose incredible burdens on pregnant people at best and pose grave risks to the health, wellbeing and safety of pregnant people at worst.
In addition, the Dobbs decision has created legal uncertainty and emboldened other federal judges to attack reproductive rights as demonstrated by federal judge Matthew Kacsmaryk’s April 2023 ruling that the Food and Drug Administration’s (FDA) approval of mifepristone for use in ending pregnancies should be suspended.Footnote49 This decision is unprecedented on many levels and threatens to end medical abortion in all fifty states based on a single unelected judge’s pro-life and religious beliefs. These anti-choice decisions are not only politically unpopular, but they contribute to growing public dissatisfaction with and distrust of the federal courts as well.
Public approval for the US Supreme Court is at an all-time low with less than half of US adults reporting that they trust the federal judiciary.Footnote50 According to Gallup, “[f]orty-seven percent of U.S. adults say they have ‘a great deal’ or ‘a fair amount’ of trust in the judicial branch of the federal government that is headed by the Supreme Court. This represents a 20-percentage-point drop from two years ago [in 2020], including seven points since last year [2021], and is now the lowest in Gallup’s trend by six points. The judicial branch’s current tarnished image contrasts with trust levels exceeding two-thirds in most years in Gallup’s trend that began in 1972.”Footnote51
This poses problems in a system of checks and balances where the federal judiciary is intended to operate as a coequal branch of the national government on par with the executive and legislative branches, but has no powers to enforce its decisions. Put another way, the US Supreme Court relies on the good will and adherence of the American public, support from the executive and legislative branches of the national and state governments, and the fealty of lower federal and state courts in order to implement its decisions. If, and when, this support wanes to the extent that public and/or government actors refuse to abide by US Supreme Court decisions, the US will be on the precipice of a constitutional crisis. While this might seem farfetched, the US appears to be closer to this point that at any time in recent US history. Much like the US Supreme Court’s awful decision in Dred Scott v. Sandford helped push the US to Civil War, the hubris of the current conservative majority on the US Supreme Court and the fact that its opinions are increasingly out of touch with the majority of the American public bodes poorly for the Court and the country.
Abortion and reproductive rights are not the only issues where the US Supreme Court is engaging in counter majoritarian and antidemocratic decision making. As Kirsten Matoy Carlson explains in “The Democratic Difficulties of Oklahoma v. Castro-Huerta,” the Court’s antidemocratic tendencies were laid bare when it refused to defer to congressional authority on policymaking in Indian country and substituted the justices’ own judgment for that of the democratically elected legislative branch. While Oklahoma v. Castro-Huerta might not have attracted as much attention as Dobbs, it significantly undermined tribal sovereignty and signals that a majority of the justices might be inclined to gut the Indian Child Welfare Act, another important piece of congressional legislation that applies to native communities, in a case that will be decided by the Court this term. Understanding that the Constitution identifies Congress as the branch of government tasked with creating federal Indian policy, the US Supreme Court’s current predisposition for disregarding the will of Congress in favor of its own opinions in this issue area is clearly antidemocratic.
Similarly, Jaime Lluch’s contribution to the special issue introduces the concept of asymmetric territorial citizenship to analyze the relationship between the US government and the US territories in order to argue that bias against Americans in the territories renders these individuals “foreign in a domestic sense.” Focusing on Puerto Rico, Lluch illustrates how the federal government, particularly the US Supreme Court through a series of cases, has assigned the burdens of citizenship to Americans in Puerto Rico while simultaneously depriving them of the full rights and privileges of citizenship thereby locating them outside of the democratic body politic. The combined contributions of Lluch, Matoy Carlson, and Laura Jenkins (to be discussed below) illustrate how contrary to the popular myth that the federal judiciary is the protector of civil rights, in practice the federal courts are regularly acting to restrict rights and recognitions for certain communities. That these communities are predominantly comprised of people of color and women—groups that were explicitly excluded from participation in the American political project for centuries—is not a coincidence.
To be clear, the growing disconnect between the US Supreme Court and the public need not lead to political violence or a constitutional crisis, but rather might be resolved via political reform. As Niemi explains in “Should Progressives and Democrats Fight or Welcome the Republican Effort to Call a Constitutional Convention?”, a constitutional convention that addresses the anti-democratic tendencies of the US Constitution to include an unelected judicial body that exercises near unilateral power on the American populace might provide an opportunity for progressives to eliminate life-tenure for Supreme Court justices. Similarly, in “Considering Constitutional Change: Survey Evidence on Public Attitudes Towards Term Limits for Federal Judges,” authors Ryan C. Black, Ryan J. Owens, and Patrick C. Wohlfarth examine public support for imposing term limits on federal judges including US Supreme Court justices. Using a nationwide survey, they determine that support for term limits is actually relatively high and they then explore how durable this support is for pursuing actual change. While there was a time when these types of institutional and constitutional changes might have seemed unlikely, the decrease in public approval of the federal courts and their decisions combined with increased scrutiny of the questionable ethics of federal judges—e.g., conflicts of interests, failure to recuse themselves, accepting expensive trips and gifts, etc.—might create an opportunity for real reform.
At the same time, efforts to change the courts are not limited to institutional reforms. Opponents of specific judicial decisions can organize politically and utilize legislative and legal strategies to pursue their goals within the system. As Laura Jenkins explains in “Roe is Dead, Long Live the Courts: The Role of Courts in a Post-Roe America,” opponents of Dobbs have multiple venues—state as well as federal courts—and legal strategies—equal and civil rights arguments in addition to those predicated on privacy and civil liberties—to steadily begin their assault on Dobbs much like the anti-choice movement did with Roe. While there is no doubt that overturning Dobbs is going to be a challenge in light of the Supreme Court’s current and future makeup, proponents of reproductive rights can use this case as a catalyst to organize, mobilize and win elections as exemplified by the recent election in Wisconsin where the pro-choice candidate for the state supreme court won by eleven points and gave liberals a majority on that court for the first time in fifteen years.Footnote52
Conclusion
There is no doubt that political polarization is high and that there are clear and palpable divisions among the American public as well as the two major political parties. Americans seem to be increasingly distrustful of and frustrated with government—the Supreme Court’s fall from grace is notable and precipitous—but this need not be permanent nor lead the country into a constitutional crisis. Institutional and constitutional reforms and public and organizational political and legal mobilization create opportunities to pursue positive and substantively significant changes across multiple venues in American politics, and while these changes are more likely to be incremental than transformative perhaps this is an asset rather than a detriment. Arguably, politics in the US are more accurately characterized by periods of antagonism than eras of relative calm and tranquility, and the system has repeatedly adapted and survived myriad challenges including wars (to include the Civil War), presidential assassinations, terrorist and military attacks on US soil, massive economic and technological changes and innovations, natural and environmental disasters, government corruption, economic depressions and recessions, global pandemics and so on.
As Harry Hirsch’s article “One Accident, One Mistake: Evangelicals, Religious Establishment, and American Political Development” makes clear, in order to understand political and legal texts in the contemporary moment requires a nuanced and accurate understanding of the historical context in which these texts were promulgated. Hirsch’s American political development analysis of the First Amendment’s Establishment Clause evidences that the constitutional framers intended to create a secular polity that looks quite different from the relationship between church and state likely to be advocated for by many individuals, perhaps even justices on the Roberts Court, in the contemporary era. To that end, it might be worth revisiting the historical context in which the US Constitution was drafted and ratified to reiterate that the antidemocratic and counter majoritarian tendencies that are a source of great frustration to many Americans today were intentionally built into the American political and legal systems. As such, it is more likely than not that the US will navigate the current political turmoil with our current system of government intact just as it has many times before.
That being said, it seems increasingly likely that the 2024 presidential election is likely to be a significant factor in determining where the country goes from here. Who the two major parties select as their nominees as well as the question of whether or not Trump is a candidate (for the Republican Party or as a third party option) and the status of the criminal case(s) against him will all intersect to shape the political, sociocultural and legal contexts for the foreseeable future. This in turn will inform individuals’ assessments of the integrity of US elections as well as their confidence in and support of American political and legal institutions and their policy outputs.
Today, the politics of resentment have raised the stakes and the saliency of the antidemocratic and countermajoritiaran features of the American political system as predominantly, but not exclusively, white Americans work to maintain and fortify a system that has privileged their interests for centuries. Yet, the reality is that the demographics of the US are changing. Younger Americans are more racially and ethnically diverse, less likely to be Christian, and more likely to hold progressive values than older generations. And, they vote.
Since the 2016 presidential election, voter turnout among young people has dramatically increased. It is estimated that 50 percent of voters under the age of 30 voted in the 2020 presidential election, an eleven point increase in turnout in comparison to 2016; believed to be the highest turnout on record since the voting age was lowered to eighteen.Footnote53 Similarly, the midterm elections in 2022 and 2018 both had the highest rates of voter turnout among voters under the age of 30 in the last three decades (2018 was the highest with 31% turnout and 2020 was the second highest with 27% turnout).Footnote54 Thus, the evidence indicates that efforts to suppress voter turnout and other antidemocratic developments are not dissuading young people from voting. Instead, the perceived threats to democracy and their political and ideological values appear to be incentivizing young voters to come out and vote and participate in politics in record setting numbers to advance their interests. While the question of who constitutes the “we the people” is likely to continue to be a source of consternation in the US as it has throughout the nation’s history, the articles that follow make clear there are many factors to consider as we evaluate the state of our union and seek to understand the American Constitution in crisis.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 Domenico Montanaro, “Eight Out of Ten Americans Believe the US Faces a Threat to Democracy,” NPR, December 15, 2022, https://www.npr.org/2022/12/15/1143191937/eight-out-of-10-americans-believe-the-u-s-faces-a-threat-to-democracy.
2 The American Presidency Project, “Presidential Election Margin of Victory,” https://www.presidency.ucsb.edu/statistics/data/presidential-election-mandates.
3 Federalist 10.
4 Nicholas Jones, Rachel Marks, Roberto Ramirez, and Merarys Rios-Vargas, “2020 Census Illuminates Racial and Ethnic Composition of the Country,” United State Census Bureau, August 12, 2021, https://www.census.gov/library/stories/2021/08/improved-race-ethnicity-measures-reveal-united-states-population-much-more-multiracial.html.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 William H. Frey, “The Nation is Diversifying Even Faster Than Predicted, According to New Census Data,” The Brooking Institute, July 1, 2020, https://www.brookings.edu/research/new-census-data-shows-the-nation-is-diversifying-even-faster-than-predicted/.
10 Pew Research Center, “How US Religious Composition has Changed in Recent Decades,” September 13, 2022, https://www.pewresearch.org/religion/2022/09/13/how-u-s-religious-composition-has-changed-in-recent-decades/.
11 Ibid.
12 Pew Research Center, “Modeling the Future of Religion in America,” September 13, 2022, https://www.pewresearch.org/religion/2022/09/13/modeling-the-future-of-religion-in-america/.
13 Pew Research Center, “The Generation Gap in American Politics,” March 1, 2018, https://www.pewresearch.org/politics/2018/03/01/the-generation-gap-in-american-politics/.
14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid.
18 Pew Research Center, “The Partisan Divide on Political Values Grows Even Wider: Homosexuality, Religion and Gender,” October 5, 2017, https://www.pewresearch.org/politics/2017/10/05/5-homosexuality-gender-and-religion/.
19 Pew Research Center, “Public Opinion on Abortion,” May 17, 2022, https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/.
20 Charles W. Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997), 30.
21 Courtenay W. Daum, “White Complicity,” New Political Science 42, no. 3 (2020): 443–449.
22 Kim Eckart, “New Nationwide Survey Shows MAGA Supporters’ Beliefs About the Pandemic, the Election, and the Insurrection,” UW News (February 5, 2021), https://www.washington.edu/news/2021/02/05/new-nationwide-survey-shows-maga-supporters-beliefs-about-the-pandemic-the-election-and-the-insurrection/.
23 Ibid.
24 See, e.g., Sweatt v. Painter (339 U.S. 629), Brown v. Board of Education (347 US 483), Reed v. Reed (404 US 71), Frontiero v. Richardson (411 U.S. 677), Roe v. Wade (410 US 113), Romer v. Evans (517 US 620), Obergefell v. Hodges (576 US 644).
25 Jeffrey Dudas, “In the Name of Equal Rights: ‘Special’ Rights and the Politics of Resentment in the Post-Civil Rights America,” Law and Society Review 29, no. 4 (2005): 723–757; Jeffrey Dudas, The Cultivation of Resentment: Treaty Rights and the New Right (Stanford, CA: Stanford University Press, 2008).
26 Katie Rogers, “The Painful Roots of Trump’s ‘Go Back’ Comment,” The New York Times, July 16, 2019, https://www.nytimes.com/2019/07/16/us/politics/aoc-trump-tlaib-omar-pressley.html.
27 Justice Gorsuch was confirmed to fill the seat that Senate Republicans left vacant because they refused to confirm President Obama’s nominee Merrick Garland. Justice Kavanaugh’s confirmation was nearly derailed by allegations that he sexually assaulted a peer in high school as well as other suggestions of sexual improprieties. Justice Barrett was confirmed in an expedited manner in order to guarantee that President Trump’s nominee would be locked in prior to the 2020 presidential election.
28 Susan B. Glasser, “Here are Twenty Other Awful, Disturbing Things that Trump has Said This Month, and It’s Not Over Yet,” The New Yorker, September 24, 2020, https://www.newyorker.com/news/letter-from-trumps-washington/here-are-twenty-other-disturbing-awful-things-that-trump-has-said-this-month-and-its-not-over-yet
29 Ed Kilgore, “Trump’s Long Campaign to Steal the Presidency: A Timeline,” The Intelligencer, July 14, 2022, https://nymag.com/intelligencer/article/trump-campaign-steal-presidency-timeline.html.
30 Ibid.
31 Eckart, “New Nationwide Survey.”
32 Alison Durkee, “Republicans Increasingly Realize That There’s No Evidence of Election Fraud—But Most Still Think 2020 Election Was Stolen Anyway, Poll Finds,” Forbes, March 14, 2023, https://www.forbes.com/sites/alisondurkee/2023/03/14/republicans-increasingly-realize-theres-no-evidence-of-election-fraud-but-most-still-think-2020-election-was-stolen-anyway-poll-finds/?sh=21738ffb28ec.
33 Ibid.
34 Kelly Garrity, “Republicans Slam DeSantis for Calling War in Ukraine a ‘Territorial Dispute,’” Politico, March 19, 2023, https://www.politico.com/news/2023/03/19/desantis-republicans-ukraine-sununu-00087762.
35 Chris Cillizza, “Why 2024 is Going to be *Way* Worse than 2020,” CNN.com, November 2, 2021, https://www.cnn.com/2021/11/02/politics/2024-election-election-fraud-trump/index.html.
36 Jonathan Swan and Catie Edmonson, “How Kevin McCarthy Forged an Ironclad Bond with Marjorie Taylor Greene,” The New York Times, January 24, 2023, https://www.nytimes.com/2023/01/23/us/politics/kevin-mccarthy-marjorie-taylor-greene.html.
37 Sarah Mervosh, “Florida Re-edits a new subject: Social Studies,” The New York Times, March 17, 2023, A11.
38 Erica Pauda, “Llano County to Discuss Future of Public Library in Special Meeting,” KXAN.com, April 10, 2023, https://www.kxan.com/llano-county/llano-county-to-discuss-future-of-public-library-in-special-meeting/.
39 Office of Governor Ron DeSantis, “Governor Ron DeSantis Signs Legislation to Protect Floridians from Discrimination and Woke Indoctrination,” Press Release, April 22, 2022, https://www.flgov.com/2022/04/22/governor-ron-desantis-signs-legislation-to-protect-floridians-from-discrimination-and-woke-indoctrination/
40 Pew Research Center, “The Partisan Divide on Political Values Grows Even Wider: Race, Immigration and Discrimination,” October 5, 2017, https://www.pewresearch.org/politics/2017/10/05/4-race-immigration-and-discrimination/#shifting-racial-attitudes
41 Ibid.
42 Greg Allen, “Florida Bill Bans Businesses and Schools from Making Anyone Feel Guilty about Race,” NPR.org, February 8, 2022, https://www.npr.org/2022/02/08/1079112803/fla-bill-bans-businesses-and-schools-from-making-anyone-feel-guilt-about-race.
43 The Learning Network, “What’s Going on in this Graph? Senate Representation by State,” The New York Times, October 27, 2022, https://www.nytimes.com/2022/10/27/learning/whats-going-on-in-this-graph-nov-9-2022.html.
44 Ibid.
45 Ibid.
46 Ibid.
47 Pew Research Center, “Public Opinion on Abortion,” May 17, 2022, https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/.
48 The New York Times, “Tracking the States Where Abortion is Now Banned,” April 10, 2023, https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html.
49 Pam Belluck, “Two Federal Judges Issued Opposing Rulings on Abortion Pills. Here’s What’s Going On.” The New York Times, April 8, 2023, https://www.nytimes.com/2023/04/08/health/mifepristone-abortion-pills-ruling-judges.html.
50 Jeffrey M. Jones, “Supreme Court Trust, Job Approval at Historic Lows,” Gallup, September 29, 2022, https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.
51 Ibid.
52 Shawn Johnson, “For the First Time in 15 Years, Liberals Win Control of the Wisconsin Supreme Court,” NPR.org, April 4, 2023, https://www.npr.org/2023/04/04/1167815077/wisconsin-supreme-court-election-results-abortion-voting-protasiewicz-kelly.
53 Center for Information and Research on Civic Learning and Engagement, “Half of Youth Voted in 2020, An 11 Point Increaes from 2016,” April 29, 2021, https://circle.tufts.edu/latest-research/half-youth-voted-2020-11-point-increase-2016.
54 Ashley Lopez, “Turnout Among Young Voters Was the Second Highest for a Midterm in the Past Thirty Years,” NPR.org, November 10, 2022, https://www.npr.org/2022/11/10/1135810302/turnout-among-young-voters-was-the-second-highest-for-a-midterm-in-past-30-years.