The Constitution rigs the game against democracy — and against Black equality / Ian Millhiser

The Constitution rigs the game against democracy — and against Black equality

Ian Millhiser — Read time: 12 minutes

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Democracy in America is a rigged game

The Constitution was written to thwart Black freedom. But we can change the rules.

By Ian Millhiser Updated Jun 15, 2022, 6:35am EDT

Illustration by KaCeyKal! for Vox

An illustration shows figures falling figures amid chess pieces, depicting the idea of a game.

Part of the Juneteenth issue of The Highlight, our home for ambitious stories that explain our world.

For six years, at the height of Southern leaders’ massive resistance to desegregation, Derrick Bell held one of the most harrowing jobs in the legal profession.

From 1960 to 1966, as an attorney with the NAACP Legal Defense and Educational Fund, Bell oversaw desegregation lawsuits in the South, trying to make real the integration promised by Brown v. Board of Education.

In the first decade after Brown, integration made little headway — by 1964, only 1 in 85 African American students in the South attended integrated schools. Often, Bell and his colleagues couldn’t even find a plaintiff willing to sue a segregated district, because Black families justifiably feared they’d be targeted by the Ku Klux Klan if their names appeared on a lawsuit.

Black civil rights lawyers also risked their lives litigating cases. Once, while he was defending two criminal suspects in Tennessee, future Supreme Court Justice Thurgood Marshall was arrested on false charges and nearly lynched by a white mob.

Bell, who died in 2011, eventually left behind his career as a full-time civil rights lawyer. But the experience of watching the promise of equality beat down by violent white supremacists informed his work as a critical race scholar.

“Racial equality is, in fact, not a realistic goal,” he wrote in 1992, warning that “by constantly aiming for a status that is unobtainable in a perilously racist America, black Americans face frustration and despair.”

To be clear, Bell did not counsel passive despair. “We must maintain the struggle against racism else the erosion of black rights will become even worse than it is now,” Bell warned in his essay, and he viewed this constant striving as worthy in its own right. “The struggle for freedom is, at bottom, a manifestation of our humanity that survives and grows stronger through resistance to oppression,” he wrote, “even if that oppression is never overcome.”

Bell understood something profound about the United States: The American political system is a rigged game. It was originally meant to advantage enslavers and today benefits anti-egalitarian actors with little interest in true racial equality.

That fact has led to the constant “erosion of black rights” that Bell chronicled — something clearly on display one year ago, not long after President Joe Biden had signed legislation marking Juneteenth as a federal holiday. In the president’s words, the holiday “marks both the long, hard night of slavery and subjugation, and a promise of a brighter morning to come.”

Two weeks later, the Supreme Court defiled that promise, imposing new limits on the Voting Rights Act, which has, since 1965, forbidden race discrimination in elections. The Court’s new restrictions on the Voting Rights Act are unlikely to be the last.

Even as the United States celebrates freedom for African Americans, the political equality that sustains that freedom is slipping away.

The pattern in American civil rights history has been brief periods of rapid pro-egalitarian progress — think the post-Civil War period or the civil rights era — followed by much longer periods of retrenchment, when dominant groups claw back many of those gains.

If the United States is to break its cycle of brief periods of egalitarian triumphs, and longer periods of resentment and retreat, we must have a Constitution that, unlike our current one, fully honors the principle that all people are created equal.

The original Constitution — that is, the document drafted at the Constitutional Convention of 1787 — was a truly monstrous document. It was, in the words of abolitionist William Lloyd Garrison, “a covenant with death, and an agreement with hell.”

The framers, who included both enslavers and staunch opponents of slavery, produced a document that contains at least four provisions added for the very purpose of protecting slavery. Several other features of the Constitution, like the Electoral College, for example, may not have been inserted for the purpose of promoting slavery, but they certainly had that effect.

Though modern-day scholars disagree about whether the Electoral College was, in the words of Harvard historian Jill Lepore, “a compromise over slavery,” it nevertheless gave tremendous political power to the states that enslaved the most people. That’s because the Constitution gives each state a number of electoral votes matching the number of seats it controls in Congress, and the Constitution’s infamous three-fifths clause permitted slave-holding states to count 60 percent of their enslaved population when US House seats were apportioned.

Even after the Northern population outstripped the South’s to such a degree that slave states could not dominate the House, another anti-democratic feature of our Constitution ensured that enslavers would wield outsize power.

The Senate remained a bastion of power for enslavers for generations. Because the Constitution gives each state two senators regardless of its population, enslavers could still block anti-slavery legislation so long as they did not permit the total number of free states to exceed the number of slave states, something they did successfully for decades.

Two hundred and thirty-five years after the Constitutional Convention, the Constitution remains a profoundly inegalitarian document. The Senate and the Electoral College remain stains on the soul of the nation.

Similarly, while three constitutional amendments ratified after the Civil War abolish slavery, pledge equal citizenship rights to all Americans, and promise equal voting rights, these promises were only as valuable as the public officials entrusted with keeping them. As anyone familiar with the history of the Jim Crow South knows, most of these officials didn’t even begin to keep these promises for nearly a century.

The times when those promises were kept at all can be attributed to “interest convergence,” a phenomenon Bell first wrote about more than four decades ago: “The interest of blacks in achieving racial equality is accommodated only when that interest converges with the interests of whites in policy-making positions.”

Bell did not argue that white people “concerned about the immorality of racial inequality” are nonexistent, but he believed that this cohort of white people is insufficient to form a victorious political coalition when it links arms with Black people.

To some extent, Bell’s principle is implicit in the fact that racial minorities are, well, in the minority. And Black people have historically carried a particular burden because white supremacists have often tried to separate them from the social and political mainstream, in many cases through explicitly segregationist policies.

The Constitution’s pathologies exaggerate this problem. Because of the Electoral College, Senate malapportionment, and quasi-constitutional barriers to legislation such as the filibuster, Black Americans — and the broader Democratic coalition that most Black voters belong to — need to win supermajorities in multiple elections to pass legislation protecting their rights, like a law restoring the Voting Rights Act.

Even if they were to successfully do that, Republicans need only to file a lawsuit and convince five of their fellow partisans on the Supreme Court to strike down that legislation.

This is not a new dilemma — the structural barriers facing Democrats today pale in comparison to the ones facing enslaved Black people in 1860, or the ones facing civil rights activists in 1960. But one of the frustrating things about this particular moment in American history is that our Constitution now prevents Black Americans from achieving crucial civil rights victories even when a coalition aligned with their interests controls the Congress and the White House — and when their interests align with a majority of the nation.

That is a potent reminder that, in those rare moments when an egalitarian coalition does wield power, it should emphasize structural reforms that will allow it to achieve future victories and sustain past ones.

Because the best way to win a rigged game is to change the rules.

In 2022, the interests of Black people have converged with the nation’s majority political party, at least on the crucial topic of voting rights.

The president of the United States supports legislation to restore the sort of voting rights protections that the Supreme Court stripped away in Shelby County and similar cases. So does the vice president. So do 219 members of the House of Representatives. So does every Democrat in the Senate — although Sen. Joe Manchin (D-WV) backs a weaker version of this legislation than the Democratic leadership initially proposed.

Yet, because of structural barriers such as Senate malapportionment and the filibuster, this convergence of interests is not enough to pass a bill through Congress.

In the current Senate, Democrats and Republicans control an equal number of seats, but the Democratic “half” represents 43 million more people than the Republican “half.” Black people, and racial minorities generally, bear the brunt of this uneven representation. According to a 2019 memo by the progressive think tank Data for Progress, Black voters have nearly 20 percent less influence over Senate elections than they would if Senate seats were distributed fairly so that every American’s vote counted the same.

In effect, while the Constitution once treated Black Americans as three-fifths of a person, today’s Senate treats Black Americans as four-fifths of a person.

 Data for Progress

Absent structural reform, it’s going to get worse. By 2040, according to a University of Virginia analysis of census projections, half of the United States will live in eight states. About 70 percent will live in 16 states — which means that just over 30 percent of the population will control 68 percent of the Senate.

This sorting of most Americans into just a few states has profound implications for Black voters, who are overwhelmingly Democratic. In the last three presidential elections, the Democratic candidate received 90 percent or more of the Black vote — and it may soon be impossible for Democrats to win a majority in the United States Senate.

One of the best predictors of partisan voting patterns in the United States is population density — densely populated areas tend to be Democratic bastions, while sparsely populated areas are typically Republican strongholds. If this pattern holds, Republicans may soon gain a permanent supermajority in the Senate.

Without a Senate majority, Democrats not only won’t be able to pass federal legislation, they also won’t be able to confirm justices to replace the ones who voted to gut the Voting Rights Act. In effect, Black Americans — as well as non-Black Democrats, urban residents, and liberals generally — will only be able to achieve policy victories when their interests converge with an overwhelmingly white Republican Party.

Perhaps that will happen occasionally, especially on symbolic matters; the vote to make Juneteenth a federal holiday was bipartisan. It’s also possible that, especially as the United States slides closer to one-party rule, an increasing number of conservative Black Americans will join the GOP in the hopes of gaining some modicum of political power.

But on issues like voting rights, it’s hard to imagine Black interests converging with Republican interests anytime soon. Why would the GOP protect the voting rights of a cohort that overwhelmingly prefers Democrats?

It’s not that there isn’t hope for Black Americans. It’s easy to design a more just and egalitarian system than the US Constitution. But it is also very hard to make an ideal constitution into a reality.

The obvious first step is to abolish the Senate or to, as University of Connecticut historian Manisha Sinha suggested to me, “make our Senate a bit like the House of Lords” — a largely advisory body that does not have the power to block legislation outright.

Assuming that the United States retains a system where the chief executive is elected separately from the legislature, the Electoral College also must go. In 2020, President Joe Biden defeated Republican Donald Trump by more than 7 million votes. Yet he would have lost the presidency if only 43,000 Biden voters in Georgia, Arizona, and Wisconsin had not cast a ballot. That’s not acceptable in a nation that purports to be a democratic republic.

Then there’s the problem of gerrymandering.

Racial gerrymandering remains a prominent feature of American elections, and the Supreme Court appears determined to keep it that way. Last February, for example, the Court voted 5-4 to reinstate an Alabama congressional map that gave Black voters 14 percent of the state’s US House seats — even though African Americans make up about 27 percent of the state’s population.

The best solution to the problem of gerrymandering is proportional representation. In a proportional system, the nation would be divided into large electoral districts that would each receive several seats in Congress.

These seats would then be allocated according to the total percentage of votes each party receives — so if the Democratic Party receives 35 percent of the votes in a particular district, it would receive about 35 percent of that district’s seats. Under our current system, a district composed of 55 percent white Republicans and 45 percent Black Democrats will send zero Democrats to Congress. Under a proportional system, the Black minority in such a district would receive nearly as much representation as the white majority.

Realistically, a constitutional amendment is not a viable solution to implement any of these reforms. Amendments require three-quarters of the state legislatures to agree. And it’s unlikely that states that benefit from the Constitution’s anti-democratic pathologies would agree to cure them.

There may be feasible ways to enact some of these reforms without an amendment. The National Popular Vote Compact, for example, calls for a bloc of states adding up to a majority of the Electoral College’s electoral votes to agree to give those votes to whichever candidate wins the popular vote. It’s an ingenious way to nominally leave the Electoral College in place, while simultaneously ensuring that the candidate who wins the popular vote becomes president.

Other ways around the effectively unamendable Constitution are lawful, but difficult to imagine happening. A 2020 proposal in the Harvard Law Review, for example, suggested dividing the (heavily Democratic) District of Columbia into more than 100 states and admitting them all into the Union — and then immediately having these new states approve a raft of pro-democracy amendments to the Constitution.

The thing these solutions have in common is that they’re the sort of fixes that pit the Constitution’s formalistic rules against its spirit, and they’d likely trigger a significant backlash — or be struck down by a Supreme Court that is still controlled by Republicans — unless they had a truly overwhelming political coalition behind them.

Yet, if the reforms suggested above are ambitious and difficult to implement, they are also equal in magnitude to the crisis facing American democracy. If nothing changes, an overwhelmingly white, increasingly authoritarian political coalition could soon gain the enduring power to veto any federal law, along with perpetual control of the Supreme Court.

That is not a democracy, and it is unworthy of a nation that claims to be founded on the principle that all people are created equal.

Transforming the United States into an egalitarian democracy will not be easy. But, as Niko Bowie, a professor at Harvard Law School, reminded me when I asked him how to overcome the many structural disadvantages plaguing American egalitarian movements, “the United States has faced such a crisis before ... nevertheless, democracy has emerged.”

It has emerged thanks to the work of those who retained a clear moral vision in the face of anti-egalitarianism. So let me close by attempting to offer the same sort of moral clarity William Lloyd Garrison offered to the abolitionist movement.

It is wrong that our Constitution denies the fundamental equality of all Americans. It is wrong to count some votes more than others. It is wrong to drive families into poverty solely because we count some votes more than others. It is wrong to allow the one unelected branch of government to dismantle our voting rights. It is wrong that our Congress will not restore those rights because a few senators care more about preserving the filibuster than they do about ensuring that Black people have an equal voice in our society.

And it is wrong that an authoritarian narcissist, who possesses no aptitude for or interest in governance, was allowed to occupy the White House after receiving nearly 3 million fewer votes than his opponent.

Juneteenth is an apt time to reflect on these matters. It’s a reminder of our nation’s most unforgivable sin. But it is also a celebration of freedom, and of those who overcame unimaginable odds to write equality into our Constitution. It is past time that we made that promise real, by changing the Constitution, if need be.

As Garrison said in 1844, “it is an insult to the common sense of mankind, to pretend that the Constitution was intended to embrace the entire population of the country under its sheltering wings; or that the parties to it were actuated by a sense of justice and the spirit of impartial liberty; or that it needs no alteration.”

Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States.

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