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Who Needs to Win to Win?

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The Obama era has also seen Republicans in nearly every state they have controlled impose burdensome identification requirements to vote, bureaucratic obstacles to the registration of new voters, and rolled-back early balloting. (Some of those crackdowns withstood legal challenge; others did not.) The campaign to rig the Electoral College can be seen as a piece of the same broad effort—leveraging Republican control of state governments in order to stop the Obama coalition from exerting its numeric power. The Electoral College itself already compromises the democratic principle (it allows the winner of the popular vote to lose the presidency). But the Republican plan would give its candidates all the electoral votes from states they carry, plus some electoral votes from states they lose. Even worse, thanks to gerrymandered redrawing of congressional districts, some states in which Republicans lose the popular vote (as Romney did in Michigan, say) would split their electoral votes in the Republican candidate’s favor.

In Washington, too, the Republican minority has flexed its muscles by creating new powers for itself that previous minorities never imagined. The Senate filibuster has evolved over the past three decades from a rare tool of unusually strong dissent into a routine tactic requiring a supermajority to foil. Under Obama, Senate Republicans have adopted the extraordinary new stratagem of using their blocking power to prevent the execution of duly passed laws and to stop presidential nominees not out of any particular objection to the candidates, but out of opposition to the laws those bureaus carry out. The congressional scholars Norman Ornstein and Thomas Mann have labeled this technique “the new nullification”—a minority invalidating laws it lacks the votes to overturn. A handful of reform-minded Democrats have sought to rein in minority obstruction, but their efforts petered out.

Of all these efforts, the most potent may ultimately be the concerted operation by legal conservatives to turn the courts into a machine for judicial activism. Since 1937, courts have left economic policy to legislatures and handed down activist rulings to expand social rights for minorities. Some conservatives strove to use the courts to create rights for economic minorities—that is, wealthy people—by reading the Constitution, as the tea party does, not merely as a blueprint for political organization and civil rights but as mandating laissez-faire economic policy. As recently as 2005, this was a fringe movement, known as the “Constitution in Exile” and denounced by mainstream conservatives schooled in the generational Republican distrust of activist judges. (Antonin Scalia called it a “threat to constitutional democracy.”) But the legal case against Obamacare crystallized a shocking change. As the case wound its way through the courts, the entire conservative legal apparatus, including Scalia, endorsed the reasoning and methods of the Constitution in Exile movement. The Supreme Court barely upheld Obamacare while opening the door to strike down sundry taxes, spending, and regulations that conservatives can’t stop in Congress.

The constitution in Exile movement has an explicit historic parallel in mind: The “Lochner era,” a period from the end of the nineteenth century through 1937, when archconservatives ruled the Supreme Court and used it to strike down the income tax, labor laws, and other populist measures. Conservatives cite, and hope to revive, the legal doctrines from this period, along with the Court’s role as a legislative backstop for laissez-faire economics.

The Lochner era also happened to coincide with an era in which, like today, conservatives were stalked by a panic that they were losing the country. The cities were swelling with foreigners pressing for economic and social change. The simple virtues of majority rule suddenly grew far murkier to many Americans. Francis Parkman, a prominent historian, wrote an essay in 1878 titled “The Failure of Universal Suffrage.” In it, Parkman lamented that open democracy worked well in the old small towns, but had grown perverted with the influx of “thousands and ten thousands of restless workmen, foreigners for the most part, to whom liberty means license and politics means plunder.”

A similar dread courses through the right today. It can be heard in the dismayed comments of Mitt Romney, who told donors both before and after the election that Obama’s appeal boiled down to letting his supporters loot the public fisc. Parkman’s fear—“politics means plunder”—had become, 134 years later, Romney’s displeasure at Democrats’ “giving a lot of stuff to groups that they hoped they could get to vote for them and be motivated to go out to the polls.” The Gilded Age newspaper that argued that the right to vote should belong to those “competent to know what are the rights of his fellow-citizens” has an echo in respectable contemporary figures like George Will, who recently praised filtering “potential voters with the weakest motivations” or else “the caliber of the electorate must decline.”

The tradition of expanding the scope of American democracy commands all the retrospective historical glory. But the counter-democratic tradition—a concerted advocacy not of dictatorship but of restraints to prevent the majority of citizens from exercising political power—runs just as long and deep. It runs through John C. Calhoun, the titanic nineteenth-­century theorist who defended the rights of the white South against the growing majority in the North. (“The first and leading error … is to confound the numerical majority with the people, and this so completely as to regard them as identical.”) Our history books record the arguments of the crusaders for voting rights for women and blacks and overlook that they were, necessarily, arguing against something. Women’s suffrage, warned former president Grover Cleveland in 1905, would “give to the wives and daughters of the poor a new opportunity to gratify their envy and mistrust of the rich.” In 1908, New York City tried to suppress voting by Jews (who held notoriously left-wing views) by limiting voter registration to Saturdays and Yom Kippur. It took a hotly contested constitutional amendment in 1913 to allow people nationwide to vote for their senators, who previously were appointed by state legislatures.

American history has always tugged back and forth between a more pure democracy and some constricted facsimile thereof. “In the very long run, to be sure, we have become more democratic,” Harvard historian Alexander Keyssar has written, “but there have been numerous moments in our past when the pendulum swung in the opposite direction.” It seems peculiar, though perhaps not bewildering, that the pendulum should swing back, not forward, during—of all times!—the presidency of Barack Hussein Obama.


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