The Danger of Minority Party Rule

With Donald Trump's nomination of Amy Corny Barrett - a religious extremist even in the eyes of most Catholics - to the U.S. Supreme Court and the Republican controlled Senate's plan to ram through her confirmation, the majority of American are about to get a real lesson in the danger of minority party rule.  Those likely to suffer are women, blacks, members of the LGBT community and religious minorities as Barrett joins other right wing justices who believe they have the right to impose their beliefs on all Americans.  Given the structural defects in America's constitutional structure, namely the Electoral College and, perhaps even worse, the two senator per state structure, short of a blow out win by Democrats in November and a restructure of the Supreme Court, the likely damage to civil rights may be difficult to stop.  A piece in the Washington Post looks at these dangers and indirectly poses the question of when will the majority revolt.  Here are highlights:

Before the end of the year, Amy Coney Barett will probably be sworn in as a Supreme Court justice — and she may serve for decades. She will have been appointed by an impeached president who lost the popular vote in 2016 and may well continue in office after losing it again in 2020. She will almost certainly be approved by senators representing less than 45 percent of the American population.

Our nation is moving even deeper into minority rule: The House aside, the U.S. government is controlled by the less popular party in a polarized two-party system. We may call this unfair, but that would trivialize the problem. It is entirely permissible under the Constitution, and it is dangerous. When the majority of a nation’s citizens can’t get its candidates elected or its preferred policies passed, the government’s legitimacy is compromised and destabilizing pressure begins to build.

The tendency toward minority rule in the United States, present since the founding, has become more acute. That’s certainly true in the Senate: California has 68 times as many residents that Wyoming has, but the same number of senators. The disparity in population size between the biggest and smallest states is far greater than anything the founders knew.

Residents of rural, sparsely populated states are vastly overrepresented in the Senate. And because the electoral college is based on the number of federal representatives, this rural-state overrepresentation plays out in the selection of presidents, as well.

The House, the most democratic institution in the three branches of government, has no role in selecting Supreme Court justices. That’s the purview of the president and the Senate, which means that the composition of the high court has a minoritarian, rural-state bias built into it as well.

Should a Trump nominee be confirmed, the Supreme Court will consist of six justices appointed by Republicans, even though the party has won the popular presidential vote only once in the past seven elections (George W. Bush, in 2004).

On its own, a rural state bias in representation is potentially problematic but not invidious. Plenty of issues in rural states should receive national attention, of course. But the problems mount when one party dominates the rural areas and the other dominates the urban ones, which is where we stand today. Republicans essentially get bonus points: They can be the less popular party and still get to govern.

This presents a further problem: How are Democrats to respond to an increasingly extreme, Trumpist Republican Party? Democratic leaders, when pressed with examples of Trump’s latest malfeasance, typically respond with, in effect, a one-word answer: “Vote.” It’s good advice, of course. But what if it’s not enough? What if Democrats continue to bring more people to the polls than Republicans but Republicans maintain control of most of government?

But how many such defeats will they take in stride? There may be a tipping point at which the situation becomes intolerable.

When well more than half the country votes for one result — over and over — and continues to get another, the situation is unsustainable. This is how a government loses its legitimacy. Governments worldwide facing legitimacy crises have been faced with struggling to govern, as we saw in the Philippines under Ferdinand Marcos, or brutally cracking down on protests, as we saw in Egypt under Hosni Mubarak and continue to see under Abdel Fatah al-Sissi. It’s an ugly situation, and the United States is not immune.

Reform is possible — in theory. The Constitution can be amended to substantially change the electoral college procedure, as happened in 1804 when the 12th Amendment was ratified, allowing separate votes for president and vice president. But as long as one party considers the current system advantageous, it’s hard to imagine such an amendment attracting the supermajority support needed to pass. Other reforms — such as an interstate compact that would make presidential elections subject to the popular vote — are possible without an amendment.

And that reform, too, faces the brutal logic of minority rule: The party in power will fight desperately to keep its entrenched advantage (and deepen it, if possible). Almost by definition, the longer the anti-democratic spiral continues, the harder it becomes to reverse. And it’s not a counterargument to say that the advantages the Republicans have today are “constitutional.” In fact, that’s the heart of the problem.