Florian P. Kühn | 05 November 2024
As the election is under way, the playbook is reminiscent of old Hollywood Western scripts: The train with the killers is approaching, only no-one in civil society is willing to risk anything to help the hero. Everything comes down to one person to save the day, Kamala Harris must defend (and save) democracy. But what if the movie does not end after the dramatic showdown?
Regardless of who wins the Presidential election (and the numerous elections for state office, House of Representatives and Senate seats, determining legislative majorities and administrative positions) the main problem will stay. It is the United States’ very foundation, in spite of a powerful and popular foundational narrative of the USA as the oldest democracy in the world with a durable and resilient framework of democratic rights: The constitution.
Like most constitutions, the US constitution rests on a compromise between conflicting interests. It is (one of) the oldest constitutions in the world, to be sure, and it is the oldest democratic constitution still in place, with any older ones having since been replaced. At the time of its formulation, it declared a departure from monarchic rule by declaring that it was the people from whom power was derived, not God, not inheritance, not gender. But wait… the ‘people’ in “We the people” were a minority population of white men, many of them slave holders whose politico-economic position in the institutional setup required them to maintain their power in order to uphold their wealth and independence. Sounds circular? Precisely, the dominance was used to keep the dominance.
In the compromise between predominantly enslaving economies in the South and increasingly entrepreneurial ones in the North, the states of North America needed to find unity to become independent from European colonial influence. This compromise enshrined racist stratification in the institutions: the states could define how votes would be cast and by whom. Elected institutions would transfer their racial focus onto appointed positions: judges, administrative positions, and the definition of what counted as economic success and merit (such as white-coded academia in the form of Ivy League Universities).
On one end of the spectrum, there is an understanding of wealth and privilege as an expression of achievement (instead of inheritance) that translates into political power. On the other, there is a history of systematically making the American dream impossible to achieve for those who are not part of the in-group. To be sure, the USA are a progressive country. ‘Progress’ is valued just as highly as wealth if it is understood as scientific innovation or capitalist profits; it is turned into something to be scared of if associated with the spread of women’s or civil rights. Such ambiguity in terms stretches across political discourse.
This is most apparent in the electoral system: If every one vote in the US counted the same, the institutional architecture would likely be questioned much more than it is by these progressive ideas. But because the constitution is designed to be extremely difficult to change (it can be ‘amended’, not substantially changed to begin with), and because it had to accommodate Southern states’ interest in achieving political influence commensurate with their productive importance in the 18th century, the institutional setup is unable to redress racist and gender-based imbalances.
The constitution does not mention voting rights for everyone. That is because in keeping with the original, and in its pure patriarchal sense quite rightly so-called “Founding Fathers’” idea, women should not be allowed to vote. When women were allowed to vote with the introduction of the 19th Amendment to the constitution in 1920, ‘universal’ suffrage' did in practice not include minority women such as from the indigenous or Black population.
With regard to the Black enslaved population, the situation was even more complicated. To form the Union in the first place, in which the number of people in Northern states was significantly higher than the eligible-to-vote citizenship in the South, Southerners demanded to be more evenly represented. A compromise was found to prevent the Northern States from having an enshrined majority in the Union’s institutions. Accordingly, the South would count unfree slaves as 3/5 of a person, bringing the overall count for each state (based on which the number of representatives would be determined) to “all white men + 3/5 of the enslaved population”. This way, the representation of Southern states in the Union’s institutions was propped up, and the political power of the Southern slave holder economy was disproportionately elevated.
The introduction of the so-called Jim Crow legislation in the late 19th century put the racial segregation into legal regulation even after slavery was officially abolished. Allowing access to voting rights (hard fought for by proponents of abolition and other civil rights) only selectively, state legislation connected voting rights to literacy, to registered homes or other criteria often not easily met by Black or indigenous citizens. Certain, mostly predominantly Black social practice could be criminalized, and convicts excluded from voting by the states. Only the Voting Rights Act of 1965 limited the ability to select who was allowed to take part in political decision making when all state legislation had to get authorization from the Federal government. So when the Supreme Court undid abortion rights in the Dobbs’ decision, citing that it was the states who were to make decisions about women’s bodies and not the Federal level, this followed the simple, tried and tested playbook of discrimination by subsidiarity.
This continued a development that had started after Barack Obama took office – on the face of it a big leap for political participation of Black citizens – when the Supreme Court undid the Federal prerogative and gave discretion for election regulation back to the states: Allowing them to exclude voters and allowing wealthy donors to spend unlimitedly through so-called Super-PACs. This translates abovementioned confusion of wealth with merit into political power as it opens all doors for influencing small constituencies, which are–in the US political system–of outsized importance to the outcome of elections.
The reason for that, particularly in Presidential elections, is the electoral college. Unlike in Parliamentary political systems, a Presidential system derives the political leader’s legitimacy directly from the voters. This introduces competition between the legislative and the executive branch of government by design. It also poses something of a representation problem as long as the elections are conducted according to different laws the states have invented. In terms of vote count, the Electoral College brings the Presidential election results from the states to the Federal level and was meant to alleviate the majorities of the North: In the electoral college, the state are assigned the number of representatives that each states has in the House and then some more:
Because in the Electoral College the number of Representatives in the House is combined with the two Senators each state sends to Washington, smaller states are disproportionally represented there: A state like Vermont is entitled to one elector which is proportionate to its share of Representatives in the House. However, adding its two Senator seats to the proportionate number of votes in the Electoral College triples its influence. On the other hand, the added Senatorial seats bring the count for California with 52 electors up to 54 votes in the electoral college once the Senate posts are added – an increase of less than 4%. Having chosen examples of Democrat-leaning states, one might argue that this does not per se influence the political landscape – however, it does because “smaller states” (in terms of population count) find themselves in the predominantly rural areas of the South and the mid-West.
What is counted here is the number of states, not the relative share of the electorate. Scarcely populated states play a significant role in the Electoral College. In an extreme case this allows for the fact that the winner of the popular vote (the number of votes for this candidate overall) may still not gain a majority in the Electoral College – and vice versa, a candidate may become President who was not elected by a majority of the US population as a whole. This was the case with George W. Bush as well as with Donald J. Trump in 2016. Hillary Clinton ended up with roughly 80 Electoral College votes less than Trump, although she won about 3 million more votes across the states.
This mismatch of votes and representation in the Electoral College is compounded by the fact that most states allocate all votes in the Electoral College to the winner of a majority of votes in this state. So a state which represents 15 million voters will send all Electoral College electors regardless of whether they are representing a narrow victory of 7.6 million vs. 7.4 million votes OR a landslide of 12 million vs. 3 million. It is obvious that not every one vote counts the same towards the outcome of electing a President – depending on which state a voter lives in, big or small, Northern or Southern, densely or scarcely populated.
To summarize, the US constitution carries a structural burden of its racist and misogynistic legacy. Combined with a political practice that does not alleviate the polarizing tendencies but exacerbates it, the political system is additionally in trouble. This may be illustrated by the replacement of Supreme Court Judges, which depends on either their resignation or death. As a result of the lack of a time limit to judges’ tenure, Donald Trump was coincidentally able to name three new judges (choosing young judges to allow to decades of Republican dominance in the course to come). The last one, Amy Comey Barrett, was replacing Ruth Bader Ginsburg, who died in September 2020, and was sworn in only a week before the 2020 Presidential election. This would not be noticeable if it weren’t for Mitch McConnell, the leader of the Republican Senate majority, having refused to even consider hearings for a replacement in 2016, the last year of Obama’s government, citing an invented tradition that Supreme Court nominations could not be discussed in the Senate during an election year.
While in the USA polarization splits families, segregates parts of the public in their own echo chambers, and the wealth gap between inheritance and work income pits haves and havenots against each other, there is a strong point to be made that it is the constitutional order which is beyond repair – beyond repair in the sense that the societal tensions cannot be solved or even alleviated through the political system’s rules and procedures. The systematic tactic of appointing excessively partisan judges to the courts has also foreclosed the checks of political power which the judicial branch could usually exercise over legislation and executive practice. As a result, public trust in the Supreme Court, but also the judicial branch as a whole is racing from historical low to historical low.
The ruthless use of formal institutions for partisan benefit is meant (and presented as such) to lure an often uninterested public into passivity or indifference. A lot of the political theatre has aliened people to the extent that they don’t follow political news any more. Below the surface of a political show in which ‘they are all the same’ works to justify political distance, the transformation of institutions is meant to appear as regular and legal – which to a certain extent it is. However, this practice also allows for outsized influence of the religious extremists of the Evangelical right, and means a reassertion of White Christian male dominance. The backlash against what was called ‘Critical race theory’ for example is an attempt to prevent calling out the ideology on which American patriotism necessarily needs to rest: If analysed (not ideologically proclaimed), the US system looks legally and institutionally rather racist and misogynistic, suppressive of minorities and exclusive in how it distributes access to wealth and opportunities than popular perception would have it.
Showing Black Americans and other minorities ‘their place’ (of subordination), controlling women’s choices and limiting other minorities’ life chances such as indigenous or LGBTQ groups’ while Making (white male) America Great Again is thus not an aberration but logically coherent. It is a consequent and straightforward application of the ideas of the US constitution. Since it is almost impossible to change this framework procedurally, uneven governance by the few over the many will remain for a long time to come. This all depends on a strong narrative of glorification of the constitution. Such glorification is everyday practice, starting with singing the National Anthem at each sports event (with ensuing claims of unpatriotic behaviour by those who decided to kneel in solidarity of Black Lives Matter) and does not end with the daily Pledge of Allegiance for pupils before school.
While students cannot be forced to say the pledge according to a Supreme Court ruling from 1943, social pressure is high to do so – and thereby reproducing the white male, often Civil War era understanding of “one Nation under God, indivisible, with liberty and justice for all". If we learned to understand ‘all’ to mean the economically well-off, white male Christian part of the population, the religious nationalism which provides the base for Trump’s support becomes scarily real. It is powered by fear of losing influence to minorities; of ceding cultural dominance that underpins the political influence; and of, as a consequence, suffering losses in economic and political affluence. Sidelining critical evaluation of the foundations of the US becomes the tool to assert the narrative prerogative.
Regardless of who wins the 2024 Presidential election, which we may not learn about until much later than Nov 5, the constitutional challenge will not disappear. Because there is no way easily imaginable that would lead to a re-vamping of the constitutional set-up in the USA, polarization and political violence are here to stay well beyond the life span of Donald Trump or even the much younger Kamala Harris. Repeatedly like in ‘High Noon’, individuals will be tasked to prevent the worst in terms of de-democratization, such as Mike Pence when he stuck to the constitution by certifying the election of Joe Biden instead of giving in to Trump’s threats. Yet, each little triumph over the thugs coming in on the noon train cannot mask the tendency that the authoritarian minority increasingly calls the shots.
Florian Kühn is Senior Lecturer at the School of Global Studies, University of Gothenburg, and Academic Coordinator of the Bavarian Research Network 'Conflicts.Meanings.Transitions'. He works on violence and peace, and how ambiguity shapes dynamics of political conflict. Since taking a course with Richard Lehne from Rutgers University in the 1990s, he's followed the political economy of the US political system with a keen interest through the Bush, Obama and of course Trump and Biden presidencies.
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