Being Outnumbered Doesn’t Have to Mean Losing

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

 History tells us that when our founders declared their independence from British rule, that statement meant something different than how we’ve come to think of it today. First of all, they weren’t using “men” in the androgynous way that we sometimes do to refer to all human beings. They literally meant “men” – not women. But it was even more narrow than that. They used the word to refer to white male property owners.

Those assumptions were operationalized in the Constitution that was developed by our founders in articles that let individual states determine who would be allowed to vote, set up the election of Senators by state legislators and stated that slaves were 3/5 of a person. It has only been through Civil War and the amendment process that we have expanded our democracy to actually affirm that all men and women are created equal.

That history is documented by Zachary Roth, contributing editor of the Washington Monthly and national reporter at MSNBC, in his new book: The Great Suppression: Voting Rights, Corporate Cash, and the Conservative Assault on Democracy. For example, just as we are all getting reacquainted with Alexander Hamilton because of Lin-Manuel Miranda’s award-winning Broadway musical, Roth provides us with this statement from his only major speech at the Constitutional Convention in Philadelphia: “Hamilton said the system should allow the ‘rich and the well born’ to maintain their supremacy, since they would oppose radical change pushed by ‘the many.’ The goal, he said, was to ‘check the imprudence of democracy.” Other quotes from some of our famous founders mention the need to keep the mob in check. As John Adams said, “They want equality more than they want liberty.”

The reason that Roth, reminds us of this history is because, as he documents, those race/class/gender exclusions that were originally built in to our founding were never completely abandoned by conservatives in this country. To get a sense of how present-day Republicans frame their concern about “the mob,” he points to Mitt Romney’s infamous remarks about the 47%, which echoed the conservative complaint about people who don’t pay taxes and are bought off by the promise of “free stuff.”

Roth points out that these arguments from conservatives have gained currency during the Obama years. It’s not simply because the country elected its first African American president – it’s how he won. Beginning in the 1970’s, Richard Nixon referred to the “silent majority.” Through the Reagan years we heard a lot about the “permanent Republican majority.” As Roth says, “Today’s conservatives have no such confidence that the people are on their side. In fact, they are beginning to perceive that they’re in the minority – perhaps more glaringly than ever before. And yet this realization has brought with it another more hopeful one: being outnumbered doesn’t have to mean losing.”

With that, Republicans have engaged in a “bold campaign” that “has amounted to nothing less than an effort to undermine democracy, Roth says. We’ve seen that in the unprecedented way that they have tried to undermine the legitimacy of Obama’s presidency via things like requiring a supermajority to pass anything in the Senate.

Roth goes on to identify other conservative efforts to limit democracy that have received a lot of attention over the last few years, for instance, voting rights suppression and the infusion of big money into politics. (Though liberals can take heart at voter ID laws being struck down in North Carolina, Kansas, and Wisconsin.) But beyond that, not only have Republicans made Congress ineffective via use of the filibuster in the Senate, he points out that the old practice of gerrymandering House districts has been used to give Republicans a majority of members via a minority of votes. For example, in 2012 “Democratic candidates won about 1.4 million more votes than Republicans, but the GOP came away with a thirty-three-seat advantage in the House – just the second time since World War II that the party with fewer votes won a majority.”

Roth also provides us with some examples that we haven’t heard as much about: preemption and judicial engagement. The most publicized example of preemption happened recently when the North Carolina legislature rushed to pass their infamous HB2 bill against the city of Charlotte’s ordinance affirming the rights of LGBT people. But it is actually a tactic that was developed by tobacco companies to overturn local anti-smoking ordinances. More recently, Roth describes a fascinating case in Denton, Texas where organizers were able to successfully pass a ban on fracking – only to find it overturned by the state legislature and the courts. Preemption has also been used to overrule minimum wage increases and paid sick leave in states like Wisconsin, Oklahoma and Michigan. Roth explains why this kind of effort has been so successful: “Corporate lobbyists can usually use their influence to stymie or water down serious attempts at regulation coming from Washington and state capitals. But in cities and towns, it’s often a different story.”

Judicial engagement turns the whole concept of judicial restraint (something we used to hear a lot about from conservatives) on its head. It suggests that, rather than giving the benefit of the doubt to the elected branches of government, judges should strike down laws that they think violate the Constitution. We saw that most notably with Obamacare. But as Roth explains, the deeper issue at work here is to elevate property and economic rights to be on par with other rights, like free speech. The goal is to strike down laws that regulate business or protect workers in favor of “liberty” for corporations. Or as Roth puts it: “All of a sudden activist judges are the last line of defense against the mob.”

It is important to acknowledge that liberals have used tactics that resemble preemption and judicial engagement to end Jim Crow laws and fight for civil rights in the courts. I was reminded of that when Roth provided this quote from Bill Maurer, the lawyer who argued against Arizona’s public financing law before the Supreme Court: “It’s a good thing we have a Constitution that protects the rights of individuals from the whims of majorities.”

Roth addresses this in documenting the attempt by conservatives to strike down provisions in the New Deal. In the 1938 U.S. v. Carolene Products case, the Supreme Court held that economic rights aren’t the same as civil rights when it comes to federal or judicial intervention. In a footnote, Justice Harlan Stone wrote that courts should intervene with laws that dealt with “the very essence of ordered liberty” as well as laws “against discrete and insular minorities” who are the victims of “prejudice.”

In summary, reading Roth’s examination of both the history and present day use of these anti-democratic tactics brings together the big picture of what we are witnessing today in a way that hasn’t been articulated before. Too often we think that disagreements between liberals and conservatives are confined to things like the size and role of government. But for many Republicans (and Libertarians), the divide goes much deeper. It comes down to the way it was framed in the quote above by John Adams: a question of equality or liberty. When viewed through that prism, the constant refrain from Republicans about liberty and defending the Constitution make sense in a way they haven’t before. For them, our government isn’t a democracy in which all (wo)men are created equal. It is about a founding document that is a check on the democracy of mob rule. As long as conservatives assumed they were in the majority, that kind of argument all but disappeared. Now that they find themselves in the minority – the race/gender/class-based exclusions of “the mob” are resurfacing. As one writer at the National Review put it: “It’s liberty, not democracy, that is America’s highest ideal.” That is directly at odds with how President Obama articulated the liberal view during his remarks about the Selma march:

And yet, what could be more American than what happened in this place? What could more profoundly vindicate the idea of America than plain and humble people –- unsung, the downtrodden, the dreamers not of high station, not born to wealth or privilege, not of one religious tradition but many, coming together to shape their country’s course?… 

That’s why Selma is not some outlier in the American experience…It is instead the manifestation of a creed written into our founding documents:  “We the People…in order to form a more perfect union.”  “We hold these truths to be self-evident, that all men are created equal.”