American democracy is broken.  It’s very future is in doubt. I want to discuss two of the major issues that need to be addressed—1) the inability of the national government to produce action at the national level on critical, in some cases existential, issues and 2) the increasing threat, that in contraindication to Lincoln’s memorable phrase that “government of the people, by the people and for the people” shall not perish from the earth, there is evidence that it is perishing before our eyes.

The Failure to Deliver.  Gridlock is a feature, not a bug, of American democracy.  The framers of the US Constitution purposely designed the American Government to limit the ability of a majority to run roughshod over the rights of the minority.  Thus, they designed a federal government that gives a great deal of power to the states (The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). They also followed Montesquieu’s idea of “separation of powers,” by creating legislative, executive and judicial branches, limiting the power of each. The Constitution also created a bicameral legislative body, requiring all laws to be passed by both Houses.  Thus, inaction was preferred to rash action.

As Sarah Binder wrote in 2000, “Gridlock is not a modern legislative invention. Although the term is said to have entered the American political lexicon after the 1980 elections, Alexander Hamilton was complaining more than two centuries ago about the deadlock rooted in the design of the Continental Congress. In many ways, gridlock is endemic to our national politics, the natural consequence of separated institutions sharing and competing for power.”

Today, the Congress is unable (or unwilling) to pass meaningful legislation in three “hot button” areas –climate change, gun control, and immigration.

As an example, let’s look more carefully at gun control. When asked, “How strict should gun laws be, 57% of those polled believed laws should be stricter, while 9% believed regulations should be reduced.7

Gun Control.  The history of federal gun control legislation is quite limited:

• In 1968, following the assassinations of Martin Luther King and Robert Kennedy Congress passed the Gun Control Act (GCA) of 1968. That act 1) required licenses for interstate sales and regulated the importation of firearms.
• In the 1980s Congress passed a series of laws stiffening the penalties for using a firearm when committing various drug crimes.
• In 1986, Congress took a step backward in passing the Firearms Owners’ Protection Act to ensure that the GCA did not “place any undue or unnecessary Federal restrictions or burdens on law abiding citizens,” but it opened many loopholes through which illegal gun traffickers could slip.
• In 1993, Congress passed the Brady Handgun Violence Protection Act which requires criminal history background checks by the Federal Bureau of Investigation (FBI) and state agencies on persons who attempt to purchase a firearm from a licensed dealer.
• In 1994, Congress passed the Violent Crime Control and Law Enforcement Act which made it unlawful, with certain exceptions, to manufacture, transfer, or possess semiautomatic assault weapons.  The law expired after ten years.

Now all this might seem to you like small cheese; that’s because it is.  By and large the effects on homicides, suicides and mass shootings of these laws are minimal or non-existent.  This may be because there hasn’t been a great deal of research on the topic or, as the Rand Corporation noted, these laws affect the flow of new guns into the system, or the legal ownership of purchased weapons. They don’t deal with the extremely high number of guns already owned by Americans, and, thus, have limited impact.  See the Rand Corporation’s article for a more nuanced take on what works and what doesn’t. Because our politics makes it impossible to enact serious gun control legislation, we are doomed to have the highest rates of gun deaths among advanced countries in the world (12.25 per 100,000 populations compared to, for example, 2.05 in Canada).  Despite years of high levels of gun deaths and a number of high-profile mass shootings, Congress is unable to pass stricter gun control.

The threat to American Democracy.  Donald Trump’s assault on our democracy has been well documented.  Among other things, he has

1. Said he supported many right-wing armed militia groups (including armed protesters who stormed the Michigan state legislature on April 30, 2020).
2. Said he would not necessarily accept election results (July 9, 2020 and September 23, 2020).
3. In the last days of his presidency he refused to concede the election and began to spread “the big lie,” that he actually won the election, and that it was stolen from him.
4. Consistently refused to denounce violent supporters including armed protesters in Charlottesville in January 2020, armed protesters who stormed the capitol in Michigan in April 2020, white nationalist-led protests in Wisconsin in August 2020, and refused to condemn white supremacist organizations such as the Proud Boys.
5. He asked Justice Department officials to state that the 2020 election was rigged so that he could plausibly ask Georgia officials to overturn result.
6. He supported “Stop the Steal” rallies and told his supporters that the “fraudulent” election would be overthrown.
7. He pressured Georgia Secretary of State Brad Raffensperger to change the Presidential votes saying, “What I want to do is this. I just want to find 11,780 votes, which is one more than [the 11,779 vote margin of defeat] we have, because we won the state.”
8. Supported a major protest on January 6, 2021 to pressure lawmakers not to certify the votes of the electoral college.
9. Told Vice President Pence that he has the authority to reject slates of electors which have been elected through voter fraud and send those votes back to the state legislatures.

Insurrectionists assault the U.S. Capitol, January 6, 2021.          Getty Images

The assault on the Capitol.  It is uncertain how much responsibility Trump bears for the January 6 insurrection, but it is clear that he encouraged supporters to come to Washington, and that he riled up his supporters, saying

“We’re going to walk down to the Capitol– and we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.” and

“You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” and

“Something is wrong here, something is really wrong, can’t have happened and we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” and

“So we are going to–we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give–the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try–give our Republicans, the weak ones because the strong ones don’t need any of our help, we’re try–going to try and give them the kind of pride and boldness that they need to take back our country. So, let’s walk down Pennsylvania Avenue.”

The aftermath.  In May, a poll taken by Reuters/Ipsos found that 61% of Republicans and 30% of all Americans agree with the statement, “The 2020 election was stolen from Donald Trump.”  Because of the “rigged” election, a number of states have enacted voter laws which, depending on your point of view, have increased voting security or increased voter suppression.  Some of these laws empower state legislatures to review election outcomes.  For example, the new Georgia law removes the Secretary of State from the State Election Board and creates a review mechanism dominated by the state legislature.  Many of the reforms being enacted by the states follow the Georgia model and raise the ability of partisan legislatures to challenge election results.

Many observers have said that while the “big lie” and its aftermath threatened our democracy, the real takeaway is that the “guardrails of our democracy” held fast.  Elaine Kamark detailed the various major institutions of American democracy (Congress, judicial system, federalism, the press and the civil service) and found these were not weakened by Trump.  However, the real institution being assaulted by Trumpism is our election system and its tradition of the peaceful transfer of power from one set of officeholders to the next.  Trump has continually called the 2020 election rigged and challenged the results.  The only reason he was unsuccessful was the fact that state officials like Brad Raffensperger, Arizona Governor Doug Ducey and Vice-President Pence stood up to him.  On the infamous day of January 6, 2021, six Republican Senators and 147 Republican members of Congress voted against certification of the election.  What would have happened if the GOP controlled one or both houses of Congress?

The only reason the “guardrails” of American democracy held was the courageous stands of a few people, mostly Republicans.  But this was a near miss.  Our institutions didn’t protect us; courageous people of impeccable integrity did.  The current trend to replace non-partisan election officials with partisan legislators threatens the future of our democracy.

Today is the five-year anniversary of the “Unite the Right” rally in Charlotteville, Virginia.  I watched the terrifying event on television, and it shocked me. Here were normal-looking white, college-age men marching through Charlottesville, Va. Chanting “Jews shall not replace us.” I am Jewish. My daughter and son-in-law attended the University of Virginia. Charlottesville has a special place in my heart. What brought us to this place where neo-Nazis were marching through an iconic city in Virginia shouting antisemitic slogans and what did those slogans mean?[i]

This was my first exposure to “The Great Replacement Theory.” This idea has its origins in French antisemitism, specifically in the writings of Jean Raspail and Renaud Camus. According to Wikipedia, “Camus (not to be confused with the Nobel Laureate Albert Camus) is a French novelist, conspiracy theorist and white nationalist, and the inventor of the “Great Replacement“, a far-right conspiracy theory that claims that a ‘global elite’ is colluding against the white population of Europe to replace them with non-European peoples.” Camus writes of “replacement elites” who are driving this process.

The important word here is “colluding.” It is a demographic fact that non-white populations are growing faster in Europe and North America than are white populations, although the exact numbers are in dispute. In Europe, in general, and in France, in particular, for “non-white” read “Muslim.” According to the Pew Research Center, Muslims made up 4.9% of Europe’s population in 2016 (and 8.8% of France’s population).  By 2050, that proportion could grow to 14.0%. Clearly, some people could see those numbers as threatening. But what’s important is not the influx of Muslim immigrants, caused largely by violence in Syria and other parts of the Middle East, but the idea that this result is part of a conscious plot.

According to the Southern Poverty Law Center, “The great replacement narrative provides the central framework for the global white supremacist movement. The racist conspiracy says there is a systematic, global effort to replace white, European people with nonwhite, foreign populations. The ultimate goal of those responsible — Democrats, leftists, “multiculturalists” and, at times, Jews — is to reduce white political power and, ultimately, to eradicate the white race. The theory has motivated multiple terror attacks, including the 2018 attack at the Pittsburgh, Pennsylvania, Tree of Life Synagogue, the 2019 attacks at two Christchurch, New Zealand, mosques and an El Paso, Texas, Walmart, and, most recently, an attack targeting Black people at a supermarket in Buffalo, New York.”

This conspiracy theory would have probably died in the dark corners of the French-language internet if it hadn’t been revived by Tucker Carlson. Let’s trace how the Great Replacement became mainstream in America and how it has been used to trigger mass shootings in Pittsburg where 11 congregants of a Jewish Temple were killed, Christchurch New Zealand where 51 people were killed in attacks on mosques, El Paso, Texas, where 23 people were killed in an attack on a Walmart, and in Buffalo, NY where 10 African Americans were shot in an attack on a grocery store. Each of the shooters had pieced together a manifesto citing that they were acting to protect the white race from replacement.

According to The National Immigration Forum, “In mid-September 2021, the U.S. media turned its attention to an increasing number of Haitian migrants seeking protection at the border in Del Rio, Texas. While most of the arriving migrants were either turned back into Mexico or deported to destitute conditions in Haiti, some Haitian families were allowed to stay in the U.S. and pursue asylum claims in immigration court. On Sept. 22, cable television host Tucker Carlson provided his own theory as to what was happening at the border. In a segment titled “Nothing About What’s Happening Is an Accident,” Carlson said that current U.S. border policy is designed to ‘change the racial mix of the country. … In political terms this policy is called the ‘great replacement,’ the replacement of legacy Americans with more obedient people from faraway countries.” Carlson concluded that President Biden’s policies with regard to the Haitian migrants have put the U.S. on a “suicidal” path.”

Note several pieces to Carlson’s syllogism here:

1. Non-white populations are growing faster than white populations. This is true. By 2045, white, non-Hispanics will become the minority in America according to the US Census Bureau (see chart below)
2. Democratic politicians are actively seeking to increase immigration from Latin America in order to gain future voters. Carlson argues that Democrats want open borders. “Demographic change is the key to the Democratic Party’s political ambitions. Let’s say that again for emphasis, because it is the secret to the entire immigration debate: Demographic change is the key to the Democratic Party’s political ambitions. In order to win and maintain power. Democrats plan to change the population of the country. They’re no longer trying to win you over with their program. They’re obviously not trying to improve your life. They don’t even really care about your vote anymore. Their goal is to make you irrelevant.”
3. Immigrants not only threaten our jobs, they also are dirty and bring litter (this was a major point of Carlson’s broadcasts of December 13, 2018, and several weeks following).

There is no evidence for any of this. Democrats do call for reforming a broken immigration system. These reforms would include:

• Finding a path to citizenship for Dreamers
• Eliminating the Draconian policies of the Trump Administration
• Having a logical and generous asylum system
• Linking work visas to labor force needs (particularly in high tech fields)
• Providing short-term work visas for seasonal workers like farm workers who are needed by American agriculture
• Unite families when possible

Carlson turned his anti-immigration stance into a campaign, and it certainly sounded like “replacement theory.”  In fact, a study by The New York Times found more than 400 episodes over five years in which Carlson generally espoused the slogan “they want to replace you.”  The “they” is apparently Democratic politicians; the “you” they want to replace are “white Americans,” and the replacers are immigrants, mostly from Latin America (and Haiti).

The results were predictable. A few disturbed people saw this theory as the reason their lives were not what they hoped they would be. The most recent example is Payton Brendon Gendron who drove more than 200 miles from his home in Conklin, N.Y. to a predominantly black part of Buffalo where authorities say he fired approximately 60 shots at shoppers and workers, killing ten of them.  His writings give some idea as to what drove him to kill black people. They included “statements that his motivation for the attack was to prevent Black people from replacing white people and eliminating the white race, and to inspire others to commit similar racially-motivated attacks.”

His manifesto begins: “If there’s one thing I want you to get from these writings, it’s that White birth rates must change. Everyday the White population becomes fewer in number. To maintain a population the people must achieve a birth rate that reaches replacement fertility levels, in the western world that is about 2.06 births per woman.” The “Manifesto” goes on for 180 pages.  He writes, “Mass immigration will disenfranchise us, subvert our nations, destroy our communities, destroy our ethnic ties, destroy our cultures, destroy our peoples. Long before low fertility levels ever could (sic). Thus, before we deal with the fertility rates, we must deal with both the invaders within our lands and the invaders that seek to enter our lands. We must crush immigration and deport those invaders already living on our soil. It is not just a matter of our prosperity, but the very survival of our people.”

Much of his manifesto is in a Q&A format and shows him to be very self-aware. For example.

Q: Why did you decide to carry out the attack?

A: 1) To show to the replacers that as long as the White man lives, our land will never be theirs and they will never be safe from us; 2) To directly reduce immigration rates to European lands by intimidating and physically removing the replacers themselves; 3) To intimidate the replacers already living on our lands to emigrate back to their home countries; and so on. He claims he got his ideas from the internet and is following in the steps of Brenton Tarrant. Tarrant was the Australian white supremacist who killed 51 worshippers in a March 2019 attack on two mosques in New Zealand.

He never explains why, if immigrants are the enemy, he mostly killed native blacks (unlike Tarrant). He says of himself that he is a fascist, a racist, a white supremacist, and an antisemite. Much of his screed is centered on antisemitism. He is predominantly a separationist as the following Q and A shows.

Q: Did, or do you personally hate blacks?

A: A black man or woman living in their homelands? No.

A black man or woman choosing to invade our lands, live on our soil, live on government support and attack and replace our people? Yes, I dislike them. (Here he ignores the fact that most blacks in America are descendants of slaves and didn’t come here out of their own volition).

The Southern Poverty Law Center conducted a poll on extremism and found, “that the ideas underpinning the white nationalist “great replacement” narrative recently cited by an alleged white supremacist terrorist in Buffalo, New York, have become thoroughly mainstream on the political right. Nearly 7 in 10 Republicans surveyed agree to at least some extent that demographic changes in the United States are deliberately driven by liberal and progressive politicians attempting to gain political power by “replacing more conservative white voters.”

Summary.  The “Great Replacement Theory” has its origins in French antisemitism though going back to the late 18^th century.The main idea is that there are groups of people (Jews, primarily, but also other elites) colluding to replace white European culture as the predominant culture in Europe and the rest of the Western world.Tucker Carlson is the most prominent voice and face of the idea, although many internet sites espouse the same, or worse views. Some disturbed individuals in America and elsewhere have decided take the next step and resort to violence against the replacers.

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[i] The International Remembering the Holocaust Alliance insists that the correct spelling for “antisemitic” does not include a dash (“anti-semitic”) because such a spelling implies that there is something called “Semitism” “which not only legitimizes a form of pseudo-scientific racial classification that was thoroughly discredited by association with Nazi ideology, but also divides the term, stripping it from its meaning of opposition and hatred toward Jews”

To understand the “Great Replacement,” we must first understand the idea of nationalism. According to British Historian Elie Kedourie, the doctrine of nationalism holds that “humanity is naturally divided into nations, that nations are known by certain characteristics which can be ascertained, and that the only legitimate type of government is national self-government.”

“Nationalism,” as an ideology, is a recent newcomer to the history of ideas, making its first appearance in English in 1798. Both absolute monarchists and enlightenment philosophes were supporters of the new ideology. Nationalism was hailed in a book by that enlightened despot, Frederick the Great and in the theorists of the French Revolution. The Declaration of the Rights of Man and the Citizen also supports the idea of nationalism.  Article 3 states “The principle of sovereignty resides essentially in the Nation; no body of men, no individual, can exercise authority that does not emanate expressly from it.”

Today, nationalism takes on many forms. Hans Kohn, the seminal thinker on Nationalism in the 20^th century distinguished two major expressions: 1) civic nationalism and 2) ethnic nationalism. According to Stefan Auer, “civic nationalism,” also known as liberal nationalism, is an inclusive form of nationalism that adheres to traditional liberal values of freedom, tolerance, equality, individual rights, while, on the other hand, “ethnic nationalism” is a form of nationalism wherein the nation and nationality are defined in terms of ethnicity. It is this latter form of nationalism with which we are most familiar.

Nineteenth Century Europe saw the emergence of strong movements to consolidate and unify areas of nations divided by the prevailing borders. In particular, the three most powerful emerging nations in Europe (France, Italy and Germany) were politically divided and subject to the predations of stronger powers. Italy, for example, despite its cultural successes, was divided into a number of states controlled by Austria, Spain, France and the Pope. In Italy and much of Europe most of the 19th century was marked by both unification and revolution (supplanting absolute monarchies by liberal democracies).

In the twentieth century, ethno-nationalism was immediately responsible for the onset of World War I, as the multi-ethnic Austrian Empire was doomed to break apart into what we now recognize as nation-states.  The following quote from Hans Kohn sheds critical light on where we stand today:

Nationalism is a state of mind permeating the large majority of the people and claiming to permeate all its members; it recognized the nation-state as the ideal form of political organization and the nationality as the source of all creative cultural energy and economic well-being. The supreme loyalty of man is therefore due to his nationality, as his own life is supposedly rooted and made possible by its welfare.

Hans Kohn was one of my professors, and his views were controversial at the time. Most political scientists saw international conflict as an ideological conflict (this was the time of the Cold War). But Kohn saw the bedrock psychological importance of the idea of the nation. He would not have been surprised at the breakup of the Soviet Union, nor at the emergence of Russian nationalism (he died well before these events in 1971).

But nationalism is no longer limited to international relations. As modern countries are less identified with a dominant national group, the power of the idea of the nation has fueled groups within a nation to seek out a “national” identity. This is true of Scots in England, Croats in Yugoslavia, and white males in America. These strains of ethnic identity among disaffected sub-groups driven by a psychology of disappointment and discouragement that are dispelled by belonging to an exclusive group. Thus, we see streams of white nationalist young men adopting Nazi symbols, marching through Charlottesville, chanting “Jews shall not replace us.”

We shall turn to the Great Replacement Theory in our next post

The Constitution establishes Republicanism, not Democracy. The Founders were very suspicious of pure democracy, and so they developed a very complicated system of checks and balances, including the electoral college, a bicameral legislature, and the election of senators by state legislatures (later amended by the 17^th amendment in 1913).

The following quotations illustrate their skepticism with respect to democracy, Thomas Jefferson wrote:

1. “Were our State a pure democracy, in which all inhabitants should meet together to transact all their business, there would yet be excluded from their deliberations. 1. infants, until arrived at years of discretion. 2. Women, who, to prevent depravation of morals and ambiguity of issue, could not mix promiscuously in the public meetings of men. 3. Slaves, from whom the unfortunate state of things with us takes away the right of will and of property. Those then who have no will could be permitted to exercise none in the popular assembly; and of course, could delegate none to an agent in a representative assembly. The business, in the first case, would be done by qualified citizens only.” 

And John Adams said: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.

Alexander Hamilton said: “It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.”

Finally, John Marshall held “Between a balanced republic and a democracy, the difference is like that between order and chaos.”

The system set up to ensure that there would be no mob rule consisted of three separate branches of government, marked by a bicameral legislature and a Senate which represented the small states and the rural areas, thus thwarting the will of the majority of Americans who lived in the teeming cities. It was a government that was created to represent the interests of the landed gentry (reflecting the British system). I want to look more closely at two features of the Constitution that are particularly anti-democratic –the Senate and the Supreme Court.

The Senate. Every state has two senators, but the population of the states (in 2020) range from California’s 39,512,223 to Wyoming’s 578,579. In other words, each person in Wyoming has 68 times as much power in the Senate as each Californian.  This feature gives the twenty-five states with the smallest population, (53 million people), equal power in the Senate to the twenty-five largest states (275 million people). This is not democracy, it’s Montesquieu with a vengeance.

Moreover, according to the web-site Fivethirtyeight the United States population can be roughly divided into four equal geographic parts: rural, exurban, suburban and urban. But the average state (and thus the Senate as a whole) has 35% of its population in rural areas and only 14% in urban areas.  The Senate has two and a half times as much rural representation as urban representation. Thus, “Since rural areas tend to be whiter, it means the Senate represents a whiter population, too. In the U.S. as a whole, 60 percent of the population is non-Hispanic white and 40 percent of the population is nonwhite. But in the average state, 68 percent of people are white and 32 percent are nonwhite. It’s almost as if the Senate has turned the clock back by 20 years as far as the racial demographics of the country goes. (In 2000, around 69 percent of the U.S. population consisted of non-Hispanic whites.)”

Moreover, not only is the Senate undemocratic by its construction, it has also adopted procedures which enable it to delay or block legislation favored by the majority of senators. The most important of these procedures is the “filibuster,” an idea that is not found in the Constitution. Using the filibuster to delay or block legislative action has a long history. The term filibuster—from a Dutch word meaning “pirate”—became popular in the 1850’s, when it was applied to efforts to hold the Senate floor in order to prevent a vote on a bill. In the Senate, unlimited debate continued on the grounds that any senator should have the right to speak as long as necessary on any issue.

In 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as ” cloture.” The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. In the end, the Senate never approved the Treaty, the only treaty in U.S. history that the Senate rejected.

During the 1930’s, Senator Huey P. Long effectively used the filibuster against bills that he thought favored the rich over the poor. The Louisiana senator frustrated his colleagues while entertaining spectators with his recitations of Shakespeare and his reading of recipes for “pot-likkers.” Long once held the Senate floor for 15 hours, but the record for the longest individual speech goes to South Carolina’s J. Strom Thurmond who filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957.

Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation. That tactic was finally defeated when cloture was invoked after a 60-day filibuster against the Civil Rights Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current 100 senators.

Filibusters became more frequent in the 1970’s.  In 2013, the Democrats prohibited filibusters for judicial nominations by using “the Nuclear Option,” which allowed a simple majority to end a debate in the case of executive appointments. The Republicans, once they had the majority, extended this simple majority rule to Supreme Court nominations.

The most famous filibuster ever—Jimmy Stewart in Mr. Smith goes to Washington

Today the filibuster is much different from what it was in the first half of the twentieth century. Senate rules have allowed other business to continue while a filibuster is in force. We are never going to see a Huey Long or a Strom Thurman of, for that matter, a Jimmy Stewart hold the floor for twenty-four weary hours. According to history.com, “Apart from nominations, filibusters have become so ingrained within the Senate’s process that new bills generally do not go to vote unless the leadership is assured they have at least 60 votes. Even the prospect of a filibuster can hold up a final vote or force a bill’s supporters to make changes in a bill.” What that means is that the “World’s greatest deliberative body” can deliberate, but not legislate. The last time Congress completed all bills on time was 20 years ago, in 1996. Instead of a functioning appropriations process, Congress has resorted to massive omnibus appropriations bills and continuing resolutions that carry over spending from the previous year.

The Supreme Court.  The Constitution doesn’t have a whole lot to say about the Supreme Court.  Article III Section 1 says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” 

The Constitution goes on to say, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

The actual limits on the Court’s remit were decided in the landmark 1803 case Marbury v. Madison. The Court’s historic decision established that the U.S. Constitution is actual “law”, not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive and judicial branches of the federal government. In particular, it gave itself the right to review laws enacted by Congress to determine their constitutionality. American courts thus have the power to invalidate laws that they find to violate the Constitution. The balance of power between the judiciary and the other branches of government has oscillated. The past two decades, when the court has intervened to decide an election, legalize same-sex marriage and throw out multiple laws, represent a high point for what scholars call “judicial supremacy.”

The Constitution does not call for life tenure for justices. It’s not normal anywhere else in the world. In no other democracy do judges serve for as long as they like; in most other democracies, the highest courts are less aggressive about striking down entire laws. The courts instead tend to direct legislators to fix specific parts of a law.

The Constitution also does not state how many justices should sit on the Supreme Court.  According to the National Constitutional Center, The Judiciary Act of 1789 established the first Supreme Court, with six Justices. “Since 1789, Congress changed the maximum number of Justices on the Court seven times. In 1801, President John Adams and a lame-duck Federalist Congress, in an attempt to limit incoming President Thomas Jefferson’s appointments to the high bench, passed the Judiciary Act of 1801, which reduced the Court to five Justices. Jefferson and his Republicans soon repealed that act, putting the Court back to six Justices. And in 1807, Jefferson and Congress added a seventh Justice when it added a seventh federal court circuit.

“In early 1837, President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts. Under different circumstances, Congress created a 10th circuit in 1863 during the Civil War, and it briefly had a 10th Supreme Court Justice. However, Congress, after the war. passed legislation in 1866 to reduce the Court to seven Justices to thwart the ability of President Andrew Johnson, [a man the Congress loathed], to appoint new justices. That only lasted until 1869, when a new Judiciary Act set the number back to nine Justices.” So, there were six justices in 1789, five in 1801, seven in 1807, nine in 1837, ten in 1863, seven in 1866, and nine in 1869. Each of these efforts by the executive and the congressional branches to change the number of justices was political, an attempt to make the Court more accommodating to a specific political perspective. This was also true of President Roosevelt’s attempt to “pack the court” in 1937.

The Supreme Court is by nature a conservative institution, trying to align laws with the Constitution, whatever the theory of interpretation is. For many years this meant the Court made really bad law. For example, in the famous 1857 Dred Scott case “the Supreme Court of the United States held that the US Constitution was not meant to include American citizenship for black people, regardless of whether they were enslaved or free, and so the rights and privileges that the Constitution confers upon American citizens could not apply to them.” That it frequently made racist decisions can be understood by remembering that before the Civil War two-thirds of all justices were slave-owners,

Thirty-nine years later, in Plessy v. Ferguson in 1896, the Court established the principle of “separate but equal” with respect to public facilities. In 1908, in Muller v. Oregon, the Court ruled that Oregon’s restrictions on the working hours of women are constitutional under the Fourteenth Amendment because they are justified by the strong state interest in protecting women’s health. In 1944 in Korematsu v. The United States, the Court upheld the right of the federal government to intern Americans of Japanese ancestry. In 1986, in Borders v. Hardwick the Court found that A Georgia law that criminalizes certain acts of private sexual conduct between homosexual persons does not violate the Fourteenth Amendment.

All of the cultural conflicts that plague our politics (race, gender, abortion, same-sex relations) were originally decided in the Supreme Court on the side of narrowing the rights of plaintiffs, but those cases have been overruled in a series of Court decisions in the last 80 years. A few of the landmark decisions:

• Brown v. Board of Education, (1954): Segregated schools in the states are unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment. The Court found that the separate but equal doctrine adopted in Plessy v. Ferguson (1896) “has no place in the field of public education”.
• Loving v. Virginia, (1967) Laws that prohibit interracial marriage (anti-miscegenation laws) are unconstitutional.
• Frontiero v. Richardson (1973), a case argued by Ruth Bader Ginsburg, sex-based discrimination is inherently suspect.
• Goodrich v. Department of Public Health (2003), the denial of marriage licenses to same sex couples does not meet a legitimate state interest.
• Roe v. Wade, (1973), Laws that restrict a woman’s ability to have an abortion prior to viability are unconstitutional.

Generally, the Court is years, if not decades behind the public. In that sense, it is frequently undemocratic.  According to Gallup 62 percent of the American people called themselves pro-choice in 2019, while 37 percent called themselves pro-life. Clearly the American people have spoken on abortion even as the Supreme Court is getting ready to move the clock backward to the 1970s.

It is important to remember that the United States is not a democracy, despite all the rhetoric to the contrary.  Given the difficulty of amending the Constitution there isn’t much we can do to expand democracy beyond protecting voters’ rights and continuing to make clear how undemocratic certain aspects of the American Government really are. And it is this democratic shortfall that makes attempts to regulate guns more strictly likely to fail more often than not.

I have started to write this post several times (I have two versions in draft). But as I was writing and researching, I’ve changed my mind. I’ve become convinced that the central issue is not America’s gun culture (as much as that culture is an outlier on the world sage compared to those of other wealthy nations). Rather, it is America’s anti-democratic political system which is central to the legal framework for gun regulation. Recent polling by NPR/PBS/Marist found that by a margin of 59% to 35%, Americans, as a whole, felt that it was more important to control gun violence than to protect gun rights. Although the question the poll asked is inelegant and somewhat wide of the mark, the results are clear

In the face of these data, it is clear that it is not America’s gun culture that is responsible for the lack of progress in gun control in America. Majorities among blacks and whites, men and women, college educated and not, people from all regions of the country, people from all generations, both those with incomes above $50,000 and those with incomes below $50,000 all are more concerned with gun violence than gun rights. In fact, only 3 groups took the opposite position –gun owners, Trump voters (and Republicans as a whole), and those living in rural areas.

After Columbine, after Sandy Hook, after the Pulse Nightclub, after Marjorie Stoneham Douglas, the political power of the “gun lobby” thwarted attempts to control guns.  I remember watching President Obama cry in 2016 as he asked the question “Why?” after the mass shootings at Blacksburg, Columbine and Newtown. The answer to Obama’s plaintive question is not America’s gun culture, it is America’s undemocratic political system.

For many years American students have been served a large portion of codswallop in their history and government classes. They have been told that the United States is a democracy, even though the basic institutions created in the Constitution are largely anti-democratic.

Americans revolted because the British Government was seen to violate its own constitution.  The Declaration of Independence lists twenty-seven grievances including:

• “He (King George III) has dissolved Representative Houses repeatedly;” “He has obstructed the Administration of Justice;”
• “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures;”
• “He has affected to render the Military independent of and superior to the Civil power;”
• “For imposing Taxes on us without our Consent;” and
• “For depriving us in many cases, of the benefits of Trial by Jury.”

All of these offenses were seen as a trampling on the rights of the colonists as Englishmen.

The Founding Fathers wanted a system of government just like the one they were leaving, only without the King, and one that respected its own constitution. The British constitutional monarchy was not a democracy, but an oligarchy. According to the UK National Archives, the electorate in England and Wales consisted of 214,000 men, less than 3% of the total population.  In Scotland, the electorate was even narrower. The franchise was equally limited in America before the Jacksonian Revolution.  In 1824, the number of Americans who voted for President was 3.6% of the population.

The House of Commons 1793-94 by Carl Anton Hickel. (National Portrait Gallery, London)

The ruling oligarchs in colonial America wanted limited representative government, based on Locke’s ideas of natural rights and Montesquieu’s idea of a “a balance of power.” The core of the U.S. constitution is the Bill of Rights, which protects American freedoms from the overreach of their government. The Constitution had many anti-democratic elements baked into it: the Electoral College, the Senate in which representation was by state rather than by population, and the indirect manner in which Senators were chosen.

The representative government designed by the Constitution was to be a government of the elite by the elite and for the elite. Four score and seven years later as the franchise expanded, Lincoln could famously say, “government of the people, by the people, and for the people…” But it wasn’t until 1870 that the 15^th Amendment extended the franchise to all people regardless of race or color; it wasn’t until 1920 that the 19^th Amendment extended the franchise to women; and it wasn’t until 1971 that the 26^th Amendment defined the voting age as 18, so Lincoln’s memorable phrase was premature, at least.

As important as the limited franchise was the retention of a federal system that systematically disadvantaged those from more populous states and a legislative system that, through the filibuster and other Senate rules was designed to give a minority the ability to thwart the majority. The next post will discuss how far America falls short of the ideals of democracy, and how that affected the legal framework for gun regulation.

Let’s begin with a definition: Systemic or Institutional racism is where race causes a different level of access to the goods, services, and opportunities of society. Note that this doesn’t imply any level of conscious racism by individuals, or individuals feeling that members of a particular race are inferior. In the United States, “systemic racism” means that blacks and other people of color, are systematically discriminated against.

Income.  For example, let’s look at the fundamental issue of “income.” The chart below presents the basic data. In 2017, the average black family had an income level only 59% of that of whites.  While it’s true that between 1965 and 2017 (52 years) real household income of whites increased by 0.52% per year while that of blacks increased by 0.67%, it would take centuries for black household income to equal white household incomes at those rates of growth.

How do we explain these systematic and systemic income disparities?  Many ideas come to mind. Let’s begin with education, which we know is an important determinant of income.

Education.  The chart below presents the educational attainments of the American population by race.

The second and third columns compare whites to blacks. About 35% of whites have no college education, while for blacks, the number is 46% (which is higher than the percentage for Hispanics).  Let’s try to disentangle the impacts of education and race (see chart below).

Each vertical line represents a given ethnic group divided by gender. Thus, the line to the extreme left represents male whites. To the immediate right of that line is the line that represents male blacks.  At each point on the two lines, the median income of whites is greater than that of blacks for every level of education, and the disparities increase at higher levels of education. The disparities between white and black females are not as pronounced, but for every ethnic group, males earn more, often considerably more, than females at the same level of education.

While this data is from 2008, there has been little improvement. Moreover, differences in income only tell part of the story. The table below calculates life-time earnings, including retirement income such as social security, which are based on earnings while working.  The table shows that college educated black men have life-time incomes which are 24.6% less than they would have been had there been no discrimination. College educated black women had discrimination losses of 17.4% compared to college educated white women.

Systemic racism merges in other areas as well.

Unemployment Rates.  The figure below shows historic unemployment rates by race from 1973 to 2019. Over the entire period, African American unemployment rates are more than twice that of whites (see chart below).

Health.  Whites have a life expectancy of 79.12 years, while for blacks life expectancy is 75.54 years. Perhaps 80% of the difference in life expectancy is explained by socioeconomic factors.

Criminal Justice.  The chart below shows the demographics of the US prison population in 2010.  While African Americans make up 13% of the population of the U.S., they made up 40% 0f the prison population in 2010.  Moreover, their incarceration rate (2,306 per 100,000 population) was five times the incarceration rate of the white population (450 per 100,000). Things have gotten much better in the last decade. 

According to the Pew Research, “The nation’s imprisonment rate is at its lowest level in more than two decades. The greatest decline has come among black Americans, whose imprisonment rate has decreased 34% since 2006.”  Nevertheless, black incarceration rates remain five times those of white rates.

One of the reasons for these high rates is systemic racism. According to the NAACP:

• 5% of illicit drug users are African American, yet African Americans represent 29% of those arrested and 33% of those incarcerated for drug offenses.
• In the 2015 National Survey on Drug Use and Health, about 17 million white people and 4 million African Americans reported having used an illicit drug within the last month.
• African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost 6 times that of whites.
• As of October 2016, there have been 1900 exonerations of the wrongfully accused; 47% of the exonerated were African American.
• African American defendants are 22% more likely to have convictions involving police misconduct that eventually result in exoneration.

Deaths from firearms.  According to the Kaiser Family Foundation, the 2019 age-adjusted death rate from firearms for whites was 11.9 per 100,000 population, while it was almost double that for blacks (23.6).

Victims of homicide.  The chart below, from the CDC, shows the rate of black homicide victims as 5.5 times that of whites.

Housing.  As shown in chart below, African Americans have had lower rates of home ownership (around half) than whites for the entire period since 1940.  This is vital for wealth creation, as most American families have depended on the investments in their homes as the place to invest most of their wealth.

Wealth.  As a result, the median net worth of blacks ($11,000) is only one-twelfth that of whites ($134,200).  See chart below.

Conclusions.  By every measure African Americans have lower income than whites, much lower net worth, are more likely to be unemployed, have less education than whites, worse health incomes, are more likely to be in prison and are more likely to be victims of crimes, including homicide. All of these outcomes are interrelated, and we are left with two possible explanations. Either the fact that blacks have much worse outcomes than whites is due to their inherent inferiority (either in abilities or behavior) or is the result of systemic racism in American society which goes back to slavery.

In the fateful year of 1968, The National Advisory Commission on Civil Disorders (better known as the Kerner Commission) concluded that the civil disorders and riots in black communities in that year were caused by “white racism,” leading to “pervasive discrimination in employment, education and housing”—as the culprit, and the report’s authors called for a commitment to “the realization of common opportunities for all within a single [racially undivided] society.”

Fifty years later, the Economic Policy Institute, found that “while African Americans are in many ways better off in absolute terms than they were in 1968, they are still disadvantaged in important ways relative to whites. In several important respects, African Americans have actually lost ground relative to whites, and, in a few cases, even relative to African Americans in 1968.”

Following are some of the key findings:

• “African Americans today are much better educated than they were in 1968 but still lag behind whites in overall educational attainment. More than 90 percent of younger African Americans (ages 25 to 29) have graduated from high school, compared with just over half in 1968—which means they’ve nearly closed the gap with white high school graduation rates. They are also more than twice as likely to have a college degree as in 1968 but are still half as likely as young whites to have a college degree.
• “The substantial progress in educational attainment of African Americans has been accompanied by significant absolute improvements in wages, incomes, wealth, and health since 1968. But black workers still make only 82.5 cents on every dollar earned by white workers, African Americans are 2.5 times as likely to be in poverty as whites, and the median white family has almost 10 times as much wealth as the median black family.
• With respect to homeownership, unemployment, and incarceration, America has failed to deliver any progress for African Americans over the last five decades. In these areas, their situation has either failed to improve relative to whites or has worsened. In 2017 the black unemployment rate was 7.5 percent, up from 6.7 percent in 1968, and is still roughly twice the white unemployment rate. In 2015, the black homeownership rate was just over 40 percent, virtually unchanged since 1968, and trailing a full 30 points behind the white homeownership rate, which saw modest gains over the same period. And the share of African Americans in prison or jail almost tripled between 1968 and 2016 and is currently more than six times the white incarceration rate.”

The only explanation for the continuing inequity in America is systemic racism.

In an earlier post, I argued that “Systemic or Institutional racism is a situation in which race causes a different level of access to the goods, services, and opportunities of society. The word “systemic” is important because it attaches agency to the “system,” not the individual.  Therefore, systemic racism doesn’t imply any level of conscious racism by individuals, or that individuals feel and act on the idea that members of a particular race are inferior. In the United States, “systemic racism” means that blacks and other people of color, are systematically discriminated against.  In the post mentioned above, I listed the many, many ways in which blacks face lower outcomes than whites in America.  They have lower income, lower wealth, poorer health, lesser education, poorer housing, are murdered more often, and are subject to harsher prison terms. The conclusion is inescapable that systemic or institutional racism is omnipresent in America.

What, then is Critical Race Theory (CRT)?  According to anthropologist Khiara Bridges, some key tenets of CRT include:

• “Recognition that race is not biologically real but is socially constructed and socially significant. It recognizes that science (as demonstrated in the Human Genome Project) refutes the idea of biological racial differences. According to scholars Richard Delgado and Jean Stefancic, race is the product of social thought and is not connected to biological reality.
• Acknowledgement that racism is a normal feature of society and is embedded within systems and institutions, like the legal system, that replicate racial inequality. This dismisses the idea that racist incidents are aberrations but instead are manifestations of structural and systemic racism.
• Rejection of popular understandings about racism, such as arguments that confine racism to a few “bad apples.” CRT recognizes that racism is codified in law, embedded in structures, and woven into public policy. CRT rejects claims of meritocracy or “colorblindness.” CRT recognizes that it is the systemic nature of racism that bears primary responsibility for reproducing racial inequality.”

This approach “is often disruptive because its commitment to anti-racism goes well beyond civil rights, integration, affirmative action, and other liberal measures,” the late Harvard law professor Derek Bell explained in 1995. “The theory’s proponents argue that the nation’s sordid history of slavery, segregation, and discrimination is embedded in our laws, and continues to play a central role in preventing Black Americans and other marginalized groups from living lives untouched by racism.”  My finding above that systemic racism is omnipresent in America, is very similar to the tenets of CRT.

What is the 1619 project and what is its relationship to CRT?  The 1619 Project is an ongoing initiative from The New York Times Magazine that began in August 2019, the 400th anniversary of the beginning of American slavery. It aims to reframe the country’s history by placing the consequences of slavery and the contributions of black Americans at the very center of our national narrative.  Just as Critical Race Theory calls for understanding how “racism is central to America’s present, codified in law, embedded in structures and woven into public policy,” the 1619 project invites us to consider, “what it would mean to regard 1619 as our nation’s birth year. Doing so requires us to place the consequences of slavery and the contributions of black Americans at the very center of the story we tell ourselves about who we are as a country.”

Why all the uproar?  The political kerfuffle attending both CRT and the 1619 project centers around what role these two reformulations of American history should play in America’s understanding of its story in general, and in school curricula in particular.  In their most benign forms CRT and the 1619 project call for a more nuanced understanding of the role of race in American history and society.  But there is a less benign and more malignant interpretation. If blacks and other people of color have been and are being victimized in America, then America systematically privileges whites.

Once CRT left the halls of academia it became a political football.  Adam Harris, writing in The Atlantic, wrote, “The theory soon stood in for anything resembling an examination of America’s history with race. Conservatives would boil it down further: Critical race theory taught Americans to hate America. Today, across the country, school curricula and workplace trainings include materials that defenders and opponents alike insist are inspired by critical race theory but that academic critical race theorists do not characterize as such.” 

Conservatives view CRT as another topic in the “culture wars.” Between June 5, 2020 and May of this year, Fox News invoked the phrase “Critical Race Theory” 150 times. The topic comes up in diversity training and school curricula. Adam Harris began his article with the following “On January 12, Keith Ammon, a Republican member of the New Hampshire House of Representatives, introduced a bill that would bar schools as well as organizations that have entered into a contract or subcontract with the state from endorsing “divisive concepts.” Specifically, the measure would forbid “race or sex scapegoating,” questioning the value of meritocracy, and suggesting that New Hampshire—or the United States—is “fundamentally racist.”

Of course, Donald Trump was ready to pile on.  In September 2020, he issued an executive order directing agencies of the United States Government to cancel funding for programs that mention “white privilege” or “critical race theory”, on the basis that it constituted “divisive, un-American propaganda. In a speech on September 17, 2020 Trump decried “critical race theory” and announced the formation of the 1776 Commission [in contrast to the 1619 project] to promote “patriotic education”. The 1776 Commission produced one 41-page unfootnoted report, which among other things, identified “progressivism” and “racism and identity politics” as “challenges to America’s principles” and likened them to “communism,” “slavery,” and “fascism.” It refers to John C. Calhoun as “the leading forerunner of identity politics” and criticizes some aspects of the civil rights movement. The document also describes American universities as “hotbeds of anti-Americanism, libel, and censorship” and criticizes feminist movements. On January 20, 2021 [his first day in Office], President Joe Biden rescinded Trump’s order and dissolved the 1776 Commission.

The most detailed and somewhat deranged critique of CRT comes from The Heritage Foundation.  It calls CRT the grandchild of CT and the child of CLT.  Lest you get lost in this alphabet soup, CT stands for Critical Theory, which emerged from German Marxist and other philosophical traditions.  According to these theorists, a “critical” theory may be distinguished from a “traditional” theory according to a specific practical purpose: a theory is critical to the extent that it seeks human “emancipation from slavery”, acts as a “liberating … influence”, and works “to create a world which satisfies the needs and powers of” human beings.  In other words, in both the broad and the narrow senses, a “critical theory” provides the descriptive and normative bases for social inquiry aimed at decreasing domination and increasing freedom in all their forms. This approach to theory makes theory a handmaiden of policy.  In this definition, theories are only good to the degree they reduce oppression.

Critical Legal Theory (CLT) is “the idea that the law, because of its historic development and because it is a tool for the rich and the powerful, is dysfunctional and limited.  It challenges the very basis of the legal system and process.” 

The Heritage Foundation goes on to claim that the thematic components of CRT are:

• “The Marxist analysis of society made up of categories of oppressors and oppressed;
• An unhealthy dollop of Nietzschean relativism, which means that language does not accord to an objective reality, but is the mere instrument of power dynamics;
• The idea that the oppressed impede revolution when they adhere to the cultural beliefs of their oppressors—and must be put through re-education sessions;
• The concomitant need to dismantle all societal norms through relentless criticism; and
• The replacement of all systems of power and even the descriptions of those systems with a worldview that describes only oppressors and the oppressed.”

Before exploring the Heritage Foundation’s claims, it is important to understand what CRT actually is. Adam Harris, whom we met earlier, writes, “The late Harvard law professor Derrick Bell is credited as the father of critical race theory. He began conceptualizing the idea in the 1970s as a way to understand how race and American law interact, and developed a course on the subject. In 1980, Bell resigned his position at Harvard because of what he viewed as the institution’s discriminatory hiring practices, especially its failure to hire an Asian American woman he’d recommended.

“Black students—including the future legal scholar Kimberlé Crenshaw, who enrolled at Harvard Law in 1981—felt the void created by his departure. Bell had been the only Black law professor among the faculty, and in his absence, the school no longer offered a course explicitly addressing race. When students asked administrators what could be done, Crenshaw says they received a terse response. “What is it that is so special about race and law that you have to have a course that examines it?” Crenshaw has recalled administrators asking. The administration’s inability to see the importance of understanding race and the law, she says, “got us thinking about how do we articulate that this is important and that law schools should include” the subject in their curricula?

“Crenshaw and her classmates asked 12 scholars of color to come to campus and lead discussions about Critical Race Theory.”

In the last 25 years CRT has become a target of Republican legislators in states across the country. At least six states have introduced bills that aim to place limitations on lessons about race and inequality being taught in American schools.  None of the bills directly mention critical race theory in their text, but the legislators pushing these bills forward have invoked the educational movement while advocating for the legislation.  Proponents argue “that the nation’s sordid history of slavery, segregation, and discrimination is embedded in our laws, and continues to play a central role in preventing Black Americans and other marginalized groups from living lives untouched by racism.”

In the Anglo-American tradition a theory is just that, and for decades CRT was mainly an esoteric theoretical discussion held within the walls of law schools.  In the 1990s, when President Clinton nominated Lani Guinier, a University of Pennsylvania law professor, to head the Department of Justice’s Civil Rights Division, the discussion became political.  Republicans ran an ultimately successful campaign against Guinier, charging her, among other things, with championing a school of thought known as “Critical Race Theory.”

Today the battle lines are drawn all across the country. According to Heritage, CRT undergirds the Black Lives Matter “Insurgency” and is responsible for the disciplinary rules in Broward County Florida which limited student contact with the police, which, in turn, is responsible for the deaths of 17 students at Marjorie Stoneman Douglas High School in Florida [!?].  

Kiara Alfonseca writes for ABC News, “At least six Republican-majority state legislatures have introduced or implemented restrictions on teaching about racial inequality in schools. These bills — in Tennessee, Texas, Idaho, North Carolina, Oklahoma and Louisiana — include almost the exact same language.  Each bill would ban teachers from teaching that ‘one race or sex is inherently superior to another race or sex,’ that ‘an individual, by virtue of the individual’s race or sex, is inherently privileged, racist, sexist or oppressive, whether consciously or subconsciously,’ that “a meritocracy is inherently racist or sexist, or designed by a particular race or sex to oppress members of another race or sex” and that ‘this state or the United States is fundamentally or irredeemably racist or sexist.’”

Diversity training has also become a battlefield.  In Iowa, the lines are drawn.  Ian Richardson, writing in the Des Moines Register, says, “A bill that awaits Gov. Kim Reynolds’ signature would ban teaching certain concepts, such as that that U.S. is systemically racist, as part of classroom curriculum or diversity training for government employees.  The bill’s passage this year comes amid a push among Republican-led statehouses across the country to curb concepts associated with “critical race theory” in schools.  Iowa Republicans have said the bill would help prevent concepts associated with critical race theory from appearing in classrooms, but Democrats and other opponents of the bill have said they believe it could have a chilling effect on discussions about racism and sexism.”

CRT and the Church.  As one might expect, anything as radical as CRT has provoked controversy in the church.  For example, author and pastor John MacArthur says that CRT is the source of “anger, resentment, and vengeful separation” within the Church.  In “The Statement of Social Justice and the Gospel,” the authors (including MacArthur) say, “WE DENY that Christian belief, character, or conduct can be dictated by any other authority, and we deny that the postmodern ideologies derived from intersectionality, radical feminism, and critical race theory are consistent with biblical teaching.  On the other hand, Kelly Hamren says, “Those who are drawn to CRT are often motivated by a biblically-informed righteous anger—as Pastor Robert Cunningham says in his podcast, “Every Square Inch”, a “zeal to hate what God hates and love what God loves” (7:16-20)—and a justifiable frustration with the church for failing to respond consistently or substantially to racial oppression.” She goes on to say, “The lack of a well-developed theology of race within the evangelical world is a valid cause for concern, so it is understandable for believers to pay attention to and learn from conversations about race, even those taking place in the secular world.”

Recently, the Southern Baptist Convention has been split in two over race, gender and sex abuse. The election of a new SBC president came down to a contest between the Reverend Ed Litton and the Reverend Mike Stone. According to The New York Times, Mr. Stone is part of The Conservative Baptist Network, which “was formed in 2020 to stop what it considers the convention’s drift toward liberalism on matters of culture and theology.” In fact, the Conservative Baptist Network (CBN) has followed many other Christian groups in melding right-wing politics and evangelical Christianity into an unholy witch’s brew.  Kate Shellnutt, writing in Christianity Today, describes the role CBN played in the election of the Southern Baptist president. “The race showcased how influential the Conservative Baptist Network had become. As it held events online and in-person over the past year, the group rallied a campaign to get more churches to send messengers to this year’s convention to vote for Stone and push for stronger condemnation of critical race theory. Supporters turned out with stickers that said, “Stop CRT” and “Beat the Biden Baptists.” The pollution of evangelical Christianity with Trumpism was further illustrated on June 18, when former Vice President Mike Pence, speaking at a conservative Christian conference, was met with boos and was forced to speak over hecklers shouting “traitor.”

Conclusions.  There is ample evidence to declare that systemic racism pervades American society. Critical Race Theory (CRT) is a theoretical construct that explains how this came about and what it means today.  The 1619 Project is an attempt to write history with black Americans at the center (Thus,1619 not 1776 is the nation’s birth year). Some of the major conclusions of CRT, including the pervasiveness of systemic racism and conversely of “white privilege” raise difficult issues about American society, and have become politically controversial, particularly with respect to school curricula and diversity programs. All too often the political argument takes place in a fact-free space, and few of its critics can accurately describe CRT.  Race is a difficult topic to discuss in America today, and the politicization of CRT brings us no closer to bridging or even understanding our differences.

I was listening to Rachel Maddow Thursday night (June 3, 2021) and had an epiphany.  Democracy is not being threatened; it is already in serious decline.  This is not some future problem; it is a current problem.  Trust in democracy has been eroding for some time.  For example, look at the data below on trust in American institutions.  Every single governmental institution (with the exceptions of the police and the military) have trust levels below 50% and falling.  The Presidency and the Supreme Court are at 38%, and the Congress at an abysmal 11%.

Perhaps more salient is the following chart taken from the World Values Survey.  In 2011, 43% of American elites (those in the top fifth of the income distribution) agreed with the following statement: “A strong leader, not parliament and elections, would be a good way to run the country.”  Note that this poll reflects 2011 data, long before Trump was seen as a candidate running for president.

With that information as a backdrop, consider the following data from a  May 21, 2021 Ipsos poll:

It seems to me that here are five major issues threatening our democracy, three of which are illustrated in the table above.:

• The death of “truth.”  No matter which side you come down on, there is only one “truth,” and a large number of people are believing a “lie” to be true.  Consider the questions as to whether “left-wing” provocateurs were responsible for the riot at the Capitol.  Fifty-two percent of Republicans believe that to be true while only sixteen percent of Democrats do so. The proportion who disagree with that statement are 33% of Republicans and 76% of Democrats. The ratio of agree to disagree is 1.6 among Republicans and 0.2 among Democrats.

The Pew Trust asked Republicans and Democrats what separated them.  The answer is shown in the figure below.  Three quarters of respondents (both parties) say they are separated by a disagreement over facts.  This is astonishing, but not surprising. Facts should be easy to agree on. For example, what percent of Americans are women?  What percent of these women work outside their home? How many children do these women have on average?  There are official sources for these facts –in this case, the US Government (Bureau of Census and Department of Labor). Similarly, the number of COVID deaths is knowable, as is the percentage of people who have been vaccinated who get COVID.  But people who are hesitant to get the vaccine, argue that there’s not enough data.  Around 875,000 people around the world have received at least one dose and the vaccines are shown to be 95% effective. This isn’t enough data?

• The increase in tribalism.  The poll above provides a snapshot of tribalism in 2020, as shown in widely different views of what political reality looks like.  In 2000, 33% of Gallup poll respondents found the Republican Party as too extreme, while 25% of respondents found the Democratic Party too extreme.  By 2020, those numbers had risen sharply; 47% found the Republican Party too extreme while 42% found the Democratic Party too extreme.  Perhaps the most significant data point on party tribalism is the following: while just14% of non-blacks would oppose their relative marrying a black person, 38% of people would oppose their relative marrying someone from another party (both Democrats and Republicans had the same view).
• The rejection of “bipartisanism.”  In 2010 Senator Mitch McConnell said in an interview with the National Journal, “The single most important thing we want to achieve is for President Obama to be a one-term president.  The salient part of the interview between McConnell and the National Journal (NJ) is repeated below.

NJ: Does that mean endless, or at least frequent, confrontation with the president?

McConnell: If President Obama does a Clintonian backflip, if he’s willing to meet us halfway on some of the biggest issues, it’s not inappropriate for us to do business with him.

NJ: What are the big issues?

McConnell: It is possible the president’s advisers will tell him he has to do something to get right with the public on his levels of spending and [on] lowering the national debt (Note from author: This is rich after Trump’s tax cut raised the deficit from 2-3% of GDP to 4.6%). If he were to heed that advice, he would, I imagine, find more support among our conference than he would among some in the Senate in his own party. I don’t want the president to fail; I want him to change. So, we’ll see. The next move is going to be up to him.

In a later interview, McConnell said, “Over the past week, some have said it was indelicate of me to suggest that our top political priority over the next two years should be to deny President Obama a second term in office. But the fact is, if our primary legislative goals are to repeal and replace the health spending bill; to end the bailouts; cut spending; and shrink the size and scope of government, the only way to do all these things it is to put someone in the White House who won’t veto any of these things.” The major point here is that McConnell’s goals all require Republican control of the Presidency.  They cannot be achieved by negotiating with Democrats. In 2010 bipartisanism died. 

In 2014, CNN’s Manu Raju reported, “In an extensive interview here, the typically reserved McConnell laid out his clearest thinking yet of how he would lead the Senate if Republicans gain control of the chamber. The emerging strategy: Attach riders to spending bills that would limit Obama policies on everything from the environment to health care, consider using an arcane budget tactic to circumvent Democratic filibusters and force the president to “move to the center” if he wants to get any new legislation through Congress.”

McConnell hasn’t changed.  On May 6, 2021, “Speaking to reporters in his home state of Kentucky, McConnell was asked about the House GOP leadership feud that reached a boiling point this week after Rep. Liz Cheney of Wyoming, the third-ranking Republican, again rebutted former President Donald Trump’s stolen election lie. McConnell was also asked whether he was concerned about the direction of the party…”One-hundred percent of our focus is on stopping this new administration,” McConnell said, adding, “We’re confronted with severe challenges from a new administration, and a narrow majority of Democrats in the House and a 50-50 Senate to turn America into a socialist country, and that’s 100 percent of my focus.”  The “Joes” (Joe Manchin’s and Joe Biden’s) old-fashioned search for bipartisan solutions to legislative gridlock is doomed to failure.

American democracy is broken.  It’s very future is in doubt. I want to discuss two of the major issues that need to be addressed—1) the inability of the national government to produce action at the national level on critical, in some cases existential, issues and 2) the increasing threat, that in contraindication to Lincoln’s memorable phrase that “government of the people, by the people and for the people” shall not perish from the earth, there is evidence that it is perishing before our eyes.

The Failure to Deliver.  Gridlock is a feature, not a bug, of American democracy.  The framers of the American Constitution purposely designed the American Government to limit the ability of a majority to run roughshod over the rights of the minority.  Thus, they designed a federal government that gives a great deal of power to the states (The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). They also followed Montesquieu’s idea of “separation of powers,” by creating legislative, executive and judicial branches, limiting the power of each. The Constitution also created a bicameral legislative body, requiring all laws to be passed by both Houses.  Thus, inaction was preferred to rash action.

As Sarah Binder wrote in 2000, “Gridlock is not a modern legislative invention. Although the term is said to have entered the American political lexicon after the 1980 elections, Alexander Hamilton was complaining more than two centuries ago about the deadlock rooted in the design of the Continental Congress. In many ways, gridlock is endemic to our national politics, the natural consequence of separated institutions sharing and competing for power.”

Today, the Congress is unable (or unwilling) to pass meaningful legislation in three “hot button” areas –climate change, gun control, and immigration. As can be seen from the summary below polling on these issues indicate that Americans want more action, not less, particularly with respect to gun control and climate change.

As an example, let’s look more carefully at gun control.

Gun Control.  The history of federal gun control legislation is quite limited:

• In 1968, following the assassinations of Martin Luther King and Robert Kennedy, Congress passed the Gun Control Act (GCA) of 1968. That act required licenses for interstate sales and regulated the importation of firearms.
• In the 1980s Congress passed a series of laws stiffening the penalties for using a firearm when committing various drug crimes.
• In 1986, Congress took a step backward in passing the Firearms Owners’ Protection Act to ensure that the GCA did not “place any undue or unnecessary Federal restrictions or burdens on law abiding citizens,” but it opened many loopholes through which illegal gun traffickers could slip.
• In 1993, Congress passed the Brady Handgun Violence Protection Act which requires criminal history background checks by the Federal Bureau of Investigation (FBI) and state agencies on persons who attempt to purchase a firearm from a licensed dealer.
• In 1994, Congress passed the Violent Crime Control and Law Enforcement Act which made it unlawful, with certain exceptions, to manufacture, transfer, or possess semiautomatic assault weapons.  The law expired after ten years.

Now all this might seem to you like small cheese; that’s because it is.  By and large the effects on homicides, suicides and mass shootings of these laws are minimal or non-existent.  This may be because there hasn’t been a great deal of research on the topic or, as the Rand Corporation noted, these laws merely affect the flow of new guns into the system, or the legal ownership of purchased weapons. They don’t deal with the extremely high number of guns already owned by Americans, and, thus, have limited impact.  See the Rand Corporation’s article for a more nuanced take on what works and what doesn’t. Because our politics makes it impossible to enact serious gun control legislation, we are doomed to have the highest rates of gun deaths among advanced countries in the world (12.25 per 100,000 populations compared to, for example, 2.05 in Canada).  Despite years of high levels of gun deaths and a number of high-profile mass shootings, Congress is unable to pass stricter gun control.

The threat to American Democracy.  Donald Trump’s assault on our democracy has been well documented.  Among other things, he has

1. Said he supported many right-wing armed militia groups (including armed protesters who stormed the Michigan state legislature on April 30, 2020).
2. Said he would not necessarily accept election results (July 9, 2020 and September 23, 2020).
3. He refused to concede the election and began to spread “the big lie,” that he actually won the election, and that it was stolen from him.
4. He consistently refused to denounce violent supporters including armed protesters in Charlottesville in January 2020, armed protesters who stormed the capitol in Michigan in April 2020, white nationalist-led protests in Wisconsin in August 2020; he also refused to condemn white supremacist organizations such as the Proud Boys.
5. He asked Justice Department officials to state that the 2020 election was rigged so that he could plausibly ask Georgia officials to overturn result.
6. He supported “Stop the Steal” rallies and told his supporters that the “fraudulent” election would be overthrown.
7. He pressured Georgia Secretary of State Brad Raffensperger to change the 2020 Presidential votes saying, “What I want to do is this. I just want to find 11,780 votes, which is one more than [the 11,779 vote margin of defeat] we have, because we won the state.”
8. Supported a major protest on January 6, 2021 to pressure lawmakers not to certify the votes of the electoral college.
9. Told Vice President Pence that he has the authority to reject slates of electors which have been elected through voter fraud and send those votes back to the state legislatures.

The assault on the Capitol.  It is uncertain how much responsibility Trump bears for the January 6 insurrection, but it is clear that he encouraged supporters to come to Washington, and that he riled up his supporters, saying

“We’re going to walk down to the Capitol– and we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.” and

“You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” and

“Something is wrong here, something is really wrong, can’t have happened and we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” and

“So we are going to–we are going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we are going to the Capitol, and we are going to try and give–the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try–give our Republicans, the weak ones because the strong ones don’t need any of our help, we’re try–going to try and give them the kind of pride and boldness that they need to take back our country. So, let’s walk down Pennsylvania Avenue.”

The aftermath.  In May, a poll taken by Reuters/Ipsos found that 61% of Republicans and 30% of all Americans agree with the statement, “The 2020 election was stolen from Donald Trump.”  Because of the “rigged” election, a number of states have enacted voter laws which, depending on your point of view, have increased voting security or increased voter suppression.  Some of these laws empower state legislatures to review election outcomes.  For example, the new Georgia law removes the Secretary of State from the State Election Board and creates a review mechanism dominated by the state legislature.  Many of the reforms being enacted by the states follow the Georgia model and raise the ability of partisan legislatures to challenge election results.

Many observers have said that while the “big lie” and its aftermath threatened our democracy, the real takeaway is that the “guardrails of our democracy” held fast.  Elaine Kamark detailed the various major institutions of American democracy (Congress, judicial system, federalism, the press and the civil service) and found these were not weakened by Trump.  However, the real institution being assaulted by Trumpism is our election system and its tradition of the peaceful transfer of power from one set of officeholders to the next.  Trump has continually called the 2020 election rigged and challenged the results.  The only reason he was unsuccessful was the fact that state officials like Brad Raffensperger, Arizona Governor Doug Ducey and Vice-President Pence stood up to him.  On the infamous day of January 6, 2021, six Republican Senators and 147 Republican members of Congress voted against certification of the election.  What would have happened if the GOP controlled one or both houses of Congress?

The only reason the “guardrails” of American democracy held was the courageous stands of a few people, mostly Republicans.  But this was a near miss.  Our institutions didn’t protect us; courageous people of impeccable integrity did.  Will that be enough in the future? The current trend to replace non-partisan election officials with partisan legislators threatens the future of our democracy.

For the time will come when people will not put up with sound doctrine. Instead, to suit their own desires, they will gather around them a great number of teachers to say what their itching ears want to hear –2 Timothy 4:3