The November 2018 issue of Harper’s Magazine magazine has an article by Jonathan Taplin with the rather alarming title of REBIRTH OF A NATION: Can states’ rights save us from a second civil war? (possibly behind a paywall). The fundamental problem that he points out is that the US constitution has insufficient elasticity to accommodate the changes that have taken place since it was first written. Many of its features were included as part of compromises to gain acceptance from each of the 13 original states and one that he points out is the provision that gives each state two senators irrespective of its size. As a result, small states have disproportionately greater representation and power in the senate. Currently twenty-six states with 18 percent of the population elect a majority of the senate’s 100 seats, while nine states with an absolute majority of the population elect just eighteen senators.
Taplin says that as the migration from rural to urban centers continue, this imbalance will get larger and increase the tension between the larger and smaller states. As a result, the US senate, that is already not representative of the population as a whole, is going to get even less so. As an example “despite there being in the past three senatorial elections 15 million more votes cast for Democrats than for Republicans, the Republicans continue to rule the Senate.” This is a situation that is ripe for unrest.
He says that this senate imbalance has caused problems before.
The problem of minority rule has plagued the nation from its inception. In a sense, it led to our first Civil War. As secretary of state to President John Tyler, the ardent slavery advocate John C. Calhoun engineered the annexation of Texas in 1845 in order to add one slave state to the Union, giving the fifteen slaveholding states an advantage in the Senate over the thirteen free states
Taplin says that the solution may lie in the Tenth Amendment to the US Constitution that states in its entirety “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.” He says that the population trend suggests that urban centers will grow in population as the rural areas decline so that in 20 years, it is estimated that 70% of he population will be in the large urban centers and the senate will become even less representative. As progressive states go their own way, the increasing divide in the quality of life between the urban and rural classes will increase tensions.
Living in a world where 30 percent of the population—old, rural, and white—controls the destiny of a new and diverse generation of Americans can lead only to civil strife, and perhaps even to civil war. Though the Founding Fathers may have made a mistake in creating a Senate and an Electoral College that were unrepresentative, they also gave us a way out—the Tenth Amendment. All over the country, citizens are overcoming the gridlock of Washington and making real progress toward a more inclusive society,
This provision was intended to protect the nation from an authoritarian federal government but became the amendment frequently used by states under the cry of ‘states rights’ to preserve discriminatory policies from being overturned by the federal government, such as school desegregation. But he says that now states are increasingly using that provision as a means to fight back against a federal government that seeks to roll back progressive measures taken by states. He lists a whole slew of such efforts by states’ attorneys general to use the courts to argue on the basis of states rights of their right to cut prescription drug costs, preserve Obamacare benefits, preserve clean air laws, and protect undocumented immigrants, all measures that the Trump administration opposes.
He says that progressive use of states’ rights provisions is not new.
Progressives’ negative reaction to the words “states’ rights” was formed before the Civil War and reinforced during the Jim Crow era, but there’s a long tradition of progressives using the Tenth Amendment as a political tool, most notably, and successfully, in the 1850s, to resist the Fugitive Slave Act. Many Northern states abolished slavery decades before the Civil War. Wisconsin pioneered unemployment insurance for its residents twenty-four years before the federal government; Wyoming allowed women to vote in 1864, more than fifty years before the Nineteenth Amendment enacted suffrage nationwide.
The modern incarnation of this strategy, which one of its chief theorists, the Yale Law School professor Heather Gerken, calls “new progressive federalism,” has its origins in President George W. Bush’s reelection in 2004, when Republicans took control of all three branches of government. Gerken hoped a states’-rights strategy would serve as a counterweight to Republicans’ control of Washington, and that passingprogressive legislation at the state level would be a way for “national minorities” to “constitute local majorities.” Since then, most major progressive reforms have been incubated and become law at the state level— commonsense gun control, tackling climate change, ensuring LGBTQ rights, marijuana decriminalization.
Citizens uninterested in living in Trump world should look to the recent heartening developments in California, Oregon, Vermont, New York, Massachusetts, and Washington State: local legislators taking on federal power in ways that have proved far more effective than rallies or federal legislative efforts at stalling or presenting alternatives to the Trump Administration’s agenda. The era when the federal government was a progressive force against reactionary states such as Alabama and Mississippi is dead, and progressive change is now flowing from the states, not from Washington.
On the political front, Taplin wonders if Trump is playing the role of a catalyst to these tensions and draw a historical parallel with Oliver Cromwell, someone who destroys the old, but it then swept aside by a new realignment. In this case, what Trump is destroying is the traditional Republican party.
What if we think of Trump as an interrex, the Oliver Cromwell of American history? Cromwell ruled England from 1653 to 1658. He, in literal fashion, killed off the old regime by signing King Charles I’s execution order, but his rule didn’t represent a new era. Driven by a belief that he was God’s chosen instrument of Protestant redemption, Cromwell purged Parliament of dissenters and royalists, many of whom fled to Ireland. He then invaded Ireland, massacring thousands of Catholics and deporting many more to the colonies. In En¬gland, he imprisoned thousands of his political enemies without trial. When Cromwell died of an infection, he passed his title of lord protector on to his son, Richard. But Parliament rebelled, and within two years Charles II became king. In 1661, three years after Cromwell’s death, his body was removed from Westminster Abbey, and he was posthumously tried and “executed” for high treason, his severed head displayed on a pike outside Parliament. Out of this chaos, the modern En¬glish constitutional system was born. By 1689, the British bill of rights had been signed, laying down limits on the powers of the monarch, setting out the rights of Parliament, and guaranteeing free elections and the freedom of speech.
If Trump is a transitional figure like Cromwell, then the new that is struggling to be born is a complete realignment of American party politics. Trump’s Republican Party could come to resemble the Whigs, who elected four presidents between 1841 and 1853 and then disappeared.
We already see the consequences of what he calls ‘extreme minority rule’ in the makeup of the justices in the US Supreme Court that threatens to eliminate abortion rights and is reluctant to act against the suppression of voting, even though both measures command majority support. How will the US Supreme Court react to this new manifestation of the states’ rights claim?
Are the conservative justices on the Supreme Court, who claim to be originalists, willing to respect the Tenth Amendment and support the progressive states’-rights movement? Many of the cases of states suing the Trump Administration will make their way to the Supreme Court. The Court can either further the power of Republican minority rule, or it can respect the originalism of the Founders’ vision and let states experiment under the Tenth Amendment. If it does the latter, we may be able to exit our current interregnum. If we are not able to let the old die and the new be born, we will likely be condemned to more years of Cromwellian chaos, which Winston Churchill described as a rule of “merciless wickedness” that “debased the standards of human conduct and sensibly darkened the journey of mankind.”
What about amending the constitution to remove the provision that gives each state two senators? To amend the constitution through the normal amendment process in Article V requires many hurdles, including that it pass with a two-third majority in both houses and be ratified by three-fourths of the state legislatures, which is unlikely given that the states that would lose by it currently hold the majority. Article V also says that “no state, without its consent, shall be deprived of its equal suffrage in the Senate” and that consent is never going to be given. This process can be bypassed with a new constitutional convention but that is a provision that has never been invoked before and it too requires approval by three-fourths of the states. So we are pretty much stuck with the current composition of the senate.