Consent of the Governed?

Let America Be America Again.

On its 247th birthday, America continues to be the “land that has never been yet - And yet must be - the land where every man is free,” as Langston Hughes put it in Let America Be America Again. 

In that poem, Hughes keeps in focus that we are a nation founded in a forever tension between egalitarian ideals and theocratic racial capitalism – the former proclaimed in the Declaration of Independence we celebrate today, and the latter in the Constitution, the non-negotiable price of union that sought to extinguish that promise twelve years later. The full text of Let America Be America Again is at the end of this post to remind us of all of those who faced longer odds than we do now, but continued to dream and resist – and to remind us that those ideals are not self-executing but require our constant vigilance. 

The Coalition Against the 20th Century Strikes Again

Since last week, all eyes have been on the Supreme Court and the regressive rulings of its unaccountable rogue justices – but too little attention is being paid to the forces that put those justice on the Court to achieve a revanchist agenda that could not be accomplished through any remotely democratic process. We would not be here today, outraged about the Court’s backwards rulings on LGBTQ rights and affirmative action, were it not for a revanchist coalition of capitalists and white supremacists that is bent on repealing the New Deal economic order and the civil and human rights gained in the Twentieth Century. I laid out this argument in detail in February with "To the Supreme Court, the 20th Century was Wrongly Decided.” as well as in March 2022 with “Slow Motion Constitutional Coup.” I applied the same perspective recently to Clarence Thomas’s ethical scandals and the MAGA Republican leadership of the Tennessee House’s expulsion of two Black members in “Just Another Week in the Federalist Society Hellscape.”

There is already a rush to interpret rulings such as Moore exclusively in terms of partisan politics, with Roberts’ sole motivation being his reading of the political winds to guard the Court’s credibility. But, as I wrote last week in “Don’t Be Surprised by Moore v. Harper,” the six justices are not political partisans; they are interest group partisans. Their split on Moore reflects that the Federalist Society is a combination of economic interests on the one hand, and religious/social interests on the other. Usually, they agree – except when it comes to which faction in the coalition should be in the driver’s seat. In this instance, the corporate side once again asserted that it would not cede more governing power to the religious/social side. This is why we saw the same players who seemed to be surprising “allies” after the election, like Michael Luttig, taking the field in oral arguments in Moore v Harper. Especially in light of the experience with Trump, not to mention increasingly erratic Republican state legislatures, Moore should be seen as the corporate side successfully stopping the white Christian nationalist side from getting an upper hand. When we hear that the Kochs are raising $70 million to defeat Trump, we can see how concerned they and their colleagues are, and how when push comes to shove, they value their anti-regulatory agenda more than their social agenda.  

From the Archives

I began Weekend Reading as an off-the-record email newsletter to a group of leading election practitioners in March 2017. Since then the readership has grown by more than tenfold, and I was able to start this public Substack after retiring from the AFL-CIO. A good friend suggested I post some content from the last five years in the Substack. I begin that today with “Election Crisis Diary,” a collection of excerpts from the year prior to, and the month after, the 2020 election. 

Until October 2019, Weekend Reading concerned itself almost exclusively with winning the midterms and then the presidential election at the ballot box. But in October 2019 (“We’re Not in Kansas Anymore”), I started focusing on the need to prepare for the most likely outcome – that for the first time in American history, a sitting president would not acknowledge the legitimacy of his defeat, or willingly leave office. 

Today, I’ll leave you with the “Weekend Reading” from July 4th, 2020.

The Declaration of Independence (July 4, 2020)

The Declaration of Independence sets out three founding principles in the first three substantive sentences:  

1. All men are created equal …

2. To secure those rights governments are instituted with the consent of the governed

3. “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

As Danielle Allen makes clear in her book Our Declaration, the document is rich with meaning and controversial in interpretation. Stipulating that I don’t have an academic’s credentials, my own interpretation of the document is that it reads more sensibly and less hypocritically given what came next – as an argument about the rights of the colonies with respect to the Crown rather than the rights of the colonists, although Jefferson grounded the rights of the colonies in the rights of the colonists.  

Twelve years later, the Constitution ratified by the thirteen colonies defeated those three very worthy principles. In particular, the Constitution’s method of establishing the consent of the governed, as well as its barriers to amendment, make the most ambitious progressive aspirations unattainable inside its rules.  Significant changes to the original Constitutional order have come only through massive, prolonged, and often violent struggles outside the system, culminating in concessions that are trimmed or rolled back once the protest dissipates. 

All men are created equal …

At the March on Washington in 1963, Martin Luther King dreamed that one day this nation will rise up and live out the true meaning of its creed, “We hold these truths to be self-evident, that all men are created equal.” And on the Fourth of July, 111 years before that, Frederick Douglass too appealed to the Declaration as the warrant for abolition. (Also, see the M4BL video set to Douglass’s words.) For most liberals, those words are the enduring basis for their own flavor of American exceptionalism and for the faith that the arc of (our) history bends towards justice. Every case for freedom and uplift in America builds on that one sentence.

Allen argues that Jefferson was conflicted throughout, reasoning to the high ideals of abolition, but resisting it because of “habit.” And certainly, the 27^th grievance – that the King was inciting slave revolts and restraining colonists against the “savages” – belies the idea that Jefferson’s notion of the “all men” was inclusive in any meaningful sense.  

And, indeed, the Constitution famously limited the definition of who counted as “all men.” It required a Civil War, subsequent amendments, and the civil rights movement to make “all men” mean “all Americans” 177 years later.  

Moreover, while the notion of all people being created equal with inalienable rights to life, liberty and the pursuit of happiness was revolutionary in 1776, contemporary international standards, such as the Universal Declaration of the Rights of Man, show the Declaration’s conception to be extraordinarily insufficient.  

Consent of the governed

There are many ways to establish the consent of the governed, none of which are yet satisfied by the Constitution. The most common way of meeting that standard is through elections in which the candidate with the most votes wins and every citizen has a roughly equal chance to cast a ballot. With respect to presidential elections, the 2000 and 2016 elections installed the losing candidate as president, and the second condition has never been met.  

The Senate is even more counter-democratic. Again, no need to recite the case here. But, like the Electoral College, the Senate reveals the Constitution to be more of a treaty among the newly formed states that were reluctant to give up sovereignty to a federal government. It was, and grounded in the contemporary understanding of individuals being citizens of their states before they were citizens of the United States. Remember that in the Declaration, the “united” is not capitalized in the first sentence, but “States of America” is. “United” was an adjective, not part of a proper noun.

So, the Constitution creates a government with the consent of the governed only if you accept that those giving consent are the states and not the citizens directly.  

Abolish and institute a new government

While the Declaration recognizes the right to alter governments that “become destructive of these ends,” Article V of the Constitution has made that all but impossible, which is whyrequiring a Civil War was required to right its most colossal wrong. Today, the three-fourths of states requirement gives 12 states, which could represent as little as 4 percent of the population, a veto over amendments. It’s not much better if you think of it in partisan terms – the twelve smallest red states constitute 6.5 percent of the population. And the kicker is, as if that isn’t hard enough to overcome, that, “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

And there you have it – a nation straightjacketed by its Constitution from realizing its founding ideals.

Let America Be America Again

Langston Hughes (1901 – 1967)

Let America be America again.
Let it be the dream it used to be.
Let it be the pioneer on the plain
Seeking a home where he himself is free.

(America never was America to me.)

Let America be the dream the dreamers dreamed—
Let it be that great strong land of love
Where never kings connive nor tyrants scheme
That any man be crushed by one above.

(It never was America to me.)

O, let my land be a land where Liberty
Is crowned with no false patriotic wreath,
But opportunity is real, and life is free,
Equality is in the air we breathe.

(There’s never been equality for me,
Nor freedom in this “homeland of the free.”)

Say, who are you that mumbles in the dark?
And who are you that draws your veil across the stars?

I am the poor white, fooled and pushed apart,
I am the Negro bearing slavery’s scars.
I am the red man driven from the land,
I am the immigrant clutching the hope I seek—
And finding only the same old stupid plan
Of dog eat dog, of mighty crush the weak.

I am the young man, full of strength and hope,
Tangled in that ancient endless chain
Of profit, power, gain, of grab the land!
Of grab the gold! Of grab the ways of satisfying need!
Of work the men! Of take the pay!
Of owning everything for one’s own greed!

I am the farmer, bondsman to the soil.
I am the worker sold to the machine.
I am the Negro, servant to you all.
I am the people, humble, hungry, mean—
Hungry yet today despite the dream.
Beaten yet today—O, Pioneers!
I am the man who never got ahead,
The poorest worker bartered through the years.

Yet I’m the one who dreamt our basic dream
In the Old World while still a serf of kings,
Who dreamt a dream so strong, so brave, so true,
That even yet its mighty daring sings
In every brick and stone, in every furrow turned
That’s made America the land it has become.
O, I’m the man who sailed those early seas
In search of what I meant to be my home—
For I’m the one who left dark Ireland’s shore,
And Poland’s plain, and England’s grassy lea,
And torn from Black Africa’s strand I came
To build a “homeland of the free.”

The free?

Who said the free? Not me?
Surely not me? The millions on relief today?
The millions shot down when we strike?
The millions who have nothing for our pay?
For all the dreams we’ve dreamed
And all the songs we’ve sung
And all the hopes we’ve held
And all the flags we’ve hung,
The millions who have nothing for our pay—
Except the dream that’s almost dead today.

O, let America be America again—
The land that never has been yet—
And yet must be—the land where every man is free.
The land that’s mine—the poor man’s, Indian’s, Negro’s, ME—
Who made America,
Whose sweat and blood, whose faith and pain,
Whose hand at the foundry, whose plow in the rain,
Must bring back our mighty dream again.

Sure, call me any ugly name you choose—
The steel of freedom does not stain.
From those who live like leeches on the people’s lives,
We must take back our land again,
America!

O, yes,
I say it plain,
America never was America to me,
And yet I swear this oath—
America will be!

Out of the rack and ruin of our gangster death,
The rape and rot of graft, and stealth, and lies,
We, the people, must redeem
The land, the mines, the plants, the rivers.
The mountains and the endless plain—
All, all the stretch of these great green states—
And make America again!

From The Collected Poems of Langston Hughes, published by Alfred A. Knopf, Inc. Copyright © 1994 the Estate of Langston Hughes. Used with permission.