Minority Rule and State Federalism
Americans are in for a long period of minority rule. As more of us move to urban and suburban areas in a small number of states, the vast majority of the population is increasingly at home in a few blue and purple states. What this means, as Norman Ornstein of the American Enterprise Institute recently pointed out, is that “By 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent [of the voters] will choose 70 senators. And the 30 percent will be older, whiter, more rural, more male than the 70 percent.” We are heading towards a situation in which one important branch of the federal government will increasingly be controlled by a homogeneous minority of the population. For Jonathan Taplin, this means that President Trump—whether or not he wins the Presidency again in 2020—is a transitional figure in the nation’s history. The Republican Party will shrink, but it will maintain an increasing hold on the Senate and possibly on the Supreme Court. This suggests, as I argued at the recent Hannah Arendt Center Conference “Citizenship and Civil Disobedience,” that there will be increasing chaos and violence and the real possibility of another Civil War—unless we come up with a solution.
Taplin argues that there is in fact a solution this problem of minority built into the Constitution: The Tenth Amendment. “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.” As Taplin writes:
The origins of the amendment stem from Thomas Jefferson’s debates with his friend James Madison during the 1787 Constitutional Convention. After reading the first draft of the Constitution, Jefferson wrote Madison that the great fault in the document was “the omission of a bill of rights.” He believed that the modifications to the British constitution, enshrining a bill of rights in the wake of Cromwell’s excesses, were critical to a free society. Although Madison originally opposed a bill of rights, over the next two years of ratification of the document by the states he came to see Jefferson’s point that the greatest threat to both individual and local liberty might flow from an authoritarian federal government of the Cromwellian sort. The solution lay, in Jefferson’s words, in including an amendment making clear that “the true theory of our Constitution is that the states are independent as to everything within themselves, and united as to everything respecting foreign nations.”
It has taken two hundred and thirty years to put Jefferson’s defensive measure against an autocratic federal government to the test. While the press freedoms guaranteed by the First Amendment and the privacy protections enshrined by the Fourth Amendment are being tested, progressives are looking to the Tenth Amendment for relief. Since Trump took office, twenty-two Democratic state attorneys general have sued the Trump Administration. Nineteen attorneys general sued to stop Trump from putting an end to certain Obamacare subsidies, eighteen sued to stop the rollback of environmental protections, and sixteen sued to reverse Trump’s decision to rescind DACA protections for young immigrants. Although these lawsuits are working their way through the courts, the Trump Administration has lost many of the early cases, including a suit in August 2017 in which a California judge ordered the EPA to enforce its own clean-air standards.
So far in 2018, twenty-four states have passed thirty-seven bills to curb rising prescription drug costs, according to Trish Riley, the executive director of the National Academy for State Health Policy. And a suit has been recently brought by eight states and the District of Columbia to block the Trump Administration’s decision to allow a Texas company to publish downloadable blueprints for a 3-D-printed handgun.
Across the country, state attorneys general are suing the national government. The Massachusetts attorney general brought suit against the secretary of education to allow the states to rein in student loan debt collectors. A federal judge recently agree with Massachusetts. The California attorney general has won twelve suits against the Trump administration. As Taplin sees, these attorney generals from the states are “posing the Jeffersonian question: Where does the power to govern reside?”
The question of where political power resides is central to Hannah Arendt’s understanding of politics and specifically the political foundation of the United States. Power, Arendt argues, emerges from mutual action. Written laws, and even written constitutions, will not restrain the determined power of democratic actors. The only reliable protection from the tyranny of the majority comes not from constitutional rights but from a dispersal and multiplication of powers. As James Madison argued in Federalist 10, when there are plural and competing powers—Madison called them factions—the plurality of factions frustrate the dangerous concentration of power in one sovereign. For Arendt, the dispersal of power amongst the states and the national government is the greatest innovation of the American Constitution.
Journal Feature: Occupy Wall Street and Liberal Democracy
By Anne Norton
I’m a very obedient person, so I do want to address the question asked by the conveners of the conference: “Is Occupy Wall Street a symptom of an irreparable loss of faith in liberal democracy?” And I want to argue that if it isn’t, it should be, and that we should lose faith in liberal democracy. Or more precisely, if we want to keep faith with democracy, we need to lose faith in liberalism. We need to begin to question insistently, fundamentally, whether liberalism is securing or damaging democracy.
We tend to speak about liberal democracy as if one word slid easily into another, as if there were no space between the protection of individual rights associated with liberalism and the democratic form of government; in other words, that liberalism solves the problem of democracy. Liberalism was supposed to guarantee rights, establish the rule of law, establish regular transparent procedures; it was a little supplement to democracy that would tame and domesticate it and make it safe—safe for minorities, safe for unpopular opinions. But instead, I think liberalism has acted as a supplement in the Derridean sense: it’s something that adds only to replace. That liberalism may have secured democracy in the past, but now liberalism puts democracy in peril.
Now, I’m not the only person who thinks this. Sheldon Wolin, a friend and colleague of Hannah Arendt, argues that democracy has become distorted—principally by liberal economics, by capitalism; that reliance on the free market to spread wealth and power has concentrated power; that the press, under the conditions of the free market and the concentration of the media, has become a gatekeeper and a censor—not something that gives us access to more information, more opinion, more thought, but something that constrains what acceptable thought is, what can be said, and who can say it. Rather than protecting minority opinions, the liberal press today often mutes or silences them. So the institutions that we were taught to think of as undoing private power have come instead to serve and consolidate private power. The institutions that were represented to us as securing means of the liberation of our people have become the tools of a more effective dominion.
The subjection of democracy to the liberal rule of law and liberal proceduralism serves in the same way. Consider, first, the freedom of assembly and how thoroughly that has been abridged. I mean, the idea that you must obtain a permit for a demonstration, that you must go to the state and say “May we demonstrate, sir?” is fundamentally counter to what a demonstration is meant to be—that it is meant to demonstrate that the power of the people is beneath, beyond, and above the power of the state. And that reminder is obscured; instead, demonstrations are tucked away where they can’t be seen, where they become powerless and often invisible.
What strikes me most about this subjection of democracy to liberal proceduralism is that it reminds me of the poverty of public space in our democracy. Think about how difficult it is to find a public space. I mean, if you’re looking for a public space in which to assemble, you readily find out that most of them are privately owned, and so it’s actually quite difficult; the places where people naturally assemble, like shopping malls, are obviously privately owned places. They’re highly regulated places, we might say non-places. And they’re very policed, so there is a poverty of public space.
I’ve been teaching the Twelve Articles of the Swabian peasantry written during the German Peasants’ War of 1525. There are many interesting things about these Twelve Articles, one of which is that the Swabian peasants insist on the return of their commons. In the very poignant Article Seven, the peasants demand that they will not be oppressed anymore. But the pressure to create a commons, I do believe, has changed. I continue to believe in the importance of physical assembly, but I am struck by the way that it works with technology—by the way in which people can now call to one another to organize, assemble and advocate virtually. As physical spaces for assembly become overregulated and insufficient, the virtual realm can play a powerful role in bringing voices together and projecting them publicly. So, I think it is enormously important to create a virtual commons, in addition to a physical commons.
I should say that I’m one of those people who regard the term scholaractivist as not a nice name, and so I rarely speak as an activist; I speak as a scholar. But one’s mind does sometimes go to questions of strategy, and that raises the importance of time. One of the interesting things about virtual assemblies that are called up by the social media we have now is that they can come and go. They can appear and disappear. The possibilities of the flash mob are very interesting, but they also remind us that assembly is a matter of time as well as space. You can’t go camp out in Occupy Wall Street if you’ve got a kid to feed, or you have yourself to feed, and so we have to take time into account. And so that is, I think, part of rethinking assembly—raising the questions of how you call people together for a moment and what can you do in that moment.
Even as the right to assembly has been compromised by the loss of the commons, so too has free speech, the greatest contribution of liberalism, been turned against democracy. It has even been turned against individual rights. Globally, freedom of speech is used to secure majority power over minorities and to affirm imperial hierarchies. When people tell you that the publication of the Mohammed cartoons in the Jyllands-Posten in Denmark is about freedom of speech, or that the French antireligious satirical journal Charlie Hebdois about individual rights, think again. These claims of free speech serve to protect the powerful against the powerless. That is not freedom of speech, properly used, to advance democratic government and to challenge authority; that is freedom of speech used to secure authority, to secure hierarchies, to limit freedom, to limit what people can say. Now, if the Danes had decided to defend the wearing of the burqa, that would have been a courageous act in support of the freedom of the powerless. If Hebdohad decided to argue for the public chanting of the call to prayer in the streets of Paris, I would speak out in support of its courage. But what it is doing is not courageous and not what we should mean by freedom of speech because it does not secure democracy.
I should say too, to clarify things, that I am a free speech absolutist. I do think people should be able to say anything, and in that respect I am very American, although I think I would like America to be more American; I think free speech should extend from the boardroom to the shop floor and I’d like to see more of it aired. But, what troubles me about these great spectacles of free speech that dominate the press is that they’re profoundly fictional. For example, in the case of the Mohammed cartoons, at issue were commissioned cartoons. It wasn’t the case that one couldn’t find a picture of Mohammed in Denmark. The publication of the cartoons was a piece of theater.
I emphasize, the newspaper had every right to do it; it was contemptible to publish these cartoons, but it was their right. And further, the publication was a nonevent in Denmark. What happened in Denmark? Nothing. No Danish Muslims were upset. Other people were upset, there were some demonstrations, but no one was hurt, no one was killed. Nothing happened. In fact, in the entirety of Europe, and the United States, and Canada, and Australia, the entirety of the west, nothing happened. There was one death associated with the Mohammed cartoons—it was the death of a Muslim in police custody. No death, no injuries, nothing. That’s what happens in free countries when you have free speech that you don’t like. We should be really proud of that. We should say, “That’s what free speech looks like among free people.”
We also have to understand the reactions to such spectacles of free speech in non-free countries. When people who live under censorship see something like the Mohammed cartoons, the logical assumption they make is that the offensive speech has the sanction of the state. They live in a world in which news and the distribution of ideas are censored and regulated. Their presumption is that such speech must have the sanction of the state, and this is a rational presumption based on the standards that pertain in most of the world. In most of the world there are things that are forbidden, such as hate speech and Holocaust denial, so the presumption is that the state is giving its seal of approval. That presumption is an error, it’s a most unfortunate error, and it testifies to the need for more speech. But it is not a question of a given culture, a given civilization being hostile to the freedom of speech. On the contrary, it’s an objection to the state, it’s an objection to certain persistent hierarchies.
The real core of free speech in a democratic society is the right to oppose, and for minority viewpoints to be heard, so that all people in a democracy have to listen to people who are alien to them. It’s important to listen to people who you think are your enemies, who are your enemies, and whom you hate. That’s enormously important, and it’s also surprising. It is surprising because some of the people we disagree with most tend to be closer than we think. They are people we choose to listen to, rather than balk from, because we assume they share our fundamental views. Too often in gatherings like this one people say, as someone said earlier, “We’re all liberals, we all agree.” That is absolutely not true, and let me give you a really serious fault line that runs through any liberal community. I mean the question of big government. I’m a small government democrat. I’m very suspicious of big government. I live with a woman who is a big believer in big government. We vote for the same people most of the time, but we have very different views about specific political issues and about how it should go, and in many respects that becomes a big dividing line. When the Iraq war broke out, I found my first and most vigorous allies among old-school conservatives because they were really angry. They were angry about the USA PATRIOT Act—they were more angry about the PATRIOT Act than my fellow liberals—and it’s important to keep your eye out for those chances to make an alliance. An alliance doesn’t have to last forever, it can be a really short alliance, but I would happily join up with the most hardened, old-school conservative in resisting the PATRIOT Act. Not only would I never think twice about it, I would be doubly grateful, because, as you say, it breaches that partisan wall, breaches the bubble. You learn certain things, and also, all of a sudden your alleged opponents are obliged to think of you as human.
Moving beyond both freedom of assembly and freedom of speech, we come to the great problem of liberalism and liberal economics; namely, the problem of property. And this is in some respects a strangely scholarly problem. For John Locke, property meant something quite different. Property meant first of all that which was most one’s own: the body, your body, the rights it sheltered, the claims that it made, the needs that it had. The body was the center of the rights, and only secondarily did it refer to things, things you held in your hand, things you had mixed your labor with. Yet, for liberalism now, property means something different. Property means wealth, goods—or a cipher for wealth and goods, a little entry in a bank that says “You have more power than that person has.” How does the sacred right to property sound, when it means the sacred right to money? Or, the sacred right to my stuff? That, I think, is not a right that can claim any sanctity, and yet, that is the right we have.
What would happen if we understood the sacred right of property to be concerned with what Locke thought it was concerned with? What if it was concerned with what is properly one’s own? With your body? With your mind? With your rights? With your thoughts? What if it conferred the rights the body requires: the right to food, the right to shelter, the right to health care? What if it conferred the rights that the mind requires: the right to have rights, the right to exercise those rights, the right to education, the right to access power? Some of the changes that would force would be quite benign changes—policies more sympathetic to universal health care, a little economic redistribution. But some things would be terrifying. We would have to consider what we can actually claim, justly, to be our own. That’s the old question of equality—equality of needs— and it’s an old question, it’s an old struggle. Why is it so hard? I think it’s hard because property has a perverse logic: those who have are served better by it than those who have not, but those who have the least have the most to lose. If you lose a million dollars, and you’re a billionaire, it’s an inconvenience, it’s a fluke of the stock market, it’s nothing to trouble you. But if you’re poor, and you lose a dollar, that’s the loss of a meal, or what passes for one. If you lose a house, it’s not a burden if you have six or seven, like John McCain. You might not even remember where that other house was. But if you lose your house and it’s your only house, you can lose a world. So it is the person who has the least who has the most to lose, in losing that sacred right of property. And so those with plenty have an army of those with little to defend their claims. They profit, as those with plenty have always done, from the labor, and the needs, and the desperation of those who have not. It is this perverse logic concerning property that I think continues to guarantee that the needs of the neediest citizens will not be met. It is what makes it so very hard to move forward at the question of equality.
I honor Occupy Wall Street because it has brought attention to that problem of inequality. If Occupy Wall Street seems to have withered away, the language of the 1 percent and the 99 percent—that has lingered. It is deployed in the presidential election, where it now includes something about the 47 percent. But I think it’s possible, too, that Occupy Wall Street has not withered. Dispersed, maybe, but perhaps it isn’t itself yet. It’s important for me to remember that Occupy Wall Street has still not occupied Wall Street; it has occupied Zuccotti Park, not the floor of the stock exchange. There are occupy movements and tents and encampments on universities, but they aren’t in the banks. They’re not in the headquarters of CitiBank, and they’re not in your local branch. That would be different. That would take thought, it would take risk, it would take courage.
And then, thinking of that, I want to say a word about courage, and remind us of one of the places that Occupy Wall Street came from. I mean, there are many practices and movements that fed into Occupy Wall Street, but Occupy Wall Street was conceived in part as an emulation of what happened in Tahrir Square. It was called up by people who were inspired by Tahrir Square, and that’s quite interesting. It reverses the direction of imperial influence; it puts the west—it puts Americans—in the position of students. It is important that we remember this; that we learn from others, that we have learned from others, that we have seen courage greater than our own. Because, frankly, it took a hell of a lot more courage to occupy Tahrir Square knowing what was going to happen; knowing that people were going to be beaten, that people, women, men too, probably, were going to be raped—that they were really facing death. And when you see that, when people pushed back the tanks on Qasr al-Nil bridge; that’s courage, and that is democracy in action.
I have enormous respect for Occupy Wall Street, but you have to know that nobody was likely to die in New York City. We are learning from what other people do who had more to risk. It should change our sense of ourselves from teachers of the world to students of the world, and it should make us refuse the claim, forever, that Islam is alien to democracy. What happened in Tahrir Square was and remains a democratic demand.
And, moreover, Tahrir teaches us certain fundamental democratic lessons. First, that individual rights are not opposed to collective action, but that they issue in collective action. Second, that democracy rests on something which is profoundly difficult—democracy requires daring. Democracy is not the work of domesticated people who vote in elections, and obey the law. Those are parts of democracy. Democracy is also the people who dare, the people who will put their bodies on the line.
Which is why it is deeply important that political theorists write about the world, and not just about other theorists. It is so much easier to write about the world, and so much more pleasurable. And it helps you think better, because the particularities of the world are constantly throwing up things that you don’t anticipate, that no one has taught you about, and that you can’t easily come to grips with. That need to deal with particularities— historical particularities, local particularities—is, I think, both demanding and enormously rewarding.
With regard to the question, “Does the president matter?” I want to put on the table the symbolic character of the presidency. I think there’s a tendency to regard that as trivial, and I don’t think it’s trivial. I think it’s enormously important. There is a particular dimension of the Obama presidency that I have personally benefitted from in my daily life. And that is, I live in Philadelphia—Philadelphia is a majority black city, and I live in an integrated neighborhood—and when I walk on the streets now, I have a different set of interactions than I did before Obama’s election. African American people are more likely to greet me, to talk to me. This became especially visible to me after the shooting of Trayvon Martin because there I am, walking my dogs—I have corgis, like the Queen of England—and I’m walking the dogs, and there are two young black men about the same age as Trayvon Martin kind of circling around me. And they have their hoodies on, and I know what they want. They want to pet my dogs.
But that used to be a really different situation. Young black men wouldn’t approach a white woman, my age. Why would they? They wouldn’t know if I could be trusted. They would have good reason not to trust me. And on my side, I want to prove “that I’m a nice human being,” but how do I do that? So we do this little dance on the street, but the dance doesn’t take as long as it used to. There’s a possibility for me—and there’s a possibility for them as well—that did not exist before Obama won the election. That is not a small deal. That’s a change that has transformed American racial relations, even if just at the edges. America is still a nation of white supremacy. But it’s a nation of white supremacy with a black president, and that changes daily life.
It also means that during the election, we got a phone call from a friend who’s an Algerian communist, and she is not a friend to the United States of America. Alya calls us up and she says, “You have shown the world that you are a great nation.” You couldn’t wring that out of Alya before the Obama presidency. His election makes a difference. It makes a difference locally on my street, on my sidewalk, in my neighborhood. And it makes a difference globally. We may squander the opportunity for change, but the possibility is there.