When at Times the Mob Is Swayed: A Citizen’s Guide to Defending Our Republic

By Burt Neuborne

From the leading constitutional lawyer who has sued every president since LBJ, a masterful explication of the "pillars of our democracy"

On November 9, 2016, many Americans feared that our democracy was on the verge of collapse. But is it? In an erudite and brilliant evaluation of the current state of our government, noted constitutional scholar Burt Neuborne administers a stress test to democracy and concludes that our unprecedented sets of constitutional protections, all endorsed by both major parties, stand between us and an authoritarian federal regime fronted by Donald Trump's tweets: namely the division of powers between the three branches, the rights reserved to the states, and the Bill of Rights.

Neuborne parses the genius of our constitutional system and the ways its built-in resilience will ultimately survive current attempts to dismantle it. While many important issue areas—women's right to choose, LGBTQ rights, separation of church and state—risk erosion, Neuborne argues that while the Constitution's inherent defense mechanisms can buy us time, only an active citizenry will allow us to fulfill Ben Franklin's charge to keep our republic.

When at Times the Mob Is Swayed is an invitation from one of our most respected legal lights to identify, celebrate, and defend our bedrock constitutional principles.

• Language: English
• Publisher: The New Press
• Release date: Aug 6, 2019
• ISBN: 9781620973592

Burt Neuborne

Burt Neuborne is the Inez Milholland Professor of Civil Liberties and founding legal director of NYU Law School's Brennan Center for Justice and has participated in more than two hundred cases in the U.S. Supreme Court. Neuborne is the author of Madison's Music and the forthcoming When at Times the Mob Is Swayed: A Citizen's Guide to Keeping Our Republic (both from The New Press) and lives in New York.

Book preview

1

How Good Are the Brakes on the Democracy Train?

In more than fifty-five years of practicing law, I’ve sued every American president since Lyndon Johnson, most of them more than once. When I wasn’t suing presidents, as national legal director of the American Civil Liberties Union and founding legal director of the Brennan Center for Justice, I sued governors, mayors, police chiefs, FBI directors, generals, school boards, city council members, judges, cops, and any other government official I could get my hands on who appeared to be violating the Constitution.

The constitutional enforcement business was pretty good. I never experienced a shortage of customers. Much of the time the judicial system worked just as advertised, shielding vulnerable targets from unfair abuse at the hands of the politically powerful. I’ve learned from bitter experience, though, that without an excellent set of constitutional brakes, American democracy can quickly morph into an angry, fearful mob—a runaway political train fully capable of crushing anyone in its path.

Faced, as we are these days, with a charismatic, authoritarian president named Donald Trump, whose genius for creating scapegoats, bending the truth, and fomenting divisiveness poses a profound threat to many of our constitutional values, it’s long past time to check the brakes on the twenty-first-century American Democracy Express. Are the brakes strong enough to stop a runaway Trumpist train fueled by racism, misogyny, envy, and fear?

The short—and disturbing—answer is that the brakes on the first-class cars, especially the gilded private cars at the head of the train, are still in pretty good shape. But if you’re traveling in coach, or riding outside because you can’t afford a ticket, you run a serious risk of being the victim of an ugly train wreck—because the brakes on the low end of the Democracy Express are in terrible shape. I hope that you will treat this book, in part, as a warning from your neighborhood constitutional cop about the faulty brakes; and, in part, as a repair manual for folks willing to get their hands dirty fixing them.

I am confident that sustained political and legal effort can get us back on track. My most important message, though, is that there is no constitutional mechanic in the sky ready to swoop down and save American democracy from Donald Trump at the head of a populist mob. The fate of American democracy is up to us.

The legendary group of Founders—George Washington, James Madison, John Adams, John Jay, and Alexander Hamilton—who built the railroad were so concerned about runaway democratic trains that they installed a dual braking system—internal and external. In 1787, they designed an internal set of self-checking electoral brakes designed to prevent an overheated electoral majority from picking up too much speed in any one direction. As a backup, in 1791, they installed a second, external set of brakes empowering independent, politically neutral judges, headed by the Supreme Court, to slow or stop the democracy train if, despite the internal brakes, the electoral majority threatened to run roughshod over vulnerable individuals and groups.

The sad truth is that, today, neither braking system is working well enough to stop a runaway populist train fueled by racism, religious intolerance, and ideological fervor from jumping the constitutional tracks and harming the weak and poor. Anyone who tells you differently either doesn’t understand how the brakes work, doesn’t care who gets run over, or is working for Vladimir Putin.

THE INTERNAL BRAKES

The Founders’ internal brakes haven’t been overhauled in more than two hundred years. They are in dreadful shape. As originally designed, the internal brakes relied on multiple, relatively equal voting blocs with differing, often conflicting, interests to check each other automatically. The theory was that the interaction of competing voting blocs would prevent any single group of voters from accumulating enough governing power to run roughshod over the losers.

As a matter of history, the Founders’ internal electoral braking system worked tolerably well for a long time, with the tragic exception of the Civil War. Today, though, the Founders’ electoral brakes are in shambles. Instead of a self-regulating system based on checks and balances, two dominant political parties—Republican and Democratic—provide a ready path for a single, ideologically linked group of voters to gain complete control of the government and, once in power, to abuse that control by crushing their opponents, along with any other scapegoats that happen to get in the way.

The Founders were remarkable visionaries who literally invented the idea of a mass democracy governing a large geographical area. Much of this book is devoted to their brilliant political innovations. The one thing the Founders didn’t foresee, though, was the crucial role of political parties in organizing and operating the democratic process. In fact, the Founders hated the idea of political parties, disparagingly calling them factions. It turns out, though, that you can’t run a mass representative democracy without some coordinating mechanism to organize the process. That’s where political parties come in—like it or not.

For most of our national history, the Founders’ failure to have anticipated the need for political parties didn’t do much harm to their internal braking mechanism because nineteenth- and twentieth-century American political parties tended to be either small regional groupings capable of checking each other, or big tents that included a bewildering array of self-checking interests crossing ideological, economic, and racial fault lines. Once upon a time, liberal Republicans were to the left of conservative Democrats, and just as many blacks supported the Republican Party, the party of Abraham Lincoln, as supported the Democrats, long the party of racial segregation.

Today, the Republican and Democratic parties have evolved into competing ideological brand names, functioning as closed political silos with virtually no points of overlap. Too often, adherents of each party demonize their political opponents, receive their political information from diametrically opposed media outlets, and view politics as an apocalyptic struggle between right and wrong. Even worse for the internal braking system, today’s political parties also predictably divide by particularly incendiary criteria such as race, religion, ethnic origin, and economic status, setting the stage for ferocious partisan competition to win bitterly contested elections by narrow margins, followed by ruthless efforts to ram an ideological agenda down the throats of the electoral losers. Thus, instead of organizing a self-checking mechanism governed by compromise, our current hyper-partisan political parties function as accelerants, enabling extreme partisans to set the throttle at full speed without caring much who gets run over.

I’m confident that the current hyper-partisan nature of the Republican and Democratic Parties can be ameliorated by tweaking the rules governing the nomination process, which currently artificially empower the parties’ extreme wings. As we’ll see, the democracy repair manual in chapter 3 calls for changing the nominating ground rules to do a better job of reflecting the preferences of moderates in each party, and even opening the way for potential third-party challenges to the current legally protected political duopoly enjoyed by the Republican and Democratic parties.

The unforeseen impact of ideologically defined political parties is not, however, the only reason the Founders’ electoral brakes don’t work anymore. The real problem is much deeper. The Founders imagined a fair representative democracy where a diverse body of elected representatives would accurately reflect the mosaic of American life. In twenty-first-century America, however, the Founders’ ideal of fair political representation has all but fallen apart. In fact, it’s hard to imagine a system of electoral representation more unfair, unequal, and distorted than ours that would have the chutzpah to call itself a real democracy.

We start with the appallingly undemocratic United States Senate, where Wyoming, with fewer than 600,000 residents, elects the same number of senators as California, with 40 million residents—a one-person one-vote distortion of sixty-five to one—and where, in a worst case scenario, senators representing only about 18 percent of the country’s population can cast 51 percent of the votes in the chamber. Current reality is not quite that bad. In the 116th Congress, Republican senators representing just under 40 percent of the population control the upper chamber. That’s not as undemocratic as it could be, but it’s nothing to be proud of if you believe in political equality and majority rule.

It would be bad enough if the Senate’s representational distortion were random. But it’s far from random. It’s structurally biased against urban America, where 80 percent of Americans live, including the vast bulk of Americans of color. Face it. Under the existing Senate structure, sometimes it feels as though New York City is a colony of Wyoming.

How did such a distortion of the Founders’ democratic dream come about? We all remember the story of the Connecticut Compromise, where the smaller states agreed to a House of Representatives based on population in return for a Senate where each state would have equal suffrage regardless of population. Madison accepted the Connecticut Compromise, but he understood that equal state representation in the Senate regardless of population contravened the principles of representative democracy. In 1787, the Confederation Congress had provided in the Northwest Ordinance that future states formed from the territories would each have about the same population. Despite the compromise with principle, Madison reluctantly went along with the Connecticut Compromise because he believed that modestly overrepresenting several of the original smaller states in the Senate would protect a politically weak minority against possible oppression by the politically powerful majority.

The original compromise with principle was modest. In 1790, Delaware, with about 60,000 residents, elected the same number of senators as Virginia, with more than 750,000 people. Since almost half of the 750,000 Virginians were enslaved people who could not vote, the actual representational deviation was about 6.5 to 1. The one thing Madison never imagined, though, was that a 6.5-to-1 representational deviation in 1790 would metastasize tenfold into a sixty-five-to-one deviation today, empowering a rural, predominantly white minority of the national voting population to dictate policy in the Senate to the nation’s urban majority.

As with the need for political parties, here’s what the Founders did not—and could not have—foreseen. Over more than two hundred years, the United States has evolved from a small agricultural nation hugging the Atlantic coast with fewer than 4 million people (more than one-third of whom were enslaved) into the world’s preeminent industrial and financial power with more than 326 million people spanning the North American continent. Massive, densely populated urban centers dedicated to finance and industry emerged in many states; while other, more sparsely populated states remained primarily rural and agricultural. But, no matter how the national population has grown, and has ebbed and flowed from state to state, from farm to factory, and from town to city, the Constitution’s mandate that each state continue to elect the same number of senators regardless of population currently awards an enormous representational advantage to the folks living in rural America. This edge is particularly dramatic when it comes to electing presidents via the distorted Electoral College and confirming Supreme Court justices in the malapportioned Senate.

Short of scrapping the entire Constitution and starting over, though, there’s probably nothing that can be done about the profoundly undemocratic Senate. The 1787 Constitution has only three explicitly non-amendable provisions: a right to import enslaved people until 1808; a ban on per capita taxation (to protect slave owners against being taxed out of existence); and the right of each state to enjoy equal suffrage in the Senate. While, under Article IV of the Constitution, it would be theoretically possible—and perfectly constitutional—for states with large urban populations such as California, Illinois, Texas, Florida, Pennsylvania, and New York (the six states currently suffering a 20-1 representational deficiency in the Senate) to divide like paramecia into multiple states with two senators each giving urban America fairer Senate representation, don’t hold your breath waiting for the moving parts to align. Congress would have to grant permission and the affected states would have to agree on boundaries. Although it’s happened five times in the nation’s history—Vermont from New York (1791); Kentucky from Virginia (1792); Tennessee from North Carolina (1795); Maine from Massachusetts (1820); and West Virginia from Virginia (1863), I doubt that we have the will or ability to act as modern Founders to rescue the Senate from its current undemocratic swamp. While I hope I’m wrong, I’m afraid that we will almost certainly limp into the future with the Founders’ internal electoral brakes warped by the utter collapse of fair and equal legislative representation for urban America in the United States Senate.

The drastic imbalance in the Senate translates into a troubling representational imbalance in the Electoral College, established by the Founders to choose the president indirectly in place of a nationwide popular election. Under the Founders’ system, voters in each state choose presidential electors, who then meet in Washington, DC, as the Electoral College to select the president. It takes a majority vote in the Electoral College to win the presidency. The Constitution awards each state as many electors as it has representatives in Congress. That’s fine when it comes to members of the House of Representatives, all of whom are allocated according to a state’s population. But it’s a representational disaster when applied to the Senate, which, as we’ve seen, is radically unrepresentative. The net result is to tilt the Electoral College toward the same sparsely populated rural states that benefit from the Senate’s failure to reflect democratic principles of one-person one-vote.

That means there is no guarantee that the winner of the national popular vote will become president. In fact, twice in the last sixteen years, Republican candidates for president—George W. Bush in 2000 and Donald Trump in 2016—have won a majority in the Electoral College while losing the national popular vote. Can you imagine what we would say about another nation’s democratic legitimacy if that country chose powerful presidents who had been repeatedly rejected by a clear majority of the voters?

When you combine the representational unfairness in the Senate with the representative distortion in the Electoral College, you emerge with Donald Trump, a minority president who lost the national election by three million votes, representing a Republican Party that lost the popular vote in six out of the last seven national elections—1992, 1996, 2000, 2008, 2012, and 2016—empowered to appoint Neil Gorsuch and Brett Kavanaugh as swing Supreme Court justices, who are then confirmed by fifty-one Republican senators representing fewer than 40 percent of the nation’s population. What would Washington, Madison, and Jefferson think about such sustained representational failure?

And it gets even worse. The one place where the Founders’ internal electoral braking system should still work is the House of Representatives, elected every two years to provide an accurate mirror of the incredibly diverse society it is intended to represent. Since 1962, under Article I, Section 2 of the Constitution and the one-person one-vote principle of Baker v. Carr, every member of the House of Representatives must represent an equal number of constituents (currently, about 700,000 persons). So, ideally, the House should function as the Founders’ classic self-limiting democratic institution, a body fairly representing diverse interests of relatively equal political weight, no one of which can dominate the others. The result should be a legislative body characterized by shifting coalitions, moderation, and compromise.

There’s only one catch. The representational integrity of the House of Representatives has been poisoned by an epidemic of excessive partisan gerrymandering—the hyper-partisan drawing of distorted electoral maps designed to lock large numbers of rural and suburban Republican candidates into office, while systematically depriving their Democratic opponents of fair representation in the Congress and the state legislatures. Democrats would love to do it, too, of course, but, except for Maryland, they have lacked the opportunity in recent years.

In many Republican-controlled states, like North Carolina, the boundaries of congressional districts have been carefully drawn so that reliably Republican voters are strategically spread over numerous districts, with just enough Republican votes in each district (usually 55 percent or so) for Republican candidates to be the overwhelmingly likely winners. In such a Republican-leaning district, every Republican vote is important. Democratic voters in the same state are frequently packed into overwhelmingly Democratic urban districts (as much as 80 percent Democratic), where the Democratic candidate predictably wins by an overwhelming majority, but where many of the Democratic votes are wasted because they are not needed to win. It’s called packing and cracking.

Given the current Republican gerrymandered district boundaries, in order for the Democratic Party to elect 50 percent of the House of Representatives, the Democrats must garner between 55 and 60 percent of the total national congressional vote. The Founders would wince. As the 2018 congressional elections demonstrate, it’s possible for the Democrats to overcome the built-in headwinds and win a majority in the House of Representatives, but it’s also important to note how strong the gerrymandering headwinds can be—in North Carolina, for example, in spite of winning statewide, the Democrats couldn’t flip a single Republican district, leaving the Republican Party with ten of thirteen congressional seats in a state that voted Democratic.

Worse, in recent years, five Republican justices on the Supreme Court have virtually invited cynical politicians to remain in power by making it as hard as possible for many poor people (often of color) to vote at all. That’s where phony voter ID requirements, felon disenfranchisement, and voter registration purge statutes come from. Under the current Supreme Court, the representational breakdown in the House may even get worse. Stay tuned for: (1) Supreme Court acceptance of even more ruthless partisan gerrymanders; (2) Supreme Court approval of an avalanche of phony anti-fraud devices, such as voter ID requirements and purge statutes; and (3) Supreme Court acceptance of efforts by Republican-controlled states to apportion House seats on the basis of citizenship instead of the historical basis of residence, further diminishing the representation of urban America, where large numbers of noncitizens reside (that’s why Republicans are trying to add a citizenship question to the 2020 census).

Stay tuned, as well, for a ferocious rearguard defense of felon disenfranchisement in Florida, where for years it has denied the ballot to 25 percent of the black male electorate. The predictably racially discriminatory impact of felon disenfranchisement is what has enabled predominantly rural white Republican voters to retain control of a rapidly urbanizing state. It almost certainly decided the 2000 presidential election.

In 2018, more than 64 percent of Florida’s voters overwhelmingly rejected felon disenfranchisement, but there is, as yet, no plan for how to restore the many thousands of historically disenfranchised voters to the rolls. Republican election officials are already making noises about how important it is to slow down the implementation of the referendum. And it’s only a matter of time until Republican politicians in Florida and elsewhere try to condition the restoration of voting rights to convicted felons on payments of court fees beyond the reach of poor voters.

Sadly, instead of being a showcase for the Founders’ self-checking internal braking system, the current House of Representative has been turned into a partisan swamp. When you add the representational distortions in the Senate and the Electoral College to the gerrymandered House of Representatives, it’s as though the Constitution’s great Preamble has been hijacked to read: We, a rural minority of the people, do hereby ordain and establish this blueprint for governing the urban majority.

Face it: as far as the weak and poor are concerned, there are no longer any reliable self-checking internal brakes on the Founders’ train. If anything, today’s train is geared to run over the poor folks who live in urban America.

THE EXTERNAL BRAKES

The Founders didn’t rely solely on internal brakes. Somewhat reluctantly, they introduced a backup external braking system, empowering independent, politically neutral judges to slow or stop a runaway democratic train. The good news is that the external brakes still work much of the time, especially when personal autonomy—the right to be left alone—is at stake. The bad news is that the external braking mechanism is so damn complex, with so many moving parts, that it has ceased to be reliable in many settings, especially when the right of the weak to equal treatment is at stake.

The Supreme Court is not shy about touting the Court’s constitutional brakes as a state-of-the-art, fail-safe system capable of stopping even a runaway populist train traveling at breakneck speed. According to the warranty printed on the back of the train ticket, riding on the American Democracy Express is a relatively risk-free proposition because when at times the mob is swayed / to carry praise or blame too far, a politically neutral, life-tenured Supreme Court, sworn to enforce constitutional checks on the tyranny of the majority, can be trusted to slow or stop the train before it causes too much damage. The Supreme Court even promises to perform prophylactic maintenance on the braking system by stopping government officials—especially officials of the national government—from acquiring dangerous unilateral power over the train’s throttle.

Like too many warranties these days, the Supreme Court’s earnest assurances that it is standing by to apply politically neutral brakes on a runaway electoral majority by enforcing the constitutional text isn’t entirely accurate. In fact, it comes close to being downright false and misleading. The warranty doesn’t tell you that the precise meaning of the most important rights-bearing provisions of the Constitution—including the First Amendment’s forty-five-word protection of religion, speech, and press; and the Fourteenth Amendment’s guarantee of the equal protection of the laws—is almost always up for grabs.

That’s nothing new, of course. The meaning of the Constitution’s text has always been deeply contested. What is new is the utter breakdown of the internal electoral brakes and the emergence of an immensely powerful president who expresses utter contempt for the very ideas of toleration and mutual respect that undergird our constitutional republic.

The Supreme Court’s warranty doesn’t tell you that the justices who actually operate the brakes are more divided than ever these days about how to interpret the Constitution’s ambiguous text. In the many important Supreme Court cases where the constitutional text is ambiguous, binding Supreme Court precedent is either absent or confusing, and/or prime constitutional values such as autonomy (the right to be left alone) and equality (the right to be treated the same) point in different directions, Republican justices have, over the years, tended to read the ambiguous constitutional text to favor the right of individuals to be left alone, repeatedly protecting the powerful from a host of government regulations aimed at protecting the vulnerable. Democratic Supreme Court justices have tended to read the same ambiguous constitutional text to advance the equality-based interests of the weak, often at the expense of the autonomy of the strong. Despite the Supreme Court’s sincere promise of political neutrality, Republican justices are more likely to read the Constitution from the top down, insulating big business, rich campaign spenders, political bosses, dominant racial groups, dominant social groups, insiders, police, the military, and men from government regulations designed to rein in their power. Democratic Supreme Court justices more often read the same text from the bottom up to protect the equality interests of racial and ethnic minorities, gays, women, political and religious dissenters, the poor, immigrants, people seeking the vote, outsiders, consumers, and targets of government suppression.

Don’t get me wrong. I am not asserting that Supreme Court justices consciously advance a partisan agenda, although sometimes, as in Bush v. Gore (the 5–4 case where five Republican justices gave George W. Bush the presidency in 2000 despite his loss of the popular vote and quite possibly his loss of the crucial Florida vote), it looks like that’s what’s happening. Nor do I believe that Supreme Court justices consciously align themselves with the strong or the weak. In fact, I believe that almost all the justices who have served in the modern era would pass lie-detector tests about their nonpolitical commitment