Tag Archives: Jim Crow

The US Senate: Where Democracy Goes to Die

12 Mar

Every once in a while I teach constitutional law, and when I do, I pose to my students the following question: What if the Senate apportioned votes not on the basis of states but on the basis of race? That is, rather than each state getting two votes in the Senate, what if each racial or ethnic group listed in the US Census got two votes instead?

Regardless of race, almost all of the students freak out at the suggestion. It’s undemocratic, they cry! When I point out that the Senate is already undemocratic—the vote of any Wyomian is worth vastly more than the vote of each New Yorker—they say, yeah, but that’s different: small states need protection from large states. And what about historically subjugated or oppressed minorities, I ask? Or what about the fact that one of the major intellectual moves, if not completely successful coups, of Madison and some of the Framers was to disaggregate or disassemble the interests of a state into the interests of its individual citizens. As Ben Franklin said at the Constitutional Convention, “The Interest of a State is made up of the interests of its individual members.  If they are not injured, the State is not injured.” The students are seldom moved.

Then I point out that the very opposition they’re drawing—between representation on the basis of race versus representation on the basis of states—is itself confounded by the history of the ratification debate over the Constitution and the development of slavery and white supremacy in this country.

As Jack Rakove argued in Original Meanings, one of the reasons some delegates from large states ultimately came around to the idea of protecting the interests of small states was that they realized that an equal, if not more powerful, interest than mere population size bound delegate to delegate, state to state: slavery. Virginia had far more in common with South Carolina than it did with Massachussets, a fact that later events would go onto confirm. In Rakove’s words:

The more the delegates examined the apportionment of the lower house [which resulted in the infamous 3/5 clause], the more weight they gave to considerations of regional security. Rather than treat sectional differences as an alternative and superior description of the real interests at play in American politics, the delegates saw them instead as an additional conflict that had to be accommodated in order for the Union to endure. The apportionment issue confirmed the claims that the small states had made all along. It called attention not to the way in which an extended republic could protect all interests but to the need to safeguard the conspicuous interest of North and South. This defensive orientation in turn enabled even some large-state delegates to find merit in an equal-state vote.

As Madison, a firm opponent of representation by states, would argue at the Convention:

It seemed now to be pretty well understood that the real difference of interests lay, not between large and small but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination.”

True, Madison made this claim in the service of his argument against representation by states, but for others, his claim pushed in the opposite direction: a pluralism of interests in an extensive republic was not, as Madison claimed in Federalist 10, enough to protect the interests of a wealthy propertied minority.  Something more—the protection of group interests in the Senate—was required. (Which is why, incidentally, I’m always amused by conservatives’ horror at the notion of group rights: what do they think the Senate is all about if not the protection of group rights? This is not to say that there aren’t principled reasons to oppose group rights; I’m commenting merely on the scandalized tone of the opposition.)

And when one considers how critical the Senate has been to the protection of both slavery and Jim Crow—measures against both institutions repeatedly passed the House, only to be stymied in the Senate, where the interests of certain types of minorities are more protected than others—the distinction between race and state size becomes even harder to sustain. Though the Senate often gets held up as the institution for the protection of minority rights against majoritarian tyranny, the minorities it protects are often not the powerless or the dissenters of yore and lore.

Indeed, for all the justified disgust with Emory University President James Wagner’s recent celebration of the 3/5 Clause, virtually no one ever criticizes the Senate, even though its contribution to the maintenance of white supremacy, over the long course of American history, has been far greater than the 3/5 Clause, which was nullified by the 14th Amendment.

This is all by way of a long introduction to a terrific article in the New York Times by Adam Liptak on just this issue of the undemocratic nature of the Senate, and some of the racial dimensions of that un-democracy. Just a few excerpts:

Vermont’s 625,000 residents have two United States senators, and so do New York’s 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line — the biggest inequality between two adjacent states. The nation’s largest gap, between Wyoming and California, is more than double that.

The difference in the fortunes of Rutland and Washington Counties reflects the growing disparity in their citizens’ voting power, and it is not an anomaly. The Constitution has always given residents of states with small populations a lift, but the size and importance of the gap has grown markedly in recent decades, in ways the framers probably never anticipated. It affects the political dynamic of issues as varied as gun control, immigration and campaign finance.

In response, lawmakers, lawyers and watchdog groups have begun pushing for change. A lawsuit to curb the small-state advantage in the Senate’s rules is moving through the courts. The Senate has already made modest changes to rules concerning the filibuster, which has particularly benefited senators from small states. And eight states and the District of Columbia have endorsed a proposal to reduce the chances that the small-state advantage in the Electoral College will allow a loser of the popular vote to win the presidency.

What is certain is that the power of the smaller states is large and growing. Political scientists call it a striking exception to the democratic principle of “one person, one vote.” Indeed, they say, the Senate may be the least democratic legislative chamber in any developed nation.

Behind the growth of the advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.

The threat of the filibuster in the Senate, which has become far more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state senators, often in leadership positions, have amplified their power by using the filibuster more often than their large-state counterparts.

Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation’s five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968.

The article is long, but it’s worth the entire read. A model of how good journalism can incorporate the insights of historical and institutionalist political science (and not just the number-crunching kind).

Update (12 pm)

A commenter at Crooked Timber reminded me of this great review by Hendrik Hertzberg of Robert Dahl’s book on the Constitution. Hertzberg quotes this line from Alexander Hamilton at the Convention that I wish I had remembered and quoted in my post:

As states are a collection of individual men, which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been said that if the smaller states renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty. Will the men composing the small states be less free than those composing the larger?

Update (12:30 pm)

Nathan Newman just posted the following comment on my FB page. I thought it was worth sharing:

Ran the numbers a few years ago and found that states representing just 11% of the population could elect the 41 Senators needed to block any legislation the other 89% of the population wanted to pass. It’s actually worse than that since you only need a majority in each of those states to elect those Senators– so the right 6% of the population could theoretically block any legislation they wanted. Just a crazy anti-democratic institution. The Constitution kick of sucks– yeah, I said it.

Nathan also co-wrote a great article a few years back on the relationship between slavery, the Constitution, and the Reconstruction amendments. Worth a look.

Steven Spielberg’s White Men of Democracy

25 Nov

Two weeks ago I wrote, “When Steven Spielberg makes a movie about the Holocaust, he focuses on a German. When he makes a movie about abolition, he focuses on a white man. Say what you will, he’s consistent.”

My comment was inspired by historian Kate Masur’s excellent New York Times op-ed, which argued that Spielberg’s film Lincoln had essentially left African Americans offstage or in the gallery. In Spielberg’s hands, blacks see themselves get rescued by a savior who belongs to the very group that has ravaged and ruined them. Just as Jews do in Schindler’s List. The difference is that in the case of emancipation, blacks—both free and slave—were actually far more central to the process of their own deliverance.

Thanks in part to documents from the National Archives that historians began to rigorously amass and organize in 1976—resulting in the multi-volume Freedom: A Documentary History of Emancipation, 1861-1867—students and scholars have come to a completely different view of how emancipation happened. As three of the historians who were involved in that project wrote in the path-breaking Slaves No More:

The Destruction of Slavery [the first essay in the book] explicates the process by which slavery collapsed under the pressure of federal arms and the slaves’ determination to place their own liberty on the wartime agenda. In documenting the transformation of a war for the Union into a war against slavery, it shifts the focus from the halls of power in Washington and Richmond to the plantations, farms, and battlefields of the South and demonstrates how slaves accomplished their own liberation and shaped the destiny of a nation.

Emphasizing the agency of slaves and former slaves does not simply alter the cast of characters in the drama of emancipation, displacing old villains and enthroning new heroes. Abraham Lincoln and the Radical Republicans do not play less significant parts once slaves gain an active role in their own liberation, but they do play different ones. Focusing on events beyond Washington and outside formally constituted political bodies does not excise politics from the study of the past. Rather, it reveals that social history is not history with the politics left out, but that all history is—and must be—political. The politics of emancipation in the countryside and the towns of the South makes more comprehensible the politics of emancipation inside the capitol and the presidential mansion.

Which made Spielberg’s decision to focus on Lincoln and a few politicians in Washington all the more perplexing.

After I posted my comment, the estimable Freddie DeBoer asked me a simple, blunt question: Had I seen the film I was pontificating about? Shamefacedly I admitted I hadn’t. (One of the things I love about Freddie’s writing is how quickly and cleanly he cuts into his opponents. I love it even more when I’m not one of them.) But I promised I’d see the film—in return for Freddie reading some of the historical literature. He agreed.

Last night I saw the film. I’m pleased to admit that I was wrong—but in one of those ways that reveals I was more right than I realized.

One of the points my critics made in response to my original claim—Michael Brendan Dougherty pursued this line most forcefully (on Twitter)—is that the film is a biopic called “Lincoln.” Of course Lincoln is going to be center stage. (To which my exasperated wife responded, “Schindler’s List also has Schindler in the title. So what?”)

But here’s the thing. Lincoln is most decidedly not a movie about Lincoln. The main character of the film is the 13th Amendment—and the politics of emancipation more specifically and more generally. The entire plot revolves around its passage. And what’s most fascinating about the film is that Spielberg, and his screenwriter Tony Kushner, shows that emancipation wasn’t the product of a lone heroic effort by a saintly Lincoln; instead, it depicts emancipation as a collective endeavor.

The film in fact does a remarkable job—this is one of its chief virtues, I think—of decentering Lincoln from his traditional role in our national narrative. Lincoln gets surprisingly little air time in the film. Many scenes are littered with the hapless attempts of three lowlifes—one is played by James Spader—to get lame-duck Democrats on board with the 13th Amendment through promises of sinecures and patronage. In terms of getting the Amendment passed, Lincoln’s role is rather small. He only intervenes successfully in getting two or three votes.

Lincoln is obviously important as a steward and an oracle: one of the other things I like about the film is that it shows what a fine line there is in politics between the prophet and the windbag; Lincoln’s stories and pronouncements often prompt either bemused bewilderment (in the case of William Seward, played by David Strathairn) or frustrated rage (in the case of Edwin Stanton, played by Bruce McGill). But his presidency, as it is depicted by Spielberg/Kushner, actually comports more with how the bloggers over at Lawyers, Guns & Money, and the poli sci literature more generally, understand the presidency: as a radically constrained institution, which is often buffeted by forces it can’t control—in Congress, and elsewhere.

So, yes, Lincoln plays a role in Lincoln, but it’s just that: a role. Seward, Spader and his goons, Thaddeus Stevens (Tommy Lee Jones), even crazy Mary Todd Lincoln (Sally Fields)—everyone has a hand in freeing the slaves.

Everyone, it seems, save the slaves themselves.

For all the decentering of Lincoln, for all the inclusion of multiple voices, the film studiously keeps black people in the audience—literally in the gallery, in one of the closing scenes, or in the bedroom or in the foyer, waiting, watching, attending. Black characters are almost always either looking up at their saviors (even allowing for the fact that Lincoln was tall) or wistfully after their saviors, as the latter depart for the halls of power. It’s true that the film opens with black soldiers telling Lincoln all they have done in the war, and telling him all that he should still do. Mary Todd Lincoln’s black servant speaks up every once in a while, as do some other servants. But that’s pretty much it.

What is so odd about this film—and something I would not have anticipated from Masur’s op-ed—is that it really is trying to show that abolition is the democratic project of the 19th century. Democratic in its objective (making slaves free and ultimately equal) and democratic in its execution, involving a great many men beyond Lincoln himself, and a great many lowly men at that. But it is a white man’s democracy. In the film, in fact, Lincoln tells his colleagues: “The fate of human dignity is in our hands.” Our hands. Not theirs.

The inclusion of so many white players makes the exclusion of black players all the more inexplicable—and inexcusable. It’s just a weird throwback to the pre-Civil Rights era except that emancipation is now depicted as a good thing—just so long as it is white people who are doing the emancipating.

Lest I be accused—as I already have been—of imposing some kind of PC orthodoxy on a piece of mass entertainment, or of applying an anachronistic standard of inclusion to a film that marches under the banner of fidelity to historical truth, let me reiterate one point and add two others. Emancipation was not a white man’s affair. It was a multiracial affair, in which blacks, slave and free, played a central role. Spielberg and Kushner are not being faithful to the historical record; they are distorting it. Not by lying but by constructing the field glasses through which they would have us look at, and misperceive, the past.

Aaron Bady will be blogging about the film too, so I don’t want to steal his thunder. But he’s dug up two interesting factoids that are relevant: First, Spielberg was originally thinking of making a film about the relationship between Lincoln and the black abolitionist Frederick Douglass. This is a topic that has generated a large and growing literature. Spielberg opted not to go that route. Second, though Spielberg chose to base the film on Doris Kearns Goodwin’s Team of Rivals, he decided essentially to use three pages from the book as the basis of his story. It was his decision to focus on the few months that led to the passage of the 13th Amendment in the House.

These unforced choices—his choices—effectively precluded the inclusion of blacks as political agents in their own right. It was not the constraints of history or genre, in other words, that produced this film; it was the blinkered vision of Steven Spielberg.

And, I’m sorry to say, the blinkered vision of Tony Kushner. If you think my pre-Civil Rights claim above is unfair, consider this statement that Kushner gave to NPR, which Aaron also found and pointed out to me:

The inability to forgive and to reconcile with the South in a really decent and humane way, without any question, was one of the causes of the kind of resentment and perpetuation of alienation and bitterness that led to the quote-unquote ‘noble cause,’ and the rise of the Klan and Southern self-protection societies. The abuse of the South after they were defeated was a catastrophe, and helped lead to just unimaginable, untellable human suffering.

I have to confess, I was truly shocked by this comment. Though it points to events after the Civil War, it reveals a point of view that I had thought we abandoned long ago: the Dunning School of American historiography, which essentially holds that Reconstruction was a “tragic era”—and error—in which a cruel and unforgiving North decided to wreak havoc on a victimized (white) South, thereby producing Jim Crow and a century of southern backwardness. When I was in high school—in 1985!—we were taught the Dunning School as an example of how not to do history, a way of thinking about the past that was so benighted no one could possibly believe it anymore.

Yet here we have one of our most esteemed playwrights—a Marxist no less (and whose effort to reclaim an honorary degree from CUNY, which he had been denied, I steadfastly organized for)—essentially peddling the same tropes.

When you have a screenwriter with Kushner’s range of historical vision, and a filmmaker with Spielberg’s gift for compression, it should be possible to make a different film. A truer, better—and, yes, entertaining—film. For reasons I can’t comprehend, they chose not to, opting instead for a 19th century American version of Schindler’s List.

I didn’t like the original. And I’m not crazy about the remake.

Update (8 pm)

Anthony Kammer on Twitter reminded me of this great quote from Stanley Kubrick about Schindler’s List: “Schindler’s List was about 200 Jews who lived. The Holocaust is about 6 million Jews who died.” I’ve never been able to find confirmation for the quote, but it’s so perfect that I had to repeat it here.

Update (9:45 pm)

From Michael Brendan Dougherty (with whom I argued earlier; see above) tonight on Twitter:

After seeing the film, I’m closer to your view than I anticipated. I think you argued better than the other professor.

I’ll admit it: it’s always gratifying to hear this kind of thing. Though I think “the other professor”—Kate Masur—did quite well.

Update (November 26, 12 am)

On FB, Ian Zuckerman brought to my attention this great speech of Frederick Douglass on Haiti.

Speaking for the Negro, I can say, we owe much to Walker for his appeal; to John Brown [applause] for the blow struck at Harper’s Ferry, to Lundy and Garrison for their advocacy [applause], We owe much especially to Thomas Clarkson, [applause], to William Wilberforce, to Thomas Fowell Buxton, and to the anti-slavery societies at home and abroad; but we owe incomparably more to Haiti than to them all. [Prolonged applause.] I regard her as the original pioneer emancipator of the nineteenth century. [Applause.]….the freedom of Haiti was not given as a boon, but conquered as a right ! [Applause.] Her people fought for it. They suffered for it, and thousands of them endured the most horrible tortures, and perished for it.

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