The Answer to the Crisis in Democracy Is More Democracy

The filibuster has never been a friend of civil rights.

Via Andrew Sullivan, I see Eric Posner in Slate arguing that "centrists" should be in mourning over the filibuster. I think Posner's case to progressives, liberals, and lefties deserves particular attention:

To provide an extreme example, under a pure system of majority rule 51 percent of the population could pass a law that transferred the wealth of 49 percent of the population to the majority. If at the next election, the other side managed to win, it could expropriate the wealth back. The resulting instability, as different groups took turns expropriating each other’s wealth, would impoverish the country over time. If one group never took a turn winning, then the outcome would be inequitable as well as bad for the public at large. If all of this sounds too implausible to be of concern to you, then remember Jim Crow in the South, and the many decades disenfranchised African-Americans spent as electoral losers.

When progressives stop cheering, they may remember that they are historical opponents of majority rule. It was “tyranny of the majority” that produced racist laws in the South or, if you want, the federal Defense of Marriage Act. Conservatives also traditionally objected to majority rule. For them the problem was the tyranny of the property-less majority that resulted in laws that repudiated debts, violated contracts, and expropriated property before the ratification of the Constitution put a stop to all of this. Along with the two-chamber structure, fear of unconstrained majorities on both sides of the political aisle explains many more features of the American political system—the presidential veto, federalism, the rise of judicial review, and, yes, the voting rules in the Senate.

Scott Lemieux takes on this argument, pointing out that there was nothing whatsoever "democratic" about Jim Crow. Indeed the notion that "disenfranchised African-Americans" were "electoral losers" argues against itself. Black people could not vote. That was the central problem. To be an "electoral losers" you have to be permitted to compete. 

A dose of history is needed here. Jim Crow was created to beat back majority rule, not to profit from it. Indeed, Jim Crow was most vicious precisely in those states where black people were a majority. As late as 1930, the majority of people living in Mississippi were black. For South Carolina, 1920. In 1890, for Louisiana. 

In the wake of "Redemption" black voting in these states—and across the South where significant minorities of blacks lived—was nullified by a long night of domestic terrorism. 

And domestic terrorism wasn't a quiet affair, but something to be taken to lustily, as when "Pitchfork" Ben Tillman boasted of lynching blacks from the Senate floor:

We did not disfranchise the negroes until 1895. Then we had a constitutional convention convened which took the matter up calmly, deliberately, and avowedly with the purpose of disfranchising as many of them as we could under the fourteenth and fifteenth amendments. We adopted the educational qualification as the only means left to us, and the negro is as contented and as prosperous and as well protected in South Carolina to-day as in any State of the Union south of the Potomac. He is not meddling with politics, for he found that the more he meddled with them the worse off he got.

As to his “rights”—I will not discuss them now. We of the South have never recognized the right of the negro to govern white men, and we never will. We have never believed him to be equal to the white man, and we will not submit to his gratifying his lust on our wives and daughters without lynching him. I would to God the last one of them was in Africa and that none of them had ever been brought to our shores. But I will not pursue the subject further.

Or when Klansman and Mississippi Senator Theodore Bilbo said:

White people will be justified in going to any extreme to keep the nigger from from voting. You and I know what's the best way to keep the nigger from voting. You do it the night before the election. I don't have to tell you any more than that. Red-blooded men know what I mean. 

In the 19th and early 20th century, it is not too much to say that a despotic, terrorist faction held considerable sway in our national government, and was the law in many state governments. This faction—the Democratic Party's "Solid South"—did not rule simply be withholding the franchise from blacks, but from whites also.

From Ira Katznelson's indispensable history of the New Deal, Fear Itself:

... in 1890, the planter-dominated Democratic Party ... convened a constitutional convention that established a literacy test and a four-dollar poll tax payable during the the course of the two years before the election. These measures not only eliminated black voting but radically reduced the white electorate as well ...


Across the country as a whole, nearly 60 percent of eligible persons voted in the 1940 presidential election. In the South, no state reached a 50 percent level. In Alabama, Georgia, Mississippi and South Carolina turnout rates were were at or below 20 percent.

Midterm congressional elections attracted even fewer voters. In 1938, Mississippi had a population of 2,138, 796, of whom 49 percent were African-American, yet all seven of its Democrats in the house ... ran unopposed that year .... In all voters in Mississippi cast 35,439 votes .... In California, by contrast, no member of the House from any of its twenty districts, each contested, received fewer than 52,516 votes.

And what happened when African-Americans rose up in the early 20th century and attempted to overthrow a regime which reigned through undemocratic state-endorsed, state-sponsored, terrorism? Why, there was a filibuster, of course:

The Senate today ended the thirty-day Southern filibuster against the Wagner-Van Nuys Anti-Lynching Bill by voting, 58 to 22, to lay it aside to take up the $250,000,000 emergency relief resolutions, on which a final vote is pending.

The filibuster had blocked the Senate throughout the present session on all business except adoption of the Farm and Housing Bill reports.

The vote came after nearly two hours of vigorous debate, in which Senator Wagner warned that the fight was not over. It was a ``strange'' situation, he said, in which, with seventy or more Senators assertedly in favor of the legislation, the necessary two-thirds vote could not be obtained to invoke closure.

There's nothing "centrist" about this, unless you by "centrist" you mean a skepticism of people voting, paired with an ignorance of history. It's true that we should be suspicious of other mythologies—such as the idea that "the people" are always the font of all things good. As Lemieux points out, democracy can't devolve into straight majority rule.

But even that skepticism deserves some context. During Reconstruction, Northern reformers opposed giving women the vote because, they argued, Southern women would simply put in power the same old unreconstructed Confederates. But that happened anyway—John B. Gordon, Alexander Stephens, Wade Hampton, Tillman, and a wave of avowed white supremacists dominated Southern politics for a century. Keeping women disenfranchised saved no one. We chose dishonor over war, to paraphrase Churchill, and got both.

One wonders what a democratic South—with all women and all men enfranchised—would have looked like. We didn't get to see that until the late 1960s when America finally became a democracy in more that just name. And even now people are working to roll back democracy, to reserve voting rights for those who hold guns, and withhold them from those who hold books. The filibuster will not save us from this.