The men who drafted and fought over the blueprint for the American experiment in democracy began with the famous words “We the people, in order to form a more perfect union…” and then set out a plan they hoped would establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to the people and the people’s posterity. Of course, at the time, “the people” was understood to exclude the majority of humanity, women were to have no political say, Blacks were not universally considered human, let alone part of “the people”, indigenous Americans were excluded as were poor “white” men and many others over the years.
After the bloody Civil War the constitution was amended to include former slaves, and anyone else born in the United States, as citizens with Privileges and Immunities subject to Equal Protection by the federal government. Immediate steps were taken, notably by the Supreme Court, to thwart this change, but it is written into the Bible of American democracy and would eventually, almost a century later, after decades of court battles and bloody street protests, become enforceable law. Of course, it would be more than half a century after the end of the Civil War, after a long fight, before women got the vote, but the animating idea of “a more perfect union” seems to have been that democracy is an evolving work in progress, infinitely perfectible.
Resistance to this progress has always been the work of reactionaries, conservatives, the organized right. In every era they united to oppose the evolution of democracy. Their game is always perpetuity– keeping things as they are and making sure the status quo never fundamentally changes. Some have advanced shrewd arguments for their view that the way things are is about as good as it can be, advanced theories that showed the dangers of including everyone in democracy, they raised the terrifying specters of Socialism and COMMUNISM. Others simply did the grunt work to make sure people they didn’t like couldn’t vote, couldn’t get their day in court, couldn’t stand on rights guaranteed to them in the constitution. The most intellectually ambitious reactionaries created high-minded philosophies to justify their reactionary views. The Originalists, for example, hold a judicial philosophy that minimizes the radically democratizing changes to the Constitution made after the Civil War, always harkening back to the “intent of the framers,” the original wealthy white men who hammered out the original slavery-protecting “Originalist” Constitution almost a century earlier.
There are scholars who point out, with ample proofs, that the post-Civil War Constitution is a radically redesigned blueprint much more in line with a modern, ethnically diverse, largely urban, non-slave holding democracy than the unamended Originalist version. Radicals on the left want to create fundamental change in their lifetimes, not just plant seeds that will germinate a few generations from now. They recognize that time is running out to fix a badly dysfunctional system. “Moderates” are the “reasonable” compromisers who advocate a middle ground, some changes are needed, they concede, but change is best achieved in small, sometimes imperceptible increments.
Reactionaries, for whatever reason, always seem more energetic, better funded, more fanatical, more devoted, better organized, more relentless and readier to resort to any means necessary to achieve their aim of keeping things just the way they are. The reactionaries of their day said “fine, you have the 13th, 14th and 15th Amendments — we have States’ Rights!” and one of the rights of those states was to find workarounds for the new prohibition against slavery (the clause “except as punishment for a crime” came in handy), the Supreme Court helped out with the 14th, leaving virtually every detail of federal citizenship in the hands of the states until 1964, and, as for the right of American-born Blacks to vote… whell, there are ways to squash that shit, right at the polls. if they don’t get the message with the damned lynchings and having their damned homes burned to the ground. As for blocking all federal legislation to stop lynching, or enforce the unalienable human rights (in a democracy) we call Civil Rights, we have the filibuster!
Adam Jentleson, who recently wrote a history of how the filibuster, almost always used to advance slavery and then segregation, came to cripple the Senate, had an op-ed in the NY Times the other day entitled When Will Biden Join the Fight for Voting Rights? He begins by setting out all that Biden has accomplished with a mere 50 votes in the Senate, deftly sidestepping the filibuster to provide funds to fight Covid-19, to give economic relief to millions, to lift millions of children out of poverty. He then points out that racism at law has always required, under the filibuster, a supermajority to rein it in.
During the Jim Crow era, the Senate held long, contentious debates on the bills that built the middle class, such as Social Security or Medicare, but none of those bills needed to get a supermajority to proceed. By contrast, popular bills to stop lynching, end poll taxes and fight workplace discrimination faced endless filibusters, and were blocked by supermajority thresholds. While Mr. Biden and Senate Democrats aren’t intentionally recreating such an unfair system, in practice, they are, perpetuating the same double standard that upheld Jim Crow for almost a century.source
His essay is worth reading. He continues:
But they can avoid repeating the mistakes of the past. In March, during his first speech on the Senate floor, Senator Raphael Warnock argued that “no Senate rule should overrule the integrity of our democracy.” If Senate rules happen to preserve what Warnock called “Jim Crow in new clothes,” just as they preserved the original version, they must be reformed. For Democratic leaders, this means finding the political will to never again allow bills that guarantee equal access to voting and representation to suffer unequal treatment.
Recall that on the day Warnock was declared the winner of the Georgia runoff for Senator, a mob carrying the Confederate flag stormed the Capitol, injuring 140 Blue Lives Matter officers in hand to hand combat to prevent the final certification of the winner of the presidential election. Reactionaries will always do whatever it takes. If it takes a lynch mob, so be it. The hopped up grunts, as always, will go to prison, meantime, we get what we need — a violent, galvanizing argument to rally our side.
All the rest of us have is law and the enforcement of law. If a parliamentary rule prevents any action in the Senate, if even one defiant member of the opposition party registers an intention to “filibuster”, there has to be a way to fix this. Jentleson, a former Senate staffer, offers a workaround to those who claim, incorrectly, that the filibuster is about protecting “bipartisanship.”
[S]enators can reclaim their right to shape the rules of the Senate even when doing so runs afoul of the parliamentarian, a staff member whose influence has grown dramatically in recent decades as senators lost faith in their ability to interpret Senate rules. Up until now, senators have enthusiastically abused the spirit of reconciliation while adhering, with comic devotion, to its letter; they use it to pass trillions in spending but studiously discard the provisions the parliamentarian deems insufficiently “budgetary,” such as a minimum wage increase. But only senators and the vice president preside over and vote in the Senate, and they have final say over what gets included in reconciliation bills. Rather than acting as automatons who simply read the rulings that the staff hands them (literally), they can include civil rights in the forthcoming reconciliation bill and, when the parliamentarian rules against it, Vice President Kamala Harris can issue her own ruling countermanding the parliamentarian. Fifty senators can sustain Harris’s ruling and pass voting rights, without ever having to vote to alter the filibuster itself.
Senators can also simply reform the rules to ensure that civil rights bills are treated equally. Given the Senate’s ugly history of blocking such legislation, there is ample justification for targeted filibuster reforms to ensure that civil rights bills receive majority votes.
Of course, Senators Joe Manchin and Kyrsten Sinema oppose ending the filibuster, and imbue bipartisanship with lofty importance. But at the end of the day, it is up to Mr. Biden to bring home the small number of votes needed to end the tiered system that forces voting rights legislation to garner supermajorities in the Senate, while other bills sail through with just 50 votes.
Biden has the bully pulpit now and Jentleson argues that he must do everything in his considerable power to rally his party to the cause of protecting voting rights, federal enforcement of which has been systematically dismantled by the reactionary majority on the Supreme Court. If the many Republican state voter suppression laws are allowed to stand unchallenged (except in courts where resolution of the issues is years away) then we will have, in the next election, a gerrymandered Republican majority, in the House and likely also in the Senate (two for each state, populations be damned). Then, under existing parliamentary rules, anything else Biden has planned will be subject to the mockery of an obstructionist right-wing joke. Ta ta to bipartisanship and democracy, both. Welcome to the One Party United States of Charles Koch and friends.
. . . it is impossible to look at the effort Mr. Biden has devoted to voting rights until now and conclude that he is pulling out all the stops. His heart does not seem to be in this fight. Instead of pressing for the reforms necessary to pass these bills with 50 votes, he has defended the filibuster, while his administration has been challenging civil rights leaders to “out-organize” the Republicans who have implemented systematic, state-sanctioned voter suppression. Many find his stance naïve. “‘Just count the jellybeans’ is a helluva strategy,” political analyst Bakari Sellers tweeted in frustration.
The effort Mr. Biden poured into infrastructure shows what genuine commitment from the White House looks like. While the president has given one major speech dedicated to voting rights, he has held numerous speeches and events on infrastructure, sending the signal that the issue is a top priority. His cabinet and staff practically camped out on Capitol Hill. By late July, according to Bloomberg’s Jennifer Epstein, his staff had held at least 998 meetings and calls on infrastructure; the office of legislative affairs had held 330 meetings and calls with members of Congress and their top aides in the previous month alone.
Mr. Biden has invited comparisons to President Lyndon Johnson, but Mr. Johnson paired accomplishments like Medicare with the Civil Rights and Voting Rights Acts. Then, as now, the task was deemed so daunting that some cautioned against investing too much of the president’s political capital in the effort. By the time of his assassination, President John F. Kennedy had let segregationists take civil rights hostage to his top domestic priority: a tax cut.
But when Mr. Johnson’s advisers counseled him to give up on civil rights, too, he shot back, “What the hell is the presidency for?” He personally intervened to get the civil rights bill to the floor, then forced his former mentor, fellow Democrat and self-avowed white supremacist, Senator Richard Russell, to lead a filibuster for roughly three months, betting that he could crack an obstructionist front that had remained solid since Reconstruction ended in 1877. Mr. Johnson had to deal with more than a few reluctant senators — most of those filibustering the civil rights bill were Democrats. To beat them, Mr. Johnson did not use magic powers. He simply spent months working every angle, relentlessly.
If Mr. Biden fails where Mr. Johnson succeeded, he will have left intact the system of legislative segregation that preserved Jim Crow. Whatever else he accomplishes, that will remain part of his legacy.
The president may try everything and fail. But the stakes are so high, he has to try.
As Joe Biden himself has said many times — come on, man!