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The Gonzo Constitutionalism of the American Right

This article is part of the Review’s series on the 2020 US elections.

In its heyday, American conservatism was called a “three-legged stool.” One leg was economic and libertarian, appealing to business-minded voters with a platform of tax cuts, deregulation, and gutting the welfare state. The second leg was statist and anticommunist, rallying militarists eager to fight and win the cold war. The third leg was cultural and traditionalist, speaking to voters who were anxious about religion, sex, and race, and who hoped to roll back the reforms of the Warren Court and the Sixties.

These distinctions were always artificial: the cold war was suffused with concerns about race, religion, and the economy; the economy was—and is—inseparable from issues of race and gender. Even so, the three-legged stool expressed an understanding of the conservative movement as a political coalition, an electoral operation whose power lay in the interests and values of a majority of voters and the ability of the Republican Party to mobilize them. With that majority, conservatives created a decades-long hegemony, in which liberals and Democrats were forced to accept, as a condition of governance, many of the premises of Republican rule, much as Eisenhower and Nixon had once had to accommodate parts of the New Deal.

As we head toward November, the three-legged stool of conservatism looks vastly different. Though its electoral base and concerns remain similar, conservatism is no longer a movement in ascendancy. Nor is it much of a party in power: even when it controlled all the elected branches of government, from 2016 to 2018, the GOP wasn’t able to push many parts of its agenda through Congress (the tax cuts were the notable exception). Conservatism has ceased to be a political project capable of creating hegemony through majoritarian means. If once the goal was a mass politics of the right “suitable to governing a modern democracy,” in the words of Irving Kristol, conservatism has since reverted to what Toryism was before the Reform Act: a relic of ancient institutions, an artifact of minority rule.

To judge by its vote-getting and vote-suppressing efforts in 2020, the GOP has little hope for or interest in securing a mandate from the majority, of creating or maintaining a common sense of the whole. It seeks instead to cobble together enough electoral votes out of states representing a minority of the electorate—often rural, older, and white. The first leg of the conservative stool remains what it has been in two out of the last three GOP presidential victories: the Electoral College. Even some of the most alarming reports on the election assume that however violent and vote-suppressing Trump’s path to victory may be, it still runs through the Electoral College.

The second leg of the conservative stool is the Senate, an even more counter-majoritarian institution than the Electoral College. Right now, the Republicans have a fifty-three-seat majority in the Senate, representing 48 percent of the population, according to statistics compiled by Jacobin executive editor Seth Ackerman. If they lose two seats in November—say, Arizona and Colorado—they will still control the Senate, while representing 46 percent of the population. If they lose the Senate, they could, as a filibustering minority representing as little as 22 percent of the electorate, still stop legislation pushed or passed by the other elected branches of government.

If the Republicans lose the White House and the Senate, and the filibuster is eliminated (as many liberals and leftists are now calling for), what then? The last leg of the conservative stool is the judiciary, from the Supreme Court to the lower federal courts. Donald Trump has been mostly listless about appointments to the executive branch, but from the earliest months of his presidency, his minders and Mitch McConnell have made the nomination and approval of conservative judges and justices a top priority.

Though much attention has been focused on the Supreme Court, the GOP’s impact has been especially acute at the lower levels of the judiciary. Trump has appointed more appellate judges than any other president in the first three years and almost as many as Barack Obama appointed over the entirety of his two terms. Two thirds of Trump’s appointees are white men. Sixty-nine percent of them are graduates of elite law schools (a higher proportion than for any other president in the last forty years). Their median net worth is $2 million; their median age is four to six years younger than the judges appointed by the previous two presidents. Trump’s judges are rich, white, and built to last.

There’s a considerable irony in the fact that this is now the three-legged stool of American conservatism. However dubious their democratic credentials, the Electoral College, the Senate, and the judiciary are impeccably constitutional institutions. In the American mind, the Constitution is associated with all things good and democratic, but a central purpose of the document is to check majoritarian government, giving a small group of elites the power to thwart the will of the democratic majority. That is precisely what the Republicans now are doing.

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Over the last several years, liberals and Democrats have characterized the power (and the threat) of the GOP in a particular way: Trump and the Republicans are seen as lawless enemies of the Constitution who rely on a combination of rabid rhetoric and mobilized masses to wreak havoc upon established institutions. It’s true that Trump’s tweets are toxic; the thrum of his rallies is ominous; the violence and possibility of more violence are unnerving. But that’s not, in the main, where Trump’s power, or the Republican Party’s, lies. The unsettling fact of the current regime is that it depends, ultimately, not upon these bogeymen of democracy—not on demagoguery, populism, or the masses—but upon the constitutional mainstays we learned about in high-school civics. The most potent source of the GOP’s power is neither fascism nor authoritarianism; it is gonzo constitutionalism.

There’s a second irony. If the Democrats win the White House and the Senate in November, and if they hope to implement the merest plank of their platform, it will be they, and not the Republicans, who will have to engage in a major project of norm erosion. It will be they who will have to abolish the filibuster. It will be they who will have to pack the Supreme Court or limit the courts’ jurisdiction. It will be they, after the longest period of stability in American history in terms of the number of states in the union and seats in the Senate, who will have to admit more states in order to increase the number of Democratic senators.

Should the Democrats take any of these measures—whether to secure the voting rights of African Americans, reduce economic inequality, or address climate change—we will see that norm erosion is not how democracies die but how they are born.

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