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Trump's Acquittal and the History of the Intentionally Undemocratic Senate

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tags: Senate, democracy, impeachment, Trump



Ed Simon is the associate editor of The Marginalia Review of Books, a channel of The Los Angeles Review of Books. He holds a PhD in English from Lehigh University, and is a regular contributor at several different sites. He is also a contributing editor at the History News Network. He can be followed at his website, or on Twitter @WithEdSimon.

Years and decades from now, it’s not improbable that the January 31st scheduling confluence of both Great Britain’s official exit from the European Union and the Senate’s vote to dismiss witness testimony in the Donald Trump impeachment “trial” will mark that date as a significant nadir in trans-Atlantic democracy. A date that will live in infamy, if you will, or perhaps rather “perfidy” as Senate Minority Leader Chuck Schumer admirably put it. The Senate Republicans’ entirely craven, self-serving, undignified, and hypocritical vote to shield their president from any sort of examination is entirely unsurprising, though somehow still shocking. 

Senator Lamar Alexander’s cynical justification of his vote, whereby “there is no need for more evidence to prove something that has already been proven,” is in some manner the credo of the contemporary Republican Party. Spending the last three years bellowing “fake news” at anything which was disagreeable to them, Alexander’s honesty and commitment to reality is in a way refreshing. Alexander acknowledges that Trump is guilty – he just doesn’t care, so why waste time with an actual trial? What’s more surprising than the Republicans setting the process up for the inevitable “acquittal” this week is that so-called “moderates,” like Senator Susan Collins and Senator Mitt Romney, actually did the right thing. The better to trick some centrist Democrats into thinking that the GOP hadn’t completely lost its mind. 

Nobody of good conscience or sense could possibly think that the Republican role in the Senate impeachment proceedings was anything other than a successful attempt at cover-up, one with the ramification of letting Trump correctly know that he can do whatever he wants with absolutely no repercussions. The crossing of this particular Rubicon is by no means the only, or by far even the worst, democratic degradation over the past few years, but it’s certainly a notable one as Republicans from Senate Majority Mitch McConnell on down are not even bothering to hide their lack of ethics. From that perspective, as disturbing as Republican cravenness may be, it’s very much in keeping with the zeitgeist. Theorist Astra Taylor observes this in her excellent treatise Democracy May Not Exist, but We’ll Miss it When it’s Gone, when she notes that “recent studies reveal that democracy… has weakened worldwide over the last decade or so… It is eroded, undermined, attacked… allowed to wither.” Though the concept of “democracy” and the upper-chamber of the United States legislative branch are hardly synonymous with one another, it’s crucial now more than ever to keep in mind what’s intentionally undemocratic about the Senate as an institution. 

In the hours after the predictable Senate vote, reactions from centrist liberals to those further to the left seemed to anecdotally break down into two different broad, emerging consensuses. While most camps can, should, and must be united in trying to make sure that Trump only serves one term, the analysis of what the inevitable Senate acquittal means was wildly divergent. 

Among many centrist liberals there was a halcyon valorization of a Senate that never quite existed, a Pollyannaish pining for a past of process, decorum, and centrist sensibility. Such is the sentiment of Boston Globe editorialist Yvonne Abraham when he earnestly asked “What is there to say about this week’s shameful events in the U.S. Senate that doesn’t sound hopelessly naïve?” Eager to prove that they never enjoyed the West Wing, pundits further left emphasize, accurately, that the Senate itself is explicitly an institution predicated on the rejection of the popular will, or as one wag on Twitter put it, “watching the resistance libs get all hot and bothered about how fundamentally undemocratic the senate is would be balm for the soul, but they won’t learn a thing from this whole nonsense affair.” 

Except here’s the thing – both things can be true. The Senate can be an institution always predicated on unequal representation, and the Republican vote can still be a particularly shameful moment. What can and must be learned from the affair isn’t that resistance to Trump has to be fruitless, but rather that we can’t expect institutions and procedures to be that which saves us.  

Crunching the numbers is sobering if one really wants to know precisely how undemocratic the Senate actually is. An overwhelming majority of Representatives voted to impeach Trump in the far more democratic (and Democratic) House of Representatives, reflecting a January 20th CNN poll which found that 51% of Americans narrowly supported the president’s removal from office. Yet the Senate was able to easily kill even the possibility of such a result (even beyond the onerous 2/3rds requirement for conviction, which has historically made such an outcome a Constitutional impossibility). Ian Millhiser explains in Vox that “more than half of the US population lives in just nine states. That means that much of the nation is represented by only 18 senators. Less than half of the population controls about 82 percent of the Senate.” He goes onto explain that in the current Senate, the Republican “majority” represents fifteen million less people than the Democratic “minority.” 

Such an undemocratic institution is partially, like the Electoral College, a remnant of an era when small states and slave owning states were placated by compromises that would give them political power while the Constitution was being drafted. The origins of the institution are important to keep in mind, because even though population disparities between states like Wyoming and California would have been inconceivable to the men who drafted the Constitution, the resultant undemocratic conclusions are a difference of degree but not of kind. When the Senate overturns the will of the people, that’s not a bug but a feature of the document. The point of the Senate was precisely to squelch true democratic possibility – it’s just particularly obvious at this point. What’s crucial for all right-thinking people who stand in opposition to Trump is to remember that that’s precisely the purpose of the Senate, and that a complacent belief in the fundamental decency of institutions is dangerous. 

So valorized is the Constitution in American society, a central text alongside the far-more-radical Declaration of Independence in defining our covenantal-nationality, that there can be something that almost seems subversive in pointing out its obviously undemocratic features. Yet the purpose of the Constitutional Convention was in large part to disrupt the popular radicalism of the Articles of Confederation that structured governance from the Revolution until Constitutional ratification. While there may be truth in the fact that the Constitution was necessary to forge a nation capable of defending and supporting itself, the Articles were a period of genuine democratic hope, when radical and egalitarian social and economic arrangements were possible in at least some states. Literary scholar Cathy Davidson argues in Revolution and the Word: The Rise of the Novel in America, that far from enacting some kind of democratic virtue, ratification signified an eclipse of radical possibility, noting “the repressive years after the adoption of the Constitution.” For Davidson, the much-valorized drafters in Philadelphia met to tamper down the democratic enthusiasms of the Articles, concerned as they were about the “limits of liberty and the role of authority in a republic.” 

The Constitutional Convention is thus understood more properly as a type of democratic collapse, like Restoration after the seventeenth-century English Revolution, or the end of Reconstruction following the American Civil War. Historian Woody Holton writes in Unruly Americans and the Origins of the Constitution that though “Today politicians as well as judges profess an almost religious reverence for the Framers’ original intent,” reading Federalist arguments from the eighteenth-century indicates that the purpose of the Constitution was “to put the democratic genie back in the bottle.” Such was the position of one Connecticut newspaper which in 1786 argued that state assemblies paid “too great an attention to popular notions,” or of the future Secretary of the Treasury Alexander Hamilton, recently transformed by a Broadway musical into a hero of neoliberal meritocratic striving, who complained that he was “tired of an excess of democracy.” Only two generations later, and partisans of democratic reform understood all too clearly that the Constitution was a profoundly compromised document, with abolitionist William Lloyd Garrison describing it as “a covenant with death, an agreement with hell.” Historian Gordon Wood famously argued that the “American Revolution was not conservative at all; on the contrary: it was as radical and as revolutionary as any in history,” and that may very well be true. But what also seems unassailable is that the Constitution was in some manner a betrayal of that radicalism.

If Garrison, and the young Frederick Douglass, were in agreement with other radicals that the Constitution was reactionary, then progressives would come to embrace the document because of an ingenious bit of rhetorical redefinition born of necessity during the Civil War. President Abraham Lincoln is the most revolutionary of Constitutional exegetes, because he entirely reframed what the document meant through the prism of the democratic Declaration of Independence. Garry Wills in the magisterial The Words that Remade America argued that at Gettysburg, “Lincoln was here to clear the infected atmosphere of American history itself, tainted with official sins and inherited guilt. He would cleanse the Constitution… [by altering] the document from within, by appeal from its letter to the spirit, subtly changing the recalcitrant stuff of that legal compromise, bringing it to its own indictment.” Calling it among the “most daring acts of open-air sleight of hand ever witnessed by the unsuspecting,” Wills argues that “Lincoln had revolutionized the Revolution, giving people a new past to live with that would change their future indefinitely.” By providing a jeremiad for a mythic Constitution that never was, Lincoln accomplished the necessary task of both imparting to it a radical potential which didn’t exist within its actual words, while suturing the nation together. 

This was a double-edged sword. On the one hand, by having rhetorical and legal recourse to Constitutionality much progress has been made throughout American history. But there is also the risk of deluding oneself into thinking that the Constitution is actually a democratic document, which goes a long way to explaining the frustration among many when the Senate acts as they should expect it to. When we assume that procedure is salvation, heartbreak will be our inevitable result. The question for those of us on the left is how do we circumnavigate the extra-democratic aspects of the Constitution while living within a Constitutional republic? We could attempt another rhetorical “cleansing” of the Constitution in the manner of Lincoln, a reaffirmation of its spirit beyond its laws – and much could be recommended in that manner. 

I wonder, however, if disallowing ourselves of some of our illusions might be preferable, and that there might be something to recommend in embracing a type of “leftist devolution,” a commitment to a type of small scale, regional, and local politics and solidarity that we often ignore in favor of the drama of national affairs. Too often we’re singularly focused on the pseudo-salvation of national politics, forgetting that democracy is far-larger than the Constitution, and has more to do than just with what happens in Washington. Tayler writes that “Distance tends to give an advantage to antidemocratic forces… because people cannot readily reach the individuals in power or the institutions that wield it,” explaining that “Scale is best understood as a strategy, a means to achieve democratic ends,” for “Democracy begins where you live.” All politics must be local, something that the right has understood for generations (which is, in addition to inequities established in their favor, part of why they’re so successful right now). Democracy, and agitation for it, happens not just in the Senate, but in state-houses, on school boards, on city councils, in workplaces. It must happen everywhere.


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