The Constitution rigs the game against democracy and against Black equality – Vox.com
Part of the Juneteenth issue of The Highlight, our home for ambitious stories that explain our world.
For six years, at the height of Southern leaders massive resistance to desegregation, Derrick Bell held one of the most harrowing jobs in the legal profession.
From 1960 to 1966, as an attorney with the NAACP Legal Defense and Educational Fund, Bell oversaw desegregation lawsuits in the South, trying to make real the integration promised by Brown v. Board of Education.
In the first decade after Brown, integration made little headway by 1964, only 1 in 85 African American students in the South attended integrated schools. Often, Bell and his colleagues couldnt even find a plaintiff willing to sue a segregated district, because Black families justifiably feared theyd be targeted by the Ku Klux Klan if their names appeared on a lawsuit.
Black civil rights lawyers also risked their lives litigating cases. Once, while he was defending two criminal suspects in Tennessee, future Supreme Court Justice Thurgood Marshall was arrested on false charges and nearly lynched by a white mob.
Bell, who died in 2011, eventually left behind his career as a full-time civil rights lawyer. But the experience of watching the promise of equality beat down by violent white supremacists informed his work as a critical race scholar.
Racial equality is, in fact, not a realistic goal, he wrote in 1992, warning that by constantly aiming for a status that is unobtainable in a perilously racist America, black Americans face frustration and despair.
To be clear, Bell did not counsel passive despair. We must maintain the struggle against racism else the erosion of black rights will become even worse than it is now, Bell warned in his essay, and he viewed this constant striving as worthy in its own right. The struggle for freedom is, at bottom, a manifestation of our humanity that survives and grows stronger through resistance to oppression, he wrote, even if that oppression is never overcome.
Bell understood something profound about the United States: The American political system is a rigged game. It was originally meant to advantage enslavers and today benefits anti-egalitarian actors with little interest in true racial equality.
That fact has led to the constant erosion of black rights that Bell chronicled something clearly on display one year ago, not long after President Joe Biden had signed legislation marking Juneteenth as a federal holiday. In the presidents words, the holiday marks both the long, hard night of slavery and subjugation, and a promise of a brighter morning to come.
Two weeks later, the Supreme Court defiled that promise, imposing new limits on the Voting Rights Act, which has, since 1965, forbidden race discrimination in elections. The Courts new restrictions on the Voting Rights Act are unlikely to be the last.
Even as the United States celebrates freedom for African Americans, the political equality that sustains that freedom is slipping away.
The pattern in American civil rights history has been brief periods of rapid pro-egalitarian progress think the post-Civil War period or the civil rights era followed by much longer periods of retrenchment, when dominant groups claw back many of those gains.
If the United States is to break its cycle of brief periods of egalitarian triumphs, and longer periods of resentment and retreat, we must have a Constitution that, unlike our current one, fully honors the principle that all people are created equal.
The original Constitution that is, the document drafted at the Constitutional Convention of 1787 was a truly monstrous document. It was, in the words of abolitionist William Lloyd Garrison, a covenant with death, and an agreement with hell.
The framers, who included both enslavers and staunch opponents of slavery, produced a document that contains at least four provisions added for the very purpose of protecting slavery. Several other features of the Constitution, like the Electoral College, for example, may not have been inserted for the purpose of promoting slavery, but they certainly had that effect.
Though modern-day scholars disagree about whether the Electoral College was, in the words of Harvard historian Jill Lepore, a compromise over slavery, it nevertheless gave tremendous political power to the states that enslaved the most people. Thats because the Constitution gives each state a number of electoral votes matching the number of seats it controls in Congress, and the Constitutions infamous three-fifths clause permitted slave-holding states to count 60 percent of their enslaved population when US House seats were apportioned.
Even after the Northern population outstripped the Souths to such a degree that slave states could not dominate the House, another anti-democratic feature of our Constitution ensured that enslavers would wield outsize power.
The Senate remained a bastion of power for enslavers for generations. Because the Constitution gives each state two senators regardless of its population, enslavers could still block anti-slavery legislation so long as they did not permit the total number of free states to exceed the number of slave states, something they did successfully for decades.
Two hundred and thirty-five years after the Constitutional Convention, the Constitution remains a profoundly inegalitarian document. The Senate and the Electoral College remain stains on the soul of the nation.
Similarly, while three constitutional amendments ratified after the Civil War abolish slavery, pledge equal citizenship rights to all Americans, and promise equal voting rights, these promises were only as valuable as the public officials entrusted with keeping them. As anyone familiar with the history of the Jim Crow South knows, most of these officials didnt even begin to keep these promises for nearly a century.
The times when those promises were kept at all can be attributed to interest convergence, a phenomenon Bell first wrote about more than four decades ago: The interest of blacks in achieving racial equality is accommodated only when that interest converges with the interests of whites in policy-making positions.
Bell did not argue that white people concerned about the immorality of racial inequality are nonexistent, but he believed that this cohort of white people is insufficient to form a victorious political coalition when it links arms with Black people.
To some extent, Bells principle is implicit in the fact that racial minorities are, well, in the minority. And Black people have historically carried a particular burden because white supremacists have often tried to separate them from the social and political mainstream, in many cases through explicitly segregationist policies.
The Constitutions pathologies exaggerate this problem. Because of the Electoral College, Senate malapportionment, and quasi-constitutional barriers to legislation such as the filibuster, Black Americans and the broader Democratic coalition that most Black voters belong to need to win supermajorities in multiple elections to pass legislation protecting their rights, like a law restoring the Voting Rights Act.
Even if they were to successfully do that, Republicans need only to file a lawsuit and convince five of their fellow partisans on the Supreme Court to strike down that legislation.
This is not a new dilemma the structural barriers facing Democrats today pale in comparison to the ones facing enslaved Black people in 1860, or the ones facing civil rights activists in 1960. But one of the frustrating things about this particular moment in American history is that our Constitution now prevents Black Americans from achieving crucial civil rights victories even when a coalition aligned with their interests controls the Congress and the White House and when their interests align with a majority of the nation.
That is a potent reminder that, in those rare moments when an egalitarian coalition does wield power, it should emphasize structural reforms that will allow it to achieve future victories and sustain past ones.
Because the best way to win a rigged game is to change the rules.
In 2022, the interests of Black people have converged with the nations majority political party, at least on the crucial topic of voting rights.
The president of the United States supports legislation to restore the sort of voting rights protections that the Supreme Court stripped away in Shelby County and similar cases. So does the vice president. So do 219 members of the House of Representatives. So does every Democrat in the Senate although Sen. Joe Manchin (D-WV) backs a weaker version of this legislation than the Democratic leadership initially proposed.
Yet, because of structural barriers such as Senate malapportionment and the filibuster, this convergence of interests is not enough to pass a bill through Congress.
In the current Senate, Democrats and Republicans control an equal number of seats, but the Democratic half represents 43 million more people than the Republican half. Black people, and racial minorities generally, bear the brunt of this uneven representation. According to a 2019 memo by the progressive think tank Data for Progress, Black voters have nearly 20 percent less influence over Senate elections than they would if Senate seats were distributed fairly so that every Americans vote counted the same.
In effect, while the Constitution once treated Black Americans as three-fifths of a person, todays Senate treats Black Americans as four-fifths of a person.
Absent structural reform, its going to get worse. By 2040, according to a University of Virginia analysis of census projections, half of the United States will live in eight states. About 70 percent will live in 16 states which means that just over 30 percent of the population will control 68 percent of the Senate.
This sorting of most Americans into just a few states has profound implications for Black voters, who are overwhelmingly Democratic. In the last three presidential elections, the Democratic candidate received 90 percent or more of the Black vote and it may soon be impossible for Democrats to win a majority in the United States Senate.
One of the best predictors of partisan voting patterns in the United States is population density densely populated areas tend to be Democratic bastions, while sparsely populated areas are typically Republican strongholds. If this pattern holds, Republicans may soon gain a permanent supermajority in the Senate.
Without a Senate majority, Democrats not only wont be able to pass federal legislation, they also wont be able to confirm justices to replace the ones who voted to gut the Voting Rights Act. In effect, Black Americans as well as non-Black Democrats, urban residents, and liberals generally will only be able to achieve policy victories when their interests converge with an overwhelmingly white Republican Party.
Perhaps that will happen occasionally, especially on symbolic matters; the vote to make Juneteenth a federal holiday was bipartisan. Its also possible that, especially as the United States slides closer to one-party rule, an increasing number of conservative Black Americans will join the GOP in the hopes of gaining some modicum of political power.
But on issues like voting rights, its hard to imagine Black interests converging with Republican interests anytime soon. Why would the GOP protect the voting rights of a cohort that overwhelmingly prefers Democrats?
Its not that there isnt hope for Black Americans. Its easy to design a more just and egalitarian system than the US Constitution. But it is also very hard to make an ideal constitution into a reality.
The obvious first step is to abolish the Senate or to, as University of Connecticut historian Manisha Sinha suggested to me, make our Senate a bit like the House of Lords a largely advisory body that does not have the power to block legislation outright.
Assuming that the United States retains a system where the chief executive is elected separately from the legislature, the Electoral College also must go. In 2020, President Joe Biden defeated Republican Donald Trump by more than 7 million votes. Yet he would have lost the presidency if only 43,000 Biden voters in Georgia, Arizona, and Wisconsin had not cast a ballot. Thats not acceptable in a nation that purports to be a democratic republic.
Then theres the problem of gerrymandering.
Racial gerrymandering remains a prominent feature of American elections, and the Supreme Court appears determined to keep it that way. Last February, for example, the Court voted 5-4 to reinstate an Alabama congressional map that gave Black voters 14 percent of the states US House seats even though African Americans make up about 27 percent of the states population.
The best solution to the problem of gerrymandering is proportional representation. In a proportional system, the nation would be divided into large electoral districts that would each receive several seats in Congress.
These seats would then be allocated according to the total percentage of votes each party receives so if the Democratic Party receives 35 percent of the votes in a particular district, it would receive about 35 percent of that districts seats. Under our current system, a district composed of 55 percent white Republicans and 45 percent Black Democrats will send zero Democrats to Congress. Under a proportional system, the Black minority in such a district would receive nearly as much representation as the white majority.
Realistically, a constitutional amendment is not a viable solution to implement any of these reforms. Amendments require three-quarters of the state legislatures to agree. And its unlikely that states that benefit from the Constitutions anti-democratic pathologies would agree to cure them.
There may be feasible ways to enact some of these reforms without an amendment. The National Popular Vote Compact, for example, calls for a bloc of states adding up to a majority of the Electoral Colleges electoral votes to agree to give those votes to whichever candidate wins the popular vote. Its an ingenious way to nominally leave the Electoral College in place, while simultaneously ensuring that the candidate who wins the popular vote becomes president.
Other ways around the effectively unamendable Constitution are lawful, but difficult to imagine happening. A 2020 proposal in the Harvard Law Review, for example, suggested dividing the (heavily Democratic) District of Columbia into more than 100 states and admitting them all into the Union and then immediately having these new states approve a raft of pro-democracy amendments to the Constitution.
The thing these solutions have in common is that theyre the sort of fixes that pit the Constitutions formalistic rules against its spirit, and theyd likely trigger a significant backlash or be struck down by a Supreme Court that is still controlled by Republicans unless they had a truly overwhelming political coalition behind them.
Yet, if the reforms suggested above are ambitious and difficult to implement, they are also equal in magnitude to the crisis facing American democracy. If nothing changes, an overwhelmingly white, increasingly authoritarian political coalition could soon gain the enduring power to veto any federal law, along with perpetual control of the Supreme Court.
That is not a democracy, and it is unworthy of a nation that claims to be founded on the principle that all people are created equal.
Transforming the United States into an egalitarian democracy will not be easy. But, as Niko Bowie, a professor at Harvard Law School, reminded me when I asked him how to overcome the many structural disadvantages plaguing American egalitarian movements, the United States has faced such a crisis before ... nevertheless, democracy has emerged.
It has emerged thanks to the work of those who retained a clear moral vision in the face of anti-egalitarianism. So let me close by attempting to offer the same sort of moral clarity William Lloyd Garrison offered to the abolitionist movement.
It is wrong that our Constitution denies the fundamental equality of all Americans. It is wrong to count some votes more than others. It is wrong to drive families into poverty solely because we count some votes more than others. It is wrong to allow the one unelected branch of government to dismantle our voting rights. It is wrong that our Congress will not restore those rights because a few senators care more about preserving the filibuster than they do about ensuring that Black people have an equal voice in our society.
And it is wrong that an authoritarian narcissist, who possesses no aptitude for or interest in governance, was allowed to occupy the White House after receiving nearly 3 million fewer votes than his opponent.
Juneteenth is an apt time to reflect on these matters. Its a reminder of our nations most unforgivable sin. But it is also a celebration of freedom, and of those who overcame unimaginable odds to write equality into our Constitution. It is past time that we made that promise real, by changing the Constitution, if need be.
As Garrison said in 1844, it is an insult to the common sense of mankind, to pretend that the Constitution was intended to embrace the entire population of the country under its sheltering wings; or that the parties to it were actuated by a sense of justice and the spirit of impartial liberty; or that it needs no alteration.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States.
Follow this link:
The Constitution rigs the game against democracy and against Black equality - Vox.com
- English democracy relies on local councillors. So why are so many facing the axe? | Polly Toynbee - The Guardian - October 11th, 2025 [October 11th, 2025]
- After Gaza Ceasefire, Massive Political Pressure Needed to Prevent Israel from Restarting the War - Democracy Now! - October 11th, 2025 [October 11th, 2025]
- Shaping democracy from the middle: Party grassroots and Ghanas democratic progress - Brookings - October 11th, 2025 [October 11th, 2025]
- Audit procedures, democracy and capitalism, use windshield wipers, headlights | Letters - Post and Courier - October 11th, 2025 [October 11th, 2025]
- IFES Presents 2025 Democracy Award to Leaders in Technology and Democracy - The International Foundation for Electoral Systems: IFES - October 11th, 2025 [October 11th, 2025]
- Youth and experience, side by side, working towards democracy: the 10th Council of Europe Conference of Ministers responsible for Youth opened in... - October 11th, 2025 [October 11th, 2025]
- Academics continue hypocritical whining about freedom and democracy - The College Fix - October 11th, 2025 [October 11th, 2025]
- A Ceasefire Deal, But Not a Peace Agreement: What Will Happen in Gaza After Hostages Are Released? - Democracy Now! - October 11th, 2025 [October 11th, 2025]
- A democracy activist forced to live in hiding - Times of India - October 11th, 2025 [October 11th, 2025]
- Antifa Expert to Flee with Family to Spain Following Death Threats - Democracy Now! - October 11th, 2025 [October 11th, 2025]
- @theatlantic is one of my favorite magazines, and its November issue focuses on the "Unfinished Revolution" a deep dive into the ways... - October 11th, 2025 [October 11th, 2025]
- Machado keeps the flame of democracy burning amid a growing darkness - The City Paper Bogot - October 11th, 2025 [October 11th, 2025]
- All In Our Heads: On Losing Our Democracy and Life Beyond Our Imaginations - Liberal Currents - October 11th, 2025 [October 11th, 2025]
- The UK stands in solidarity with the people of Venezuela and their right to democracy, freedom and human dignity: UK statement at the UN Security... - October 11th, 2025 [October 11th, 2025]
- A pro-democracy Venezuelan politician wins this years Nobel Peace Prize. Is it a rebuke to Trump? - Yahoo News Canada - October 11th, 2025 [October 11th, 2025]
- Nobel Peace Prize winner Maria Corina Machado hails Trump for restoring democracy and freedom in the Americas - New York Post - October 11th, 2025 [October 11th, 2025]
- Kyrgyzstan Snap Election: Democracy on Edge or Politics as Usual? - The Times Of Central Asia - October 9th, 2025 [October 9th, 2025]
- Five Young Democracy Advocates Share What They Have Learned - The New York Times - October 9th, 2025 [October 9th, 2025]
- Best Of BPR 10/8: Michael Sandel On Reinvigorating Self Governance To Save Democracy - WGBH - October 9th, 2025 [October 9th, 2025]
- Athens Democracy Forum: Dialogue Is An Antidote for Security Threats - The New York Times - October 9th, 2025 [October 9th, 2025]
- Democracy on Trial: Israels Judiciary and the Politics of Reform - The Times of Israel - October 9th, 2025 [October 9th, 2025]
- The Race to Stop AIs Threats to Democracy - Mother Jones - October 9th, 2025 [October 9th, 2025]
- Reimagining Democracy launches for its second year - The Stanford Daily - October 9th, 2025 [October 9th, 2025]
- How Billionaires Are Rewriting History and Democracy - The Fulcrum - October 9th, 2025 [October 9th, 2025]
- Port: In Minot, an example of how democracy is supposed to work - InForum - October 9th, 2025 [October 9th, 2025]
- National Guard Troops from Texas Arrive in Chicago - Democracy Now! - October 9th, 2025 [October 9th, 2025]
- At Oversight Hearing, AG Bondi Responds to Questions With Attacks Instead of Answers - Democracy Docket - October 9th, 2025 [October 9th, 2025]
- Behind the scenes of democracy - Artesia Daily Press - October 9th, 2025 [October 9th, 2025]
- What is the real relationship between capitalism and democracy? Horasis 2025 attendees in So Paulo aim to find out - Latin America Reports - October 9th, 2025 [October 9th, 2025]
- Democracy on trial: Why we appeal to the United Nations - The Jakarta Post - October 9th, 2025 [October 9th, 2025]
- Oregon governor calls Trumps actions an abuse of power and threat to our democracy - PBS - October 7th, 2025 [October 7th, 2025]
- Nurses from around the globe take part in Democracy Is Not for Sale march - National Nurses United - October 7th, 2025 [October 7th, 2025]
- Opinion | Do the Democratic Socialists of America really believe in democracy? - The Washington Post - October 7th, 2025 [October 7th, 2025]
- Francis and Kathleen Rooney make transformative gift for Notre Dame institute focused on democracy research and education - Notre Dame News - October 7th, 2025 [October 7th, 2025]
- CalMatters Digital Democracy team helps launch the same effort in Hawaii with Civil Beat - CalMatters - October 7th, 2025 [October 7th, 2025]
- Conservatism and the Future of Democracy - Ash Center - October 7th, 2025 [October 7th, 2025]
- OSCE leaders call for return to the principles of democracy and human rights enshrined in Helsinki 50 years ago - Organization for Security and... - October 7th, 2025 [October 7th, 2025]
- Video: How AI and surveillance capitalism are undermining democracy - Bulletin of the Atomic Scientists - October 7th, 2025 [October 7th, 2025]
- Democracy On The Docket As Supreme Court Kicks Off Momentous Term - Above the Law - October 7th, 2025 [October 7th, 2025]
- Hungarian Opposition Leader Denounces Facebook Censorship as Threat to Democracy - Hungarian Conservative - October 7th, 2025 [October 7th, 2025]
- Peter Thiel, Would-Be Philosopher King, Takes on Democracy - Jacobin - October 7th, 2025 [October 7th, 2025]
- Free Mother Han! Free Pastor Son! Confronting South Koreas Crisis of Democracy - Bitter Winter - October 7th, 2025 [October 7th, 2025]
- Supreme Courts New Term Sparks Fears Over Democracy and Rights - The Washington Informer - October 7th, 2025 [October 7th, 2025]
- Dont dwell on democracy, and other new findings about how to market local news - Editor and Publisher - October 7th, 2025 [October 7th, 2025]
- Yes on Prop. 50: Fighting to preserve democracy and Democratic values - The Press Democrat - October 7th, 2025 [October 7th, 2025]
- Humboldt Democracy Connections to Hold No Kings March: Co-Op to the Courthouse October 18 - Redheaded Blackbelt - October 7th, 2025 [October 7th, 2025]
- This Week at Democracy Docket: Reporting Live from the Texas Gerrymander Challenge - Democracy Docket - October 7th, 2025 [October 7th, 2025]
- Syria: Fake democracy on the ruins of a divided nation - Tehran Times - October 7th, 2025 [October 7th, 2025]
- Moroccos Gen Z: Rejecting Democracy, Trusting the Throne - The Times of Israel - October 7th, 2025 [October 7th, 2025]
- Documentary About Thai Politician Pita Limjaroenrat & Fight For Democracy In The Works With U.S., Thai Producers - Deadline - October 7th, 2025 [October 7th, 2025]
- This Week in Democracy Week 37: Trump Goes Full Fascist and Denounces 'Enemy From Within' - Zeteo - October 4th, 2025 [October 4th, 2025]
- Citizens United and the Decline of US Democracy: Assessing the Decisions Impact 15 Years Later - The Roosevelt Institute - October 4th, 2025 [October 4th, 2025]
- Meet a RetrieverAnn Tropea, assistant director for engaged media with the Center for Democracy and Civic Life - UMBC - University Of Maryland,... - October 4th, 2025 [October 4th, 2025]
- 15 Years After Citizens United, Hows Our Democracy Doing? - The Roosevelt Institute - October 4th, 2025 [October 4th, 2025]
- Tending to the Garden of American Democracy is Hard and Thankless Work - Literary Hub - October 4th, 2025 [October 4th, 2025]
- Collier county students invited to enter 'Art for Democracy' contest - WGCU - October 4th, 2025 [October 4th, 2025]
- National Urban League Demands End to Shutdown That Threatens Americans and Democracy - National Urban League - October 4th, 2025 [October 4th, 2025]
- Pettit lectures on What, Why, and How of Democracy - tribtoday.com - October 4th, 2025 [October 4th, 2025]
- Democracy & Collaborative Governance in the Caribbean - PA TIMES Online - October 4th, 2025 [October 4th, 2025]
- A global legal coalition forms to defend judges, and democracy, from rising threats - Federal News Network - October 4th, 2025 [October 4th, 2025]
- Economic Concentration and Its Dual Threats to Democracy - promarket.org - October 4th, 2025 [October 4th, 2025]
- What the Gen Z protests in Nepal can teach the US about democracy - WBUR - October 4th, 2025 [October 4th, 2025]
- American democracy might not survive another year is Europe ready for that? | Alexander Hurst - The Guardian - October 2nd, 2025 [October 2nd, 2025]
- From Democracy to My Way or the Highway in Missouri - The American Prospect - October 2nd, 2025 [October 2nd, 2025]
- Claudia Sheinbaums first year: 5 key points on democracy and human rights - Washington Office on Latin America | WOLA - October 2nd, 2025 [October 2nd, 2025]
- Faculty debate the future of U.S. democracy - The Middlebury Campus - October 2nd, 2025 [October 2nd, 2025]
- Interdisciplinary Center for Law and Democracy launches with diverse student, academic programs - The Daily Texan - October 2nd, 2025 [October 2nd, 2025]
- Guinea and the Challenges for Social Democracy and the Left - CounterPunch.org - October 2nd, 2025 [October 2nd, 2025]
- SCOTUS Blocks Trumps Attempt to Fire Federal Reserve Governor, For Now - Democracy Docket - October 2nd, 2025 [October 2nd, 2025]
- Democratic Senator warns collapse of democracy is coming as shutdown grinds government to a halt - MSNBC News - October 2nd, 2025 [October 2nd, 2025]
- Trump Tells Top Military Brass to Prepare for War Against Enemy from Within - Democracy Docket - October 2nd, 2025 [October 2nd, 2025]
- Armenia is ready to follow the path of peace and democracy - coe.int - October 2nd, 2025 [October 2nd, 2025]
- Safeguarding Democracy: Addressing Polarization and Institutional Failures - The Fulcrum - October 2nd, 2025 [October 2nd, 2025]
- The Democracy Project loses third year of grant funding - Annenberg Media - October 2nd, 2025 [October 2nd, 2025]
- A Green Light for War Crimes? What Trump & Hegseths Lecture to Generals Really Means - Democracy Now! - October 2nd, 2025 [October 2nd, 2025]
- Transcript: David Lammy on the fight for democracy - Financial Times - October 2nd, 2025 [October 2nd, 2025]
- Jimmy returned and democracy won | Letters to the editor - Sun Sentinel - October 2nd, 2025 [October 2nd, 2025]
- Letter to the Editor: SAVE DEMOCRACY! VOTE NO ON PROP. 50 - Valley Roadrunner - October 2nd, 2025 [October 2nd, 2025]
- Exclusive: The 12 words that unraveled democracy at Second Baptist Church - Houston Chronicle - October 2nd, 2025 [October 2nd, 2025]
- Princeton must practice the democracy that it preaches - The Daily Princetonian - October 2nd, 2025 [October 2nd, 2025]