Stop Blaming the Framers for Everything

America's institutions are undemocratic but only some of them are a product of the Constitution.

On a Presidents Day where our most recent ex-president was just acquitted of inciting an insurrection pretty much all agree he at least fomented, David Frum argues it’s time to rethink our democracy. Alas, he begins by reciting a schoolboy civics misunderstanding of our institutions.

If there was one idea shared by just about every author of the Constitution, it was the one articulated by James Madison at the convention on June 26, 1787.

The mass of the people would be susceptible to “fickleness and passion,” he warned. They would suffer from “want of information as to their true interest.” Those who must “labour under all the hardships of life” would “secretly sigh for a more equal distribution of its blessings.” Over time, as the population expanded and crowded into cities, the risk would only worsen that “the major interest might under sudden impulses be tempted to commit injustice on the minority.”

To protect property from the people—and ultimately, the people from themselves—the Framers would have to erect “a necessary fence” against “impetuous councils.” A Senate to counterbalance the House of Representatives, selected from a more elite few and serving for longer terms, would be one such fence. The indirect election of the president through an Electoral College would be another. A federal judiciary confirmed by the Senate and serving for life would provide one more. And so on through the constitutional design.

It’s certainly true that the Framers, who were almost universally wealthy aristocrats with property, shared their class’s suspicion of rule by the mob. And, indeed, a strain of conservatism that fears the masses voting themselves a share of other people’s money persists.

But most if not all of the institutional safeguards against the fleeting whims of the majority were compromises to deal with the political realities of 1787, not some genius exercise in political science. While we tend to look to the Federalist Papers to get a sense of what the Framers intended, we need to remember that they were propaganda documents offering post hoc justifications of these compromises in order to secure their ratification.

By far the most prolific author of these papers, Alexander Hamilton, was a monarchist who wanted to indirectly elect a kinglike figure for life. The contributor of the bulk of the remainder, James Madison, was a bitter rival of Hamilton’s, agreeing with him on very little, and the architect of the Virginia Plan, which would have had representation in both Houses of Congress based solely on population.

Frum is certainly right when he declares,

In no other comparably developed society is voting as difficult; in no peer society are votes weighted as unequally; in no peer society is there a legislative chamber where 41 percent of the lawmakers can routinely outvote 59 percent, as happens in the U.S. Senate.

But none of that has much to do with the design of the Constitution.

Voting is difficult because state legislatures have made it that way. Certainly, a lot of that has to do with keeping Black people from exercising the franchise. But, more broadly, the rules have been written by elites to their own advantage.

The so-called Connecticut Compromise made the Senate unrepresentative and that was exacerbated by westward expansion and unpredictably unequal settlement patterns. But the phenomenon of 41 outvoting 59 is a function of the filibuster, which is a Senate rule that could be overturned by the body itself, not something that a bunch of dudes in powdered wigs sitting around a small room in Philadelphia came up with 230 years ago.

After several paragraphs about particular Congressional standoffs in recent years, Frum gets to this:

The architects of the Electoral College imagined that indirect election would ensure a careful and thoughtful decision “by men most capable of analyzing the qualities adapted to the station [of the presidency], and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice,” as Alexander Hamilton wrote in “Federalist No. 68.” The mass of the people might be distracted by a lying, vulgar, criminal demagogue, but the select few of the Electoral College would be undeceived by such wiles. They would choose the candidate of dignity and worth over the candidate who crudely appealed to rancor and resentment.

Except, of course, that’s precisely the opposite of what happened in 2016, when the plurality of ordinary citizens made the sensible choice, and the anti-majoritarian Electoral College installed a flimflam man in the Oval Office.

The problem with this is that it’s an appeal to consequences rather that to principle. We both agree that the Electoral College is a terrible way to elect a President and that Trump was a terrible President. But while it’s true that Trump wouldn’t have been elected—or come as seemingly close to being reelected—in a simple majoritarian contest, one could certainly conceive of a popular demagogue winning the majority and the Electoral College saving us from that fate.

Frum follows this with some recent examples of policies defeated by filibuster despite being favored by slight majorities of the public, enacted by Presidents via Executive Order, and then litigated through the courts for years. But his examples are only persuasive to those who support the policies in question. Otherwise, they’re examples of the system’s design being circumvented, not of its failure.

It’s hard, though, the argue against this:

In key states such as Michigan, Pennsylvania, and Wisconsin, Democrats won more votes in 2020, but Republicans won more seats in the state legislatures. Those gerrymandered results provided the basis for Trump’s plot to overturn the presidential election. If he could relocate control over the election from the Democratic-voting people to the Republican-controlled state legislatures, he could win a state’s electoral votes despite losing that state’s popular vote.

If those states’ legislatures had more accurately reflected the state vote, Trump’s scheme to overturn the election in the states would have been doomed before it started.

In some states, aggrieved minorities are turning to more and more extreme forms of antidemocratic action to thwart the popular majority, including threats of violence.

In 2018, Democrats won an outright majority of the vote in Michigan. That sufficed to carry Gretchen Whitmer to the governor’s mansion, but not to overcome Michigan’s deep pro-Republican gerrymander. When the coronavirus struck, the Michigan government was divided between a majority-rule governor who favored aggressive action, and a minority-rule legislature skeptical of lockdowns and masking. This divide is what brought armed men into the Michigan legislature last April seeking to intimidate Democratic lawmakers—and what ultimately inspired the plot to kidnap Whitmer.

Again, the persuasiveness of the particulars very much depends on one’s views on Trump and Whitmer. But it’s hard, indeed, to come up with an intellectually consistent defense of legislatures subverting the will of the people by rigging elections.

Regardless, though, I don’t think we can blame the Framers for that. It’s true that the Constitution gives near-plenary power to state legislatures over the conduct of elections. But doing otherwise would have seemed bizarre, indeed, at the time. And it was very much intended as a democratic measure—putting the power closest to the people. That we have inverted our system over time so that more people know the names and faces Senators from other states than their own majors and state legislators was unforeseeable from the vantagepoint of 1787.

James Madison and his colleagues believed that by deviating from theoretical majority-rules principles, the American republic would benefit from more stability, a better protection of rights, and generally a higher quality of person in positions of authority. But ironically, it is precisely where minority rule bites deepest that this promise is revealed to be most false.

Instead of upholding law and order in the states, gerrymandering has proliferated terroristic armed gangs that try to impose their will by intimidation. The Senate filibuster, as it has evolved over time, leads to wilder gyrations of public policy than would Senate majority rule. And the Electoral College elevated the most corrupt demagogue in the history of the presidency—who was installed not by the unpropertied urban mobs feared by the founders, but by wealthier voters in more rural places. (People who earned more than $100,000 a year were likelier to vote for Trump than for Hillary Clinton in 2016, and they swung even further toward Trump in 2020.)

Again, none of that has anything to do with Madison and company. Even the Electoral College, as Steven Taylor has detailed here many times, functions nothing like it was intended. Indeed, juxtaposing it with the majority vote is silly given that the Framers never intended the people to vote for President (or, for that matter, their Senators) at all.

And this is just venting against our shared former party, rather than a criticism of our governing structures:

Policy continuity, the security of public debts, the peaceful transfer of power by legal means: These are upheld by the American majority. But a political minority is pushing the country toward the evils supposedly associated with pure democracy: extreme ideologies, the normalization of violence, and the insecurity of public debts.

The American majority decisively rejects armed intimidation as a method of politics. Two-thirds of Americans believe that guns should not be allowed in government buildings. Yet a belligerent minority seems increasingly determined to brandish weapons in hopes of coercing legislators to disregard the preferences of voting majorities.

It’s the majority that has shown basic good sense on public-health measures to counter an airborne pandemic—and an overrepresented, armed, and even terroristic minority that until now has thwarted it. Most Americans accept and wear masks. But of the aggrieved and truculent anti-mask minority, a Pew survey found, 92 percent are Republican.

It’s true, I suppose, that a Westminster-style parliamentary system would produce policies more in alignment with these majoritarian preferences. But, frankly, much of the pandemic-related nonsense was a function of Trump himself; his party followed his lead in the direction of petulant stupidity but would surely have followed it in the other direction. And, unless we’re going to get rid of federalism while we’re at it, most of the other policies are really a function of states and localities with different majority preferences than the country as a whole.

There’s a lot more of this sort of thing throughout and, by and large, I share Frum’s expressed frustrations and preferences. But he offers no actual reform proposals; he simply wishes the system were more reflective of the majority’s will.

As noted in umpteen blog posts, I favor the abolition of the Electoral College in favor of a national popular vote for President. It’s not going to happen, alas, because it would require a constitutional amendment which, alas, requires a nearly-insurmountable supermajority. There are theoretical workarounds, including the National Popular Vote interstate compact but that’s been a slow process.

I favor abolishing the filibuster or at least reducing the requirement to cloture to 55 votes from 60. That may or may not happen soon, given Democrats have a rare opportunity. But, again, it’s a creature of the Senate, not the Framers or the original Constitution.

Beyond that, though, our most cynical antimajoritarian institutions are at the state and local level and even less amenable to reform than our national institutions. That’s depressing, indeed, but a reality with which we must somehow contend.

FILED UNDER: *FEATURED, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    Why not? They’re dead and can’t defend themselves. The advantage of blaming the founders, is that no one in power needs to do anything about it but complain.

    We’re slowly circling the drain and one thing that can be blamed on the founders, the near impossibility to change the Constitution in a time not only partisan discord, but the 21st century equivalent of the 18th century planter/merchant class is doing quite well thank you. That is until they’re not and then they’ll just move to another one of their houses in another country.

    Rome took 250 years to collapse, since everything happens faster now, 50 years maybe all it will take for America to collapse.

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  2. OzarkHillbilly says:

    Stop Blaming the Framers for Everything

    OK, how’s about you then? 😉

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  3. Joe says:

    I have always found it interesting how “scholars” will cite the Federalist Papers as the gospel explanation of the meaning of the Constitution. I am confident there were plenty of other framers, not nearly so diligent with their pens, who had entirely different understandings of the goals and intentions of the Constitution.

    Similarly, how much weight can you still give the original framers when the 14th Amendment basically re-engineered the relationship between the states and the federal government. In some ways, I think it would make more sense to interpret the Constitution the way it was understood when last amended rather than before the amendment. Those latest Americans were the ones to say here’s what we understand it to mean and how it needs to be changed (or not).

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  4. flat earth luddite says:

    Of course we have to blame the framers, because otherwise we have to look in the mirror. Ugh!

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  5. Andy says:

    Beyond that, though, our most cynical antimajoritarian institutions are at the state and local level and even less amenable to reform than our national institutions. That’s depressing, indeed, but a reality with which we must somehow contend.

    I’m not familiar with all state governments, but I don’t know of any that has a filibuster and those with a Senate apportion seats based on equal population, unlike the US Senate. And Governors are elected by popular majority vote. So as far as institutions go, states appear to be much more majoritarian than the federal government.

    So if you think that that state government is filled with “cynical anti-majoritarian” institutions, then what institutions are you specifically talking about? And why should the federal government become more like state governments if they breed such institutions?

    It seems incongruent to say on one hand that the federal government should adopt a more majoritarian electoral system as exists currently in the states, yet also claim the states are where the most cynical anti-majoritarian institutions are, so I don’t understand where you are coming from here.

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  6. SC_Birdflyte says:

    Amidst all the discussions of political theory, there remains the fact that the DNC has done a woefully inadequate of reaching Howard Dean’s goal of a party that can compete in every state. Stacey Abrams showed how it can be done in a red state. While not every red state is reachable by grassroots organizing, wrenching loose the control of state legislatures which the GOP controls because of gerrymandering is achievable.

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  7. Sleeping Dog says:

    @Andy:

    So if you think that that state government is filled with “cynical anti-majoritarian” institutions, then what institutions are you specifically talking about? And why should the federal government become more like state governments if they breed such institutions?

    To venture a guess Prof J would be referring to state legislatures that gerrymander legislative and congressional district for partisan gain. An egregious example was PA, after the 2010 census the R majority legislature divided up the 18 congressional districts into 15 R districts and 3 Dem. In 2017 the state supreme court through out this map and imposed a new one that resulted in 7 Dem districts after the 2018 election. This happened in a number of states. BTW the R majority PA legislature is attempting to amend the state constitution in a manner that will allow the gerrymandering of supreme court by assigning judges to elective districts.

    At present there are about 20 R dominated state legislatures that are trying to change election rules to suppress voting.

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  8. James Joyner says:

    @Andy: As hinted at in the post and surmised by @Sleeping Dog, the problem is that the state legislatures not only gerrymander Congressional districts but, more importantly, engage in all manner of voter suppression techniques. And, because few are even paying attention, it often goes largely unnoticed.

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  9. Andy says:

    @James Joyner:

    @Andy: As hinted at in the post and surmised by @Sleeping Dog, the problem is that the state legislatures not only gerrymander Congressional districts but, more importantly, engage in all manner of voter suppression techniques. And, because few are even paying attention, it often goes largely unnoticed.

    Ok, but those are the results of governing systems that have a more majoritarian design than the federal government does.

    Correct me if I’m wrong, but you’ve consistently advocated that the federal government should be more majoritarian like the states – ie. direct election of the Executive, Senate proportionality, etc. Yet here you’re stating that the system you want for the federal government is producing worse results. That’s the incongruity.

    Or, to try to put it another way, if greater majoritarianism is the key to better federal governance, then why is greater majoritarianism in the states bringing about, in your view, worse outcomes?

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  10. de stijl says:

    @James Joyner:

    I brought voter suppression up to your attention repeatedly back when you were an R and you passed.

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  11. Barry says:

    Off of the top of my head, both MI and WI would have majority state houses except for gerrymandering. Probably PA.

    That’s a lot, because that’s 2-3 state governments which would not be dominated by the GOP given halfway representative government. That’s 2-3 states where voting suppression would be far harder.

    I’ve seen the shape of that f*ckhead Texas SEAL’s district, and it looks more like a corkscrew than anything else.

    Fair representation in state governments is the difference between a well-governed USA and a GOPocracy.

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  12. Kathy says:

    Jame,s you make a really good argument.

    However, I’d complete it with another: stop idolizing the framers.

    They did very well, given the limitations and compromises the politics of the time and the place imposed on them. One can well imagine secession of the slave states before the Union was really formed. Whether that would have been a good thing or not,is a matter of speculation (hmm. I hope I haven’t given myself an idea for an AH story, I don’t know the period well).

    But they also incorporated all the politics and compromises of their time, and many of the prejudices as well. And that has been difficult to fix, especially given the very high bar for changing the Constitution.

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  13. OzarkHillbilly says:

    @Andy: Ok, but those are the results of governing systems that have a more majoritarian design than the federal government does.

    No, they are the result of governing systems that were majoritarian but systematically gerrymandered and voter suppressed to such an extent that a majority was no longer necessary. Don’t be obtuse.

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  14. James Joyner says:

    @Andy: I oppose anti democratic measures at the state level as well. But unchecked power can certain be used corruptly.

    @de stijl: You’d have to be more specific. I’m on my phone but a quick search finds me complaining about voter suppression at least a decade back.

    I most likely pushed back on the idea that it was racially motivated, chalking it up to naked partisanship?

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  15. Jim Brown 32 says:

    O.K. so I’ll blame them for 3/5s of everything.

    Im here all week.

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  16. Kurtz says:

    @Andy:

    The design is majoritarian; the reality is not. No design is perfect and parties are good at finding holes to exploit. One of the underlying issues is that the electorate seems to scream, “Give us hell, Quimby!” every two years so change can’t happen. For every politician limited by a conscience, there seem to be at least two motivated by cynical exercise of power.

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  17. de stijl says:

    @Jim Brown 32:

    Oh Man!

    Dude, you beat me to it!

    I 2/5 blame you. The other 3/5 blame goes to Clinton, obviously.

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  18. Andy says:

    @OzarkHillbilly:

    No, they are the result of governing systems that were majoritarian but systematically gerrymandered and voter suppressed to such an extent that a majority was no longer necessary. Don’t be obtuse.

    The states are still more majoritarian than the federal government even with gerrymandering and other bad things states might do. That’s the double-edged sword of more vs less democracy in a political system.

    In addition to the things mentioned, states also have referendums, which is about as majoritarian as one can get.

    I don’t know where you live, but not every or even most states are “systematically gerrymandered and voter suppressed” to the extent you are alleging. And more and more states are adopting commissions and other methods to reign in gerrymandering, which has often been via the previously mentioned referendums.

    @James Joyner:

    @Andy: I oppose anti democratic measures at the state level as well. But unchecked power can certain be used corruptly.

    That doesn’t answer the question I asked though.

    You specifically mentioned anti-majoritarian institutions at the state and local level are both more cynical and more difficult to reform. But in fact states are, as political entities, more democratic and more majoritarian than the federal government is. And states have much less stringent means to change their constitutions and laws than the federal government does, so institutional reform is, in reality, a lot easier.

    So the assertion in your post doesn’t make sense to me on several levels.

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  19. Owen says:

    While we tend to look to the Federalist Papers to get a sense of what the Framers intended, we need to remember that they were propaganda documents offering post hoc justifications of these compromises in order to secure their ratification.

    Thank you for saying that, too many of the small number of Americans who are even aware of the Federalist Papers treat them as dogma rather than the serialized opinion pieces they are.

    I agree that the Electoral College is an institution whose utility has passed, and am encouraged by the National Popular Vote Interstate compact regardless of how slowly it progresses. Here in Arizona I see a path for the compact within the next two gubernatorial cycles. Lest we forget, it took Women’s Suffrage nearly a century of organized and serious effort to manifest itself in the 19th Amendment.

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  20. Andy says:

    @Kurtz:

    The design is majoritarian; the reality is not. No design is perfect and parties are good at finding holes to exploit. One of the underlying issues is that the electorate seems to scream, “Give us hell, Quimby!” every two years so change can’t happen. For every politician limited by a conscience, there seem to be at least two motivated by cynical exercise of power.

    Yes, it’s the double-edge sword of more vs less democracy, and in a round-a-bout way this gets to a bigger point about the potential consequences, good and bad, regarding more democracy and majoritarianism at the federal level, which relates to my query to James.

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  21. Mikey says:

    @Andy:

    But in fact states are, as political entities, more democratic and more majoritarian than the federal government is. And states have much less stringent means to change their constitutions and laws than the federal government does, so institutional reform is, in reality, a lot easier.

    This will obviously vary among the different states, but I think I agree overall. Just in the 17 or so years I’ve lived in Virginia we’ve seen a lot of change at the state level, and just this past election we passed an amendment to the state constitution to set up a non-partisan commission for redistricting.

    The real problem is too many people focus too much attention on The Big Names at the top of the ticket and not enough on races at the state and local level. It stands to reason that the parts of government closer to a citizen will have a much more direct impact on their life, right? But I’d bet a higher percentage of the people in any given state congressional district would be able to name the President than their state-level representative.

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  22. Kurtz says:

    @Andy: @Mikey:

    State and local governments are hardly a panacea of majoritarian will.

    I think intuitively, local and state governments are more corrupt for a bunch of different reasons. They may, in theory, be closer to the people, but they also have less of a spotlight on them. There are a number of factors, but the decline of local journalism has likely contributed a lot to this.

    I also surmise that it’s pretty damn easy to rig local governments because of their size, smaller magnitude of stakes, and as stated, less transparency. Small, concentrated conspiracies are more sustainable than large, broad ones. Hancock County, Georgia is majority black yet has an all white council and the mayor managed purge some absurd percentage of voters from the rolls.

    As politics have nationalized, so have the parties. We have state parties censuring politicians because they voted to impeach Trump in the House or voted for conviction in the Senate. There was a time when Republicans were focused on federalism–states as political, social, and economic laboratories for innovative policies. That has morphed into gubmint bad. Just look at Kansas.

    I give you another example: the plebiscites of Florida. What seems like a majoritarian structure isn’t really in practice.

    First, a simple majority isn’t enough to pass an amendment. This may or may not be a good thing, depending on one’s view of what constitutes the will of the people. Is 50%+1 enough for large changes and/or controversial issues? James would say no.

    Second, the process is mediated by state level officials both before and after the vote to the point that it doesn’t function as a majoritarian mechanism of governance. See: medical cannabis and restoration of voting rights for felons.

    Third, confusing wording, deliberate misinformation, and partisan politics still affect the outcome during elections season. These all disarm the public from effective action and informed decision-making.

    A plebiscite becomes necessary when lawmakers refuse to do something that has popular support yet, they still seem to be able to manipulate he process enough even if a policy change is put to a vote.

    My point is that not all mechanisms for the general public to make their voice heard are equal. Ideally, if the legislature took post-election action that watered down the referendum, they would lose re-election. But we know most will not for myriad reasons.

    Mikey, I tend to think many local and state governments lack a ton of talent as they serve as the farm system for national office. Most talented state and local politicians have bigger ambitions, and they leave when an opportunity presents itself. And even when they are in office, their long-term personal goals often conflict with what’s best for their constituents.

    Some states have certainly made progress, but I’m not sure it’s truly substantive.

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  23. Kylopod says:

    @Andy:

    I’m not familiar with all state governments, but I don’t know of any that has a filibuster

    According to Wikipedia, 14 states have a filibuster. However, they may be far more limited than the federal one. I don’t know the details. In the famous one by Wendy Davis in Texas, she was required to stay on topic—which needless to say is very different from the classic filibuster in the US Senate.

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  24. de stijl says:

    @Kurtz:

    The rapid decline of local journalism means a lot for county and municipal government. All bad.

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  25. James Joyner says:

    @Andy:

    You specifically mentioned anti-majoritarian institutions at the state and local level are both more cynical and more difficult to reform. But in fact states are, as political entities, more democratic and more majoritarian than the federal government is. And states have much less stringent means to change their constitutions and laws than the federal government does, so institutional reform is, in reality, a lot easier.

    So the assertion in your post doesn’t make sense to me on several levels.

    They’re harder, if not impossible, to reform from the top. Reforming them would require 50 state-level and countless local-level reforms. (Theoretically, states could ram through reforms of local systems, since localities tend not to have much legal status, but politically it’s incredibly unrealistic.)

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  26. James Joyner says:

    @Mikey:

    Just in the 17 or so years I’ve lived in Virginia we’ve seen a lot of change at the state level, and just this past election we passed an amendment to the state constitution to set up a non-partisan commission for redistricting.

    I got here about a year ahead of you and agree that we’ve reformed considerably. But, while I support most of the reforms including that one, they weren’t accomplished through some popular consensus about Good Government but rather because we have Democrats controlling all the levers of power and they saw these measures as making it easier to maintain that advantage.

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  27. Turgid Jacobian says:

    Doctor Pangloss says that things are great in the states–they’re so very democratic. Good to know that a broad enough brush can cover up anything!

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  28. Andy says:

    @James Joyner:

    They’re harder, if not impossible, to reform from the top. Reforming them would require 50 state-level and countless local-level reforms. (Theoretically, states could ram through reforms of local systems, since localities tend not to have much legal status, but politically it’s incredibly unrealistic.)

    Well, a lot depends on the individual state. But as a general rule, from an institutional perspective, it’s simply much easier to make big changes at the state level in most states than it is at the federal level. In those cases where top-down reform is harder that’s not necessarily a bad thing, particularly if one view majoritarianism as what the population wants as opposed to what the most popular party wants.

    And of course, it should go without saying that any federal-level reform – including most of the reforms that you want – has to go through the states. While the theoretical expedience of top-down federal changes is nice in theory, they are untenable in practice in our system. There’s simply no alternative for significant federal reform without most of the work being done at the state level.

    I got here about a year ahead of you and agree that we’ve reformed considerably. But, while I support most of the reforms including that one, they weren’t accomplished through some popular consensus about Good Government but rather because we have Democrats controlling all the levers of power and they saw these measures as making it easier to maintain that advantage.

    Just curious because I’ve heard about Virginia and education some in the national news – are your kids back in school or still online only?

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  29. reid says:

    @James Joyner:

    But, while I support most of the reforms including that one, they weren’t accomplished through some popular consensus about Good Government but rather because we have Democrats controlling all the levers of power and they saw these measures as making it easier to maintain that advantage.

    You may be right to some degree, but that last part sounds awfully cynical. Is it bad when doing the right thing also benefits you?

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