Florida. Ohio. Missouri. Indiana…
When it comes to democracy, it’s a race to the bottom at breakneck speed. Last week, Tennessee pulled into the lead, but another state will no doubt overtake them soon.
The Founders of our nation would have two responses to all this.
The first? “We warned you!”
You see, the Founders worried deeply about the precise events that are happening around the country—and where they are happening. They warned us specifically about state legislatures like Tennessee’s going rogue.
It’s all right there in the Federalist Papers.
From recent lived experience, James Madison worried that state legislatures were vulnerable to corruption and outside influence. And since states wielded a wide range of power within the new nation’s overall governing structure, including over elections themselves, such corruption risked undermining the nation’s democracy. Thus, Madison wrote in Federalist 43, “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations.”
My law school professor Akhil Amar equated this idea to “a kind of democratic insurance policy.”
Madison and the Founders felt so strongly about the need for this “insurance policy”—that state governments be structured to reflect and represent the will of the people, and not narrow/outside/monied interests—they tasked the new federal government with enforcing it. And they guaranteed it in the Constitution itself: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . “
And what did they mean by “Republican Form of Government”?
Madison, this time in Federalist 39, defined “Republican Form” of government as “a government which derives all its powers directly or indirectly from the great body of the people.” As Amar emphasizes, the roots of the word tell the story: “publica”; “poplicus.” Government must be derived from the people; the people are sovereign.
That’s right—from its Founding, our Constitution obligates the federal government to guarantee that all states operate in a way that the people are sovereign. And again, they feared if a state or multiple states did not operate in that way, they posed a risk to the nation.
We are seeing that risk play out right now.
Egged on by national right-wing groups and organizations, legislatures such as Tennessee’s have used gerrymandering (along with targeted voter suppression) to seal themselves off from the people of their own states. Once safe in a world of zero accountability, they rapidly live down to Madison’s greatest fears. In their rigged districts (and many of Tennessee’s are not contested at all), these legislators implement policies that reflect the minority viewpoint of their states (and often an agenda pushed by national interests)—and the opposite of the majority will of the state they are supposed to be serving.
On guns, for example, poll after poll in Tennessee affirms that people support common sense reforms such as universal background checks. A recent poll of Tennessee parents, for example, found that 70% supported universal background checks, and 60% supported “red flag” laws. Tennessee’s statehouse majority, of course, does the exact opposite, but is so gerrymandered there’s nothing the people of themselves can do to stop them.
And last week, even when the people grew so outraged that they rallied in protest, those legislators who stood with the people (who are protesting in favor of the majority’s viewpoint!) were the ones ousted from the legislative body. And in a horrific irony, they’re tossed out by the faction who’ve locked themselves into power via rigged districts, and who consistently do the opposite of what everyday Tennesseans want done.
It’s the perfect symbol of how broken democracy is in so many states.
And, as explained above, it’s exactly what the Founders feared. Like Tennessee, the on-the-ground reality in too many states is that through rigged districts, voter suppression and a willingness to defy the law and basic notions of democracy, countless statehouses can hardly be categorized as functioning democracies. To use the Founders’ term, they are neither structured nor acting as “Republican Forms” of government any longer. They are serving certain interests—just not the people.
So yes, the Founders’ first response would be: “We warned you!”
So what would their second response be?
“Get to work!”
They literally wrote the Guarantee Clause into the Constitution to protect against exactly what’s happening. So my guess is they’d be appalled that Congress has done so little in recent years to actually protect democracy in states. And they’d specifically wonder why a procedural rule (the filibuster) could be used to stop federal legislation aimed at protecting democracy in states. Against a “guarantee” enshrined in the Constitution that every member of Congress takes an oath to protect, a mere procedural rule should have no force whatsoever.
But beyond Congress, the Guarantee Clause should also motivate the rest of us—to reframe how we respond to what’s happening in states across our country today.
Pro-democracy leaders need to think more broadly, in the same way the Founders described the issue: all 50 states must be run by governments where the people are sovereign. Anti-democratic takeovers of states run afoul of that Constitutional promise. And those who care about democracy should react and plan accordingly—not just in a few swing states, but in ALL states, as the Constitution guarantees.
More on how we do this in my next newsletter (and next book, btw), both regarding Tennessee and more broadly.
(To be continued)…