The Velvet Coup: The Constitution, the Supreme Court, and the Decline of American Democracy - Daniel Lazare
Published in 2001 by Verso, New York, NY and London, UK
152 pages
ISBN: 1-85984-633-5
On November 7th, 2000, voters across the United States made their way into their local voting booths and marked their ballots as they voted for their next President. On the Republican side, George W. Bush -- the affable, dim-witted son of former President George H.W. Bush -- had just bumbled his way through the primary and promised to restore “honor and dignity” to the White House in the wake of the Clinton sex scandals. For the Democrats, the largely uncharismatic and stiff Vice President Al Gore criticized Bush’s lack of experience and distanced himself from Clinton's personal life while promising more of the same: a continuation of the Clintonian neoliberal status quo.
As the results rolled in throughout the night, it became increasingly apparent that the election would be incredibly close. After Gore lost his home state of Tennessee (and quickly followed by West Virginia and Arkansas), the race was at a stalemate. With each candidate below the threshold of victory in the Electoral College (270 electoral votes), the race came down to the results in one infamous state: Florida. While most major news networks had declared Gore the victor early that night based on their analysis of exit polls, they retracted their predictions once votes started coming in which showed Bush with a major lead. By 2 am the following morning, with approximately 85% of the vote counted and Bush ahead by 100,000 votes, the media decided that it was safe enough to declare Bush the winner. Yet, the remaining votes in Florida were from three heavily-Democratic counties, and as more votes were counted and Gore narrowed Bush’s margins to just under 2,000 votes, media outlets once again retracted their prediction and waited for more votes.
After the results in Florida were too close to call, Gore called Bush to withdraw his concession, as the Democrats called for a hand recount. Issues with the voting systems and ballots (including the now-infamous “hanging chads”) muddied the waters even further, obscuring any clear prediction of who would win. When the Democrats demanded a recount in the entire state, Republicans decried it as a long and unnecessary task. When the Democrats, once again conceding ground to Republicans, demanded a recount in just four counties, the Republicans still cried foul, arguing that it would not be fair to only recount the votes in some counties and not others.
As such, the fate of the presidency was decided by the highest court in America. After deliberation in the United States Supreme Court, a 5-4 decision was made along partisan lines that the recounts violated the 14th Amendment's Equal Protection Clause since there was no uniform standard for counting all of the ballots. Thus, with the recount stopped, Bush ended up taking the state of Florida by only 537 votes. Even though he had lost the national popular vote, George W. Bush was named the 43rd President of the United States. Subverting the popular will of the people, both the archaic Electoral College system and a partisan Supreme Court had chosen the leader of the executive branch of power. It should come as no surprise that there were immediate protests in the aftermath of this election, and the overwhelming consensus after 2000 was that our electoral system was fundamentally broken and we needed to change the way we run our elections.
In the twenty-plus years since the election of 2000, faith in American democracy is at an all-time low. Hyperpartisan performative politics, a deepening of right-wing reactionary rhetoric within mainstream discourses, and a growing loss of hope in the power to generate substantive change in the wake of looming existential threats currently define our political atmosphere. Republicans have continued to take advantage of their time in power by stacking Supreme Court justices while obscuring any progressive policy by labeling it as “socialist.” Liberals lament the state of our political landscape, as they nostalgically romanticize the Obama era and tweet diatribes about an imaginary time when bipartisanship was supposedly the rule of American politics. Just as in the election of 2000, they view the crisis we face as external threats to a normally stable and inherently democratic American political system, which is founded on the unassailable and nigh-sacred text of the Constitution.
Yet, we must ask ourselves: has America ever truly lived up to the ideals of a democratic society? Written in the wake of the chaotic events of the 2000 election, Daniel Lazare’s The Velvet Coup: The Constitution, the Supreme Court, and the Decline of American Democracy traces the roots of these failures not to some external force, but rather to the anti-democratic currents within the Constitution itself. In this short polemic, Lazare examines the philosophical and political foundations of the Constitution, as well as how it has repeatedly been utilized to subvert the popular will of the people and disrupt the functioning of democracy in America.
Overview:
Depicting the Bush v. Gore case as a symptom of the failure of our constitutional system, Lazare argues that the United States Constitution -- a woefully outdated 18th-century document -- serves as a constraint on America’s political possibilities. Taking the reader on a whirlwind tour of political theory and history from Tudor England to the turn of the Millenium, Lazare makes the case that the roots of the US Constitution can be traced back to the early modern veneration of “ancient” forms of government that are based in limited government and a division of power. This mythical foundation for nation-building continues to this day in the sense of awe that many Americans feel toward the Constitution, treating it as a sacred document that must be preserved in its original intentions. Lazare labels this reverence and nostalgia for the Founding Fathers as “democratic primitivism,” which is the belief that one’s contemporary age has lost the liberty and freedom that the societies of the past so freely enjoyed.
This myopic view of history, according to Lazare, has a firm grip on the American imagination, which has constrained the possibility of political and economic change. He writes,
By imposing a set of static supra-political values on society, it wound up freezing politics in place…By basing their [constitutional lawyers’] argument on a close reading of the sacred text, they wound up reinforcing the view that the Founders’ teachings were ‘controlling.’ The inability to argue such questions on the basis of modern democratic theory rather than eighteenth-century republicanism was an indication of their obeisance to the past (82).
Lazare historicizes the creation of the Constitution as a socially-contingent historical document rather than a sacred writ. The Constitution ultimately serves as a document that places a static rule of law over a people, rather than an ever-changing document of popular self-rule. Far from a divinely-inspired holy writ descended from the heavens, the Constitution-writing process was one of great antagonism, compromise, and chaos.
In their attempts at building a new nation, a small group of economically and socially privileged men sought to walk a fine line. They met behind closed doors -- far from the democratic masses -- and drew up a system of government that attempted to curtail the powers of both an ever-changing popular will and the looming threat of a tyrannical federal government. The result was a government in which both everyone and no one was ultimately in charge. By dividing political powers between the various branches of government and further diffusing this power among federal, state, and local officials, the Framers hoped to bring the ancient forms of government -- which would bring harmony and order with the principles of natural law -- back into practice.
Yet, over the past two and a half centuries, Lazare argues that the Constitution has served as a source of an endless series of crises. From the struggle over the question of slavery throughout the first half of the 19th century to the Watergate scandal, the Iran-Contra affair, the Clinton impeachment, and the election of 2020, the Constitution has repeatedly been used to conserve the interests of the powerful. Lazare writes,
Rather than exclusively the fault of the GOP, America’s race to the right was a function of the larger political system. Despite efforts to recast the Constitution as an instrument of modernization and reform, the very idea of an unchangeable plan of government resting on unchallengeable eighteenth-century beliefs was a powerful conservative influence. By making stare decisis, the notion that precedent rules, the dominant principle among both liberals and conservatives, it tethered the US to the pre-industrial past and led to repeated spiritual crises whenever the polity seemed in danger of pulling away (91).
While political elites claim that the Constitution is a solid anchor that holds our system in place and keeps us together despite the tempestuous waters of time and change, Lazare points out that the crises that we’ve faced as a nation have instead been caused by our rigid insistence on clinging to such an outdated and contradictory document. When faced with a crisis in the wake of mass demonstrations and calls for change, the Constitution is often invoked to quell popular sovereignty. While the Constitution can be amended and changed in incremental ways, the process of doing so is incredibly long and fraught with difficulty, making any sort of popularly-led structural change to our system nigh-impossible.
To remedy the anti-democratic strains within the Constitution, Lazare lists a series of proposals that could help restore a modicum of democracy within the American political regime. One of the largest and most prominent of his proposals is to abolish the Electoral College (an argument that has only grown in popularity since the subsequent election of 2016). Lazare imagines a scenario in which Gore runs again in 2004 and challenges Bush to forgo the results of the electoral college in favor of the popular vote (an idea that, Lazare admits, is ludicrously unrealistic).
He also calls for abolishing the Senate in favor of a unicameral federal legislature that is directly elected and apportioned according to population. In addition, Lazare also calls for a radical change to campaign finance laws, reducing voter disenfranchisement by giving those convicted of felonies the ability to retain their right to vote, gun control reform, and reining in war powers by handing such decisions to Congress, rather than unilaterally falling upon the executive branch (a point especially prescient in the wake of the soon-to-come invasion of Afghanistan and Iraq after the events of 9/11) (132). Lastly, following other scholars such as Sanford Levinson, Robert Dahl, and Larry Sabato, Lazare calls for a new constitutional convention that would update the constitution and make it truly democratic and representative of the people.
To accomplish these goals, Lazare believes that Americans need to realize just how hostile the Constitution can be to the continuation of democracy, as continual crises within our system lead us toward ever-increasingly authoritarian measures. Only then can mass political mobilization be effective to lead the way to substantive change to the current neoliberal political status quo. By breaking the fantasy of a divinely-inspired, constitutional American order, we can see beyond to something that maybe, for the first time, resembles democracy.
Commendations:
Lazare deftly navigates the past four hundred years of Western political philosophy, illuminating how various thinkers have conceptualized democracy and how these ideas shaped the founding of the United States Constitution. Lazare dispels many of the nationalist myths about America’s Founding Fathers, pointing out the specific historical conditions behind the political philosophies that drove Hobbes, Montesquieu, and Locke (who, in turn, inspired the Founding Fathers). Lazare makes the point that already at the time of the late 18th century, the Country movement in Britain was fading away as a dominant school of thought just as the American fight for independence was raging on. Thus, Lazare argues, the Constitution was already an outdated document even as it was being written.
Lazare helps the reader understand the Constitution as a historically shaped and flawed document, rather than an infallible sacred text that must be followed and abided by to the letter. When a crisis arises, most politicians resort to the Constitution as the central framework for navigating it. Lazare helps the reader to understand how these crises are often generated by the contradictions and shortcomings of the Constitution. Thus, by demystifying a Constitution that so often limits our political imagination, Lazare hopes to inspire readers to imagine and organize new, more democratic ways of living.
Many of Lazare’s arguments can be found in his earlier and more detailed book, The Frozen Republic. While this book is a much more polemical essay aimed at the general public than a deeply argued and specialized work, it is still well-researched and Lazare’s points hit home in many areas. While Lazare wrote this book in response to the 2000 election, the Constitutional issues that he brings up have become all the more salient in the wake of the 2016 election.
Lazare’s analysis is a helpful counterpoint to the common American nationalist narrative, as he shows how the Constitution (and the judiciary that interprets it) are often used to quell the popular will. From the Three-Fifths Compromise (which took nearly 80 years to overturn via the Fourteenth Amendment) to the continual disenfranchisement of voters through voter suppression, racial gerrymandering, and corrupt campaign finance laws, the US Constitution has again and again been utilized to defend the interests of the wealthy and powerful. Lazare does well to draw our attention to this fact, and how it paralyzes the state from taking concrete action.
Critique:
On the other hand, the brief length of this book makes Lazare’s arguments less fleshed out than they might be elsewhere (such as The Frozen Republic). He spends his time attacking the Constitution, rather than the interests of capital that the Constitution was constructed to defend. As such, Lazare’s Constitution seems to be an inert, static object rather than the basis of a wide array of constitutional law and norms which, while beloved by both Democrats and Republicans alike, cannot adequately respond to an increasingly globalized world. Lazare spends the majority of the book describing the historical conditions and events that have led to our paralyzed system of government but then offers little more than a scant handful of eclectic policy proposals that could potentially overcome this inherent antagonism. Granted, while Lazare admits that these proposals are unlikely to ever be passed, it leaves the reader with little to hold onto towards changing anything.
Indeed, Lazare’s hope for a better future lies within a mass of voters who are mobilized by their discontent with the status quo. How exactly this would work, however, remains frustratingly vague. His proposals do not focus on a bottom-up strategy, as Lazare makes the presupposition that these changes must be enacted through Constitutional amendments. According to Lazare, this would be possible through mass political mobilization and education, where intellectuals would raise awareness about the shortcomings of our Constitutional order to generate discontent and change.
Yet, this strategy seems rather naive and simplistic, especially in the light of the past twenty years. There has never been a unified Left in contemporary American politics for nearly one hundred years, and with mass disenfranchisement, racial gerrymandering, and the interests of capital rolling back and stymying any attempts toward progressive policy proposals, Lazare’s hopes for an intelligentsia-led mass political movement seem admittedly absurd. Any progressive movement that seeks to move society beyond the limits of capitalism and the Constitutional order that protects it must be led by the workers, alienated as they may be from one another in an age of platform capitalism. Lazare, by contrast, often seems to capitulate to the social-democratic tendency to reform the system from within rather than replace it with something new altogether. While there is certainly an urgency to Lazare’s prose, it is cut short by his underdeveloped concepts of how we enact systemic change.
Conclusion:
Overall, The Velvet Coup is a short and informative tour through the foundational ideas that inspired the US Constitution, and how they have been utilized for antidemocratic ends. While short on concrete steps forward and a bit dated after the last twenty years of political turmoil, Lazare’s work is an interesting and important consideration of how, contrary to our assumptions, the Constitution can often work in opposition to a functional democracy. Lazare, along with many others, believed that Bush v. Gore exposed the fundamental problems not only in our electoral system but in our Constitution as well. While Lazare believed that we could work together to overcome these problems, the elections of the last twenty-plus years have shown that these problems have only grown, as opportunistic politicians continue to exploit them for their own personal, political, and economic gain.
Lazare’s most salient lesson, perhaps, is to remind us that the Founders were not mythical beings with divine insight into the true nature of reality. They were human beings with all the same shortcomings and fallibilities that we have. They were contingent historical actors who, for better or worse, shaped the history of the United States in radical ways. In just the same way, we also have the power to shape and recreate the world in which we live. We can also radically alter the social and political paradigms in which we operate as we strive to build a new and better world for all. We can be Founders too.