An Interview with Daniel Lazare:
A Real Constitutional Crisis

Kent Worcester: In a recent statement in The New York Times, an emergency committee of concerned citizens, including Eric Alterman, Ronald Dworkin, Paul Newman and Sean Wilentz, said that the uncertain results of the election are threatening to produce a constitutional crisis that challenges the legitimacy of our national political process. Are we in the midst of a constitutional crisis?

Daniel Lazare: I would quarrel with their statement by saying that it's not threatening to -- we are in a constitutional crisis, which I welcome. The important point is that the ancient machinery is breaking down, and the most fundamental task of democracy -- which is to run a clean, honest and most important, accurate election -- is not being met. The system is just falling apart as it tries to go about this task. The thing I would quarrel with this ad, is that it's focused on the Palm Beach county vote. First of all, it's very important to point out that the election's already been decided, we already have a winner, that winner is Al Gore. I didn't vote for Al Gore, I voted for the Socialist Workers Party candidate. But Al Gore has won a plurality of the popular vote, and according to international democratic standards he should be president. The Electoral College is a meaningless holdover, a completely woebegone piece of 18th century machinery, and I think the important thing for democratic reformers to do is to point up the impossibility of this machinery, its undemocratic nature, and hence its inapplicability to the current contest. Gore won the election, and therefore Gore should take office.

KW: Gore won the election on democratic grounds rather than constitutional grounds, but most of the time Americans believe that the Constitution is our instrument for democracy.

DL: Of course, and this is showing the fallacy of that approach. The Constitution has broken down on a number of grounds. The machinery has proved inadequate in terms of counting votes, and number two, the Electoral College has diverged from the popular vote, which is intolerable. In a democracy, the people decide, and the people have decided. They cast a plurality of votes for Gore.

KW: How concerned are you about the issues surrounding the votes in Florida per se -- the confusing butterfly ballots or the returns in predominantly black districts that were disqualified in large numbers?

DL: I'm very concerned. I think the inability to hold a competent election is a damning indictment of the American system. It's damning when you have this high number of wasted, discounted, disregarded votes, which the system is too clumsy to tally. That's very important. But the point is that the final outcome cannot hinge on the final vote in a few counties in Florida, because, as I said before, it's been decided nationwide.

KW: Let's talk about the Electoral College for a minute. Advocates of the Electoral College say that it ensures that candidates seek support in smaller states and that the geographic spread of the country is represented in the democratic system. How do you respond to that?

DL: The geographic spread is represented at the expense of the demographic structure of the country. The Electoral College, as everyone knows at this point, awards electors from each state according to the number of people as sent to Washington in both the Senate and the House. So, therefore, the seven smallest states, which elect only 1 representative to the House each, see their clout trebled, because they wind up with three electors, one for each representative plus the two senators they send as well. The next six smallest states, which elect two representatives, effectively have their clout doubled for the same reason, because the two senators they elect, and I believe it's the next four or five which elect three congressmen, have their clout increased by two-thirds. This is undemocratic, it's a violation of the principle of one person/one vote, one of the ineluctable principles of political democracy. And it's intolerable, and the fact that it's more unchangeable now than it was two centuries ago is even more intolerable.

KW: Why is it more unchangeable now than it was two centuries ago?

DL: Because according to Article 5 in the Constitution, the amending clause, thirteen states, one-fourth of the states plus one, can veto any constitutional amendment. In 1790, the population ratio of the largest to the smallest state was 11 to 1, today it's 62 to 1 or better. Thirteen states representing as little as 4.5 percent of the population can veto any constitutional amendment, whereas, similarly, thirty-eight states representing less than 50 percent of the population can ram through any Constitutional amendment, so that this requirement is increasingly divergent from any coherent concept of democracy. It allows tiny minorities to veto the popular will, which is undemocratic and a powerful force in favor of the status quo, by the way.

DL: It would certainly be a step in the right direction, only a small step though. The important point is that it's unreformable. If at least seventeen states have their clout in presidential elections significantly magnified by the Electoral College, you can assume that at least thirteen states will veto any effort to do away with this undemocratic provision. It's unchangeable. You have a situation where a mechanism will simply not do the bidding of the democratic majority. A majority of the U.S. population lives in just nine states, believe it or not, and there's no way that those nine states can make their feelings known through these ancient, Madisonian mechanisms.

KW: Federalism implies that each state offers a distinctive political environment or political culture. Was that argument once true but is no longer true? And aren't there advantages to federalism in that it allows states to go in different directions and experiment with different kinds of policies?

DL: Well, I've never been much of a fan of pluralism. But first of all, to put this on a realistic footing, the question of each state having its own distinctive brand of politics was obviously a very self-serving argument from the point of view of those southern states in 1787 which already felt beleaguered and hemmed in by the more dynamic economies of the northern states. "Distinctive political cultures" was obviously a euphemism for the right to hold slaves in perpetuity. I'm all in favor of the concept of states as laboratories of democracy, but I'm not in favor of the idea of American-style federalism when it becomes a mechanism for fragmenting and atomizing the popular will and impeding the emergence of any kind of coherent, democratic point of view.

KW: Critics of constitutional reform say that if you give equal weight to all votes, if you nationalize the vote system, you will increase the scope for ballot fraud, and the scope for challenges to each and every vote.

DL: That's untrue -- if you nationalize the voting system, you nationalize the election system, which means first and foremost creating a nonpartisan, honest, federal mechanism for the conduct and oversight of elections. Americans would demand and presumably receive an honest, efficient mechanism for the conduct of elections from coast to coast. This is what other countries take for granted, but America is stuck with a nineteenth-century system based on an incredible fragmentation, a localist system of stupendous inefficiency just ripe for abuses and foul-ups. These people couldn't organize a two-car funeral, much less put together a coherent, meaningful, honest election.

KW: What about Nader? Although constitutional issues weren't at the heart of his campaign, he certainly raised democratic reforms, such as same-day registration, longer hours for voting, public financing of elections, and so on. Why didn't Nader get your vote as somebody who believes in constitutional and political reform?

DL: Well, I'm not a green, I'm a socialist, I'm a red, and I don't especially like Nader either personally or politically. I don't like the Green Party platform very much. I don't believe in decentralization. I think this election has shown the horrors of decentralization. I'm a democratic centralist who believes we have to put together efficient, centralized, democratic mechanisms for running society. Green talk about community control is really just pernicious nonsense, as I believe this election has shown.

KW: On the other hand, the Nader phenomenon went way beyond the actual Green platform. It opened up space for debate on all kinds of issues that the two parties were intent on keeping out of the political process.

DL: It represented a small opening-up, I agree, but I think it's still very important to cast a vote for the socialist alternative and to emphasize, as schismatic or sectarian as it sounds, the difference between a green and red critique of the American democratic process.

KW: So as a quote red, rather than a quote green, you would support the establishment of a parliamentary system? Can you do that within the framework of the Constitution, and are there voices on the political spectrum that now support a parliamentary system?

DL: The answer is no, you cannot move to a parliamentary system within the current framework. A parliamentary system rests on a completely different philosophy, a completely different concept of democracy. I would say rather that it rests upon democracy period, whereas the U.S. Constitution is a pre-democratic document that only incompletely, and contradictorily, incorporates democratic ideas. The Founders were living both on the edge of the modern era and on the edge of the modern world. People have argued as to whether they were conservative or radical; I think they were an extremely heterogeneous body, and I think in some ways they were very progressive in fighting for national unification. By the same token, they just lived in a different ideological world from our own. All sides of political debate in 1787 regarded democracy as a variant of mob rule, that democracy equaled anarchy equaled disorder. There was simply no concept of a democratic order emerging. This is a nineteenth century concept that derives from the Jacobins, the Utilitarians, and the Marxists, who in the 1870s in Germany invented the concept of the mass party. Any modern notion of parliamentarianism rests upon the principle of the demos establishing a coherent, rational order, something that the American system holds is the last thing democracy is capable of achieving.

DL: I think it should be viewed as illegitimate. I think whatever outcome results will be unsatisfactory to one side or the other. I think the legitimacy of the presidency is being called into question in this election, and I cannot see how it can be resolved one way or the other. After all, if Newt Gingrich was unwilling to acknowledge the legitimacy of Bill Clinton's election in 1992, as in fact he was, his Republican successors on Capitol Hill will be doubly or triply unwilling to acknowledge the legitimacy of an Al Gore presidency under such circumstances. Similarly, I think it's obvious that Gore's supporters would never acknowledge the legitimacy of a Bush presidency solely on the basis of the Electoral College.

KW: Did the Framers intend for the U.S. system to be structured around two parties?

DL: No, no. The party system was a product of the 1790s. Everyone in Philadelphia in 1787 was of one mind in decrying any move towards factionalism or party politics. That concept was alien to the original concept of American government, and it was viewed with fear and distaste across the board. Someone like George Washington for example, his whole concept of a statesman-like role was to be above mere factional squabbles, which were seen as inherently, intrinsically corrupt.

KW: Until this recent election crisis, whenever the concrete workings of the political system came up it would be framed in terms of campaign finance reform. Are you interested in campaign finance reform?

DL: Oh, it's a very important area, but I just think that issue is also insoluble under the present system. In a highly balkanized, fragmented system where you have two houses of congress, the presidency, each of which is extremely opaque from the point of view of the individual voter, the results are extremely inefficient; therefore, this is a happy hunting ground for lobbyists of all sorts. The only way to limit the pernicious effects of money and behind-closed-doors lobbying is by radically simplifying the governing mechanisms and by making them transparent. When they're both simplified and transparent, this kind of back-door lobbying or influence-wielding becomes extremely difficult. Therefore, it's not simply a matter of regulation, as liberals phrase it; if it's going to be real, it has to be part of a meaningful restructuring of American government, and more than restructuring, a meaningful re-thinking of American government.

KW: But who has a stake in that kind of political reform? The two parties have a stake in the existing system, although it might be reformed to one degree or another. Presumably, law schools and the lawyers they produce have a stake in the existing system. And the Reform Party failed in its effort to reform American politics. Where's the constituency for democratic, parliamentary politics?

DL: The constituency is obviously the people at large, but more importantly it's the working class and the lower-middle class, the whole vast category known as working Americans, who have been victimized by the economy of the 90s and by the deteriorating political and social environment, and have been shut out of power by the galloping corruption in Washington. Most people have a direct personal and political interest in cleaning up American government and strengthening or reforming or restoring to some semblance of good health American democracy.

DL: I think the constitutional crisis that we're seeing is a political opening, a rare political opening. It's one of the most important political openings we've seen in decades, if not longer. Just to cite a historical analogy: in 1832, Britain had its famous reform bill. It represented a very important re-constitutionalization of the British polity. Within five years after that reform bill, the British working class entered politics in a direct, undisguised fashion with the Chartist movement. I think that the constitutional crisis we're seeing now could be the first opening of the door to a reconsideration of the Constitution and some kind of re-constitutionalization of the United States, which in turn could open the door to the American working class entering politics in a similarly direct and unencumbered fashion. And that, I think, will be the source of a revamping of American politics.

KW: Is the first significant constitutional crisis since the Civil War?

DL: I think it potentially could be the most significant constitutional crisis since the Civil War. In searching for analogies with regard to Watergate, the Vietnam War, the New Deal, etc. -- each of those was solved within the confines of the existing constitutional framework. I think that this problem, while it can be contained, it can be bottled up, it can never be resolved within the existing framework, because as I said before, I can't imagine what kind of solution can come out of this mess that will somehow impose legitimacy on whichever candidate is chosen president, legitimacy in the eyes of both Republicans and Democrats. I think whatever happens, one party will see the other as a usurper, and will go into a kind of --

KW: Cold war?

DL: A kind of a cold-war-style rebellion. On Capitol Hill, I see a deepening gridlock, an ever more poisonous atmosphere, but most important of all, I don't see any way this division can be resolved under the existing framework.

KW: Some readers will say, yes, but nobody in American politics actually talks outside of the constitutional framework. There are plenty of voices for democratic reform and change in the United States, but almost no one talks critically about the Constitution itself, in its entirety. An editorial board member wondered if this isn't the equivalent of trying to rewrite the laws of gravity.

DL: Well, it's an incredibly impoverished point of view, because the laws of gravity are natural laws. The Constitution is not a natural law. It was not created by God, unless you're a believer in 18th-century natural law ideology. It was not imposed by nature. It is an artificial construct made by mortal human beings. The first task of reformers, of democrats, of socialists, is to expose the mortality of this framework, to show that it's not supra-political, it's not meta-political, it's a product of politics, and therefore it can be changed through politics. I can't think of anything more dangerous than somehow contributing to this myth of the unchangeable, unassailable, unknowable Constitution.

KW: This still leaves us with the question of how we go about re- constitutionalizing U.S. politics. Do we form citizens' committees, publish books and articles and pamphlets? Do we start a third party or join an existing third party? What's the means by which these kinds of big questions about the Constitution can be raised?

DL: Well, we have an organized labor movement, a working-class movement. In other countries, organized labor would have taken a more active role in a crisis like this. Organized labor would have seen its role as a political role, one of representing and protecting the interests of the working class. And at some point, the unions must face the fact that protecting democratic interests means fighting for a more coherent and modern definition of democracy. It means opposing the Electoral College, which, as we've seen, is a complete affront to any notion of one person/one vote. And if the fact is that the Electoral College is unchangeable under the existing constitutional mechanisms, then it's going to force the organized labor movement to essentially challenge it directly and frontally. This is a time for the labor movement to fight for a new concept of law in this country.

DL: What does that word "handle" mean? The British constitution survived unchanged any number of crises in the 18th century. It could endure, it could "handle," it could absorb these shocks, but whether it does so to the satisfaction of working Americans is another question. Of course America has endured. It's a major economic power. But looking back over the history of the American republic, in the 19th century we saw one of the most horrendous military episodes, the Civil War, we saw Pax Britannica, we saw genocidal policies toward Native Americans, we saw slavery, which not only persisted in this country a full generation longer than it did in the British West Indies, but also was resolved in an extremely unsatisfactory manner. As everyone knows, ex-slaves were pushed down into a kind of serfdom that in many ways is even worse than the original slavery that persisted until the 1960s, right into the post-war era. And, of course, we also know that blacks to this day are grievously mistreated, denied their rights. We've seen a whole resurgence of the old Jim Crow policies, especially in the drug war and capital punishment. So yes, it's possible the Constitution will endure. The Constitution of the Venetian republic endured for a thousand years, but by the end it was corrupt, rotten, and sclerotic. So the American Constitution could endure as well, but it will endure to the increasing detriment of the working people who live under it.

KW: But some progressives would say that at least with this Constitution you have the First Amendment, freedom of speech, freedom of assembly, separation of church and state, which has been blurred in recent years, but at least the Constitution does provide some room for progressive views, and for autonomy from an oppressive state.

DL: But what's the point of a First Amendment if no one has an opportunity to translate progressive views into reasonable, realistic political action? It's a completely immovable political structure. It's a perfect prison, one in which you're able to say whatever you want to say, to speak your mind fully, and full knowledge that whatever words you utter will have no political effect whatsoever. So I think that progressives who take this line are pursuing the most defeatist strategy imaginable.

KW: Is part of the argument over the Constitution an argument about different forms of identity? The Constitution encourages Americans to see themselves as members of a particular state, and what's implicit in your argument is that city- dwellers are penalized within the framework of the Constitution while rural interests are favored. Is part of your thinking that Americans who live within the most populous states and regions should begin to see ourselves as urban residents, as city people?

DL: Yes, that is part of my viewpoint. I think the Constitution has to be seen as an anti-urban document, on any number of grounds. First of all, in the most elementary, mechanical way, it exaggerates the clout in the Electoral College and in Congress of the small, underpopulated, mostly Western states. Of the ten smallest states, only two, Rhode Island and Delaware, are urban to any significant degree, so in that very simple, mechanistic way it essentially strengthens rural interests over urban ones. But even more important, the Constitution reflected the agrarian ideas of the great majority of the Founders who were afraid of things like capitalism and urbanization and who wanted to create an essentially agrarian kind of democracy, one which would be slow-moving, deliberative and conservative. This is the essence of the Jeffersonian theory of the republican polity. So the whole theory of checks and balances, of a tripartite government, essentially reflects an agrarian theory of republican politics. An urban theory of democratic politics is one that is by definition majoritarian, it's fast-moving, it's excitable, it's dynamic, as opposed --

KW: -- And accountable --

DL: And accountable, of course. As opposed to the static, slow-moving, conservative rhythms of the Jeffersonian polity. In a fundamental way, this is an anti- urban document that is against the interests of the urban majority in this country. There's a direct correlation between the constitutional structure of the United States and its social structure, the fact that its cities are among the worst in the world, that it is incapable of putting together a coherent urban policy, that its urban residents are so maltreated and are viewed as second-class citizens, etc.

DL: The problem, I think, with green ideology, the trouble with American democracy, is it tries to separate democracy from popular sovereignty. There's no coherent concept of popular sovereignty in the U.S. constitutional system. I think it was Blackstone in the 1760s who defined sovereignty as supreme, irrepressible, absolute authority, and popular sovereignty implies a Jacobin concept of the demos as not the subject of law but the maker of laws, a force which exerts control over the whole of society. Any attempt to change American politics outside the constitutional framework means the creation ex nihilo of a sovereign force to counter this non- sovereign or anti-sovereign political framework, in which the closest thing to a sovereign force is an abstract body of law. Green ideology views sovereignty in Foucaultian terms as essentially oppressive and tyrannical, in a way that's not too dissimilar to the Jeffersonian view. Any kind of Jacobin/Marxist tradition would see sovereignty as, number one, unlimitable, and number two, would believe that liberty could only be achieved through popular sovereignty, not in opposition to popular sovereignty. Freedom is only achieved as society democratizes itself and creates a democratic structure that incorporates these values. Such a structure implies a heightened sense of popular sovereignty, not a diminished sense of popular sovereignty.

KW: Isn't there a danger in going too far in the opposite direction, in a majoritarian direction that doesn't allow for any protection of political minorities?

DL: Of course there's a danger -- there's always a danger -- but there's also a hope as well. I believe that the creation of a truly democratic society will of course lead to the creation of a political structure that structures debate and politics in such a way that the rights of democratic minorities are fully respected by all sides. But as I said, this kind of structure can only be created through a triumph of popular sovereignty, not through the prevention of popular sovereignty.

KW: So what's a constitution for, if not to mitigate the impact of majority will?

DL: A constitution is a mechanism by which a sovereign people structure their political environment, by which they determine what kind of society they want to have. They create the mechanisms with which to achieve these goals, and they make clear their aspirations and their principles. But a constitution cannot be over a people, it cannot be a force that acts upon democracy. It must be a product of democracy, rather, a mechanism by which democracy organizes itself.

KW: So would it be correct to say that what you would like is a second American republic.

DL: Oh, absolutely. And I would also emphasize that in the struggle for a second American republic, political democratization cannot be separated from democratizing society.

DL: The single most salient aspect is the huge tear that the crisis opened in the constitutional fabric. Senator Bob Torricelli, the New Jersey Democrat whose ruthless fundraising represents all that is most corrupt about American politics, was quoted by The New York Times as saying that American government and the Constitution "are more fragile than we might have imagined." Precisely. Although both sides are now determined to get back to business as usual, the underlying weakness of the system has been exposed.

KW: Is the constitutional crisis now over? Obviously there will be partisan fights in Washington, and legal challenges to different aspects of the electoral process. But is there any reason to believe that something fundamental has changed in U.S. politics?

DL: Nothing has changed, and yet everything has changed. The atmosphere on Capitol Hill is angrier than anyone can remember, but also more nervous. Every crisis -- Iran-Contra, impeachment, and now this -- leaves the system a little weaker than it was before. Hence, people can't help worrying about the next crisis down the road.

KW: How would you characterize the response of progressives and the left to the constitutional implications of this election? Have you come across anything that has made you especially hopeful or enraged?

DL: On the far left, perhaps the most amusing comment came from the Spartacists who, in the November 17th Workers Vanguard, described the electoral breakdown as "at this point more like a tempest in a teapot than a political crisis for the bourgeoisie." Some teapot! In the rad-lib portion of the spectrum, the most interesting thing was the complete absence of Ralph Nader and the Greens. Nader had included a call for electoral reforms in his campaign platform, yet when the crunch came he was nowhere to be seen. I'm not aware of a single public statement on his part concerning the Electoral College or the incompetence of the Florida election officials. Good lawyer that he is, Nader obviously feels he has no "standing" in the dispute between Bush and Gore. He maintained a low profile. Evidently, he views things like political campaigns through strictly bourgeois lenses as something that ceases the moment an election is held. Rather than viewing a campaign as a year-round struggle, he obviously sees it as something that terminates on Election Day, just as the Founders said it should more than two centuries ago. The Nation's call for abolishing the Electoral College in its December 25th issue was commendable, but what are we to make of the editors' description of the College as "the most undemocratic institution of all"? Have they forgotten the U.S. Senate? If the Electoral College gives small-state voters three times as much clout in presidential elections as those in large states like New York or California, the principle of equal state representation gives them as much sixty times as much clout in the upper house. The problems with the system go much deeper than those good liberals are willing to admit.

Contents of No. 30

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