The United States: It’s Time for a Divorce
I started working on this essay during the weeks after the 2020 election. I put it aside after Mr. Trump incited a mob of insurrectionists to storm the Capitol on 6 January, as my hatred for anyone who voted for Trump was too great for me to think rationally. Now that Trump has been acquitted by the very Senators who could have been killed in the abortive coup he sparked, my hatred has been replaced by utter contempt. Contempt. That’s where we are in the United States right now. Webster’s describes contempt as:
The feeling that a person or a thing is beneath consideration, worthless, or deserving scorn
And yes, the contempt is on both sides. Conservatives, “patriots”, evangelical Christians, and QAnon followers have contempt for secularists, people who are pro-choice, and people who believe in science. And yes, I will freely admit that the contempt flows both ways. Lord knows I wouldn’t give Trump or his followers the sweat off my balls if they were dying of thirst, and I’m sure they feel the same way about me.
I’ve seen the marriages of several friends come apart due to mutual contempt the spouses have for each other, which prompted me to wonder this: if people in the United States have mutual contempt for each other, why are we still together? What do we have in common that holds us together in a union?
Apparently I’m not alone in this sentiment. On 11 December, 2020, the Supreme Court rejected Texas’ attempt to invalidate the election results from four states. In response to this rejection Allen West, chairman of the Texas Republican Party, stated:
“Perhaps law-abiding states should bond together and form a Union of states that will abide by the Constitution.”
West, who is Black, apparently has a fetish for a document that deemed Black people to be three-fifths of a person for the purposes of the Census, prompting me to at first think, “nigga, please.” But, in the two months since he made this statement, my feelings about disunion have gone from it can’t be done to it must be done. The 6 January insurrection/abortive coup was a dress rehearsal for that determined minority in the United States who simply won’t accept the fact that they are the minority, not the majority. Sooner or later, and probably sooner given what we’ve seen with Trump’s acquittal, this minority will either overthrow the government, or make it so that it’s impossible for the government to function.
Come to think of it, we’re already at the point of an inability to function, and that inability was baked into the very Constitution that Allen West and other far right politicians fetishize so much. The more I thought about disunion and the desire to be free of West and people like him, the more I realized that this union was doomed from the start because of these four words: Tyranny of the minority.
I. Tyranny of the Minority
I’ve modified James Madison’s phrase “tyranny of the majority” from Federalist #51 to make my case for the break up of the United States. When Madison wrote Federalist #51, he was arguing in favor of the Constitution, which had just been sent out to the states for ratification. One of the main concerns of the founders was that democracy had only worked in small city states, and that a democracy in a country as large as the United States was doomed to failure. John Adams gloomily wrote that, “there’s never a democracy that did not commit suicide.” Madison was making the case that democracy could work in the United States because the series of checks and balances built into the new government would prevent tyranny arising from either the majority or the minority. He cited how members of the House were elected directly, whereas Senators were chosen by state legislatures, and the president was chosen by electors. This elegant system of checks and balances would prevent the tyranny of the majority running roughshod over the minority, thus ensuring that democracy would survive and thrive in a large and diverse country.
But Madison either couldn’t or wouldn’t see that the very checks and balances found to be so elegant would end up empowering the minority to hold the majority hostage. Here are some examples of how the tyranny of the minority has come to make the United States ungovernable.
Tyranny of the Minority-The Size of the House of Representatives
Article I of the Constitution mandates that a census be taken every ten years so that seats in the House can be apportioned by population. The largest increase in the size of House occurred after the 1870 census, when newly freed slaves were counted as full persons for the very first time. The House was expanded by 50 members to account for this new population figure, and the House kept expanding until it reached the size of 433 members under the provisions of the Apportionment Act of 1911, which was amended in 1912 to account for the admission of New Mexico and Arizona to the Union, thus increasing the size of the House to 435, since the Constitution also mandates that each state must have at least one representative.
When the census results of 1920 were released in 1921, the figures on the population of the country should have mandated an increase in the size of the House from 435 to 483; however, this increase would have created a “problem” for the new Republican majority, which was swept into office as part of Warren G. Harding’s landslide victory in the 1920 presidential election. The census results revealed that for the first time more than half of the country’s population lived in urban areas. Democrats were stronger in urban areas, and Republicans, who tended to represent pockets in large cities like New York and Chicago, and rural areas outside of the South, realized that an increase in the size of the House could weaken their strength in the 1922 midterm elections. By 1929, with no reapportionment having taken place since 1911, there was vast representational inequity, as measured by the average size of a Congressional district. By 1929 some states had districts twice as large as others due to population growth and demographic shifts.
In 1929, with Republicans in control of the House, Senate, and the White House, the Reapportionment Act of 1929 was passed. This act permanently capped the size of the House at 435 members, and a permanent method of apportioning this constant number of 435 was set. When a census takes place, the 435 seats are allocated to account for states that gain people, which means that for every state that gains a seat, a state loses a seat. As of May 2016 there is approximately one representative for every 720,000 people in the country, and this paucity of representation goes back to 1929 when a Republican majority realized that the best way to keep their majority would be to cap the size of the House, regardless of how many people were living in the country. When the 2020 census results are released, we will once again play the game of “I win, you lose”, with states that have a gain in population gaining a seat/seats, while states that have seen a reduction in their population losing seats. The country’s population has gone from 106,021,537 in 1920 to 308,745,538 in 2010, but the size of the House, which is supposed to represent all the people, has stayed frozen at 435 members.
Tyranny of the Minority-The Senate Filibuster
You won’t find the word filibuster anywhere in the Constitution, because it’s not a constitutional power given to the Senate. The Constitution mandates that a majority of each chamber’s members must be present to conduct business, and it allows for each chamber to set procedural rules under Article I-”Each House may determine the rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” The only super-majorities required under the Constitution are 2/3rds of the Senate to ratify treaties and to convict on an impeachment charge, and 2/3rds of both chambers to approve of a Constitutional amendment, to override a presidential veto, and to declare that President is unable to carry out his duties, per the 25th Amendment.
Prior to 1917, there was no way to halt a filibuster, but 1917 was the year the United States was preparing to enter World War I. President Wilson, who had seen his plans to arm merchant ships shot down by 12 anti-war Senators, urged the Senate to adopt a cloture motion that would cut off debate and allow a measure to proceed to a vote. The Senate agreed, and they set the cloture number at 2/3rds of the Senators voting. That number stayed in place until 1949, when the Senate changed the rules so that 2/3rds of all Senators had to agree to cut off debate. Ten years later Senate Majority Leader Lyndon Johnson got the filibuster rule changed again so that it was back to 2/3rds of Senators voting. This rule turned out to be fortuitous when Johnson became President. The Civil Rights Bill of 1964 was filibustered for 75 hours by a relay of Southern Democratic Senators, but a cloture motion cut off this stunt, allowing the landmark legislation to proceed to a vote.
Up until 1970 a filibuster meant that a Senator or team of Senators had to hold the floor and talk, with Southern segregationists usually filling the time by reading recipes for pot liquor or portions of their state constitutions. A filibuster also meant that all Senate business stopped, so nothing, not even vital spending bills could advance until the Senator or Senators yielded the floor. And how did they agree to yield? By having the legislation they wanted stopped pulled from the floor. One man, or a group of men, could halt the business of the US government.
In 1970 Senator Majority Leader Mike Mansfield(D-Montana) decided that it was time to “reform” the filibuster. Working with Majority Whip Robert Byrd of West Virginia, who had contributed 14 hours to the 1964 filibuster against the Civil Rights Bill, the two track system and 60 vote rule were instituted. This allowed Senators to filibuster, but it didn’t stop all other legislation, thus allowing other Senate business to proceed. The number of Senators required to cut off debate was reduced from 2/3rds to 60.
Mansfield should have read Federalist #22 before he instituted this reform, because this brilliant essay by Alexander Hamilton vividly illustrates what happens when you let a minority faction tyrannize the majority:
“To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser. … The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.
The 1970 filibuster “reform” simply made it easier for Senators to block legislation. Instead of having to physically hold the floor and talk, now a Senator or group of Senators just had to threaten a filibuster. Before the institution of the 1970 rule filibusters were rare, but after the implementation of the rule, filibusters grew like mushrooms after a hard rain. Filibusters for cabinet and judicial nominations have been eliminated, but all other legislation can easily be held hostage by a determined minority of Senators who are hell bent on thwarting the will of of the majority.
Tyranny of the Minority-The Electoral College
Every time I’ve tried to explain this abortion to friends from other countries, I’m always met with a blank stare, followed by the friend taking a long pull of whatever alcoholic beverage they happen to be drinking. I don’t know what the founders were smoking and/or drinking at the Constitutional Convention in 1787, but it must have been some really good shit in order for them to come up with the Electoral College.
The theory behind the Electoral College was simple in 1787: people can’t be trusted to make intelligent decisions when it comes to choosing the President, so states should choose electors, who in turn will vote for the president. Originally the system was set up so that electors voted for two people, with the winner becoming President, and the runner up becoming Vice President. After all, the United States isn’t going to be bothered by those pesky political parties like the Whigs and the Tories in the United Kingdom! Everyone in the new nation believes in the same things when it comes to running a government (insert derisive snort here).
That concept kind of worked as long as George Washington was president, but when he wisely decided not to run for a third term, all of the political strife and factionalism that had been dormant during his presidency came storming out of Hell. Thomas Jefferson, Washington’s Secretary of State, had spent his time in office conspiring to undermine the Federalist party of Alexander Hamilton and John Adams, and he, along with James Madison, James Monroe, Aaron Burr, and others, formed the Democratic-Republican Party. Jefferson sought the presidency in 1796, coming in second to Federalist John Adams, marking the only time in American history that a President and Vice President came from different parties.
By 1800 political parties were firmly entrenched in the American body politic, and Thomas Jefferson and his Democratic-Republican allies were determined to destroy John Adams and his Federalist party. Since Jefferson was despised in the Electoral College vote-rich states of New York, New Jersey, and Pennsylvania, he worked out a deal with New York Senator Aaron Burr to run together. Burr, who was from New York, would easily win his home state, along with the neighboring states of Pennsylvania and perhaps New Jersey. Jefferson would clean up in the South, leaving New England to the Federalist ticket of John Adams and Charles Pinckney.
Under the Constitution as it existed in 1800, electors voted for two people, but they didn’t indicate which person they wanted for President and Vice President. The Democratic-Republican party was supposed to ensure that the electors gave Thomas Jefferson one more vote than Aaron Burr, thus making Jefferson President and Burr Vice President.
If Jefferson hadn’t been so opposed to the Navy, he might have taken to heart the old Navy adage: “there’s always some son of a bitch who doesn’t get the word.” That’s precisely what happened with the electors in 1800: they gave Jefferson and Burr 73 votes each, and under the provisions of the Constitution, a tied presidential election is settled by the House of Representatives, with each state’s delegation voting as one bloc. With sixteen states in the Union as of 1801, a majority of 9 was needed for either Burr or Jefferson to win. And then another glitch kicked in: it was the outgoing not the incoming Congress that would be voting for the winner of the Presidential election, since under the provisions of the Constitution, the new Congress wouldn’t convene until December of 1801. The outgoing Congress had a Federalist majority, and they used their majority to truly fuck over the Democratic-Republican ticket, casting 35 ballots between 11-17 February, with tie votes occurring on each ballot.
Burr should have stepped aside, but as we’ve seen in 2021, ambition unmoors the principles of nearly every politician, especially when ambition will lead to the White House. The frenzied letter writing and personal campaigning of Alexander Hamilton tilted the House contest to Jefferson, making Jefferson president on the 36th ballot, with 9 states to Burr’s 7.
One would think that after a debacle like that election that the Electoral College would have discarded like a used condom. But oh no, this is the United States! We like to double down on our stupid mistakes, so instead of chucking this piece of shit system, we decided to make it “better” with the 12th Amendment. Ratified in 1804, the 12th mandates that electors are to mark on their ballots which person they are choosing for President, and which person they are choosing for Vice President. The 12th also mandates that the President and Vice President cannot be residents of the same state, and that if no candidate has a majority of the Electoral College votes, the election is still thrown into the House for resolution, but only the top three candidates can be considered instead of the top five, which was the threshold prior to the ratification of the 12th Amendment.
Problem solved, right? All is well and good in the American body politic? Suckers! Despite trying to use this condom again, there were three times in the 19th century, and two times in the 21st century when the Electoral College failed to reflect the will of the majority, thus empowering the minority to exercise its tyranny:
1824-John Quincy Adams, Henry Clay, Andrew Jackson, and William Crawford all sought the presidency as members of the Democratic-Republican Party, with each man representing a different section of the country, and each hoping to get enough votes from other sections so that an outright majority could be achieved in the Electoral College. With 261 Electoral College votes on the table, the winning candidate needed 131 to avoid a repeat of the 1800 election, which was thrown into the House. Andrew Jackson had 99 Electoral College votes and a clear majority of the popular vote, but since he hadn’t cleared the 131 Electoral College vote total, and neither John Quincy Adams (84 Electoral College votes), or William Crawford (41 Electoral College votes), were willing to drop out of the race, the election was thrown into the House for resolution. Since Clay didn’t place in the top three, he was eliminated from the House election in 1825. But, Clay was Speaker of the House, and he despised Jackson, saying of Old Hickory: “I cannot believe that killing 2,500 Englishmen at New Orleans qualifies for the various, difficult, and complicated duties of the Chief Magistracy.” Clay used his power and influence as Speaker to motivate House delegations in states where he had won a plurality to vote for Adams, and Adams won on the first ballot.
Jackson was stunned and furious, as he figured (rightly I might add, even though I view Jackson as a genocidal maniac who would have murdered his own mother if she looked at him wrong) that since he had the most popular and Electoral College votes, that he would win the House contest. His fury became a blinding rage when President Adams nominated Henry Clay to be his Secretary of State, an office which had served as the springboard to the presidency for Thomas Jefferson, James Madison, James Monroe, and now John Quincy Adams. Jackson and his followers screamed “corrupt bargain” and “fraud” (sound familiar?), and Jackson got his revenge in 1828, when he won an outright majority in both the Electoral College and popular vote.
1876-Republican Rutherford B. Hayes ran against Democrat Samuel Tilden. Reconstruction was still ongoing in the former Confederate states, where voter intimidation against Black and White Republicans was rampant. Three states, Louisiana, South Carolina, and Florida (Florida fucks up every contested election) sent dual slates of Electors to Congress. With 369 Electoral votes on the table, a majority of 185 was needed for victory, with 8 Electoral votes in Louisiana, 4 in Florida, 7 in South Carolina, and 1 in Oregon being in dispute, Tilden had 184 Electoral votes to Hayes’s 165, with 20 in dispute. And what was Oregon’s problem? Turns out that one its Electors was an elected or appointed official, which is in violation of the standards set for Electors in the Constitution.
Democrat Tilden had won 4,233,546 votes, or 50.9%, a clear majority of the popular vote. Republican Hayes had won 4,034,311, or 47.9% of the popular vote. With neither having a clear majority in the Electoral College, the election, per the 12th Amendment, should have automatically been thrown into the House, but here’s where it gets funky.
The Constitution mandates that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the Electoral certificates, and the votes shall then be counted.” Some Republicans interpreted this passage to mean that the president of the Senate actually counted the votes, with the members of the House and Senate seated as mere spectators. Democrats said, “oh, hell no”, and that Congress should follow the practice observed since the Civil War ended in 1865, meaning that no vote objected to should be counted unless both Houses of Congress concurred. This presented an acute dilemma, since the Democrats had a majority in the House, and Republicans had a majority in the Senate. Oh, and there was one other wrinkle. Normally the sitting Vice President would be President of the Senate, but Vice President Henry Wilson had died on 22 November, 1875, leaving Republican Senator Thomas White Ferry of Michigan, president pro tempre, as President of the Senate.
So a political deadlock and constitutional crisis was the order of the day, and in desperation Congress passed a law on 29 January, 1877 that formed a 15-member Electoral Commission to settle the Electoral College dispute. Note that the dispute wasn’t about the popular vote, which was clearly in favor of Tilden. No, this commission was going to settle the dispute about competing slates of Electoral College votes. 5 members of the Commission came from the House, 5 from the Senate, and 5 from the Supreme Court.
Had Andrew Jackson been alive, he could have witnessed a true “corrupt bargain” taking place . The corrupt bargain was this: Democrats would accept Hayes as President, provided that Federal troops be withdrawn from South Carolina and Louisiana, which were the last two former Confederate states still under occupation. This would allow those states to regain their full sovereignty, and to be able to legally terrorize the Blacks who resided there.
The Commission heard testimony from Florida, South Carolina, and Louisiana. South Carolina’s vote totals reeked, as 101 percent of all eligible voters had cast ballots, but with a series of 8-7 votes, the Commission awarded the disputed Electoral College votes in these three states to Republican Rutherford (or Rutherfraud as he was sneeringly referred to by some). The commission adjourned on 2 March, 1877, one day before inauguration day, and Hayes took the oath of office privately on 3 March, 1877, since it was a Sunday, with a public ceremony taking place the next day.
With Florida, South Carolina, and Louisiana each submitting dual slates of electors, one would think that this would be the opportune time to abolish the Electoral College once and for all. But Congress being Congress thought, “let me see if we can get a few more fucks out of this used up condom”, and in 1887 the Electoral Count Act was passed. This Act aimed to minimize the role of Congress in election disputes, placing the primary responsibility to resolve such disputes upon the states, and setting procedures and deadlines for the states to follow in resolving disputes, certifying results, and sending the results to Congress. If a state follows the deadlines and guidelines set by Congress, and a state’s governor properly submits one set of electoral votes, that Act states that the “final” determination “shall govern.” The Act limits Congress to take action only in exceptional cases, such as if a governor has certified two different slates of Electors, or if a state fails to certify its results under the Act’s procedures. Congress may also reject votes under the Act for other specific defects, such as an administrative error, an elector or candidate being ineligible for office, of if the Electoral College votes were not regularly given.
Allegedly the 1887 Electoral Count Act removed any ambiguity about the role of the Vice President in certifying the Electoral College votes, which is to open the Electoral certificates before the joint session of Congress in his capacity as President of the Senate. Under the Act both houses of Congress can overrule the Vice President’s decision to include or exclude a state’s Electoral College tally, but if the chambers disagree, the state governor’s certification, not the Vice President, breaks the tie.
The Act was subjected to withering criticism as soon as it was passed for its ambiguous language and guidelines. Legal scholars noted that the 1887 Act may be binding only on the Congress that passed it, not subsequent Congresses, since Article I of the Constitution gives Congress the sole power to set its own procedural rules, making it entirely possible that simple majorities of both the House and Senate could set entirely new rules for the joint Electoral College session.
1888-Democratic incumbent President Grover Cleveland squares off against Republican Benjamin Harrison. Cleveland loses New York, his home state (30 Electoral College votes) and Indiana, home state of Harrison (15 Electoral College votes). The loss of these two states gives him 168 Electoral College votes to Harrison’s 233, with 201 being the margin of victory out of the 401 Electoral College votes cast. Cleveland’s popular vote total was 90,596 more than Harrison’s, but as we’ve seen in the previous examples, the Electoral College has a simple message for what the majority wants:
FUCK YOU
While there were no shenanigans associated with the 1888 election, I cite this contest because it came up in my high school civics class in 1977 (I was part of that last generation of Catholic high school students who had mandatory civics and Latin classes). When Mr. Cummings, our teacher, went over this election, it prompted a spirited discussion. This was a mere 3 years after President Nixon had been forced to resign in disgrace, and my classmates and I were about to turn 18 and vote in our first election. Mr. Cummings assured us that the days of a President winning the popular vote and still losing the election because of the Electoral College vote were over, thanks to Constitutional amendments and laws that allowed women and minorities to vote, thus greatly expanding the electorate beyond White men with property or the ability to pay a poll tax. Poor Mr. Cummings. He truly believed in the American system of elections. I don’t know if he’s still alive, but I would have liked to have talked with him about the next two elections where the majority was once again told to go fuck itself.
2000-Hanging chads. Dimpled chads. Recounts. As the sun rose on the day after Americans had voted in 2000, Democrat Vice President Al Gore had received 543,895 more popular votes than Republican George Bush, and he was also leading him in the Electoral College vote with 250 to Bush’s 246. Out of the 538 Electoral College votes available, 270 were needed to win, and the margin of victory lay with Florida’s 25 Electoral College votes. When the initial tally of that state’s vote was completed, Bush had less than a 2,000 vote margin over Gore. Under Florida law this slim margin automatically triggered a statewide machine recount, which shrank Bush’s margin to 300 over Gore.
Gore then requested a hand recount in Broward, Miami-Dade, Palm Beach, and Volusia counties. All of these counties skewed Democratic. On 26 November, mindful of the 12 December deadline for states to tally their Electoral College votes, Florida Secretary of State Katherine Harris (who was also co-chairman of the Florida Bush for President campaign), formally certified Bush’s win over Gore, with a margin of 537 popular votes. This certification prompted Gore to formally contest the certification in Florida state court, citing the undercounting of approximately 70,000 votes in the initial statewide machine recount. Gore wanted a hand count of these 70,000 ballots, which a lower state court denied, but which the Florida State Supreme Court allowed. Bush then countersued to the US Supreme Court, claiming that the recount of these 70,000 ballots would deny his voters the equal protection of citizenship rights under the 14th Amendment. On 12 December, 2000 the Supreme Court of the United States ruled in favor of Bush, halting all recounts in Florida, and handing that state’s 25 Electoral College votes, and the Presidency, to Bush.
That an election in which over 101 million American voters should have their choice decided by Florida’s insane and inconsistent voting procedures should have junked the Electoral College once and for all. But oh no, Congress rushed the Help America Vote Act through both chambers in 2002, dumping billions of Federal dollars into states in order to help them:
- replace punchcard and lever based voting systems (we were still using the old lever based machines in Maryland in 2000)
- created the Election Assistance Commission to assist in the administration of federal elections
- mandated that all states and localities upgrade many aspects of their election procedures, including their voting machines, registration procedures , and poll worker training. The specifics of implementation have been left up to each state, allowing for varying interpretations of the federal law
Note the last sentence in the last bullet. Leave it up to the states. I like to compare the Help America Vote Act to the 17 year old lad when his girlfriend tells him that she’s late. He sweats bullets for a few days until she tells him that she got her period, so he resolves to pull out more quickly from now on.
2016-This is the granddaddy of all Electoral College/popular vote fuck ups. Until this election the biggest “loser” was Al Gore, who had 543,895 more votes than George W. Bush. In the 2016 election Democrat Hillary Clinton had a popular vote margin of…wait for it…2,868,686 votes over Republican Donald Trump. Nearly 3 million Americans didn’t vote for Trump, but he won anyway. There is no other democracy in the world where that is possible, and Trump’s “victory” would come back to haunt the United States, perhaps for decades to come.
Oh, and while I’m on the subject of the Electoral College, let me throw in this little wrinkle. Under the 23rd Amendment the District of Columbia is given three Electoral College votes as if it were a state. What if the election of 2000 had been thrown into the House, where each state votes as a bloc? Since DC doesn’t have a voting representative in the House, how would those three votes have been cast? Shortly after that election, I wrote an email to a constitutional law professor at Georgetown Law School, asking this question. He wrote me back, saying, “I have absolutely no idea how that issue would be resolved.” Ain’t that some shit.
Tyranny of the Minority-Amending the Constitution
It takes 2/3rds of both houses to send a Constitutional amendment out to the states for ratification, and it takes 3/4s of all states currently in the Union to approve an amendment before it is ratified and becomes part of the Constitution. With 50 states currently in the Union, it takes 38 to ratify an amendment, but 13 states could band together to block what a majority of the country wants. That number 13 is rather ironic, since it was 13 colonies that made up the original country that sent delegates to Philadelphia to create the United States.
In the ten year period between 1961 and 1971 three amendments were ratified to expand the access to voting rights: the 23rd (giving the residents of the District of Columbia the right to vote in Presidential elections), 24th (prohibiting poll taxes), and the 26th (lowering the age to vote from 21 to 18).
But as strides on voting and citizenship continued to progress, the tyranny of the minority regrouped and waited for the right moment to strike. That moment came after the tumultuous presidential campaign of 1968, which was the year that everything went wrong in the United States. From the Tet Offensive that blew up the lie that there “was light at the end of the tunnel” in Vietnam, the assassination of Martin Luther King on 4 April, followed in six weeks with the assassination of Senator Robert Kennedy, culminating in the great riot at the Democratic Convention in Chicago, the United States was anything but united in that year from Hell.
Three men sought the presidency in 1968: Democratic incumbent Vice President Hubert Humphrey, Republican Richard Nixon, and American Independent Party George Wallace. Wallace, who had been governor of Alabama, had one goal in mind with his candidacy: deny Humprhey and Nixon the 270 Electoral College votes needed to win, thus throwing the election into the House, making him the kingmaker. Had his plan worked, Wallace would have dropped out and supported the candidate who promised to do what he wanted more than anything: end Federal enforcement of civil rights laws and desegregation of public schools.
Wallace carried the states of Alabama, Arkansas, Georgia, Louisiana, and Mississippi, giving him 46 Electoral College votes. Nixon won a plurality of the popular vote, but he won a clear majority in the Electoral College, carrying 32 states for 301 votes. Humphrey won 13 states and the District of Columbia, giving him 191 Electoral College votes.
Once the tumult of the calamitous year of 1968 settled down, a study of the election’s metadata provided some alarming information. If Wallace had received 50,000 more votes in Tennessee, and Humphrey gotten 91,000 more votes in Ohio, Wallace’s plan of throwing the election into the House would have prevailed, and the country would have been plunged into chaos while it was ensnared in Vietnam and still reeling from the assassinations of Dr. King and Senator Kennedy. The analysis of the election’s voting data convinced Congress that something had to be done to ensure that this never happened again.
Indiana Democrat Senator Birch Bayh was chairman of the Senate subcommittee on Constitutional amendments. Bayh, who was elected in 1962, was given this committee assignment because he was a freshman Senator, and this subcommittee wasn’t considered to be very important in the day to day business of the Senate. But Bayh was far smarter than his fellow Senators realized, and he had an uncanny ability to realize when the moment was right for making the Constitution reflect what the majority of the country wanted. Less than a year after he assumed chairmanship of this “sleepy” subcommittee, President Kennedy was assassinated. Bayh realized that until Johnson and his running mate were inaugurated in January of 1965, the country didn’t have a Vice President, so he crafted the 25th Amendment, which states that the President must nominate, and the Congress must confirm, a person to fill the office of the Vice Presidency should it become vacant. As the Vietnam War grew in ferocity, Bayh realized that 17 year old men were being drafted, but since the voting age was 21, they had no say in electing those who were ordering them into combat, so he drafted the 26th Amendment, lowering the voting age to 18. He also wrote the Equal Rights Amendment.
After the 1968 election, Bayh studied reforming the Electoral College. In 1966 he had introduced legislation to replace it with a direct popular vote, but that bill died. The 1968 election got everyone’s attention, and now his 1966 bill had broad bipartisan support. The bill also had popular support, with a Gallup poll showing that 80 percent supported direct election of the President, up 22 percent from 1966, when Bayh first introduced his bill to abolish the Electoral College.
In the Senate debate on abolishing the Electoral College, Bayh accurately noted that the Electoral College and its winner take all system made one person’s vote in a swing state matter more than other votes elsewhere, and that all votes counting equally would encourage more people to vote. “We are at long last arriving at the place and time in our history where meaning has been brought to the preamble of our Constitution–”We the People of the United States”, he said in his closing argument for his proposed amendment to abolish the Electoral College.
Newly elected President Nixon threw his support behind the amendment, and it sailed through the House in September of 1969 with a vote of 339 to 70. But when it reached the Senate, the tyranny of the minority arose to strangle it. Southern Senators, led by South Carolina’s Strom Thurmond, realized that the current system gave tremendous power to the White voters in their states, since the winner take all system canceled out the Black vote as long as Southern Blacks remained in the minority. Thurmond teamed up with other Southern Senators to filibuster the amendment so that it never got a vote in that chamber, and thus never got sent out to the states, despite its overwhelming support in the House and among the general population.
Thurmond knew what he was doing. In 1948 he ran for President on the Dixiecrat ticket by saying, “there’s not enough troops in the Federal Army to make us take the nigger race into our schools, our pools, and our churches.” He carried South Carolina, Alabama, Mississippi, and Louisiana for a 39 Electoral College vote tally, and like Wallace twenty years later, he was hoping to throw the election into the House, where he could be kingmaker.
The killing of an amendment to abolish the Electoral College was a one two punch of the tyranny of the minority in action: the Senate filibuster used to block a Constitutional amendment that had passed the House with an overwhelming majority, and preserving the Electoral College so that a small group of states could hold absolute dominion over the majority of the country. As anyone who votes in American presidential elections knows, presidential candidates focus their time and money on the supposed “swing” states of Florida, Ohio, Pennsylvania, and Wisconsin, with some attention paid to Michigan and Minnesota when a bevy of polls indicate that one or both of those states could be “in play”. Hopefully this last election has convinced the Democratic party to abandon Florida and Ohio, which should change its name to North Mississippi, but I digress.
Since the will of the majority is thwarted by impermeable barriers, the United States is not a functional democracy. The pandemic of 2020, followed by the abortive coup incited by Donald Trump actually revealed that the United States is a failed state, but that’s a topic for another essay. If minority rule is going to continue to be the order of the day, it’s time for the United States to break apart into individual nations.
The abortive coup of 6 January 2021 was the tyranny of the minority brought to its inevitable and explosive violence zenith by a man who had lost the popular vote in two consecutive Presidential elections. Donald Trump consistently lied that the 2020 election had been “stolen” from him, and his lies had a firm foundation in the minds of the tyranny of the minority, who simply couldn’t accept the fact that while they had a voice, the larger voice of the majority had prevailed to the tune of 306 Electoral College votes/81,281,891 popular votes for Democrat Joseph Biden, versus 232 Electoral College votes/74,223,254 popular votes for Republican incumbent Donald Trump. Five people were killed as the insurrectionist mob stormed the Capitol, convinced that they could force Vice President Pence to change the outcome of the election by refusing to certify the Electoral College votes of states that Biden had “stolen” from Trump.
II. The Divorce-Why the Civil War Isn’t Applicable To 2021
Whenever I talk to friends about breaking up the union, they always say, “the Civil War proved that states can’t leave the Union.” Well, that’s not true. The Civil War proved that states can’t unilaterally leave the Union. When the eleven states that made up the Confederacy seceded, they did so without the consent of the other states and the federal government. Lincoln made the argument against unilateral secession in inaugural address of 4 March, 1861, saying:
Physically speaking, we can not separate. We can not remove our respective sections from each other nor build an impassable wall between them. A husband and wife may be divorced and go out of the presence and beyond the reach of each other, but the different parts of our country can not do this. They can not but remain face to face, and intercourse, either amicable or hostile, must continue between them…This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.
Lincoln’s hopes for reunion were destroyed on 12 April, 1861, when Confederate troops opened fire on Fort Sumter, a federal installation in Charleston. Two days later Lincoln issued a proclamation that declared a state of armed rebellion, called up the militias of those states still in the Union, and the Civil War was underway. For the next four years Lincoln would use all the tools at his command to halt a unilateral secession that placed the remainder of the United States in danger of attack from other nations.
In the 19th century major European powers were always keen to intervene and correct “backward” nations that were either experiencing political instability or teetering on the precipice of financial ruin, especially if said financial ruin threatened the solvency European banks, which liked to loan money to nations without considering the ability of a nation to repay. In 1861 Mexico, which had just concluded a civil war between liberals who wanted to strip the Catholic Church and landed gentry of their power, and conservatives who wanted to keep things the way they had been since the 16th century, suspended payments of interest on foreign debts for a period of two years. As 1861 drew to a close, the governments of France, Spain, and the United Kingdom formed the Tripartite Alliance, with the goal of invading Mexico so that it would be forced to resume payment of its debts. In December of 1861 Spanish troops landed at Veracruz, Mexico, with British and French troops following in January of 1862. The United Kingdom and Spain reached a repayment agreement with Mexico and withdrew their forces in the spring of 1862, but Emperor Napoleon III of France decided that this would be a good time to regain the glory of his uncle, Emperor Napoleon I, so he conquered Mexico and installed a puppet regime under the rule of Austrian Archduke Maximillian.
If Napoleon III had been smarter, he could have pushed beyond Mexico and into the unincorporated territory of the United States, which stretched from Kansas to California. If Napoleon III were a geopolitical genius, he could have justified his invasion of this territory with the simple fact that large parts of this territory had been wrested from Mexico in the Mexican-American War of 1846-1848. Now that a new government was in place in Mexico, Napoleon III and his puppet Mexican regime could say, “all previous treaties are null and void, so we’re taking back what you took from us.” And this would have been the perfect time for European colonial exploitation of the United States, or what was left of it. It’s rather difficult to counter a foreign invasion when you’re tearing yourself apart in a civil war.
Fortunately for President Lincoln, Napoleon III wasn’t very bright, so the invasion of the unincorporated Western territory didn’t materialize, leaving Lincoln free to achieve his goal: the destruction of the Confederacy and the re-unification of the United States. Lincoln had to use force to stop a unilateral secession that put the entire nation at risk of collapse, but the key word is unilateral.
III. Peaceful Disunion-Historical Precedent and How It Could be Achieved in the United States
When we think of breaking a nation apart, we automatically think of civil war, which the world has witnessed countless times over the past two centuries. As soon as I mention breaking the United States apart, friends will begin talking about Bosnia, Sudan, Yemen, and Syria, and how those nations spent years in bloody internecine warfare. The country they don’t mention is Czechoslovakia, which peacefully separated into independent states in 1993.
Czechoslovakia was created out of the wreckage of Austria-Hungary at end of the First World War. Ironically this state of two ethnicities was born at a meeting in Pittsburgh, Pennsylvania. I say ironically because a country with ethnic tensions was born in a country that had torn itself apart over ethnic tensions less than a century ago, but I digress. At the Pittsburgh meeting future Czechoslovak President Tomas Masaryk and other Czech and Slovak representatives signed an agreement to create a common state consisting of two equal nations: Slovaks and Czechs.
As Lenin so cynically noted, “promises, like pie crusts are made to be broken.” Shortly after the signing of the Pittsburgh Agreement, Masaryk and future Czechoslovak president Edvard Benes violated the pact, pushing for greater unity and a single nation. Slovaks felt cheated, and this sense of being wronged would added to the witch’s brew cooked up by Hitler in 1938, when he bullied France and the United Kingdom into allowing Nazi Germany to strip the Sudetenland from Czechoslovakia. In March of 1939 Hitler annexed Bohemia and Moravia from what was left of Czechoslovakia, but before the annexation he played on the resentments the Slovaks had about being subsumed by the Czechs in 1918 to create the First Slovak Republic. This “republic” was nothing more than a satellite state of Nazi Germany with limited sovereignty, but it gave the Slovaks what they wanted: separation from the Czechs.
At the end of World War II, the Soviet Union occupied Czechoslovakia, and it forced the Czechs and Slovaks back together by creating the Third Czechoslovak Republic. This uneasy union existed until the end of the Cold War and the demise of Communism in Czechoslovakia in 1989. With the end of Communism and Soviet domination of Eastern Europe, the old ethnic tensions once again began to bubble up, but unlike Yugoslavia, which resorted to violence and genocide, the Czechs and Slovaks achieved their separation peacefully. On 13 November 1992 the Federal Assembly passed Constitution Act 541, which settled the division of property between the Czechs and Slovaks. On 25 November 1992 Constitution Act 542 was passed, setting the dissolution date for Czechoslovakia on 31 December 1992. On 1 January 1993 two new nations emerged without bloodshed: The Czech Republic and Slovakia. Two nations born out a simple reality: we don’t want to coexist together anymore because we no longer share the same values and goals.
When it comes to the United States, I frequently hear “there’s more that unites us than divides us”, and I view that remark as having the same validity as, “I promise to pull out when I get close.” The only thing that unites us at this point is mutual contempt for one another.
This country was born out of a violent rebellion against the United Kingdom because the people living in North America concluded that they no longer had any shared values or goals with their colonial masters. The founders had such contempt for the United Kingdom that they were willing to take up arms against the government. The British had such contempt for the colonials that they were willing to use excessive force against the rebels, even going to the point of hiring thousands of Hessian mercenaries to crush the rebellion. That same level of contempt was on full display on 6 January, and it’s still simmering beneath the surface, so why are we still together? What purpose is served by keeping this country intact when we truly disgust each other?
More ominous is the perception among a minority of voters, largely Republican, that any Democratic electoral victory must be due to voter fraud. A republic cannot exist if there is a constant sense that elected leaders achieved their office via fraud, or if voters perceive that elections are “rigged”.
In the past twenty years we have seen two presidential elections where the winner was declared because of Electoral College math. We’ve seen a Supreme Court seat held open because a Senate Majority Leader felt that since his party had control of the Senate and the Democrats had control of the White House, it wasn’t “right” for the incumbent Democratic president to exercise his Constitutional duties to name a replacement. We’ve seen laws passed in the House only to be declared dead on arrival in the Senate due to a combination of a Senate Majority Leader’s refusal to bring the measures up for a vote and the filibuster. All of these actions were taken to deny what the majority of the country wanted.
The abortive insurrection/coup of 6 January was a stark realization that we are no longer the United States of America. Anytime a group of people feels that the way to address an election loss is to resort to violence, we no longer have a functioning nation. That insurrection, which sought to decapitate the nation’s leadership (“Hang Mike Pence!” “Get Nancy!”) so that Trump could remain in office starkly demonstrated that the minority in this country wants to crush the majority, and they don’t care how they do it.
The best way forward is to take a lesson from the Czechs and devise a way for the country to peacefully separate into independent nations. And for those who say it’s impossible, it’s not. Yes, there are blue and red divisions in every state, but a peaceful partition, combined with voluntary migration, can be achieved. Article V of the US Constitution allows for two-thirds of the state legislatures (34 out of 50 states) to call for a convention to amend the Constitution. Let’s use that mechanism to begin discussions on how we can, as they say in Texas, split the sheets and sign the legal papers. We have mutual contempt for one another. Let’s turn that contempt into something positive and go our separate ways in peace before we reach the point of no return with the inevitable civil war and/or dictatorship that will tear this country apart by force, leaving millions dead.
