The Crisis Of Legitimacy — Americans No Longer Believe In Their Government
The United States is facing a crisis of legitimacy — the people have lost faith in the institutions of federal government and no longer fully recognize its authority. As a country, we need to address this crisis, or risk unpredictable and destructive revolutionary change.
The consent of the governed is the glue that holds democracies together. Today, this consent is deteriorating. This applies to people on the Left and on the Right, and to all three branches of the federal government. The Right questions the legitimacy of the 2020 presidential election. The Left questions the legitimacy of the Supreme Court. And both sides have lost faith in Congress. The storming of the Capitol, the vitriol surrounding Supreme Court confirmations, and open talk of secession, abolishing the electoral college and packing the Supreme Court are the fruits of this crisis of legitimacy. We must recognize and face this crisis.
The government’s legitimacy is undermined when people sense that the rules of government are not fair, or that the rules are being gamed for the benefit on one side or the other. Legitimacy is also undermined when people feel that those in power do not represent them, but rather, represent powerful interests. We see both of these at work today.
Consider the Presidency. Over the past twenty years, the legitimacy of nearly every presidential election has been challenged. It began in 2000, when George W. Bush won the presidency in the Electoral College, despite having lost the popular vote by more than 500,000 votes. This was the first time since 1888 that a candidate who won the popular vote was not elected President. The Left complained about the fairness of the Electoral College. Many took to sporting “He’s Not My President!” bumper stickers on their cars. In 2008, the legitimacy of Barack Obama’s election was marred by those on the Right who claimed Obama was not born in the United States and, therefore, was not eligible to become President. In 2016, Trump lost the popular vote by almost 2.9 million votes but prevailed in the Electoral College. The Left responded with calls for “Resistance.” But in a democracy, you don’t resist a democratically elected government. Today, the Right maintains the fiction that the 2020 Presidential election was stolen from Trump, despite any significant supporting evidence. On January 6, Trump supporters stormed the Capitol, with the intention of nullifying the certification of the vote of the Electoral College. We cannot maintain a democracy when, with every election, the side that loses does not accept the result.
Similarly, the authority of Supreme Court has been weakened by several contentious appointments. The Supreme Court is not a political branch of government. However, for at least the past 30 years, both left and right have sought to achieve through the Supreme Court what they could not achieve through legislation — abortion, marriage equality, and campaign finance come to mind. Of course, a ruling by the Supreme Court puts an issue out of the reach of the majority and the political process — the only way to change a Supreme Court ruling is with a constitutional amendment, which requires a supermajority of states to ratify it.
It is not the case that all Supreme Court appointments until recently were confirmed by lopsided votes. However, in the seven nominations since Samuel Alito, only one, Sonia Sotomayor, was confirmed by two-thirds of the Senators’ votes. And the last three appointments were bitter affairs. After President Obama nominated Merrick Garland for the seat opened up by the death of Antonin Scalia, Senator Mitch McConnell refused to give him a hearing, even though there were nearly nine-months left in President Obama’s term. The Left considered this cheating, even though then Senator Biden argued in 1992 against nominations in an election year. Many on the Left have openly stated that this was a “stolen” seat. Bret Kavanaugh’s confirmation hearings were a tragedy and a farce, with both sides hurling accusations and invectives. The confirmation of Amy Coney Barrett to replace Ruth Bader Ginsburg infuriated the Democrats. They complained that Senator McConnell broke his own rule about not holding hearings during an election year, and pointed out that in this case, it was less than two months before a presidential election.
As a result of this process, some on the Left have openly called the Court illegitimate, and have proposed is to expand the Court during President Biden’s term to confirm Justices who will create “ideological balance.” Such a tactic rarely goes well, producing a judicial arms race that will truly delegitimize the Court.
Finally, there is Congress. Let’s put aside for now the argument of some on the Left that the Senate is illegitimate because it represents the States, and not the People. The House of Representatives represents the People, yet it, too, suffers a challenge to its legitimacy. First, the composition of the House is undermined by gerrymandering and voting rules. Second, there is a strong feeling that members of House are remote from their constituents and are unduly influenced by powerful interests.
Congressional districts are drawn by state legislatures. State legislatures tend to draw districts to the benefit the party in power. We shouldn’t expect a state’s Congressional delegation to perfectly reflect relative party registration in a state. (All of Massachusetts’ Congresspersons are Democrats, even though only 31% of voters are registered Democrats.) However, when a state legislature games the borders of districts to give one party an advantage, voters naturally consider result to be unfair.
Recent voting law changes in various states have produced a fury of contention. Republicans take the position that new voting laws are intended to prevent voter fraud; Democrats hold that the changes are intended to disenfranchise minority voters. How can a majority of voters consider these changes fair without bipartisan support?
Finally, members of Congress are becoming ever more remote from their constituents. In 1798, each member of Congress represented about 57,000 people. Currently, each member represents over 750,000 people. With these numbers, it is difficult to Member of Congress to stay close to their constituents, and difficult for constituents to get the ears of their Congresspersons. This situation only gets worse over time, because while the population of the country is increasing, the number of representatives remains fixed at 435.
In all, the people sense an increasing level of unfairness in the way all three branches of the Federal government operate. A sense of unfairness leads to a diminished sense of the legitimacy of the Federal government, and a diminished ability of the Federal government to act with authority. It is no wonder we find ourselves in a period of enhanced political instability.
Reversing this crisis will require enacting a set of reforms to strengthen the confidence people have for the Federal government. There is already much talk of the shapes these reforms should take, but I will propose some general ideas.
First, Congress should undertake election reform to increase faith in our Federal elections. Gerrymandering can be ended by the use of non-partisan re-districting commissions. Expansion of ballot access will also require methods of certifying the validity of ballots cast. Second, Justices to the Supreme Court should have fixed terms, staggered such that each President can nominate the same number of Justices during their term. Third, the House of Representatives should be expanded so that each representative represents fewer people. If the number were set to one representative for every 250,000 people, the House of Representatives would have 1320 members.
The stability of our Federal government is at stake. If people see the process as fair, they will recognize the outcome as fair. Both sides need to come together and put in place rules we can all agree on.
John is a lawyer in private practice who lives in Oakland, CA and is a member of the principled conservative organization, Principles First