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    Something’s Got to Give

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    It’s been 52 years since Congress passed, and the country ratified, a constitutional amendment — the 26th Amendment, which lowered the voting age to 18 in the wake of the Vietnam War and the broader disruption of the 1960s. (The 27th Amendment, ratified in 1992, was passed in 1789.) It’s been 64 years since Congress added states to the union — Alaska and Hawaii, in 1959. And it’s been 94 years since Congress capped the size of the House of Representatives at 435 members.You might be tempted to treat these facts as trivia. But the truth is that they say something profound about American politics. For more than 50 years, the United States has been frozen in a kind of structural and constitutional stasis. Despite deep changes in our society — among them major population growth and at least two generational waves — we have made no formal changes to our national charter, nor have we added states or rearranged the federal system or altered the rules of political competition.One reason this matters, as Kate Shaw and Julie C. Suk observe in a recent essay for Times Opinion, is that “several generations of Americans have lost the habit and muscle memory of seeking formal constitutional change.” Unaccustomed to the concept and convinced that it is functionally impossible, Americans have abandoned the very notion that we can change our Constitution. Instead, we place the onus for change on the Supreme Court and hope for the best. Out with popular sovereignty, in with judicial supremacy.There is another reason this matters. Our stagnant political system has produced a stagnant political landscape. Neither party has been able to obtain a lasting advantage over the other, nor is either party poised to do so. The margins of victory and defeat in national elections are slim. The Republican majority that gave President George W. Bush a second term in the White House — and inspired, however briefly, visions of a permanent Republican majority — came to just 50.7 percent of the overall vote. President Barack Obama won his second term by around four percentage points, and President Biden won by a similar margin in 2020. Donald Trump, as we know, didn’t win a majority of voters in 2016.Control of Congress is evenly matched as well. Majorities are made with narrow margins in a handful of contested races, where victory can rest more on the shape of the district map — and the extent of the gerrymandering, assuming it holds — than on any kind of political persuasion. That’s the House. In the Senate, control has lurched back and forth on the basis of a few competitive seats in a few competitive states. And the next presidential election, thanks to the Electoral College, will be a game of inches in a small batch of closely matched states rather than a true national election.Past eras of political dynamism often came from some change in the overall political order. Throughout the 19th century, for example, the addition of states either transformed the terrain on which Americans fought partisan politics or opened avenues for long-term success for either one of the two major parties. States could be used to solidify partisan control in Washington — the reason we have two Dakotas instead of one — or used to extend and enlarge an existing coalition.Progressive-era constitutional transformations — the direct election of senators, women’s suffrage and Prohibition — reverberated through partisan politics, and the flood of Black Americans from Southern fields to Northern cities put an indelible stamp on the behavior of Democrats and Republicans.We lack for political disruption on that scale. There are no constitutional amendments on the table that might alter the terms of partisan combat in this country. There’s no chance — anytime soon — that we’ll end the Electoral College or radically expand the size of the House, moves that could change the national political calculus for both parties. There are no prospects, at this point, for new states, whether D.C., Puerto Rico or any of the other territories where Americans live and work without real representation in Congress.There’s nothing either constitutional or structural on the horizon of American politics that might unsettle or shake the political system itself out of its stagnation. Nothing that could push the public in new directions or force the parties themselves to build new kinds of coalitions. Nothing, in short, that could help Americans untangle the pathologies of our current political order.The fact of the matter is that there are forces that are trying to break the stasis of American politics. There’s the Supreme Court, which has used its iron grip on constitutional meaning to accumulate power in its chambers, to the detriment of other institutions of American governance. There’s the Republican Party, which has used the countermajoritarian features of our system to build redoubts of power, insulated from the voters themselves. And there is an authoritarian movement, led and animated by Trump, that wants to renounce constitutional government in favor of an authoritarian patronage regime, with his family at its center.Each of these forces is trying to game the current system, to build a new order from the pieces as they exist. But there’s nothing that says we can’t write new rules. And there’s nothing that says that we have to play this particular game.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Kansas Votes to Preserve Abortion Rights Protections in Its Constitution

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      OVERLAND PARK, Kan. — Kansas voters resoundingly decided against removing the right to abortion from the State Constitution, according to The Associated Press, a major victory for the abortion rights movement in one of America’s reliably conservative states.The defeat of the ballot referendum was the most tangible demonstration yet of a political backlash against the U.S. Supreme Court’s decision to overturn Roe v. Wade, the landmark decision that had protected abortion rights throughout the country. The decisive margin came as a surprise, and after frenzied campaigns with both sides pouring millions into advertising and knocking on doors throughout a sweltering final campaign stretch.“The voters in Kansas have spoken loud and clear: We will not tolerate extreme bans on abortion,” said Rachel Sweet, the campaign manager for Kansans for Constitutional Freedom, which led the effort to defeat the amendment.told supporters that a willingness to work across partisan lines and ideological differences helped their side win.“The voters in Kansas have spoken loud and clear: We will not tolerate extreme bans on abortion,” Ms. Sweet said.At a campaign watch party in suburban Overland Park, abortion rights supporters yelled with joy when MSNBC showed their side with a commanding lead.“We’re watching the votes come in, we’re seeing the changes of some of the counties where Donald Trump had a huge percentage of the vote, and we’re seeing that just decimated,” said Jo Dee Adelung, 63, a Democrat from Merriam, Kan., who knocked on doors and called voters in recent weeks.She said she hoped the result sent a message that voters are “really taking a look at all of the issues and doing what’s right for Kansas and not just going down party lines.”The vote in Kansas, three months before the midterm elections, was the first time American voters weighed in directly on the issue of abortion since the U.S. Supreme Court overturned Roe v. Wade this summer. The referendum, watched closely by national figures on both sides of the abortion debate, took on added importance because of Kansas’ location, abutting states where abortion is already banned in nearly all cases. More than $12 million has been spent on advertising, split about evenly between the two camps. The amendment, had it passed, would have removed abortion protections from the State Constitution and paved the way for legislators to ban or restrict abortions.“We’ve been saying that after a decision is made in Washington, that the spotlight would shift to Kansas,” said David Langford, a retired engineer from Leawood, Kan., who wants the amendment to pass, and who reached out to Protestant pastors to rally support.The push for an amendment was rooted in a 2019 ruling by the Kansas Supreme Court that struck down some abortion restrictions and found that the right to an abortion was guaranteed by the State Constitution. That decision infuriated Republicans, who had spent years passing abortion restrictions and campaigning on the issue. They used their supermajorities in the Legislature last year to place the issue on the 2022 ballot.That state-level fight over abortion limits took on far greater meaning after the nation’s top court overturned Roe, opening the door in June for states to go beyond restrictions and outlaw abortions entirely. The Roman Catholic Church and other religious and conservative groups spent heavily to back the amendment, while national supporters of abortion rights poured millions of dollars into the race to oppose it.Canvassers supporting Amendment 2 left literature at a resident’s door last week in Olathe, Kan.Chase Castor for The New York TimesSupporters of the amendment have said repeatedly that the amendment itself would not ban abortion, and Republican lawmakers have been careful to avoid telegraphing what their legislative plans would be if it passed.“Voting yes doesn’t mean that abortion won’t be allowed, it means we’re going to allow our legislators to determine the scope of abortion,” said Mary Jane Muchow of Overland Park, Kan., who supported the amendment. “I think abortion should be legal, but I think there should be limitations on it.”If the amendment had passed, though, the question was not whether Republicans would try to wield their commanding legislative majorities to pass new restrictions, but how far they would go in doing so. Many Kansans who support abortion rights said they feared that a total or near-total abortion ban would be passed within monthsAbortion is now legal in Kansas up to 22 weeks of pregnancy.“I don’t want to become another state that bans all abortion for any reason,” said Barbara Grigar of Overland Park, Kan., who identified herself as a moderate and said she was voting against the amendment. “Choice is every woman’s choice, and not the government’s.”A Pew Research Center survey published last month found that a majority of Americans said abortion should be legal in all or most cases, and that more than half of adults disapproved of the Supreme Court’s decision to overturn Roe.Kansas has been a focal point of the national abortion debate at least since 1991, when protesters from across the country gathered in Wichita and blocked access to clinics during weeks of heated demonstrations that they called the Summer of Mercy.At times, the state has seen violence over the issue. In 1986, a Wichita abortion clinic was attacked with a pipe bomb. In 1993, a woman who opposed abortion shot and injured Dr. George Tiller, one of only a few American physicians who performed late-term abortions. In 2009, another anti-abortion activist shot and killed Dr. Tiller at his Wichita church.In recent years, and especially in the weeks since Roe fell, Kansas has become a haven of abortion access in a region where that is increasingly rare.Even before the Supreme Court’s action, nearly half of the abortions performed in Kansas involved out-of-state residents. Now Oklahoma and Missouri have banned the procedure in almost all cases, Nebraska may further restrict abortion in the next few months, and women from Arkansas and Texas, where new bans are in place, are traveling well beyond their states’ borders.Kansas is reliably Republican in presidential elections, and its voters are generally conservative on many issues, but polling before the referendum suggested a close race and nuanced public opinions on abortion. The state is not a political monolith: Besides its Democratic governor, a majority of Kansas Supreme Court justices were appointed by Democrats, and Representative Sharice Davids, a Democrat, represents the Kansas City suburbs in Congress.Representative Sharice Davids speaks at an election watch party hosted by Kansans for Constitutional Freedom in Overland Park, Kansas.Arin Yoon for The New York TimesMs. Davids’s district was once a moderate Republican stronghold, but it has been trending toward Democrats in recent years. Her re-election contest in November in a redrawn district may be one of the most competitive House races in the country, and party strategists expect the abortion debate to play an important role in districts like hers that include swaths of upscale suburbs.Political strategists have been particularly attuned to turnout in the Kansas City suburbs, and are seeking to gauge how galvanizing abortion is, especially for swing voters and Democrats in a post-Roe environment.“They’re going to see how to advise their candidates to talk about the issue, they’re going to be looking at every political handicap,” said James Carville, the veteran Democratic strategist. “Every campaign consultant, everybody is watching this thing like it’s the Super Bowl.”As the election approached, and especially since the Supreme Court decision, rhetoric on the issue became more heated. Campaign signs on both sides have been vandalized, police officials and activists have said. In the Kansas City suburb of Overland Park, vandals targeted a Catholic church, defacing a building and a statue of Mary with red paint.Before the vote on Tuesday, which coincided with primary elections, Scott Schwab, the Republican secretary of state, predicted that around 36 percent of Kansas voters would participate, up slightly from the primary in 2020, a presidential election year. His office said that the constitutional amendment “has increased voter interest in the election,” a sentiment that was palpable on the ground.“I like the women’s rights,” said Norma Hamilton, a 90-year-old Republican from Lenexa, Kan. Despite her party registration, she said, she voted no. More

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      The Supreme Court Is the Final Word on Nothing

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      The U.S. Constitution contains several idle provisions: words, phrases and clauses that have little to no bearing on our constitutional order as it currently exists.Let’s start here: Article 3 of the Constitution gives the Supreme Court “original jurisdiction” in all cases affecting “Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” That part is obviously in effect, although most cases between states occur in the lower federal courts established by Congress. The Constitution then states that in all other cases, “the Supreme Court shall have appellate jurisdiction.” This, too, is in full effect.But then the Constitution tells us that the court’s appellate jurisdiction is subject to “such Exceptions” and “under such Regulations” as “the Congress shall make.”This is where it gets interesting. The court’s appellate jurisdiction accounts for virtually everything it touches. And the Constitution says that Congress can regulate the nature of that jurisdiction. Congress can strip the court of its ability to hear certain cases, or it can mandate new rules for how the court decides cases where it has appellate jurisdiction. And as I recently mentioned, it can even tell the court that it needs a supermajority of justices to declare a federal law or previous decision unconstitutional.There are real questions about the scope of congressional power to regulate the Supreme Court. If Congress has complete control over the court’s appellate jurisdiction, then there are no real limits as to what it could do to shape and structure the court, threatening the separation of powers. As James Madison said with regard to the Bank Bill of 1791, “An interpretation that destroys the very characteristic of the government cannot be just.”But this is nearly a moot point. The modern Congress has largely relinquished its power to regulate and structure the court. The final clause of Article 3, Section 2 is not quite a dead letter, but it is close.What is a dead letter (and which I’ve also written about before) is the Guarantee Clause of the Constitution, which states thatThe United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.The reason for the clause is straightforward. “The more intimate the nature of such a Union may be,” Madison wrote in Federalist No. 43, “the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained.”But neither Congress nor the courts has ever said, with any precision, what it means for the United States to guarantee to every state a “republican form of government.” The most we have is Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, in which he condemns “sinister legislation” passed to “interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community.”This, he writes, “is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land.”A Congress that wanted to could, in theory, use the Guarantee Clause to defend the basic rights of citizens against overbearing and tyrannical state governments. It’s been done before. After the Civil War, Radical Republicans in Congress found their constitutional power to reconstruct the South chiefly in the Guarantee Clause, which they used to protect the rights of Black Americans from revanchist state governments.Since Reconstruction, however, no Congress has wanted to use the Guarantee Clause to protect the rights and liberties of Americans. It’s a vestigial part of our constitutional history, atrophied from disuse.The same goes for sections 2 and 3 of the 14th Amendment. Section 2 states that “representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” It then specifies that if the right to vote for federal office is “denied” or “in any way abridged, except for participation in rebellion” to “any of the male inhabitants” of such a state, then “the basis of representation therein shall be reduced” in proportion to the denial in question.Section 3 also deals with representation. It states thatNo person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.The purpose of section 2 was to invalidate the Three-Fifths clause of the Constitution and to prevent state governments from disenfranchising Black voters. And the purpose of section 3 was to prevent former Confederate leaders from holding state and federal office. But while the 14th Amendment gives Congress the power to enforce its provisions by “appropriate legislation,” Congress has never exercised its ability to deny representation to states that violate the right of citizens to vote, nor has it used its ability to disqualify those lawmakers who have engaged in acts of rebellion or insurrection. In the wake of Jan. 6, Representatives Cori Bush and Alexandria Ocasio-Cortez called on Congress to investigate and expel members who aided the attack, but their demands went nowhere.It’s here that you can see why I think it’s important to talk about these seemingly idle provisions. As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the counter-majoritarian institutions of the American political system, cloaking their views in a distorted version of our Constitution, where self-government means minority rule and the bugaboos of right-wing culture warriors are somehow “deeply rooted” in our “history and traditions.”But the Republic is not defenseless. The Constitution gives our elected officials the power to restrain a lawless Supreme Court, protect citizens from the “sinister legislation” of the states, punish those states for depriving their residents of the right to vote and expel insurrectionists from Congress.They are drastic measures that would break the norms of American politics. They might even spark a constitutional crisis over the power and authority of Congress.But let’s not be naïve. The norms of American politics were shattered when Donald Trump organized a conspiracy to subvert the presidential election. They were shattered again when he sent an armed mob of supporters to attack the Capitol and stop Congress from certifying the votes of the Electoral College. And they were shattered one more time in the early hours of the next day, when, even after all that, hundreds of his congressional allies voted to overturn the election.As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.The ground has shifted. The game has changed. The only question left is whether our leaders have the strength, fortitude and audacity to forge a new path for American democracy — and if they don’t, whether it is finally time for us to find ones who do.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Only the Feds Can Disqualify Madison Cawthorn and Marjorie Taylor Greene

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      The events of Jan. 6, 2021, are casting a long shadow over the midterm elections. Voters in North Carolina are seeking to bar Representative Madison Cawthorn from running for re-election to his House seat, and those in Georgia are trying to do the same to Representative Marjorie Taylor Greene.These voters have filed complaints with state elections officials arguing that Section 3 of the 14th Amendment disqualifies members of Congress who engage in insurrection from appearing on the congressional ballot. (Challenges to other elected officials have also begun involving other candidates.)But these challenges face an intractable problem: Only the federal government — not the states — can disqualify insurrectionists from congressional ballots. States cannot unilaterally create procedures, unless authorized by federal statute, to keep accused insurrectionists off the congressional ballot.If these members of Congress engaged in insurrection, then the U.S. House of Representatives may exclude them, or federal prosecutors may charge them with the federal crime of insurrection. But in light of an important 1869 judicial decision, the cases against Mr. Cawthorn and Ms. Greene — which are currently mired in both state and federal proceedings — cannot remove the candidates from the congressional ballot.The 14th Amendment was ratified in 1868 in the wake of the Civil War. Section 3 disqualified many former Confederates from holding certain public offices if they had taken an oath to support the U.S. Constitution but subsequently, as Section 3 declares, “engaged in insurrection or rebellion.” Since 1868, the federal judiciary has had few occasions to interpret Section 3. As a result, the courts are largely in uncharted territory. Nevertheless, there is some important on-point precedent.An 1869 case concerning Hugh W. Sheffey is instructive for the Jan. 6 litigation and how courts might see things today. Mr. Sheffey took an oath to support the Constitution but later served as a member of the Confederate Virginia legislature, thereby actively supporting the Confederacy.After the war, he served as a state court judge. As Judge Sheffey, he presided over the trial and conviction of Caesar Griffin for shooting with an intent to kill. Later, Mr. Griffin challenged his conviction in federal court. He argued that Section 3 should have disqualified Mr. Sheffey from serving as judge. Griffin’s case, as it is known, was heard on appeal by the federal circuit court in Virginia. Salmon P. Chase, the chief justice of the United States and an appointee of President Abraham Lincoln, presided over the appeal. Chief Justice Chase ruled against Mr. Griffin, finding that Section 3 did not disqualify Judge Sheffey, despite the fact that he had taken an oath to support the U.S. Constitution and that it was “admitted,” as the case stated, that he later committed a Section 3 disqualifying offense.Chief Justice Chase reasoned “that legislation by Congress is necessary to give effect to” Section 3 of the 14th Amendment — and that “only” Congress can enact that legislation. Chief Justice Chase added that the exclusion of disqualified office holders “can only be provided for by Congress.” Congress must create the procedure that would determine if a defendant violated Section 3. Section 5 of the 14th Amendment emphasizes this principle: Congress, it states, “shall have the power to enforce, by appropriate legislation, the provisions of this article.”In short, Griffin’s case teaches that in legal terms, Section 3 is not self-executing — that is, Congress must establish, or at least authorize, the process that affords accused insurrectionists an opportunity to contest the allegations brought against them.Mr. Cawthorn and Ms. Greene deny that they engaged in insurrection and oppose any assertion that they violated the law, which would include Section 3 disqualifying offenses. Moreover, in the Cawthorn and Greene cases, the plaintiffs have not pointed to any federal legislation authorizing the states to police Section 3 by disqualifying accused insurrectionists from the congressional ballot. Without federal authorization, state elections boards and even state courts could very well be powerless to make determinations about congressional candidates and Section 3.There may be another way, based on an existing statute, to disqualify a candidate from congressional ballots: the Insurrection Act of 1862. This legislation, which predated the 14th Amendment, mirrors one of the disqualifying offenses established in Section 3.The modern Insurrection Act is virtually unchanged from the statute Lincoln signed in 1862. If the Justice Department indicts and succeeds in convicting Mr. Cawthorn, Ms. Greene or others of insurrection under that act, then on that basis, state elections boards and state courts may remove these candidates from the congressional ballot.Representative Madison Cawthorn of North Carolina.Stefani Reynolds for The New York TimesBut so far, the Justice Department has not charged any congressional candidates with inciting or engaging in an insurrection or with any other disqualifying offenses. Most of the Jan. 6 federal charges have been based on things like property crimes or for obstructing official proceedings or assaulting officers rather than insurrection.If the Justice Department does not secure a conviction of a Section 3 disqualifying offense before the state ballot is printed (the primary in North Carolina is scheduled for May 17 and the one in Georgia for May 24), then, generally, state boards of election and even state courts will be powerless to remove otherwise eligible congressional candidates from the ballot.Recently, some scholars and advocates have contested Chief Justice Chase’s opinion in Griffin’s case as precluding the state challenges against Mr. Cawthorn and Ms. Greene. In their view, even in the absence of a federal statute, state election officials who conclude that a person engaged in insurrection may proceed to remove that candidate from the congressional ballot. There is no Supreme Court precedent that squarely forecloses that position. Moreover, Chief Justice Chase’s decision was not rendered by the United States Supreme Court, and so it is not controlling precedent. On Monday, a federal court in Georgia allowed the state court disqualification proceeding to go forward against Representative Greene. The federal judge did so without citing or distinguishing Griffin’s case.Still, we think the chief justice’s opinion is persuasive; we expect state and federal courts, including the U.S. Supreme Court, will likely follow this historically entrenched position. Chief Justice Chase’s approach is the simplest path. If the courts find that Section 3 is not self-executing, there is no need for state election officials to decide far more politically charged questions about whether Mr. Cawthorn and Ms. Greene — and potentially, looking ahead to 2024, Donald Trump — engaged in insurrection.Congress has not authorized the states to enforce Section 3 by striking congressional candidates from the ballot. Thus, state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot. In such circumstances, state governments must let the people decide who will represent them in Congress.Josh Blackman is a law professor at South Texas College of Law Houston. S.B. Tillman is an associate professor at the Maynooth University School of Law and Criminology. They recently wrote a law review article about the application of Section 3 of the 14th Amendment to President Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Republican Party Is Succeeding Because We Are Not a True Democracy

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      The Jan. 6 attack would not have happened in a genuine democracy.The attack was the most acute symptom — so far — of the political crisis that Donald Trump incited by refusing to admit defeat in the 2020 election. But the roots of the crisis run deep into the undemocratic features of our constitutional system.The arcane scheme that Mr. Trump’s lawyers hatched to disrupt congressional certification of the vote and perhaps persuade Republican state legislatures to overturn Joe Biden’s victory in states like Pennsylvania was conceivable only because the Electoral College splinters presidential elections into separate contests in each of the 50 states and the District of Columbia and skews the totals toward small states. In a simple system of majority rule, Mr. Biden’s thumping margin of more than seven million votes would have been the last word. For that matter, so would Hillary Clinton’s national margin of nearly three million votes in 2016: Mr. Trump would not have had a 1600 Pennsylvania Avenue address in which to barricade himself in 2020.Would Mr. Trump’s big lie about election fraud have sent the rioters to the Capitol anyway, even without his lawyers and fixers trying to overturn the results? Maybe. But there would have been no constitutional machinery to jam. And even the big lie received a huge constitutional assist. Thanks to the Electoral College, Mr. Trump could have tied Mr. Biden and forced the election into the House of Representatives by flipping just 43,000 votes in three close states, a gap narrow enough that any number of toxic fables can claim to bridge it.At a more basic level, today’s Republican Party succeeds only because the Electoral College, the Senate and the Supreme Court all tilt in its favor. That system has handed conservatives a 6-3 majority on the Supreme Court, despite the fact that only one Republican has won the presidential popular vote after 1988. A party doesn’t have to persuade majorities that it has the best vision for the country. It only has to persuade a selective minority that the other side is a mortal threat. Its grasp on power may be too tenuous for the party to govern effectively, but it has offered conservatives a fine perch to weaken economic and environmental regulation, appoint conservative judges and launch attacks on the democratic system itself.In a more democratic system, the Republican Party’s extreme elements would have been sent packing long before they stormed the Capitol because they couldn’t muster enough votes to win a national election. Instead, they have perfected minority rule as a path to political success. An antidemocratic system has bred an antidemocratic party. The remedy is to democratize our so-called democracy.James Madison boasted that the Constitution achieved “the total exclusion of the people, in their collective capacity.” Its elaborate political mechanics reflect the elite dislike and mistrust of majority rule that Madison voiced when he wrote, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” Madison’s condescension has never gone away. Walter Lippmann, perhaps the most prominent intellectual of the short American Century, reckoned that citizens were ignorant, confused and emotional. Democracy brought “an intensification of feeling and a degradation of significance” to whatever it touched. If Madison and Lippmann could have seen the “QAnon Shaman” break into the Capitol, then meander around like a tourist whose phone has lost its signal, they would have muttered, “This is what democracy looks like.”Democracy receded from the popular imagination during the blandly optimistic decades that followed the Cold War’s end around 1989. American leaders predicted that the world would inevitably come to embrace some combination of elections, capitalism and personal freedom. Serious thinking about what democracy meant, and what could threaten it, seemed more like intellectual history than practical politics. We live in the shipwreck of that unearned optimism.Jan. 6 and the four years before it were a forcible reminder that democracy is a task, not a birthright. Having rediscovered that we must take democracy seriously, we should now put it first in our politics.Majorities of the people, not the Electoral College, should be able to pick the president and decide who controls the House and Senate. All who make their lives in the United States — including the incarcerated, people convicted of felonies and noncitizens — should be allowed to vote.This might sound alarming to inland Republican voters who imagine themselves besieged by a permanent coastal majority. But in a working democracy, there are no permanent majorities or minorities. Forging partnerships in a truly democratic system, inland conservatives would soon find new allies — just not ones determined to break democracy itself.Some of these changes probably require amending the Constitution. Hard changes have come through constitutional amendment before: Shortly before World War I, activists successfully pressed state legislatures to ratify an amendment giving up their power to choose U.S. senators. Maybe we can revive mass movements for amendments, starting with one that would make the amendment process itself more democratic. If the public supports a constitutional amendment to limit money in politics, restrict gerrymandering or enshrine a core abortion right, a committed majority should be able to say what our fundamental law is by popular vote, rather than having to go through the current, complicated process of ratifying amendments through state legislatures or dozens of constitutional conventions.This may sound wild-eyed. But it would not always have. James Wilson, one of the most learned and thoughtful of the Constitution’s framers, believed that as a matter of principle, “the people” may change the Constitution “whenever and however they please. This is a right of which no positive institution can ever deprive them.” Even Madison conceded that if we thought of the Constitution as a national charter rather than a federal arrangement among sovereign states, “the supreme and ultimate authority” would reside with the majority, which had the power to “alter or abolish its established government.” It is hard to deny that, since 1789, the Constitution has become a national charter in the minds of most Americans.Do we really think that establishing fundamental law is too much for us, something only revered (or reviled) ancestors could do? More likely we are afraid of one another and the decisions majorities would make. Thinkers like Madison associated democracy with majority tyranny, but history tells a different story. Even our terribly flawed legacy is rich in examples of majoritarian emancipation: New Deal programs, the Civil Rights Acts and the Voting Rights Act and Medicare. Majorities can change the world for the better, when they have the chance. Giving one another that chance, over and over, is how equals share a country.But are we willing to give, and take, that chance? Maybe more than fearing majority tyranny, we suspect that the country is already too divided and mistrustful to make basic choices together at all. One thing Democrats and Republicans share is the belief that, to save the country, the other side must not be allowed to win. Every election is an existential crisis. In our current political climate, any proposal to democratize the system would immediately be coded as partisan, and half the country would reject it from the start. In such an anxious and suspicious country, the current system can be seen as a kind of peace treaty. Maybe that was what Mr. Biden meant when, just after taking his oath of office two weeks after the Capitol riot, in a Washington guarded by 26,000 troops, he praised “the resilience of our Constitution.”But the Constitution is not keeping the peace; it is fostering crises. Far from being resilient, it is adding to our brittleness.Resilience would come from a shift to more constructive politics. Majorities should be able to choose parties and leaders to improve their everyday lives, starting with child care, family leave, health care and the dignified work that still evades many even at a time when employers are complaining of difficulty hiring workers and there is upward pressure on wages after decades of stagnation. Democracy matters not because there is something magical about 50-percent-plus-one in any given vote but because it gives people the power to decide how they will live together. If we don’t claim that power, the market, a court or a minority government will always be pleased to take it off our hands.Aristotle called democracy “the rule of the poor,” and he was onto something. Democracy, when it works, puts the ultimate political power in the hands of the people who work, worry and wish they could promise their loved ones more than they can. It gives us back a bit of our world.Of course, we must not make the perfect the enemy of the good. Our Constitution deserves to be defended against lies about election fraud and antidemocratic schemes to double down on minority rule. But it also deserves cleareyed efforts to make it better.If Jan. 6 was a symptom of a crisis of democracy, the best answer we can give is more democracy. We might not be capable of that, in which case the future is bleak. But the only way to find out is by trying.Democracy’s vitality is not handed down from on high. It comes from actually ruling and being ruled in turn and learning to live with both. It comes from the constant search for new majorities, new coalitions, new ways to avoid disaster and even make life better. That is how we learn to believe, with Walt Whitman, that “every atom belonging to me as good belongs to you.” The way to save democracy is to make it more real.Jedediah Britton-Purdy is a professor at Columbia Law School and the author of six books, most recently, “This Land Is Our Land: The Struggle for a New Commonwealth.” His next book, on American democracy, will be published this fall.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Cori Bush and AOC Are Right About Jan. 6 and 1866

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      When, in the early morning hours of Jan. 7, Congress finally certified the 2020 Electoral College count, more than 140 Republican members of Congress had voted, in one way or another, to reject the outcome. They had embraced the spirit of the mob that stormed the Capitol the day before, even if they had not physically joined it.With that said, there was a smaller number of congressional Republicans who may have gone further than simply casting a vote the way President Donald Trump wanted them to, in the days leading up to Jan. 6. According to a new report by Hunter Walker in Rolling Stone, “Multiple people associated with the March for Trump and Stop the Steal events that took place during this period communicated with members of Congress throughout this process.”Walker’s sources, two unnamed organizers who say they helped plan the rallies, claim that Representatives Marjorie Taylor Greene, Andy Biggs, Paul Gosar, Lauren Boebert, Mo Brooks, Madison Cawthorn and Louie Gohmert or members of their staffs spoke to or collaborated with pro-Trump activists in the days, weeks and months before the attack on the Capitol. Gosar, a staunch defender of the former president, reportedly told potential rally goers that Trump would give them a “blanket pardon” for their activities.Greene, Gohmert, Boebert, Brooks, Cawthorn and Biggs have all pushed back strongly on the Rolling Stone report, which appeared over the weekend. Gosar called it “categorically false and defamatory.”“There was a meeting at the White House about voter fraud and election theft activity,” Brooks said. “But I have no recollection of any kind of organizational activity regarding the speeches on Jan. 6.”For his part, Gohmert released a statement Monday: “No one in my office, including me, participated in the planning of the rally or in any criminal activity on Jan. 6. We did not attend or participate at all.”Boebert also issued a statement on Monday: “Let me be clear. I had no role in the planning or execution of any event that took place at the Capitol or anywhere in Washington, D.C. on Jan. 6th.”The organizers who spoke to Rolling Stone apparently plan to testify before the Jan. 6 select committee to provide more details about what they say was collaboration between Republican lawmakers and the pro-Trump activists who planned the events that ultimately led to the attack.In the meantime, some Democrats are already calling for their removal from office.“Any member of Congress who helped plot a terrorist attack on our nation’s Capitol must be expelled,” Representative Alexandria Ocasio-Cortez wrote on Twitter. “Those responsible remain a danger to our democracy, our country, and human life in the vicinity of our Capitol and beyond.”Likewise, Representative Cori Bush of Missouri said on Twitter that the House must “investigate and expel members of Congress who helped incite the deadly insurrection on our Capitol.”Bush had actually introduced a House resolution for this purpose just days after the attack. “There is no place in the people’s House for these heinous actions,” she said at the time, referring to “members who attempted to disenfranchise voters and incited this violence.”“I firmly believe,” she went on, “that these members are in breach of their sworn Oath of Office to support and defend the Constitution of the United States. They must be held accountable.”They weren’t. There was simply no appetite, among House leadership, for such drastic and decisive action. There still isn’t. But it was a serious demand, and we should take it seriously.Bush’s resolution rests on Section 3 of the 14th Amendment to the Constitution, which cleared Congress in 1866 and was ratified in 1868:No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.In plain English, Congress has the power and authority to expel from office any constitutional officer who engages in sedition and takes up arms against the Constitution of the United States.The original context for this, obviously, was the Civil War and its immediate aftermath. By the summer of 1865, President Andrew Johnson, a conservative unionist from Tennessee, had taken charge of Reconstruction with a plan to restore the Southern states as equals, their political and constitutional status essentially unchanged from what it was before the war.Under Johnson’s arrangement, the former Confederate states could operate under their antebellum constitutions, the end of slavery notwithstanding. All-white electorates could elect all-white legislatures and send all-white delegations to Washington. Some of these men were, like Johnson, conservative unionists. Many more were former rebel leaders. Alexander Stephens — of the infamous Cornerstone Speech — was elected to represent Georgia in the Senate in 1866 after he was arrested and imprisoned as the former vice president of the Confederacy in 1865.Either way, neither group supported anything like fundamental change to the social and political fabric of the South. If seated, these delegations to Congress would stymie and block any Republican effort to reconstruct the South as an open society with free labor.Indeed, had every Southern representative been seated, Republicans would not have had the votes to get the 14th Amendment through Congress in the first place, on account of the two-thirds majority requirement for passage.Worse than potential obstruction was the real chance that the South would re-enter Congress with as much, or more, political power than it had before the war. The 13th Amendment had abolished chattel slavery, which effectively gutted the three-fifths compromise. And thanks to Johnson, recalcitrant Southern elites could form new governments without extending the vote to free and recently freed Blacks. When the 14th Amendment repealed the three-fifths compromise outright, the effect would be to give the South a considerable bonus in Congress.“Beginning with the reapportionment of 1870,” the legal scholar Garrett Epps writes in “The Antebellum Political Background of the Fourteenth Amendment,” “the Southern states would receive full representation for each freed slave rather than a mere sixty percent, a change that would give the region thirteen more House seats and electoral votes without the extension of minimal political rights, much less the franchise, to the freed slaves who formed the basis of the representation.”To head off this threat, Republicans took two steps. First, they refused to recognize, much less seat, members from the states readmitted under Johnson’s policies. And then, looking to the future, they wrote this prohibition on former Confederate leaders into the Constitution as Section 3 of the 14th Amendment. Republicans would prevent the re-ascendence of this “slave power” with a blockade of federal office deployed against Southern elites.If the ultimate goal of Section 3, in other words, was to preserve the integrity of Congress against those who would capture its power and plot against the constitutional order itself, then Representative Bush is right to cite the clause against any members of Congress who turn out to have collaborated with the plotters to overturn the election and whose allies are still fighting to “stop the steal.”There is a movement afoot to undermine electoral democracy for the sake of a would-be strongman. We have the tools to stop it. Congress, and by this I mean the Democratic majority, should use them.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      America Has Too Many Elections

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      This essay is part of a series exploring bold ideas to revitalize and renew the American experiment. Read more about this project in a note from Ezekiel Kweku, Opinion’s politics editor.

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      The ability of the American political system to deliver major policies on urgent issues is hampered by features of our institutions that we take for granted and rarely think about. Take the Constitution’s requirement that House members serve for only two-year terms.Just a few months into a new administration, as the country grapples with issues of economic recovery and renewal, Congress’s actions are being shaped not by the merits of policy alone but also by the looming midterm elections. It’s not just the fall 2022 election; many incumbents are also calculating how best to position themselves to fend off potential primary challenges.In nearly all other democracies, this is not normal.The two-year House term has profound consequences for how effectively American government can perform — and too many of them are negative. A longer, four-year term would facilitate Congress’s ability to once again effectively address major issues that Americans care most about.For several decades, party leaders in Congress have come largely to view the first year of a new administration as the narrow window in which to pass big initiatives. In a midterm election year, leaders resist making members in competitive districts take tough votes. In addition, much of “policymaking” discussion in Congress — particularly when control of the House is closely divided — is about parties’ jockeying to capture the House in the next midterms.The president’s party nearly always loses House seats in the midterm elections. Since 1934, this has happened in all but two midterms. Yet it cannot be the case that all administrations have governed so poorly they deserve immediate electoral punishment.So why does it happen so regularly? Presidential candidates can make vague appeals that allow voters to see whatever they prefer to see. But governing requires concrete choices, and those decisions inevitably alienate some voters. In addition, 21 months (Jan. 20 to early November of the next year) is too little time for voters to be able to judge the effects of new programs.One of the most difficult aspects of designing democratic institutions is how to give governments incentives to act for the long term rather than the short term. The two-year term for House members does exactly the opposite.In nearly all other democracies, parliaments are in power for four to five years. Political scientists view voting as primarily the voters’ retrospective judgment on how well a government has performed. Four to five years provides plausible time for that. But the comparison with U.S. House members is even starker than focusing on the two-year term alone. In most democracies, members of parliaments do not have to compete in primary elections; the parties decide which candidates to put up for office. But since the advent of the primary system in the early 20th century, members of Congress often have to face two elections every two years.Moreover, in most democracies, candidates do not have to fund-raise all the time to run; governments typically provide public financing to the political parties. The two-year term, combined with primary elections and the constant need to raise funds individually, generates exceptional turbulence and short-term focus in our politics.When the Constitution was being drafted, many framers and others strongly pressed the view, as mentioned in Federalist 53, “that where annual elections end, tyranny begins.” At the time, most states had annual elections. Elbridge Gerry insisted that “the people of New England will never give up the point of annual elections.” James Madison urged a three-year term, arguing that annual elections had produced too much “instability” in the states. In the initial vote, the Constitutional Convention approved a three-year term, but with four states objecting, the convention eventually compromised on two years. The Federalist Papers then had to devote a good deal of energy fending off the demand for annual elections.If you think American politics is not chaotic enough, imagine if the Constitution had adopted annual House elections.One argument for the two-year term is that it provides an important check against exceptionally bad or dangerous administrations. (Certainly those who felt that way about the Trump administration were glad to have the opportunity to give Democrats control of the House in 2018.) Other democracies have found a different way to provide a safeguard against this possibility, even as their governments normally have four to five years to govern before voters are asked to judge their performance at the polls. The mechanism is a vote of no confidence; if a majority of a parliament votes no confidence in the government, a new election takes place, or a new government is formed.As interim checks on government, midterm elections and possible votes of no confidence differ dramatically. Votes of no confidence, when successful, function as an exceptional check on governments. Midterm elections are a much cruder tool; in addition to the political turbulence they bring, they routinely punish virtually all administrations. This is not to advocate a vote of no confidence, which would have vast implications for American government, but to highlight that a two-year legislative term is far from the only means to provide an interim check on elected governments.It’s unrealistic under current political conditions, but through a constitutional amendment, a four-year term for members of the House, corresponding with presidential terms, could be established. Longer terms might well facilitate greater capacity to forge difficult, bipartisan bills in the House, with members not constantly facing primary electorates. With one-third of the Senate still up for election in midterms, voters would retain some means for expressing dissatisfaction with an administration. Giving the minority party in the House greater power to initiate hearings and other measures would be another way to provide more effective interim oversight of an administration.In discussions of the Constitution’s structural elements that we might well not adopt today, the two-year term for the House is rarely noticed. (Attention is usually focused on the Electoral College, the Senate or life tenure for federal judges.)Yet as other democracies demonstrate, there is nothing inherently democratic about a two-year term. We do not recognize how distorting it is that soon after a president is elected, our politics are upended by the political calculations and maneuvering required by always looming midterm elections and their primaries.Richard H. Pildes, a professor at New York University’s School of Law, is the author of the casebook “The Law of Democracy: Legal Structure of the Political Process” and the editor of “The Future of the Voting Rights Act.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.hed More

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      Did the Capitol Attack Break Trump’s Spell?

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyDid the Capitol Attack Break the President’s Spell?Either the beginning of the end for Trump, or America.Opinion ColumnistJan. 7, 2021A scarf discarded at the Capitol after the mob incursion on Wednesday.Credit…Jason Andrew for The New York TimesIt was probably always going to come to this. Donald Trump has been telling us for years that he would not accept an electoral defeat. He has cheered violence and threatened insurrection. On Tuesday he tweeted that Democrats and Republicans who weren’t cooperating in his coup attempt should look “at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen.” He urged his supporters to mass on the capital, tweeting, “Be there, will be wild!” They took him seriously and literally.The day after Georgia elected its first Black senator — the pastor, no less, of Martin Luther King Jr.’s church — and its first Jewish senator, an insurgent marched through the halls of Congress with a Confederate banner. Someone set up a noose outside. Someone brought zip-tie handcuffs. Lest there be any doubt about their intentions, a few of the marauders wore T-shirts that said “MAGA Civil War, Jan. 6, 2021.”If you saw Wednesday’s scenes in any other country — vandals scaling walls and breaking windows, parading around the legislature with enemy flags and making themselves at home in quickly abandoned governmental offices — it would be obvious enough that some sort of putsch was underway.Yet we won’t know for some time what the attack on the Capitol means for this country. Either it marked the beginning of the end of Trumpism, or another stage in the unraveling of American liberal democracy.There is at least some cause for a curdled sort of optimism. More than any other episode of Trump’s political career — more than the “Access Hollywood” tape or Charlottesville — the day’s desecration and mayhem threw the president’s malignancy into high relief. For years, many of us have waited for the “Have you no sense of decency?” moment when Trump’s demagogic powers would deflate like those of Senator Joseph McCarthy before him. The storming of Congress by a human 8chan thread in thrall to Trump’s delusions may have been it.Since it happened, there have been once-unthinkable repudiations of the president. The National Association of Manufacturers, a major business group, called on Vice President Mike Pence to consider invoking the 25th Amendment. Trump’s former attorney general Bill Barr, who’d been one of Trump’s most craven defenders, accused the president of betraying his office by “orchestrating a mob.”Several administration officials resigned, including Trump’s former chief of staff, Mick Mulvaney, who’d been serving as special envoy to Northern Ireland. In an interview with CNBC, Mulvaney was astonishingly self-pitying, complaining that people who “spent time away from our families, put our careers on the line to go work for Donald Trump,” will now forever be remembered for serving “the guy who tried to overtake the government.”Mulvaney’s insistence that the president is “not the same as he was eight months ago” is transparent nonsense. But his weaselly effort to distance himself is still heartening, a sign that some Republicans suddenly realize that association with Trump has stained them. When the rats start jumping, you know the ship is sinking.So Trump’s authority is ebbing before our eyes. Having helped deliver the Senate to Democrats, he’s no longer much use to Republicans like Mitch McConnell. With two weeks left in the president’s term, social media has invoked its own version of the 25th Amendment. Twitter, after years of having let Trump spread conspiracy theories and incite brutality on its platform, suddenly had enough: It deleted three of his tweets, locked his account and threatened “permanent suspension.” Facebook and Instagram blocked the president for at least the remainder of his term. He may still be able to launch a nuclear strike in the next two weeks, but he can’t post.Yet the forces Trump has unleashed can’t simply be stuffed back in the bottle. Most of the Republican House caucus still voted to challenge the legitimacy of Joe Biden’s election. And the MAGA movement’s terrorist fringe may be emboldened by Wednesday’s incursion into the heart of American government.“The extremist violent faction views today as a huge win,” Elizabeth Neumann, a former Trump counterterrorism official who has accused the president of encouraging white nationalists, told me on Wednesday. She pointed out that “The Turner Diaries,” the seminal white nationalist novel, features a mortar attack on the Capitol. “This is like a right-wing extremist fantasy that has been fulfilled,” she said.Neumann believes that if Trump immediately left office — either via impeachment, the 25th Amendment or resignation — it would temporarily inflame right-wing extremists, but ultimately marginalize them. “Having such a unified, bipartisan approach, that he is dangerous, that he has to be removed,” would, she said, send “such a strong message to the country that I hope that it wakes up a number of people of good will that have just been deceived.”In a Twitter thread on Thursday, Kathleen Belew, a scholar of the white power movement, wrote about how, in “The Turner Diaries,” the point of the assault on Congress wasn’t causing mass casualties. It was “showing people that even the Capitol can be attacked.”Trump’s mob has now demonstrated to the world that the institutions of American democracy are softer targets than most of us imagined. What happens to Trump next will tell us all whether this ailing country still has the will to protect them.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Have Trump’s Lies Wrecked Free Speech?

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHave Trump’s Lies Wrecked Free Speech?A debate has broken out over whether the once-sacrosanct constitutional protection of the First Amendment has become a threat to democracy.Mr. Edsall contributes a weekly column from Washington, D.C. on politics, demographics and inequality.Jan. 6, 2021The president in Georgia on Monday.Credit…Erin Schaff/The New York TimesIn the closing days of his presidency, Donald Trump has demonstrated that he can make innumerable false claims and assertions that millions of Republican voters will believe and more than 150 Republican members of the House and Senate will embrace.“The formation of public opinion is out of control because of the way the internet is forming groups and dispersing information freely,” Robert C. Post, a Yale law professor and former dean, said in an interview.Before the advent of the internet, Post noted,People were always crazy, but they couldn’t find each other, they couldn’t talk and disperse their craziness. Now we are confronting a new phenomenon and we have to think about how we regulate that in a way which is compatible with people’s freedom to form public opinion.Trump has brought into sharp relief the vulnerability of democracy in the midst of a communication upheaval more pervasive in its impact, both destructive and beneficial, than the invention of radio and television in the 20th Century.In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.Hasen argues:Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.Those challenging the viability of applying free speech jurisprudence to political speech face a barrage of criticism from legal experts who contend that the blame for current political crises should not fall on the First Amendment.Robert Post, for example, contends that the amendment is essential to self-governance becausea functioning democracy requires both that citizens feel free to participate in the formation of public opinion and that they are able to access adequate accurate information about public matters. Insofar as it protects these values, the First Amendment serves as a crucial tool of self-governance. In the absence of self-governance, government is experienced as compulsion, as being told what to think and what to do. That’s not a desirable situation.Post added: “As we try to adapt the First Amendment to contemporary issues, we have to be clear about the values we wish to protect, so that we don’t throw the baby out with the bath water.”Toni M. Massaro, a law professor at the University of Arizona, who with Helen L. Norton, a law professor at the University of Colorado, co-authored a December 2020 paper “Free Speech and Democracy: A Primer for 21st Century Reformers,” makes a related point in an email:Free speech theorists have lots to be anxious about these days as we grapple with abiding faith in the many virtues of free expression while coping with the undeniable reality that it can — irony runs deep — undermine free expression itself.Massaro added:Those who believe in democracy’s virtues, as I do, need to engage the arguments about its threats. And those who believe in the virtues of free speech, as I also do, need to be cleareyed about the information distortions and gross inequalities and other harms to democratic and other public goods it produces. So our generation absolutely is up at bat here. We all need to engage the Wu question ‘is free speech obsolete?’ lest it become so through inattention to the gravity of the threats it faces and poses.Helen Norton, in a separate email, expanded on the different vantage points in the legal community. On one side are those “who privilege democratic self-governance” and who are more likely to be concerned “about whether and when speech threatens free speech and democracy.” On the other side arethe many, past and present, who privilege individual autonomy and are more comfortable with the premise that more speech is always better. I’d describe it as a difference in one’s preferred theory of and perspective on the First Amendment.Other legal scholars emphasize the inherent difficulties in resolving speech-related issues:Rebecca Tushnet, a law professor at Harvard, wrote by email:Those are some big questions and I don’t think they have yes-or-no answers. These are not new arguments but they have new forms, and changes in both economic organization and technology make certain arguments more or differently salient than they used to be.Tushnet described the questions raised by those calling for major reform of the interpretation and application of the First Amendment as “legitimate,” but pointed out that this“doesn’t mean they’ll get taken seriously by this Supreme Court, which was constituted precisely to avoid any ‘progressive’ constitutional interpretation.”In certain respects, the divide in the American legal community reflects some of the differences that characterize American and European approaches to issues of speech, including falsehoods and hate speech. Noah Feldman, a law professor at Harvard, described this intercontinental split in a March 2017 column for Bloomberg,U.S. constitutional tradition treats hate speech as the advocacy of racist or sexist ideas. They may be repellent, but because they count as ideas, they get full First Amendment protection. Hate speech can only be banned in the U.S. if it is intended to incite imminent violence and is actually likely to do so. This permissive U.S. attitude is highly unusual. Europeans don’t consider hate speech to be valuable public discourse and reserve the right to ban it. They consider hate speech to degrade from equal citizenship and participation. Racism isn’t an idea; it’s a form of discrimination.The underlying philosophical difference here is about the right of the individual to self-expression. Americans value that classic liberal right very highly — so highly that we tolerate speech that might make others less equal. Europeans value the democratic collective and the capacity of all citizens to participate fully in it — so much that they are willing to limit individual rights.Tim Wu, a law professor at Columbia and a contributing opinion writer for The Times, is largely responsible for pushing the current debate onto center stage, with the 2018 publication in the Michigan Law Review of his essay, “Is the First Amendment Obsolete?”“The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s,” Wu wrote. The basic presumption then was “that the greatest threat to free speech was direct punishment of speakers by government.” Now, in contrast, he argued, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics.”Instead of protecting speech, the First Amendment might need to be invoked now to constrain certain forms of speech, in Wu’s view:Among emerging threats are the speech-control techniques linked to online trolling, which seek to humiliate, harass, discourage, and even destroy targeted speakers using personal threats, embarrassment, and ruining of their reputations.The techniques used to silence opponents “rely on the low cost of speech to punish speakers.”Wu’s conclusion:The emerging threats to our political speech environment have turned out to be different from what many predicted — for few forecast that speech itself would become a weapon of state-sponsored censorship. In fact, some might say that celebrants of open and unfettered channels of internet expression (myself included) are being hoisted on their own petard, as those very same channels are today used as ammunition against disfavored speakers. As such, the emerging methods of speech control present a particularly difficult set of challenges for those who share the commitment to free speech articulated so powerfully in the founding — and increasingly obsolete — generation of First Amendment jurisprudence.I asked Wu if he has changed his views since the publication of his paper, and he wrote back:No, and indeed I think the events of the last four years have fortified my concerns. The premise of the paper is that Americans cannot take the existence of the First Amendment as serving as an adequate guarantee against malicious speech control and censorship. To take another metaphor it can be not unlike the fortified castle in the age of air warfare. Still useful, still important, but obviously not the full kind of protection one might need against the attacks on the speech environment going on right now.That said, Wu continued, “my views have been altered in a few ways.” Now, Wu said, he would give stronger emphasis to the importance of “the president’s creation of his own filter bubble” in whichthe president creates an entire attentional ecosystem that revolves around him, what he and his close allies do, and the reactions to it — centered on Twitter, but then spreading onward through affiliated sites, Facebook & Twitter filters. It has dovetailed with the existing cable news and talk radio ecosystems to form a kind of seamless whole, a system separate from the conventional idea of discourse, debate, or even fact.At the same time, Wu wrote that he would de-emphasize the role of troll armies which “has proven less significant than I might have suggested in the 2018 piece.”Miguel Schor, a professor at Drake University Law School, elaborated Wu’s arguments in a December 2020 paper, “Trumpism and the Continuing Challenges to Three Political-Constitutionalist Orthodoxies.”New information technologies, Schor writes,are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.”To support his case that traditional court interpretation of the First Amendment no longer serves to protect citizens from the flood tide of purposely false information, Schor cited the 2012 Supreme Court case United States v. Alvarez which, Schor wrote, “concluded that false statements of fact enjoyed the same protection as core political speech for fear that the government would otherwise be empowered to create an Orwellian ministry of truth.”In the Alvarez case, Justice Anthony Kennedy wrote thatthe remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.Kennedy added at the conclusion of his opinion:The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.Kennedy cited Oliver Wendell Holmes Jr.’s famous 1919 dissent in Abrams v. United States:The best test of truth is the power of the thought to get itself accepted in the competition of the market.In practice, Schor argued, the Supreme Court’s Alvarez decisionstood Orwell on his head by broadly protecting lies. The United States currently does have an official ministry of truth in the form of the president’s bully pulpit which Trump has used to normalize lying.The crowd at the president’s rally on Monday night.Credit…Damon Winter/The New York TimesAlong parallel lines, Sanford Levinson, a law professor at the University of Texas, argued in an email that “today, things are remarkably different” from the environment in the 20th century when much of the body of free speech law was codified: “Speech can be distributed immediately to vast audiences. The ‘market of ideas’ may be increasingly siloed,” Levinson wrote, as “faith in the invisible hand is simply gone. The evidence seems overwhelming that falsehood is just as likely to prevail.”In that context, Levinson raised the possibility that the United States might emulate post-WWII Germany, which “adopted a strong doctrine of ‘militant democracy,’ ” banning the neo-Nazi and Communist parties (the latter later than the former):Can/should we really wait until there is a “clear and present danger” to the survival of a democratic system before suppressing speech that is antagonistic to the survival of liberal democracy. Most Americans rejected “militant democracy” in part, I believe, because we were viewed as much too strong to need that kind of doctrine. But I suspect there is more interest in the concept inasmuch as it is clear that we’re far less strong than we imagined.Lawrence Lessig, a law professor at Harvard, was outspoken in his call for reform of free speech law:There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.All of this means, Lessig wrote by email, thatthe First Amendment should be changed — not in the sense that the values the First Amendment protects should be changed, but the way in which it protects them needs to be translated in light of these new technologies/business models.Lessig dismissed fears that reforms could result in worsening the situation:How dangerous is it to “tinker” with the First Amendment? How dangerous is it not to tinker with the doctrine that constitutes the First Amendment given the context has changed so fundamentally?Randall Kennedy, who is also a law professor at Harvard, made the case in an email that new internet technologies demand major reform of the scope and interpretation of the First Amendment and he, too, argued that the need for change outweighs risks: “Is that dangerous? Yes. But stasis is dangerous too. There is no safe harbor from danger.”Kennedy described one specific reform he had in mind:A key distinction in the law now has to do with the state action doctrine. The First Amendment is triggered only when state action censors. The First Amendment protects you from censorship by the state or the United States government. The First Amendment, however, does not similarly protect you from censorship by Facebook or The New York Times. To the contrary, under current law Facebook and The New York Times can assert a First Amendment right to exclude anyone whose opinions they abhor. But just suppose the audience you seek to reach is only reachable via Facebook or The New York Times?The application of First Amendment protection from censorship by large media companies could be achieved by following the precedent of the court’s abolition of whites-only primaries in the Deep South, Kennedy argued:Not so long ago, political parties were viewed as “private” and thus outside the reach if the federal constitution. Thus, up until the late 1940s the Democratic Party in certain Deep South states excluded any participation by Blacks in party primaries. The white primary was ended when the courts held that political parties played a governmental function and thus had to conduct themselves according to certain minimal constitutional standards — i.e., allow Blacks to participate.Wu, Schor and others are not without prominent critics whose various assertions include the idea that attempts to constrain lying through radical change in the interpretation of the First Amendment risk significant damage to a pillar of democracy; that the concerns of Wu and others can be remedied through legislation and don’t require constitutional change; that polarization, not an outdated application of the First Amendment, is the dominant force inflicting damage on the political system.In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that,We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding thatoccasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.In this light, Tribe arguedthat the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.Tribe concluded his email citing his speech at the First Annual Conference of the Electronic Freedom Foundation on Computers, Freedom and Privacy in San Francisco in March 1991, “The Constitution in Cyberspace”:If we should ever abandon the Constitution’s protections for the distinctively and universally human, it won’t be because robotics or genetic engineering or computer science have led us to deeper truths but, rather, because they have seduced us into more profound confusions. Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is “right” or what is “wrong.” The fact that those notions are elusive and subject to endless debate need not make them totally contingent upon contemporary technology.Jack Balkin, a law professor at Yale, takes a different tack. In an email, he makes a detailed case that the source of the problems cited by Wu and others is not the First Amendment but the interaction of digital business practices, political polarization and the decline of trusted sources of information, especially newspapers.“Our problems grow out of business models of private companies that are key governors of speech,” Balkin wrote, arguing that these problems can be addressed by “a series of antitrust, competition, consumer protection, privacy and telecommunications law reforms.”Balkin continued:The problem of propaganda that Tim Wu has identified is not new to the digital age, nor is the problem of speech that exacerbates polarization. In the United States, at least, both problems were created and fostered by predigital media.Instead, Balkin contended:The central problem we face today is not too much protection for free speech but the lack of new trustworthy and trusted intermediate institutions for knowledge production and dissemination. Without these institutions, the digital public sphere does not serve democracy very well.A strong and vigorous political system, in Balkin’s view,has always required more than mere formal freedoms of speech. It has required institutions like journalism, educational institutions, scientific institutions, libraries, and archives. Law can help foster a healthy public sphere by giving the right incentives for these kinds of institutions to develop. Right now, journalism in the United States is dying a slow death, and many parts of the United States are news deserts — they lack reliable sources of local news. The First Amendment is not to blame for these developments, and cutting back on First Amendment protections will not save journalism. Nevertheless, when key institutions of knowledge production and dissemination are decimated, demagogues and propagandists thrive.Erwin Chemerinsky, dean of the law school at Berkeley, responded to my inquiry by email, noting that the “internet and social media have benefits and drawbacks with regard to speech.”On the plus side, he wrote,the internet and social media have democratized the ability to reach a large audience. It used to be that to do so took owning a newspaper or having a broadcast license. Now anyone with a smartphone or access to a library can do so. The internet provides immediate access to infinite knowledge and information.On the negative side, Chemerinsky noted that:It is easy to spread false information. Deep fakes are a huge potential problem. People can be targeted and harassed or worse. The internet and social media have caused the failure of many local papers. Who will be there to do the investigative reporting, especially at the local level? It is so easy now for people to get the information that reinforces their views, fostering polarization.Despite these drawbacks, Chemerinsky wrote that he isvery skeptical of claims that this makes the traditional First Amendment obsolete or that there needs to be a major change in First Amendment jurisprudence. I see all of the problems posed by the internet and social media, but don’t see a better alternative. Certainly, greater government control is worse. As for the European approach, I am skeptical that it has proven any better at balancing the competing considerations. For example, the European bans on hate speech have not decreased hate and often have been used against political messages or mild speech that a prosecutor doesn’t like.Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote:I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.Having said that, Stone continued,I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse.The challenge, Stone continued,is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.In an email, Nathaniel Persily, a law professor at Stanford, declared flatly that “The First Amendment is not obsolete.” Instead, he argued, “the universe of speech ‘issues’ and speech ‘regulators’ has expanded.”While much of the history of the First Amendment has “been focused on government suppression of dissenting speech,” Persily continued,most speech now takes place online and that raises new concerns and new sources of authority. The relationship of governments to platforms to users has not been fleshed out yet. Indeed, Facebook, Google and Twitter have unprecedented power over the speech environment and their content moderation policies may implicate more speech than formal law these days.But, Persily warned, “government regulation of the platforms also raises speech concerns.”The complex and contentious debate over politicians’ false claims, the First Amendment, the influence of the internet on politics and the destructive potential of new information technologies will almost certainly play out slowly over years, if not decades, in the courts, Congress and state legislatures. This is likely to make the traditionalists who call for slow, evolutionary change the victors, and the more radical scholars the losers — by default rather than on the merits.The two weeks between now and the inauguration will reveal how much more damage Trump, in alliance with a Republican Party complicit in a deliberate attempt to corrupt our political processes, can inflict on a nation that has shown itself to be extremely vulnerable to disinformation, falsehoods and propaganda — propaganda that millions don’t know is not true.As Congress is set to affirm the outcome of the 2020 presidential election, the words of Hannah Arendt, who fled Nazi Germany after being arrested in 1933, acquire new relevance.In 1967, Arendt published “Truth and Politics” in The New Yorker:The result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that the sense by which we take our bearings in the real world — and the category of truth vs. falsehood is among the mental means to this end — is being destroyed.The fragility of democracy had long been apparent. In 1951, in “The Origins of Totalitarianism,” Arendt wrote:Never has our future been more unpredictable, never have we depended so much on political forces that cannot be trusted to follow the rules of common sense and self-interest — forces that look like sheer insanity, if judged by the standards of other centuries.Totalitarianism required first blurring and then erasing the line between falsehood and truth, as Arendt famously put it:In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true ….Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics:Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.America in 2021 is a very different time and a very different place from the totalitarian regimes of the 20th Century, but we should still listen to what Arendt is saying and heed her warning.The Times is committed to publishing a diversity of letters to the editor. 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