It was a joke and then it wasn’t. My older son was messing around with words: autocracy, autology, tautology… What, he asked, would a tautocracy be?
The right word for something can happen by accident. I thought about it. I believe, I told him, we live in one, right now. A tautocracy. A form of government by a form of government. Government by circular argument.
From a democratic point of view—democratic with a small D—there isn’t any doubt about the midterm elections. The majority of the American public wants to get rid of the current party in power. The question is not if the ruling party will get more votes than the opposition; nobody sincerely believes that will happen.
Instead, the question is whether the majority that supports the opposition party will be a large enough majority to get past the artificial break-even point of a system that operates to block majority rule. FiveThirtyEight puts that break-even point around a 5.5 percent advantage. Even then, the majority could still lose—the way the majority lost the 2016 presidential campaign despite 3 million more votes, or the way the majority is expected to remain the minority party in the Senate, the status it holds now after having had a net advantage of 18 million votes through the past six-year cycle.
If the majority does lose, the party with majority support will be blamed for it, and the minority will celebrate the result as proof of its mandate to rule. When the losers complain, they will be told, with the condescension particular to people who believe they’ve learned one more thing about the world than other people have, that the United States is not even supposed to be a democracy. These are the two parties in our system: the Democratic Party and the Actually-It’s-a-Republic-an party.
The latter party, the ruling party, believes or professes to believe that the only thing that matters is the rules. The rules have been set up a certain way, and that’s the way the rules are set up.
On November 2, a federal judge refused to block North Dakota’s voter-identification law, even though it may prevent hundreds or thousands of Native Americans in the state from voting, by demanding official residence addresses from people whose homes are on reservation land without street names or fixed numbers. Last year the same judge had found that the law would wrongly bar people from voting. After the matter made its way up through appeals, with the law reinstated along the way, and it came back to the original judge again, the judge ruled that whatever the merits might be, the state was too close to the election to change things now:
The federal courts are unanimous in their judgment that it is highly important to preserve the status quo when elections are fast approaching….
The allegations in the complaint, the motion for a temporary restraining order, and the attached affidavits give this Court great cause for concern….The litany of problems identified in this new lawsuit were clearly predictable and certain to occur as the Court noted in its previous orders…
However, a further injunction on the eve of the election will create as much confusion as it will alleviate, and is foreclosed by precedent which is hesitant to permit “eleventh-hour changes to election laws.”
That is, according to federal precedent, it is more important to stick to the rule that election rules can’t be changed than it is to stick to the principle that people must be able to vote in the election. The system depends on the reliability of the system.
Why is there a rule against changing election laws at the last minute? To give people a fair shot at casting their ballots under equal conditions. If the conditions are unequal, the reason itself collapses, or it ought to.
The trick to tautocracy is that there are enough rules to go around that you can always pick which one is the important one. This is why Mitch McConnell is the most powerful politician of our era.
Yet the Supreme Court has set the precedent that elections must not be disrupted to accommodate the needs of voters. The trick to tautocracy is that there are enough rules to go around that you can always pick which one is the important one. This is why Mitch McConnell is the most powerful politician of our era. There may be a rule—written into the Constitution, even—that the president has the power to nominate Supreme Court justices, and a rule that the Senate has the duty to confirm or reject them. But there’s no rule that says the president can force the Senate to do its duty if it refuses to consider a nominee at all, pending the result of an election that will change who the president is.
And then, when the president is from McConnell’s own party and the nominee is to McConnell’s liking, the relevant rule is that a confirmation must happen before the next election, whether the nominee’s background documents are in order or not. The Constitution, silent for the previous president, suddenly demands it.
One might almost begin to believe that the Constitution is a living document, responsive as it is to the orders of the people in charge. Yet they insist on the opposite, that it is a fixed and perfected structure, which gives legitimacy to every perverse or majority-thwarting result that the system may produce. When people criticize the Electoral College after it gives the presidency to a popular-vote loser like Donald Trump or George W. Bush, or they criticize the Senate for pushing through a Supreme Court nominee opposed by a majority of the public, the winners treat this as an attack on the foundations of government.
After Brett Kavanaugh was confirmed, Rich Lowry spelled out the complaint against the complaints in the New York Post:
Democrats suffered a stinging loss in the fight over Brett Kavanaugh’s confirmation, and have concluded that the constitutional system is to blame.
You see, if only the Founders hadn’t forged the Great Compromise between large states and small states at the Constitutional Convention in 1787, giving each state equal representation in the US Senate, they would have defeated Brett Kavanaugh handily. It’s only because smaller red states have two senators just like larger blue states that the judge got confirmed.
For the left, the US Senate is now looming, together with the Electoral College and the Supreme Court, as an institution of villainy in American life.
An attack on the Senate for its grossly imbalanced representation of the American people, you see, is an attack on America itself. Chris Cillizza of CNN, whose job is to provide the least inspected account of what the political press considers obvious, affirmed the rightness of the result:
The Point: Kavanaugh got confirmed by the rules of the Senate as outlined by the Founding Fathers. And, it wasn’t solely a small state vs. big state thing. You can not like the outcome. You can want the rules to be different. But, that doesn’t change the fact that Kavanaugh got confirmed fair and square.
What could ever seem unfair or off-square to Chris Cillizza? Somebody won, somebody lost. True, the senators on the losing side represented many more people than the ones on the winning side did—55.8 percent to 44.2 percent, Cillizza acknowledged—but that’s how the Founders set it up.
The Founders, if we’re attributing present-day judgments to them, might be startled to hear they’d designed a perfect government. Their first attempt had been a failure, after all, and their second was a mass of awkward compromises they had grave doubts about. The best that could be said about the new Constitution was that it was designed to adapt to the needs of a growing and changing nation, which would add new land and new people to the Union and would amend the Constitution as the need arose.
The frontiers, geographic and intellectual, are closed, and politics is a zero-sum game inside those limits.
Now, the idea of changing the Constitution is treated as if it were an insult to the flag. The idea that this is a nation of laws—in which the same rules apply equally to everyone, transcending party or interest—has become the doctrine that the rules around the laws are the ultimate source of legitimacy. Politicians brandish pocket copies of the Constitution like scripture. The rules and the structures of government (and the rules and structures built atop those rules and structures, and the ones atop those) are locked in place. The frontiers, geographic and intellectual, are closed, and politics is a zero-sum game inside those limits.
This is a recent, and radically different, state of things. I was born in 1971, shortly after the 26th amendment gave 18-year-olds the right to vote, and 12 years after Alaska and Hawaii were added to the Union.
Since then, in my entire lifetime, there have been no more states and a single constitutional amendment, in 1991, a petty and symbolic one about not raising congressional pay until a new Congress was seated, which had been sitting on the shelf for more than 200 years.
Here’s a quick sketch of the history of the American system:
From the 1780s through the 1970s, there was only one decade in which the United States failed to add at least one new state or new constitutional amendment. (That was the 1940s, when the country was otherwise very busy.) The current period of stasis—one antique and minor amendment in the course of 47 years—is entirely unprecedented.
No one alive—except, notably, immigrants—can be truly said to have consented to this system of government.
What this means is that no one alive—except, notably, immigrants—can be truly said to have consented to this system of government. The rules came before the people, and the rules govern. Barely, narrowly, you might argue that registering to vote and then voting is a kind of consent, like when you click “I Agree” under an endless scroll box of tiny text to get through the terms of service and do whatever it is you’re trying to do on the computer. But most people don’t vote, and most people who do vote didn’t vote for the people who are setting the rules.
The result is government by ever-deepening cynicism and technicality, freely ignoring the content of the original rules, let alone their purpose. News reporters blandly write that a measure didn’t get the 60 votes it needed to pass the Senate. The House declines to look into whether foreign governments making large cash payments to the president’s personal businesses would violate the Emoluments Clause. The Georgia Secretary of State supervises, and purges tens or hundreds of thousands of voters from, the election in which he himself is running for governor, because there’s nothing that says he can’t.
The Founders had, at best, a limited enthusiasm for direct democracy. They did, however, believe in self-rule. The Declaration of Independence is prior to the Constitution, and it speaks in the language of absolute principle and specific injustices, the voices that tautocratic Constitution-worship exists to obfuscate or rationalize away.
It was the Declaration that created the authority under which a group of people who had previously been subject to an unaccountable British king and Parliament set about trying to find another form of government, and specifically a form of governing themselves.
This is all elementary, but being elementary, it tends to get skipped over, along with the dark notes about people’s ability to submit to misrule. “[A]ll experience hath shewn,” they wrote, “that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
