Episode 2: How Different Has Been Done

Season One, Episode 2 | October 17, 2018
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This is Larry Lessig and this is the second episode of this podcast, Another Way.

In the first, I described what everyone should know: that America has become ungovernable, and that 2020 won’t fix that unless we change what that election is about.

In this episode, I describe a little bit more what that change would have to be.


Part 2

There have been critical moments in the history of America when we have come to see that something more than ordinary politics was necessary. Moments when citizens understood that the existing machinery of government was just not up to the task — and when the politicians did something fundamental to fix it.

Sometimes those changes were constitutional. But not every fundamental change requires a change in the Constitution — think of the civil rights movement in the 1960s. Some changes simply require the force necessary to move the status quo to get a government that can do what the people now demand.

That’s what happened at the founding of our nation: the then-existing Constitution — what was called the Articles of Confederation — was a total and absolute flop. Congress couldn’t do anything, and no one listened to what Congress actually did. (In 1786, Congress requisitioned $3.8 million from the states to pay its bills. Of that amount, $663 was paid by the states.) So the Framers of our Constitution drafted our new Constitution, in secret. They got it ratified, in a way that violated the then-existing rules for constitutional change. The Framers had persuaded America that something extraordinary was needed, even if it violated the rules laid down. And out of that persuasion and illegality, America was born.

That’s what happened again after the Civil War: the Union saw that there would be no peace unless civil equality was enforced throughout the land. That was the objective of the 14th Amendment. Yet it was clear that Amendment was not going to be ratified under the existing rules for amending the Constitution. It took just 10 states to block any amendment, and there were 11 states from the returning confederacy. So a Congress filled with representatives just from the North basically told the South that they would only be readmitted to Congress when their state passed the 14th Amendment. That was ratification by bayonet and their threat worked. Over the objection of many, on July 20, 1868, a hundred and fifty years ago this summer, Secretary of State William Seward recognized that the 14th Amendment was now law.

And that’s what happened again in the middle of the New Deal: Franklin Roosevelt had been elected to restore the nation from the depths of a depression. His efforts were resisted by a Supreme Court that rejected the idea of an activist federal government. Roosevelt fought that Court; the people rallied to Roosevelt’s side. The landslide in 1936 was the greatest in American history, and after the President threatened to pack the Court, the Court finally backed down. Election after election confirmed what Roosevelt had said: that the people wanted a federal government that could act for the nation as a whole.

Each of these was a moment of partisan constitutional change. The party with power gathered enough power to force its will upon a reluctant minority, and then win ratification from the people afterward. There were two sides, clearly thought of as partisans after the Civil War and during the New Deal. One side won big enough to impose its view on the other, and thus, on the nation.

Yet there have been critical moments of nonpartisan fundamental change as well. Times when the Constitution has been altered not because one side won big, but because the politicians from both sides got together to change the fundamental law. Indeed, every single amendment since the Civil War Amendments has been endorsed by both major political parties before they were enacted. Some of these amendments were insignificant. (Pop quiz: what’s the 25th Amendment about?) But many — such as the income tax amendment, or the amendment granting women the right to vote — have been among the most important in our Constitution’s history. These are the rare stories of politicians rising above their partisan divisions and making changes that both sides had come to see as essential for the Republic.

This is our past, and it is both inspirational and terrifying. Inspirational because it teaches us that when faced with critical challenges before, we have been able to respond. But terrifying because it’s pretty clear that if these are the only ways that we can respond, then we’re in real trouble right now.

Because no party in America today is going to achieve the dominance of the Democrats in 1936 or the Republicans in 1868. And neither the Democrats nor the Republicans seem capable of even imagining the idea of rising above a partisan divide to deal with the corruption that is our government. It is just not in the DNA of the politicians of our time to escape their partisan divide.

And so that’s the terrifying bit. We seem stalemated: if the past is the only pattern of what’s possible in the future, then fundamental change does not seem to be in America’s future anymore. We have a government that cannot govern, yet no clear path out of this ungovernable mess.

Now the truth is, I’m not actually sure what’s possible. I’m actually not convinced that there is a happy story to tell here.

But if we love this country, if we love at least its ideals, however imperfectly they have been lived, then we have to try, regardless of what we think is possible, we have to try. We have to act as if success is possible, and give this fight everything we can. We must commit every ounce of energy to the battle to get us a democracy that can work. We must, as Obama told us, “take up that fight,” for unless we do, “real change — change that will make a lasting difference in the lives of ordinary Americans — will keep getting blocked by the defenders of the status quo.”

So what can we do?

So much of American politics today is about us versus them. Our tribe versus their tribe. The Right versus the Left. Republicans versus Democrats.

But there’s a different and more important us versus them here. Not us citizens versus us citizens. But us citizens versus them, the politicians. Our fight should not be about us versus us; our fight has got to be about we the People versus them, the politicians.

Now I don’t say this because I want to wage class warfare against the class of us called politicians. I have enormous respect for the public servants we call politicians. The overwhelming majority of them got into politics for exactly the right reason, whether or not you agree with their values.

But I say that to throw into relief a point that should be obvious: that the changes that we need will affect them more than us. And if we’re to rally the political power to get them to make these changes, we cannot stand divided. Especially if the techniques that have brought about fundamental change before are not available to us today — especially then, we cannot stand divided. If we cannot achieve a one-party State — as the Framers did, as the Republicans after the Civil War did, as the Democrats did after the Depression — or we cannot imagine our politicians unifying around the fundamental changes that we need — as happened with every amendment since the Civil War Amendments — then we must stand together and execute a kind of politics that has never happened in America so far. A constitutional politics not by the politicians, but by the citizens as outsiders.

For the first time, we the People cannot rely upon them. For the first time, we must force the change that America needs upon them, by whatever means we can, with whatever tools we can muster.

Now to those who live by the rhythm of ordinary politics, this idea will just seem nuts. And from the perspective of ordinary politics, it is nuts. Change is and has always been within the domain of the politicians. The people rising up has never been a plan; it has only ever been a metaphor.

But if ordinary politics in America can no longer work, then ordinary politics cannot be the measure of what we must do. Or imagine. Or try. Indeed, what’s nuts today is acting as if nothing different from ordinary politics is going to be needed.

What’s nuts is doing the same thing and imagining something different is going to come from it.


So what different thing could we do?

Stay tuned. That’s Episode 3.


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