The United States suffers the continued costs of maintaining a racial hierarchy. Enhanced diversity and growing realization of the economic costs of that hierarchy could lead to democratic pressure for reform. Yet, in the U.S., elites on the radical right seek to entrench themselves in power through the constriction of voting power and the strategic use of the racial hierarchy as a political tool. This Article traces the anti-democratic efforts of the radical right to limit the political power of the nation's enhanced diversity, and to utilize archaic governance measures to entrench themselves politically, regardless of the costs of allowing the racial hierarchy to continue to fester. Antidemocratic efforts to limit voting power to assure non-democratic governance and outcomes recently scored significant success as recounted in this Article. The anti-democratic contrivances to limit the power of enhanced diversity requires comparable countermeasures to vindicate the core value of expanded democracy that find its roots in our history and in the Constitution's trajectory towards ever greater democratic governance. This Article surveys countermeasures that could lead to the preservation and even expansion of democratic governance. It concludes that only through a renewed pursuit of expansive voting rights can we restore our democracy and move the nation away from its racist past.
CONTENTS INTRODUCTION I. RACE AND THE ATTACK ON U.S. DEMOCRACY II. THE SUPREME COURT'S NEW OLIGARCHY III. DEMOCRACY STRIKES BACK IV. REFORMING DEMOCRACY CONCLUSION INTRODUCTION
Some notable scholars maintain that the United States' racial hierarchy will endure permanently. (1) Others maintain that appropriate legal frameworks can diminish the influence of racial hierarchies, at least to the extent that human capital is broadly developed (2) and the rule of law (3) operates free of racial discrimination. (4) Attitudes may operate beyond the law, at least over the short and medium term, but law can operate free of discrimination, and if all human capital develops to its maximum potential, then perhaps law sets the stage for continual progress in terms of eliminating racial privileges and hierarchies. (5) This more sanguine view of the possibility of deracialization, however, assumes that demographic and economic pressures find expression through a rationalized system of democratic decision-making that reflects the needs and desires of the entire population. (6) But in the U.S. today, democracy and majority rule prove elusive. (7)
In terms of economics, the U.S. faces an enormous challenge that promises to steadily worsen: the corrosive influence of a socially constructed racial hierarchy that leaves millions of young Americans stranded at the margins of our economy and deprives our economy of a rationalized human-capital-formation function. (8) Our legal and educational system propagates and entrenches this irrational economic reality, and the legal academy plays a central role in this deeply suboptimal economic outcome (9) by failing to teach both the role of the Supreme Court's emphasis on using the Equal Protection Clause to protect only those at the top of economic and social hierarchies and the importance of the core value of democracy. (10) Our entire society bears the cost of this economic challenge in the form of trillions of dollars in foregone macroeconomic growth. (11) In addition, our entire society suffers the effects of stunted human-capital development and innovation. (12) Law frames and promotes this outcome on a systemic basis, with the Supreme Court non-democratically paving the way towards macroeconomic backwardness. (13)
In terms of demographics, we believe that new demographic and economic realities will create opportunities for the kinds of initiatives needed to diminish the perpetuation of our racial hierarchy--specifically, the broadest possible embrace of cultural diversity under the law and the broadest human development. Demographically, people of color will constitute a majority of the U.S. population by 2045. (14) "New census population projections confirm the importance of racial minorities as the primary demographic engine of the nation's future growth, countering an aging, slow-growing and soon to be declining white population." (15) Specifically, in 2045 the nation is projected to be 49.7% white, 24.6% Hispanic, 13.1% African American, 7.9% Asian American, and 3.8% multiracial populations. (16) This will create important economic and social changes across society.
While this will create political pressure for racial reform, America's representative democracy faces severe distortions as a result of the arcane and archaic legal frameworks associated with the preservation of slavery and the enduring reality of racism in America. (17) Thus, for example, with respect to the Electoral College, Professor Juan Perea reviewed the pro-slavery structure of the Constitution (18) and quotes James Madison for the proposition that the founders needed to address the problem of maintaining slavery in light of superior popular voting power in the North. (19) The solution was the Electoral College, which, along with the infamous "three-fifths of all other persons" rule, ensured that the South could maintain slavery for decades. (20) Most recently, this meant that Hillary Clinton lost the 2016 election despite the fact that she garnered over three million votes more than Donald Trump in the final certified election results. (21) The U.S. Senate operates as a racial gerrymander that today preserves white, male power. (22) Certainly, the law channels and defines the impact of political pressure. (23) This Article will show that the law today defines the U.S. political system in a fundamentally non-democratic, pro-oligarchy way that too often negates and neutralizes pressure for racial justice. (24)
The Founding Fathers originally intended to impose an oligarchy upon our nation with very limited democratic influence. (25) Aside from the distortions implicit in the U.S. Senate, the Electoral College, and the inflation of Southern voting power through the three-fifths rule, the Founders operated in full view of state laws that extended franchise rights primarily to white, Protestant, male land owners--or about six percent of the population. (26) The original intent of the Founders sought, at best, to impose a highly constrained democratic republic with extremely limited suffrage, and, at worst, to constitute a government with only a bare semblance of democracy. (27) Americans hold democracy as a core value, but the legally constructed political system in place today is archaic and yields a perverse form of minority, not majority, rule. (28)
This Article addresses the question of whether democracy in the U.S. will express the rising demographic and economic pressure for change or whether law can distort democratic processes and neutralize the rising political pressure for dismantling America's festering racial hierarchy. (29) Part II traces recent race-based attacks on U.S. democracy designed to shift power to small bands of entrenched elites. Part II strives to assess the viability of such attacks to foil future economic and demographic pressure for reform. Part III highlights the Supreme Court's role in the effort to restore the eighteenth-century oligarchy the Founders envisioned. Part IV summarizes historic and political developments that suggest that in the U.S., democracy remains a powerful core value that will ultimately triumph over attacks on democracy from the far right. Part V assesses the lawfulness of putative legal changes that aim to save our representative democracy and end minority rule. The search for solutions for the vindication of this core democratic value, notwithstanding the archaic law framing democracy in America and the far-right's race-based attacks on democracy, teaches that the U.S. should use all means necessary under the law to restore democracy so it can restore the rule of law.
This Article concludes that law can secure an enhanced democracy and thwart efforts to return America to an oligarchy. Instead, law will shed the archaic and race-based remnants in the Constitution that govern democracy in the U.S. today. These remnants of white supremacy negate and impair much of the voting rights expansion that marks our constitutional history since the end of the Civil War. The ongoing attack on American democracy strikes us as fundamentally countercultural and thus politically unsustainable. Eventually law will recondition our democracy and politics, rendering racial reform inevitable. To be clear, we do not contest the notion that a limited democracy is necessary to avert a tyranny of the majority. Rather, we contest the tyranny-of-minority rule that seeks to entrench privilege and raw economic and political power beyond the reach of democratic governance. As we will show in the next part of this Article, race, democracy, and the emergent U.S. oligarchy tightly intertwine.
RACE AND THE ATTACK ON U.S. DEMOCRACY
Professor Nancy MacLean recently documented what she terms the "radical right's" efforts to diminish democratic power and influence in our government, paving the way for the restoration of an oligarchy to legally protect the interests of the very wealthy. (30) A small number of billionaires and millionaires lead this effort, and they enjoy powerful "intellectual" support from the many scholars they patronize. (31) Race plays a central role in this effort even if the propagators of an oligarchy today hold little interest in restoring the racial oppression of yester-year. (32) Today, they intend to emasculate the federal government's ability to fund social spending and investment so that taxes and spending remain permanently low regardless of the impact on economic growth or the public's desire. (33) Incidentally, they would denude the federal government's ability to ever...