Revolution by Shenanigan

By Kevin D. Williamson

Monday, September 28, 2020

 

Texans are very fond of reminding our fellow Americans that, because of its former status as an independent republic, Texas is the only state in the union permitted by treaty to leave the Union or renegotiate its status. This is a point of pride with Texans.

 

It isn’t true.

 

In fact, nothing you will ever hear about the provisions of the treaty that brought Texas into the United States is true, because there is no treaty. There was a treaty, but the Senate rejected it.

 

The treaty wasn’t only rejected but was soundly rejected: 35 against a mere 16 in favor. (We will try not to take that personally.) This was one of those vagaries-of-history things. The Texas-annexation treaty had been negotiated on the U.S. side by Secretary of the Navy Thomas Gilmer and Secretary of State Abel Upshur, who went and got themselves killed when demonstrating the latest and greatest in U.S. naval warfighting technology aboard the USS Princeton, which exploded. President John Tyler was present, too, but was uninjured.

 

Upshur’s replacement, John C. Calhoun, wanted Texas in the Union as a bulwark for slavery; he was exactly the wrong man for the job and proved unable to rally the necessary political support. After the bill failed, it was reintroduced as a joint resolution, in order to circumvent the two-thirds requirement for a treaty. A compromise proposal splitting Texas into two states (one slave, one free) came and went. Texas ultimately was admitted on a simple majority vote. It probably wasn’t constitutional, but Hawaii was later admitted to the Union under similar circumstances, with supporters citing the case of Texas.

 

Today’s shenanigan is tomorrow’s precedent.

 

The American constitutional order is a blend of democratic and undemocratic institutions, a result of the compromises that were necessary to create one nation out of 13 very different colonies, with different economic and political interests, different cultures, different religious habits — the genuine diversity of 18th-century American life. We have a federal system in which the states and U.S. government exercise a kind of dual sovereignty, with the states remaining powers in their own right rather than mere administrative subdivisions of the national state. The status of the states is reflected in the Senate, where each state enjoys equal representation regardless of population, and in institutions such as the Electoral College. Other antidemocratic measures in our constitutional order include judicial review and, most important, the Bill of Rights, which are constraints on the powers of temporary democratic majorities.

 

The Democrats currently are at war with the American Constitution. They believe that it is unjust that on two recent occasions their party has lost presidential elections, which happen in the Electoral College, in spite of winning a greater number of total votes across all the states. They dislike that the Senate gives power to less populated, rural, and largely Western states that are more conservative than are the big, densely populated urban areas in which Democrats thrive. And they are irritated that the First Amendment prevents them from imposing a federal censorship regime on political speech.

 

The Democrats’ approach to the Senate has been politically incompetent. When they were in power, they resented the effective maneuvering of the minority party, and so eliminated the filibuster in the matter of most federal judicial appointments, an innovation that they are regretting in the worst way right about now. Republicans extended the filibuster-free process to nominations for the highest court.

 

Now, some Democrats propose to simply create new Senate seats for their party by declaring the District of Columbia and Puerto Rico to be states, which would be illegal in the former case and unwise in the latter. But in the matter of Puerto Rico, they have the Texas-annexation shenanigans of the 19th century as precedent.

 

On the Electoral College, Democrats propose either to abolish it through constitutional means, a gambit unlikely to succeed, or to abolish it by shenanigan, through an initiative such as the (possibly illegal) National Popular Vote scheme, which would rob the voters of the several states of the right to choose their own electors and instead award them to whichever candidate won the most votes in all of the states combined — effectively abolishing the states in the matter of presidential elections.

 

When he wasn’t monkeying around with the filibuster, Democratic Senate leader Harry Reid, now retired, had his eye on the Bill of Rights. When the Supreme Court said for the umpteenth time that Congress cannot impose censorship on political critics, even if it calls that censorship “campaign finance reform,” Reid led an effort — supported by every single Democrat in the Senate — to repeal the First Amendment. Of course, he didn’t say that’s what he was doing, but a First Amendment that doesn’t protect political speech from government control is not a First Amendment.

 

Between reshaping the Senate, abolishing the Electoral College, and gutting the Bill of Rights, Democrats propose to work a revolution in American government, to do away with the Constitution we have and impose a new one that none of us has agreed to live under and that many of us — and I include myself here — would not consent to live under. And in the main they would not accomplish this through the ordinary democratic and constitutional means — through constitutional amendments or a constitutional convention, subject to ratification by the states — but through shenanigans. And they think that they can broaden their theater of shenaniganic action with another shenanigan, i.e. maneuvering to keep Donald Trump and Mitch McConnell from exercising their ordinary constitutional powers and filling the current opening on the Supreme Court.

 

Donald Trump is unfit for the office he holds, but if the Democrats were trying to create a good case for keeping him in place simply as a monkey-wrench — and if they wanted to make an even more persuasive case for keeping a Republican majority in the Senate — then they could hardly do better than what they are doing right now. Between the riots and the arson and the threat of revolution-by-shenanigan, they have managed the nearly impossible feat of making today’s Republican Party appear — relatively — sane.