COVID-19 and the Crisis of the Body Politic

The pandemic isn't just a public health crisis. It's a constitutional crisis too.

When one compares the response to COVID-19 in the U.S. to those abroad, it is difficult to describe it as anything less than catastrophic. The U.S. remains well ahead of every nation with over 6 million confirmed positive cases and over 183,000 COVID-related deaths.

This being said, it is worth remembering that the U.S. does not have a single COVID-19 response. Instead, it has hundreds, perhaps even thousands of responses taking place at every level of government, with varying levels of coordination and cooperation.

In part, this has been a failure of national leadership. The White House and Congress have more or less abdicated coordinating and leading a national response, choosing instead to act mainly as observers, occasionally coming together to push through relief packages that are abundant in corporate handouts and, aside from a highly successful but temporary boost in unemployment insurance, lacking in support for the tens of millions of unemployed, families with children, and even the small businesses that so many politicians claim to support so ardently.

But there is also a deeper, structural aspect to this dysfunction. In truth, this crisis has been exacerbated by the American constitutional structure. In particular, the problems lie in the design of Congress, especially the Senate and in the top-down American form of federalism, which empowers federal and state government at the expense of localities.

This is not to imply that fixing these problems would provide some magical cure to the current pandemic or future ones. But it is a recognition that effective responses to this pandemic, and policies that would have helped to ameliorate the broader economic and social damage from it and should have been adopted well before it, have been largely prevented by small but powerful interests. This is because our constitutional system is designed to insulate elected officials from being held directly accountable to the American people.

As such, who has power within the political system, and therefore, whose preferences are prioritized, will not change without reforms in the form of constitutional amendments or a new constitutional order altogether.

Before exploring what this would look like, a reasonable critique of this perspective might say, the U.S. is hardly the only country to arrange its government along federal lines. It is also far from the only nation to see important problems become politicized and have partisan gridlock set in, preventing sweeping action. But these objections ignore the unique ways in which the American system was designed to protect a status quo and ensure that a political minority can come to hold immense power under the pretense of constraining “tyranny” from a political majority.

Congress: The Broken Branch

This is most clearly illustrated by Congress, and how it has come to be such a particularly ineffective institution for responding to the basic needs and desires of the vast majority of Americans even before this pandemic.

Article I of the Constitution establishes the Congress and divides it into two chambers, the House of Representatives and the Senate (it also grants the states power over the governance of their elections, a wrinkle we shall return to later). While the House is apportioned based on population, the Senate “shall be composed of two Senators chosen from each State.” This was the result of a compromise at the Constitutional Convention to alleviate concerns raised by smaller states that they would not have an equal voice in a new federal government.

Initially, an equally-apportioned Senate was opposed by representatives from the largest states, who correctly identified the two member-per-state requirement as creating an imbalance in representation. At the time it was created, this imbalance was not insignificant – the largest state, Virginia, was twelve times larger than the smallest, Delaware. But today, it has become indefensible. California is about 67 times as large as Wyoming, home to less than 600,000 people, and has about the same population as the 22 smallest states combined, who have 44 Senators between them (25 of whom are Republicans).

This might seem like a separate issue from the current public health crisis. But the contours of debate and the limits of political possibility in the U.S. are largely drawn by the Senate. A direct result of this is the constraining of the U.S. response to COVID-19 by a Republican Senate majority that is more interested in representing the interests of corporations and favored industries than the majority of people.

While Democratic Party leaders and elected officials have certainly not been universally better in responding to the COVID-19 crisis, Democrats in the House and Senate have been mostly consistent in demanding an expansion of the safety net to ensure that Americans do not have to risk their lives by going to work, or fail to meet their basic needs while their workplaces are closed. Republicans, despite the occasional adoption of populist rhetoric by some, have elevated the concerns of business owners and corporate leaders, who appear terrified that American workers will realize they are better off staying home, so long as they are given the necessary financial support.

Democrats would seem to hold the political advantage, as some polling shows very large majority support for extending the $600 per week pandemic unemployment benefits. But Republicans seem increasingly likely to cut them severely, while also providing legal liability protection to businesses to prevent employees from holding them accountable if they get sick at work.

Some might say that this indicates the problem is partisanship, not the Senate per se. But a closer analysis of which states are represented on each side of this divide should disabuse us of that notion. Of the 53 Republican Senators, only two represent states that voted for Hillary Clinton in 2016 (Colorado and Maine). Of the 47 Democrats, nine come from states that voted for Donald Trump (Alabama, Arizona, Michigan, Montana, Ohio, Pennsylvania, Wisconsin, and West Virginia) and where Republicans have been elected to statewide offices as or more often than Democrats since 2010.

It is possible that many of these states will vote for Democrats in the coming election. Many of them did elect or reelect one least one Democrat statewide in 2017 and 2018. But there are unsettling trends that suggest a majority of states are becoming increasingly Republican-leaning despite the majority of American voters, who live in a smaller number of states, becoming increasingly Democratic-leaning.

If this trend becomes reality – which, barring an exodus of left-leaning people from places like New York and California to states in the Midwest and Deep South, seems likely – equal Senate representation will increase the odds of a near-permanent Republican Senate majority with each coming election. As such, public policy responses to pressing crises like pandemics and climate change will be shaped by the Republicans and their base.

Failures of Federalism

The undemocratic nature of Congress, and particularly the Senate, has long been discussed on the Left. But an equally important problem goes largely ignored: federalism and federal supremacy.

Federalism in the United States was born out of the prior existence of both federal and state governments. In order for this to function as a relatively unified country, rather than a confederation or league of states that cooperate or compete for power over their neighbors, the Constitution established federal supremacy in Article VI, Clause 2. This Supremacy Clause states that federal laws “shall be the supreme Law of the Land;” meaning they take precedence over or even override state laws.

This federalist relationship is modified somewhat by the Tenth Amendment, which clarifies “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” – basically, that states are still entitled to create their own laws, even those not enumerated in the Constitution’s articles.

The implications of the Supremacy Clause as well as the Tenth Amendment are best considered as creating a broader legal hierarchy with individuals at its base and the national government at its top. Each level is subject to the legal supremacy of those above it; federal laws can override state laws, state laws can override local ordinances, and the people are ultimately subject to all the laws of whichever jurisdictions they operate in (for example, a resident of Birmingham, Alabama is subject to that city’s ordinances, that state’s laws, as well as the laws of the United States).

As a result of this hierarchy, a great deal of U.S. political history is the story of how these different levels of government have challenged and pushed each other to gain and retain certain powers. This has created enormous problems in many parts of this country during this global pandemic, while also helping to mask it in others.

Texas provides a particularly interesting example of this dynamic.

In April, as COVID-19 cases were beginning to elevate to their highest numbers across the country, the federal government took a deliberately hands-off approach based on a belief that states would best know how to deal with the outbreak so long as they had some federal aid and guidelines to help them. This was, as is often desired by its proponents, a “states rights” approach to federalism.

The State of Texas, under the leadership of Republican Governor Greg Abbott, took a particularly relaxed approach to implementing policies according to federal guidelines which suggested that states work to keep their citizens at home and away from large groups. Many Democratic mayors and county judges (who, in Texas, are often the local executive) determined to control risks in their jurisdictions began to adopt mask mandates – some including punitive measures such as fines. In response to this development, Governor Abbott issued an executive order overriding these mandates, saying, “We strongly recommend that everyone wear a mask. However, it’s not a mandate. And we make clear that no jurisdiction can impose any type of penalty or fine.”

There is a legitimate conversation to be had about what enforcement of public health measures should look like, and the U.S. Left ought to be wary of public officials who seek to punish certain behaviors rather than just encouraging better ones. But it’s clear that Governor Abbott was very irresponsible in overriding these local mandates. In fact, his lax approach to COVID-19 and his overriding of local measures have contributed to an enormous outbreak in the state. To date, Texas has had over 365,000 cases and 4,500 deaths.

Ironically, at the beginning of July, Gov. Abbott used his executive powers to initiate his own statewide mask mandate that carries a $250 fine for repeat offenders. It is now the subject of intense debate among his fellow Republicans, as a growing number of state legislators are agitating for a rare emergency meeting of the State Legislature to override his orders.

The situation in Texas mainly demonstrates the downsides of federalism, and in particular, its elevation of states over local governments in nearly all instances. There are few reasonable justifications for cities to have their authority so easily preempted by states. Dallas, Houston, and San Antonio are three of the ten largest cities in the country by population, but they have been blocked from implementing policies ranging from minimum wage increases to mask mandates simply because of political opposition from higher levels of government..

So, where does this leave the U.S. Left?

There are some, but not many, permanent remedies under our current system. While the size of the House of Representatives and state legislatures could be changed at any time to make them more representative, the Senate and its two-member-per-state requirement is fully enshrined in Article II, and a requirement for equal suffrage in the Senate appears in Article V.

Our hierarchical form of federalism is also set in constitutional law, and challenges by cities against state preemption are not likely to succeed in any federal court today unless they represent clear constitutional violations (which is difficult, as the Constitution recognizes states and their sovereignty, but not cities).

It is also important to keep in mind that these realities are hardly the beginning of our constitutional problems. The Constitution also upholds the Electoral College, which has delivered the presidency to the popular vote loser twice in the last twenty years, a situation made all the more dangerous by sweeping interpretations of executive power within our political culture and courts.

Overcoming the problems addressed here would require either constitutional amendments – an arduous process that requires a level of coordination and cooperation that is incredibly difficult to manage for one amendment, let alone several – or having a Constitutional Convention, which would be similarly difficult to achieve, but offers a larger opportunity than more modest reforms.

The men we refer to as the founders of the country, for all their flaws and faults, likely anticipated that later generations of Americans would follow their example and rewrite the country’s foundational document so as to better reflect the will of the future American people. Why else would they include an entire article (Article V) telling citizens how to do so if they intended otherwise? It is long past time that we took advantage of the mechanisms they provided to do so, and called a Second Constitutional Convention, so that Americans can reshape our government in ways that make it fairer and more responsive to the people, and to ensure that when crises such as this global pandemic do occur, our government is on the side of all the people, not just the investor and owner class.

To accomplish this aim, either two-thirds of members in both the House of Representatives (290 out of 435) and the United States Senate (67 out of 100), or two-thirds of state legislatures (34) must vote in favor of having a Convention. This provides a concrete electoral goal for the Left, progressives, and sympathetic allies who favor expanding the democratic governance of our country. This would be incredibly difficult to do, as both the Senate and federalism would be challenges to overcome yet again. But even if the Left were to fall just short of what would be necessary, coming anywhere close to the numbers of elected legislators sharing such a goal could be transformative for national politics, ensuring the passage of policies like a Green New Deal or Medicare for All, and likely, a far more humane and responsible response to national emergencies, whether from plague or economic collapse.

A Constitutional Convention is not necessarily a socialist position, nor a guarantee of a socialist future. It is also not a cure to the current COVID-19 crisis. But in challenging the antidemocratic institutions like the Senate and unbalanced federalism, it indeed paves the way for a more progressive future. So long as the structures of American government remain organized around these institutions, democracy, let alone socialism, will never be truly possible in this country. In the absence of fundamental changes to the constitutional order, American government will continue to leave the vast majority behind when their needs compete with those who benefit from the existing power structure. The Left and our allies ought to begin a new movement that can cut across all political barriers – a new Constitutional Convention.