An American Reconstruction

The revolution will take place within the modes and orders of American law even as it distorts and transforms that law.

An American Reconstruction

On July 1st 2024 the Trump judges John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett ruled that the president is above the law. It is possible—not yet certain but certainly possible—that in 2025 the Republican Party by one piece of constitutional chicanery or another will steal the presidency despite losing a majority of voters and install Donald John Trump as an unchecked ruler. They have announced their plans to rip up the foundations of America if they do so and entrench themselves in power indefinitely. They declare that their plan is to "repeal the 20th century"—repeal the Civil Rights Movement. Repeal the New Deal. Repeal feminism.

The republic is shaking itself apart. Everyone feels it. The people do not get what they vote for. When the median voter is baffled that they voted for Biden but abortion got banned anyways, they are right to be puzzled. This is how the American system works and that is the problem. The link between we the people and our government has frayed almost to nothing. The arteries of the constitutional order are clotted with antidemocratic plaque. Republicans understood this problem before the rest of us. But to them it was not a problem but an opportunity. What was once unthinkable has become not merely thinkable but readily graspable: a future in which American democracy is abolished and the Constitution shambles on only as a grotesque mockery of our deepest aspirations to democracy and limited government. The Republican program in Wisconsin provides a vision of that future, one in which elections are still held but Republicans always win regardless. A future in which MAGA ensconces itself in power and then writes "no take backs" into the Constitution.

A moment of constitutional rupture is approaching. MAGA have declared themselves implacably opposed to the American project. The current forms and orders of the Constitution are not sufficient to secure the blessings of liberty for ourselves and our posterity. The constitutional order must be reforged if it is to uphold the fundamental American ideals of freedom, democracy, and equality. It is time we woke up to the necessity of American Reconstruction.

What is American Reconstruction? A government of the people. It is obvious to everyone that we don't have it. The antidemocratic, vetocratic aspects of our system more and more sever the people from policy. American Reconstruction is not a partisan political agenda. It is nothing but restoring the link between the people and our government.

  • Voting Reform. The right to vote is everywhere under assault. The inalienable right to vote and have that vote count must be written into the Constitution. This means both fairness in the voting booth and in the redistricting commission.  And it means some form of ranked choice voting or proportional representation to ensure that everyone's vote matters.
  • Court Reform. Unaccountable judges serve lifetime terms, legislating from the bench with no regard for the people. Supreme Court justices must serve fixed 18-year terms. The size of the court should be radically increased, to dilute the power of any single justice or appointment. The six Trump justices must be impeached and removed.
  • Statehood Reform. Americans in Washington DC, Puerto Rico, and the numerous other territories are subject to the laws of the United States but have no say in their creation. We must admit DC, PR, and the rest of the unincorporated territories as new states.
  • Congressional Reform. Congress is deadlocked and unrepresentative. The Senate filibuster must be abolished. The size of the House must be radically increased.
  • Electoral College Reform. The Electoral College is a bizarre relic serving no purpose. It must be abolished and the president elected by national popular vote.
  • Amendment Reform. It has become impossible to amend the Constitution. It must be possible for the constitution to be amended by a national supermajority referendum.
  • Guarantee Clause Reform. It is a mockery of law if these reforms are made at the federal level but ignored at the state level. The Congress must be empowered to enforce these same rules upon the governments of the individual states.

There are details to be hammered out.  But the fundamental program of these reforms is simple. When Americans go to the polls, all our votes should count equally, and should transmit the will of the people to the government. These rules are not rigged to favor any party or platform, only the people, ourselves.

These rules are not the partisan policy agenda of one specific party. To those liberals or leftists who wish to leap up and demand that we include this or that other reform—UBI or a wealth tax or gun control—the answer is this: if that's what the American people want, they can do it via normal democratic means. Chile's failed 2022 constitution is a cautionary tale in what not to do. The point of a constitution is to set the fundamental rules of political competition, not to pick the winner. American Reconstruction consists solely in returning democracy and fairness to the American political system, nothing else.

At this point you are leaping to your feet. What I have proposed is impossible. The very features of the Constitution I am proposing to reform would themselves prevent these reforms from ever being passed. MAGA often enough have the same objection thrown at them: "What you are proposing has no basis in the Constitution!"  Their response is simple: "It is based on the principles of the American Founding."

They have a point. When the generation of '76 saw that their first attempt at an American constitution was not working, they simply threw it out—and not by the methods ordained by those Articles of Confederation. Rather the great men of their age, representative of all states, got together in Philadelphia and wrote a new one. When that new one was itself shown to be lacking, we changed it again—and again not by the means set out in it. Amy Coney Barrett was right: the Reconstruction Amendments were not validly ratified by the standards of the Constitution of 1788, for it has no procedures for expelling states, even rebel ones. That does not mean the Reconstruction Amendments are not legitimate, because legitimacy does not mean adherence to some fairy contract our ancestors scribbled on magic paper. Legitimacy means adherence to the idea that is America. American Reconstruction will be ratified according to the rules of American Reconstruction. The question is now one of tactics. How do we get to American Reconstruction? 

The left has been warning about the sclerosis of American institutions and the danger of Republican extremism for years now. The left has been demanding that individuals "organize" for years now. It might therefore be suggested that the tactics of American Reconstruction should draw on leftist tactics and theories. But the total failure of leftist tactics to achieve change even when that change is good and desirable, as it was during the George Floyd protests, suggests that the left still labors under their usual New Left-derived incoherence: zombie marxism, mindless horizontalism, therapy-speak self-care. This leads to totally insipid proposals for responding to a fascist takeover like "go to therapy" or "found a community garden" or "throw a protest and let the riot sort it out."  They imagine that the corpse of Vladimir Ilyich Ulyanov is about to rise up and lead us in a rousing rendition of "Do You Hear The People Sing" and after that the millennium will be upon us.

These are not serious plans for resisting a reactionary autogolpe. Let us instead start with some facts. The coalition in favor of the American experiment in democracy and limited government is a majority of the population, controls the majority of the national economy, the major financial, economic, intellectual, and cultural centers. In raw material terms we are more powerful than they are. However, that power is not well organized or institutionalized. That is what has brought us to this impasse in the first place. The name of the problem is the name of the solution: to organize the superior power of the pro-democracy coalition in favor of American Reconstruction.

There is a key lesson we can take from the other moments of constitutional rupture and reforging in American history: the revolution will take place within the modes and orders of American law even as it distorts and transforms that law. We are not here to burn America down. We are here to restore it. That means a constitutional convention and national referendum, in which all states and all people can have their say, but in which the final decision is made on fair and majoritarian lines.

Getting to such a convention and referendum is fundamentally a battle for the hearts and minds of the American people, including elites with institutional power. To achieve this we must drive forwards on several converging axes simultaneously. These are not independent or sequential goals, but mutually reinforcing programs that must begin now.

  • Ideological convergence
  • Institutional mobilization
  • Mass mobilization
  • Crisis

American Reconstruction begins with the recognition of intellectuals, academics, and pundits that American Reconstruction is possible and that it is necessary. It begins by building a solid intellectual framework that activists can refer back to explain and persuade. It is not an accident that Republicans have spent so much time and effort building up the intellectual edifice to justify their own takeover. We must do the same.

The next step is institutional mobilization. This begins in places where pro-democracy forces already have substantial institutional support. To be blunt, that means blue cities, blue states, and unions. It means getting your local city council to pass a resolution calling for a constitutional referendum and promising to abide by its results. When every major city council announces that the constitutional assembly and not Trump's rantings is the legitimate government of America, the American Reconstruction will be within reach.

Hand in hand with institutional mobilization must come mass mobilization: genuinely widespread and committed popular support for pro-democracy reform. Protests and marches are a core way of demonstrating this kind of popular support. Riots are not. If you tell the average American that you are here to burn America down you run the risk of them believing you. Violence and rioting only give credence to the narrative that MAGA is selling. A protest is a move in a narrative: we must make the right moves. We must come with an American flag in one hand and the truth about restoring American democracy in the other.

We must then iterate these processes. Begin mobilizing institutions and populations beyond core areas of blue strength. This means blue cities in red states; this means popular referenda in red states; this means the organs of civil society like universities, organizations, and even corporations; this means national bureaucracies like the military. This will not be easy and it will not be done in a day. But it can be done. The revolution does not succeed when it overthrows the security forces in battle. The revolution succeeds when the security forces are no longer willing to defend the regime.

Finally, it is almost certain that this will all come together in a moment of crisis. Maybe that will be the Project 2025 deportations; maybe that will be losing a war in the Taiwan Strait; maybe it will be an economic crash. Fascists are never any good at running societies. But you can't plan for which crisis and when. You have to be ready, already standing there with a plan in your hand and a crowd at your back when the moment comes. Mobilization for American Reconstruction begins today.

The MAGA fascists believe that they can tear up American democracy at the roots and after we'll all have to fall in line "because it's the law." But the power of the law is a function of the legitimacy of the law. The state's monopoly on force is posterior to the people's adherence to the state. The power of the state is not in the gun. It's in the finger on the trigger—and it's not in the finger either, it's in the heart and mind of the person behind it. That is the battle we must be prepared to fight and win. MAGA are not the only ones who can go beyond the Constitution in order to save it. Their act of constitutional arson is our opportunity for American Reconstruction.

There is an idea that is America that goes beyond any document. It is this idea that MAGA loathes and wishes to destroy. And it is to this idea we must appeal in resisting them. Allow me then to paraphrase a bit of American scripture, from an American saint who explained the Spirit of 1776 better than any before or since:

Twelve score and eight years ago our forebears brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all are created equal. Now we are engaged in a great civil war testing whether that nation or any nation so conceived and so dedicated can long endure. The war is not over. It did not end in 1865. It did not end in 1877. It did not end in 1964. And it will not end in 2025. Our fight continues. We continue. Our nation shall have a new birth of freedom. Government of the people, by the people, and for the people shall not perish from the earth.

Featured Image is A possible flag of the United States of America displaying 53 stars, by Milan Suvajac