One day after Donald Trump won a sweeping electoral victory, California Governor Gavin Newsom summoned his state’s legislature back for a special session. He hopes to use that session “to thwart the president-elect by asking state lawmakers to pre-empt potential Republican actions that could impact the Democratic-led state.”
His action should spur progressives to take a long hard look at many things they have often criticized. Among them are states’ rights and the filibuster.
Trump is eager to claim a mandate for a sweeping legislative agenda. With Republicans in control of the Senate and closing in on control of the House of Representatives, he is likely to encounter little resistance to even his most radical proposals.
Trump’s return to the White House highlights the dangers of too much democracy. His populism, combined with a compliant Republican Party, is a wakeup call and reminder of the virtues of a political system constructed to put up roadblocks when demagogues seek to use popular mandates to abridge rights and pursue dangerous courses of action.
As James Madison warned in Federalist 55, “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason…. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” What he said about legislatures two centuries ago might today be applied to a president with a populist agenda, propelled into office after a campaign designed to stir up fear and hatred.
Sure, the system Madison created can frustrate reform and progress. But, in dangerous times it can impede, if not prevent, the worst abuses.
That is why I want to praise states’ rights and the filibuster.
In 2018, Jeffrey Rosen warned that the United States was “living Madison’s Nightmare.” He pointed out that “Madison and Hamilton believed that Athenian citizens had been swayed by crude and ambitious politicians who had played on their emotions.”
“The demagogue Cleon was said to have seduced the assembly into being more hawkish toward Athens’s opponents in the Peloponnesian War, and even the reformer Solon canceled debts and debased the currency. In Madison’s view, history seemed to be repeating itself in America.”
What was true about demagogues and seduction then seems to apply to our time as well. As Rosen puts it, “What would Madison make of American democracy today, an era in which Jacksonian populism looks restrained by comparison? Madison’s worst fears of mob rule have been realized—and the cooling mechanisms he designed to slow down the formation of impetuous majorities have broken.”
Rosen documents the breakdown of those cooling mechanisms, but he concludes that “Federalism remains the most robust and vibrant Madisonian cooling mechanism and continues to promote ideological diversity.”
But, as Yale’s Heather Gerkin wrote in 2017, “Progressives have long been skeptical of federalism, with the role that ‘states’ rights’ played in the resistance to the civil rights act and desegregation typically featuring prominently in their criticism. Its ugly history even led one 20th-century scholar to insist that “if one disapproves of racism, one should disapprove of federalism.”
“Even now,” Gerkin wrote, “with every national institution in the hands of the GOP, progressives associate federalism with conservatism and shy away from invoking the language of federalism to change the policies they oppose.”
Gerkin called that hesitancy “a mistake.”
Federalism, she wrote, “doesn’t have a political valence. These days it’s an extraordinarily powerful weapon in politics for the left and the right, and it doesn’t have to be your father (or grandfather’s federalism. It can be a source of progressive resistance — against President’s Trump’s policies, for example — and, far more importantly, a source for compromise and change between the left and the right. It’s time liberals took notice.”
Notice they did. So called “progressive federalism” played an important role during the first Trump administration. State and local governments resisted its immigration policies and refused to enforce them.
In addition, as Ilya Somin noted in 2019:
Over the past seven years, for example, 11 primarily Democratic-leaning states (and Washington, D.C.) have legalized recreational marijuana, despite the federal ban on its possession…. Nine mostly liberal states and the District have legalized physician-assisted suicide for terminally ill patients…. More recently, California has reasserted its right to set tougher auto emissions standards than the federal government wants, as part of its efforts to slow global warming—suing to preserve targets set under Obama as the Trump administration moves to roll back those goals.
Newsom is planning to revive those practices. As he put it after the election, “The freedoms we hold dear in California are under attack—and we won’t sit idle…. California has faced this challenge before, and we know how to respond.”
The governor is hoping to resist Trump administration efforts “to limit access to medication abortion; to dismantle clean-vehicle policies and longstanding environmental protections; to repeal immigration policies such as the Deferred Action for Childhood Arrivals program; to withhold disaster response funding and victim assistance as political retribution; and to ‘politicize grant programs to commandeer state and local governmental resources for federal purposes.’”
Democratic governors in Illinois, New York, and Washington have already indicated that they will join Newsom in wielding federalism as a shield and a sword to deal with Trump’s autocratic plans.
Beyond federalism, there aren’t likely to be many barriers or cooling devices that will be effective in resisting Trump.
However, there is another one that has often been anathema to progressives, namely the filibuster. Progressives have labeled it “undemocratic,” and claimed it “empowers the minority to block the will of voters and of the American public.”
They have regularly called for its elimination. For example, in 2020, Barack Obama said the filibuster was a “Jim Crow relic” and it was time to get rid of it.
In a strange bedfellows moment, Trump has also said it should be ended.
While Obama was right to highlight the filibuster’s ignoble history but, to borrow from Gerkin, it “doesn’t have a political valence.”
Now, more than ever we face an all-hands-on-deck, break-the-glass moment. Progressives should use whatever tool they can, including the “Jim Crow relic,” to ensure that Trump has trouble implementing his cruel plans.
Up until now, Republicans in the Senate have gone on the record promising to defend the filibuster from another Trump attack on it. How long they will honor that promise is anyone’s guess.
But, in the meantime, Democrats should learn from all the ways their Republican colleagues used it to gum up the works when Obama was president and during the Biden administration. They should filibuster to their heart’s desire.
