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Excerpted from: Johanna Kalb and Didi Kuo, Reassessing American Democracy: The Enduring Challenge of Racial Exclusion, 117 Michigan Law Review Online 55 (October, 2018) (43 Footnotes) (Full Document)


johannakalbAmerican democracy is in trouble. Since the 2016 election, a sizable literature has developed that focuses on diagnosing and assessing the state of American democracy, most of which concludes that our system of government is in decline. These authors point to the rise in party polarization, the increasingly bipartisan abandonment of the norms of the democratic process, the rise of populism, the degradation of the public sphere, and the proliferation of gerrymandered districts and voting restrictions to illustrate the breakdown. And while attributing varying levels of significance to these factors, a common theme is that American democracy, once stable, is now threatened.

On closer observation, however, it is unclear that American democracy was ever really as healthy as it may have appeared. This Essay argues that the stability of the American system has always been built and dependent upon racial exclusion; over the course of our history, each major movement toward a more fully representative participatory democracy has prompted a backlash that was resolved only by the adoption of policies that worked to undermine the full citizenship of communities of color. The point of this reframing is not to suggest that the United States has made no progress over its history. Nor does it diminish the accomplishments of those who have advocated for equality over the course of our history or minimize the importance of working to repair our democratic institutions. Rather, this reframing is necessary to avoid romanticizing our democratic history and to inform the choices in this moment as we seek to stabilize our country.

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DidiKuoFor decades, a country was considered to be democratic if it had successfully developed and maintained a necessary procedural infrastructure, including free and fair elections, and some level of political competition. But as an increasing number of transitioning democracies got stuck in some form of semiauthoritarian rule, political scientists developed more nuanced definitions, differentiating between the formal structures of democracy and the culture and institutions that make them meaningful. Most conceptions of consolidated democracy include respect for the rule of law, norms of fair play, and robust intermediary institutions, not just peaceful transfers of power. Consolidated democracy also requires meaningful and inclusive participation.

The United States is the world's oldest constitutional democracy and has held many contested elections over the course of our history. The expansion of suffrage took place over the course of two centuries, punctuated by achievements including the Fourteenth and Fifteenth Amendments, the Nineteenth Amendment, and the Twenty-Fourth Amendment. However, a closer look shows that our country has also repeatedly failed to reach a steady state of inclusive participation. Rather, each push toward greater inclusivity has put our democratic structure under terrible strain.

There is no definition of democracy that the United States, pre-1965, actually meets. Any working definition of democracy includes the full right to vote for all citizens. The United States was founded on racial exclusion through slavery. In the 1850s, the battle over slavery “broke America's democracy,” leading to the country's bloody civil war. Following the war, partisan wounds ran deep, with white supremacist groups such as the Ku Klux Klan organizing campaigns of terror and violence during Reconstruction. This was only resolved “after the issue of racial equality was removed from the political agenda.” As Steven Levitsky and Daniel Ziblatt explain, “The disenfranchisement of African Americans preserved white supremacy and Democratic Party dominance in the South, which helped maintain the Democrats' national viability. With racial equality off the agenda, southern Democrats' fears subsided. Only then did partisan hostility begin to soften.” Democrats were given free rein to establish authoritarianism in the southern states by eliminating political competition and instituting racial segregation. African Americans were excluded from all elements of political, social, and economic life; later, restrictive Jim Crow laws produced de facto, if not de jure, noncitizenship.

This compromise of exclusion stabilized American democracy for another hundred years. The United States survived victorious through two world wars and the Great Depression. Progressive and populist reforms created new levels of accountability for elected officials and democratic institutions. But many came at the expense of Black Americans, particularly the social policies of the New Deal. The Agricultural Adjustment Act provided incentives to plantation owners to end their production of cotton, resulting in the eviction of their black tenant farmers. The National Housing Act of 1934 expanded mortgage availability, but “did so in a way that fostered segregation and excluded blacks from equal access ....” The Social Security Act was only passed after capitulation to southern Democratic demands to exclude domestic servants and farm laborers. As the United States emerged out of the Depression, Black Americans were quite purposefully left behind.

Then came the civil rights movement, culminating with the 1965 Voting Rights Act (“VRA”), which again tried to create the conditions for a truly participatory democracy. Since that historic moment, the United States has probably met the formal definition of a consolidated democracy. However, the VRA's legislative guarantee of full equality for citizens of color did not go uncontested. The movement for inclusion that culminated in the VRA launched a fundamental realignment of the parties that began to polarize the electorate along racial lines. White southerners began to defect to the Republican party, motivated in part by their perception that the Democratic party had come to represent black interests at the expense of white ones. As pollster Stanley Greenberg explained after a survey he conducted in 1985, “white Democratic defectors express a profound distaste for blacks, a sentiment that pervades almost everything they think about government and politics.” This racial polarization posed a new kind of threat to American democracy by linking party identity more explicitly to race. As Marina Ottaway explains, successful democracy requires some group of citizens to shift between parties based on the issues of the moment. “[I]f citizens never change their allegiances, permanent majorities are formed, making it difficult for the eternal losers to accept a system that guarantees defeat for them.” Polarization by racial and ethnic and religious lines makes these party allegiances about identity, rather than ideology, and therefore much more intractable. Thus, the passage of the VRA, which allowed the United States to become, for the first time, a consolidated democracy, also seeded the racial polarization that immediately began to undermine it. And while the VRA created some legal barriers to disenfranchisement based on race, other strategies soon arose to undermine the democratic participation of African Americans and other citizens of color.

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For Democrats, the racial realignment following the VRA posed an almost immediate challenge to their ability to win national elections. After Goldwater's crushing defeat in 1964, the Republican Party won all but one presidential election from 1968 through 1988 by consolidating white voters. By contrast, the Democrats were riven by splits within the party between Jesse Jackson's “Rainbow Coalition” and more centrist and conservative wings. In the 1992 presidential election, Bill Clinton set out to create a new coalition by winning back some of these lost white voters. The Democratic Leadership Council, the vehicle for his campaign and policies, advocated moving to the right on social and economic policy. Clinton therefore adopted many of the coded racial messages that had proven so potent for the Republicans, targeting the votes of educated white professionals in urban areas instead of the party's historic working-class base.

During his second presidential campaign, Clinton picked up the Republicans' anti-government message, promising that “the era of big government is over” and pledging to “end welfare as we know it.” His reform legislation “replaced the federal safety net with a block grant to the states, imposed a five-year limit on welfare assistance, added work requirements, barred undocumented immigrants from licensed professions, and slashed overall public welfare funding by $54 billion ....” Then, as now, white preferences for welfare spending were directly correlated with their level of support for spending to improve the lives of black people. Therefore, some Democrats hoped that welfare reform could deracialize the problem of poverty and “signal renewed commitment[] [by the party] to personal responsibility and the white working class.” In addition, as Michelle Alexander has detailed, Bill Clinton was determined to be perceived as tough on crime, even flying home before the New Hampshire primary to oversee the execution of Ricky Ray Rector, a mentally disabled black man. As president, he oversaw and enabled a massive expansion of the carceral state, with the result that by 2000, prison admissions for drug offenses for African Americans were more than 26 times their level in 1983. The democratic impacts of these policies were significant, given that all but two states deny the right to vote to prisoners, and the large majority also disenfranchises people on probation and parole.

The Clinton years can therefore be viewed as a response to the democratic instability generated by the civil rights movement. Unable to build a winning national coalition without its lost white voters, Democrats attempted to bridge the partisan divide by agreeing to policy reforms that appealed to educated urban whites but marginalized and disenfranchised communities of color. The Democrats once again became competitive, reversing some of the trend toward permanent race-based party identities, but they did so at tremendous expense to their black constituents.

In the 2000s, these compromises again began to break down with the election of President Barack Obama, the growing attention to the country's continuing racial inequities, the call for immigration reform to give status to tens of thousands of lifelong residents who were denied the benefits of citizenship, and the movement to end mass incarceration. As momentum built behind the creation of a truly multiracial democracy, so too did the resistance to this vision of our nation. Donald Trump expertly exploited and exacerbated these underlying cracks in our democratic commitments. He prepared for his electoral run by launching an attack on the legitimacy of America's first black president. During his campaign, he accused a federal judge of bias due to his Mexican ancestry, characterized Mexican immigrants as terrorists, and called for a ban on Muslim refugees. He repeatedly raised the specter of widespread voting fraud by nonwhite immigrants. He was rewarded with the Republican nomination and then with the presidency. Having successfully exposed our thin national commitment to norms of democratic equality, Trump has proceeded to go after the other pillars of our democracy. From his refusal to divest his private assets, to his threats to jail his defeated opponent Hillary Clinton, to his attacks the FBI and DOJ, to his encouragement of white supremacist groups, the early years of the Trump Administration (and the Republican party's response to it) have shattered the illusion that democratic principles matter more than control of the levers of power and--by extension--the maintenance of white supremacy.

Trump's success caught our country's leaders off guard. In part, this is because widespread acceptance of the legitimacy and stability of our democratic institutions has blinded us to the relationship between our history of racial subjugation and the health of our democracy. Relatedly, our singular (and important) focus on the processes of democracy (limits on the franchise, racial gerrymandering, and the explosion of money in politics) has left us less able to recognize, acknowledge, and respond to other more insidious, but equally potent forms of democratic suppression. For example, political scientists Joe Soss and Vesla Weaver note that mainstream research focuses on the “liberal democratic ‘face’ of the state,” while neglecting the state's coercive and repressive apparatus. As a result, we are poorly equipped to understand the democratic implications of not just of crime policies, but also of the disparate impact of public policy wrought at the intersection of race and class.

A full understanding of our current democratic challenges thus requires acknowledging the reality that the opportunities and experiences available to American citizens have always been, and continue to be, dependent on race. It also requires better understanding how these inequities of access in education, income, and government aid impact democratic legitimacy and participation. These racial disparities are not simply lagging indicators of our racist past but rather the product of repeated political compromises intended to preserve our democratic stability by finding new and different ways to reassure white voters of their privileged place.

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Viewed through this lens, the stability of democracy in the United States has always rested on undemocratic preconditions. That means we need to view our current project very differently. Our task is not to try to resurrect some lost glory but rather to take on the challenge of building a truly representative and sustainable democracy. The frame matters in part because of the way our democratic crises have historically been resolved, which is through discriminatory bargains that undermine the full citizenship of people of color. More of these options are on the table now--for example, in work requirements for government aid and in ongoing restrictions of voting rights--and are being advanced as a way to get past the current fractured and scary moment. Democrats around the country are again being urged to move beyond “identity politics” to reengage disenchanted white voters. The choice is framed, as it has in the past, “as staying true to liberal principles and losing elections, or winning by strategically pulling back from unpopular groups and liberalism too.” What our history tells us, however, is that these compromises get us nowhere, at least if the goal is a truly stable, diverse participatory democracy. They are not an incremental step that helps lay the foundation for that vision but rather a concession to its impossibility.

What is required in this moment is a true strategy for democracy promotion for the United States. And at its core, the focus needs to be on strategies for building a real multiracial democracy. This will require a continued focus on pushing procedural reforms to help make our democratic system more inclusive and representative. But it will also necessitate a more complete reckoning with our past and a rejection of the kinds of exclusionary compromises that have held together our fractured society for decades.

**Professor of Law, Loyola University New Orleans College of Law. 

**Research Scholar, Stanford University Center on Democracy, Development, and the Rule of Law.end of document