Popular culture predicts civil war in the United States; a frightening film of the same name has been the top box office draw for two weeks now. We hear pundits discussing whether we will have a “red Caesar” or a “blue Caesar,” not whether we can avoid Caesarism completely. While I do not believe civil war or tyranny is inevitable in the U.S., there is certainly something in the zeitgeist that is profoundly pessimistic about the future of our representative form of government.
Frankly, I think we all see what the problem is: Our government no longer represents the will of the people, but rather the will of those with the most rigid, inflexible and extreme positions. The vast middle ground of compromise, bipartisanship and even common sense lies abandoned — not by the people of the United States, but by their so-called representatives. We the people have been offered zero sum choices, and neither choice reflects our preferences.
In short, in our celebrated democracy, we are starved for democracy. No wonder we are so irritable, so seemingly unable to “disagree better.” For even if we did disagree better as a nation, there is little reason to believe such discussions could lead to a faithful reflection of the public will at the level of our state and national governments. Even a recourse to public referenda, meant to cut through the political posturing of candidates, can become an exercise in futility when the text of a referendum is penned by vested interests, as they so often are.
The current Supreme Court, for all its missteps, has attempted to jumpstart our flagging democracy by kicking controversial issues down from the federal level to the state level. The justices’ hope seems to be that in this time of great polarization, the middle ground has a better chance of being found at a lower level of voter aggregation. In exchange for this hoped-for revival of democracy at the state level, they are willing to part with coherence at the federal level. State laws on a variety of controversial issues, such as abortion, are now a patchwork quilt of inconsistency across the land.
In theory, maybe that looks like democracy, but to a pregnant woman with premature rupture of membranes, that looks like a Kafka-esque toying with her very life. Indeed, no less a conservative than Justice Amy Coney Barrett expressed shocked horror about the capriciousness with which women’s lives were being treated in this week’s opening arguments debating Idaho’s rejection of the Biden’s administration’s assertion of EMTALA rights for pregnant women.
At least in the short term, then, the Supreme Court’s gambit has not to my mind begun to solve the democracy problem; even at the state level the public will is being flouted. No one — on the right or on the left — wants a woman to have to actively be dying in sepsis and organ failure before she can access abortion. And how can the democratic state of Idaho be in favor of this law before the Supreme Court when 58% of its voters oppose it?
It is important to note that it’s not just one side of the political aisle that is subverting democracy — both are. On the road toward our nation’s future, both the right and the left have worn deep ruts that deny our people safe passage forward.
Abortion, of course, is the big rut that Republicans have worn in our nation’s road. The overwhelming majority of American voters — even in red states — want restrictions on abortion, but also carve-outs for rape, incest, serious health consequences and fetal non-viability. That it took the Arizona House three tries before it could vote to repeal a state law from 1864 banning all abortion except to save the life of the mother is so profoundly anti-democratic that even many pro-life advocates are despairing. What can Arizona Republicans possibly be thinking? They certainly aren’t thinking about Arizona voters, nor are they faithfully representing them on this important issue. This is anti-democracy in action, and it leaves a bitter legacy that undermines faith and trust in our form of government.
But there’s plenty of anti-democracy on the left, also, and the nation was treated to a prime example of it in the past week when the Biden administration published its new interpretation of Title IX, that powerful symbol of women’s equality in the United States. Or at least it was a powerful symbol of women’s equality in the past. Though these regulations do not have the force of law, they will be enforced by this administration. The crux of the matter is that the word “sex” has been unilaterally redefined by the Biden administration as including — on equal footing — the concepts of “sexual orientation and gender identity.”
Experts such as the United Nation’s Special Rapporteur on Violence Against Women and Girls have already opined that this redefinition cannot be supported, given international treaty law. The Special Rapporteur, Reem Alsalem, has asserted:
“[T]he understanding of States that are parties of international treaties such as CEDAW, supported by a long history of state practice, is that the term ‘woman’ referred to a biological female. ... [I]t is clear that sex and gender are two different concepts. However, international law does not permit any derogation to the prohibition of discrimination against women based on sex. Where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender or gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights.”
But even if the Biden administration does not respect international treaty law, whether or not the preferences of American voters are respected is even more germane. Cravenly, and for political purposes, the administration is withholding its regulations on women’s sports until after the November election. Even so, the existing reinterpretation has clear implications for American women and girls in education. Males who identify as women may use bathrooms, locker rooms and showers meant to be single-sex spaces for women in federally supported facilities such as schools and libraries. Men who identify as women can chaperone or supervise activities in such spaces. Those who disagree that men can become women can be accused of “sex-based harassment,” an extreme irony.
Does this reinterpretation jibe with the preferences of the American electorate? Absolutely not. In fact, that is why the sports rule is being delayed; only a lame-duck president could enforce it, given that an overwhelming majority of the American electorate is against the inclusion of males in female sports.
A quick glance at 2024 polling numbers tells the tale: Only 31% of Americans support bathroom use on the basis of gender identity rather than sex; only 24% support prison assignment on the basis of gender identity rather than sex; only 19% support sports team assignment on the basis of gender identity rather than sex. There is comparatively little public support for what the Biden administration is doing, even among registered Democrats. The Department of Education received almost a quarter of a million comments on its proposed reinterpretation, the most in the department’s history — a FOIA request has been filed to reveal which way the comments ran, though the polls anticipate the result. The public is deeply invested in this issue, but we were ignored. This is anti-democracy in action on the part of the left, just as clearly as what we have been seeing on the right.
One day historians will ask how American democracy died. We can already tell them the answer: Our nation’s left and right colluded in destroying it.
Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.