Lani Guinier says U.S. needs reform and should learn from other democracies

Lani Guinier
Harvard
Lani Guinier

Lani Guinier, the first black woman to become a tenured professor at Harvard Law School, is perhaps most famous to the general public for a job she didn’t get. In 1993, Bill Clinton nominated her to be assistant attorney general for civil rights, but some of her views became sufficiently controversial to convince Clinton to withdraw the nomination before it came to a vote.

She has professed (or does one mean professored?) on at Harvard, written several books and continued to opine in the areas of both voting rights and civil rights. On Friday, she was in town to speak at a luncheon of the Minnesota Black Women Lawyers Network. I had a short interview with her and between that conversation and her talk to the MBWLN, Guinier said:

Other countries

The U.S. system of democracy needs updating and it could benefit by looking around the world at other democracies that do things differently. The U.S. system is still rooted in the vision of the framers, she said. The framers wanted ordinary voters (at least white, male, adult property-owners) to have some say over their government, but not too much. They employed several elements of indirect democracy, and they still took a fairly elitist view of whom should vote and especially whom should lead the government.

Constitutional amendments have expanded the franchise on a race, gender and age basis, but the United States still suffers from too little participation and too few choices. What it takes to get registered to vote varies widely around the country and many who would be eligible to vote are not registered. In Canada, she mentioned, when the census takers knock on pretty much every eligible voter’s door, they ask whether the residents are registered. If not, they take care of it right on the spot.

In Germany (where, she said, the system was designed with heavy input from the occupying Americans after World War II) a voter can cast two votes at once: one expressing a preference for a particular party and one for a particular candidate to represent their district. Both votes are weighed in assembling the Bundestag, which helps keep Germany from being dominated by just two parties as the U.S. system is.

Guinier was also critical of the U.S. feature that allows a dominant party to redraw the legislative and congressional district maps periodically, a power that is almost always used in a self-serving way by the party that controls.

New book

Most of the above is from our interview. During her luncheon address, she talked about her new book, “The Tyranny of the Meritocracy: Democratizing Higher Education in America.” I can’t say I fully grasped the argument from her remarks. Based on the publisher’s description of the book, Guinier believes that “the merit systems that dictate the admissions practices of [elite colleges and law schools], are functioning to select and privilege elite individuals rather than create learning communities geared to advance democratic societies.”

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Comments (15)

  1. Submitted by Hiram Foster on 05/04/2015 - 08:49 am.

    Two parties

    Part of the problem we are facing and that can be a problem with parliamentary democracies, is that in real terms, we are no longer have a two party government. John Boehner, for example, can no longer speak with the authority of his party, in the way party leaders in Britain usually can. Closer to home, Kurt Daudt troubles are largely due to the difficulty of imposing or at least establishing unity within his own caucus, which renders him ineffective in negotiations with the DFL. I don’t mean this as a criticism of Daudt personally, who DFLer’s tell me is doing a pretty good job, that’s just the way things are in the GOP caucus.

    As I see it, the problem with American government is it’s indecisiveness, it’s inability to decide things and move on, it’s inability to respond to anything but a crisis. Unlike the rest of the industrial world, we didn’t have anything approaching universal healthcare, until the enactment of Obamacare. This didn’t anything at all to do with any disagreement on principle, ask any serious Republican legislator and they will tell you they support affordable health care for all Americans. What stopped us from having a universal health care plan was a simple inability to reach the kind of agreement on such a plan the constitution required. Even today, Republican leaders while endorsing the goals of Obamacare, and while eloquently criticizing Obamacare’s failure to reach them all, have not been able to provide an alternative.

    Is this a problem giving more power to minority parties helps solve?

  2. Submitted by Ray Schoch on 05/04/2015 - 09:17 am.

    Unlikely choices

    Guinier’s proposed changes all seem sensible enough, but are unlikely to happen. What party in what state is going to give up control of redistricting, should the opportunity arise?

    Most of the substantive political changes to the society in its 2+ centuries have been forced upon it (the Civil War; the Great Depression; World War II; the Cold War), and there are plenty of people whose convictions about “American exceptionalism” are strong enough that they’ll oppose any policy proposals containing even a faint whiff of making us more like Europe or more like Canada. It took women 150 years, more or less, to gain the franchise, and a century after the Civil Rights Amendments were added to the Constitution, there were lots of places in the U.S. where they had yet to be fully implemented. There are also lots of places in the U.S. right now where efforts are underway from the right to make voting *more* difficult rather than less, partly based on the dubious assumptions that minority voters are somehow less qualified than their caucasian brethren, and/or that there are significant numbers of fraudulent voters.

    The most thorough and substantive way to change the way we operate to something rather different from what the framers of the Constitution had in mind would be substantial alteration of the Constitution. The knee-jerk conservatism of many Americans will likely prevent that from happening, at least in my lifetime, but even without that, given the current tendencies in the society (e.g., the equation of money with speech and/or personhood; our own brand of religious fundamentalism; a second Gilded Age in terms of income and privilege; etc.) I’m not too enthused about the prospects for another Constitutional Convention. We won’t be better off if loonies from either end of the spectrum end up being the ones drawing up new rules…

    • Submitted by Thomas Swift on 05/06/2015 - 02:22 pm.

      “There are also lots of places in the U.S. right now where efforts are underway from the right to make voting *more* difficult rather than less, partly based on the dubious assumptions that minority voters are somehow less qualified than their caucasian brethren…”

      That’s a new one, Ray. Can you explain how that one goes?

  3. Submitted by Dennis Tester on 05/04/2015 - 09:23 am.

    Mob rule only works in societies where the voters are self-reliant/self-sufficient. Otherwise the mob is simply voting itself a share of the national treasury.

    From the title of her book, Guinier obviously disapproves of meritocracies, where people reap what they sow, in favor of a pure collectivist society where people riding in the wagon benefit as much as those pulling it.

    But she proves one thing. Democracy was never the goal of the Founding Fathers. Freedom was. And they’re not the same thing.

    • Submitted by Paul Brandon on 05/04/2015 - 10:20 am.

      Money

      That was the main goal of the Founding Fathers at the beginning of the Revolution.
      They felt that they were getting shafted by economic interests in the mother country, and wanted more say -within that system-. A lot if it was rooted in the dynamics of the three way trade system involving the colonies, the mother country, and the West Indies.
      Something about ‘taxation without representation….’
      It wasn’t until well into the Revolution that a good number of the colonists (a majority, though not an overwhelming one) gave up on equity within the British Empire and opted for independence,
      Abstracts like ‘freedom’ were way down the list for most of them (they were, after all, a wealthy elite — thanks Ray).

      I’m reading an interesting book about George Washington by Robert Middlekauff, which describes Washington’s evolution as a person and leader from his ’20’s in the French and Indian War through the Revolution. There’s a lot of good history embedded in it. One can see the role that economics played.

      Remember; the Declaration of Independence was not written by the Continental Congress, who were ultimately responsible for the Constitution.

    • Submitted by Hiram Foster on 05/04/2015 - 10:22 am.

      “Mob rule only works in societies where the voters are self-reliant/self-sufficient”.

      I don’t know if mob rule works anywhere very well, but when it occurs, it seems to me almost by definition to happen outside of any electoral process. I don’t think John Gotti got to be the leader of his mob because he got a plurality of either self reliant or non self reliant voters.

    • Submitted by RB Holbrook on 05/04/2015 - 01:49 pm.

      “From the title of her book”

      You really can’t judge what she has to say from the title of the book, can you? Anything you’ve said about her advocating “collectivism” is just a wild guess at this point.

      It also seems you don’t know what she means by “meritocracy.” It should mean that the most capable and the best qualified will rise to the top. If you believe that, you’re fooling only yourself. What we call a “meritocracy” now is a society in which the legacy from Princeton has a better shot in life than the person who worked three jobs to put him- or herself through a commuter college somewhere (say, that sounds an awful lot like a society where people riding in the wagon benefit more than those pulling it)

  4. Submitted by Hiram Foster on 05/04/2015 - 09:33 am.

    Prejudices

    I have lots of prejudices but I thought I would quickly discuss two of them.

    First, I think it’s very difficult to come up with a solution if you don’t know what the problem is. What does Ms. Guinier think the problem is? I think it’s in this sentence:

    “Constitutional amendments have expanded the franchise on a race, gender and age basis, but the United States still suffers from too little participation and too few choices.”

    Would people participate more, if more parties, or more individuals appeared on ballots? In Minnesota, it’s pretty easy to get on a ballot, but participation and interest remains low. In my experience adding more candidates doesn’t increase interest. In national elections, I don’t think the appearance of significant third party candidates like Ross Perot has had much impact on turnout. My own belief is that turnout is low not because of barriers to participation, but because of a sense of hopelessness shared by many, who believe their vote doesn’t matter.

    Secondly, substantive problems are rarely if ever solved by procedural solutions. Ms. Guinier identifies lack of participation as the problem with the American system of governance. This is a procedural approach, assuming that if our elected officials were chosen by a process with wider participation they would govern better. I just don’t see it myself. For one thing, a lot of people do vote. Some would say a 50 percent turnout is low, but I would suggest that 50 percent is a very representative sample of public opinion. Certainly much more so than a newspaper poll that all the commentators tell us should influence the actions of public officials. Would dilution of a vote of the kind that happens when you split the impact of one vote into two as apparently happens in Germany solve any problem we know of? Will more people be lured to the polls by the prospect of having two votes, each of which counts half as much? On a ballot which seems dauntingly long and complex as it is? Let’s just say I am dubious. My own prejudice again is that people don’t vote, because they don’t believe their vote matters, and giving them even more votes each of which counts progressively less, doesn’t solve that problem.

  5. Submitted by Paul Brandon on 05/04/2015 - 10:23 am.

    Tripartite

    Note that the United State’ tripartite system (executive, legislative and judicial branches) is unique.
    Most of the countries who formulated constitutions with ours as a model avoided that mistake, which is part of why we are suffering the plague of political stasis.

  6. Submitted by Hiram Foster on 05/05/2015 - 06:11 am.

    Tradeoffs

    Ms. Guinier wants to hear more voices. But in this internet, social media drenched age, the problem isn’t really finding ways of speaking out, the problem is finding a way to be heard. Theoretically I suppose this article and these comments can be read all over the world. Since computers never forget, future generations might have a chance to ponder their wisdom or any lack thereof. No, the problem isn’t with any inability to speak out, the problem is in being heard, and that’s where the sense of hopelessness comes in. Our elections are now driven, affected and even some would argue, decided by individuals of unimaginable wealth who finance them. It’s access to those people and their wealth that makes candidates and campaigns viable. When all is said and done, many believe, it’s their priorities, not your priorities that determine what those candidate do once elected to office. And while each party has its sets of d billionaires which finance opposing campaigns, there is a suspicion out there that both sets of billionaires are more alike than they are different in their priorities, and that those priorities are in conflict with what are or what should be, yours.

  7. Submitted by Hiram Foster on 05/06/2015 - 06:34 am.

    Coverage

    Ok, the problem, as I see it, the problem that contributes so much to the cynicism and apathy that afflict our system, is that while for every day Americans it’s easy to speak, it’s almost impossible to be heard. Our election financiers have the same right to speak out that each of us have, the difference comes in that they also have the capability to drown out our voices. This is the policy reality crafted by the members of the Supreme Court, whose values and priorities reflects the choices and priorities of the financiers who are responsible for the election of the politicians who chose them.

    So what to do? More specifically how should this be covered by the news media? Well, for the most part, and largely through no fault of it’s own, the news media has difficulty covering this story. The wealthy are able to purchase privacy, and have the minimal level of sophistication need to cover their tracks. When Mitt Romney addresses his wealthy backers, reporters are not invited, what we know about what he says, comes from surreptitious recordings made by the help. During the campaign season we are drowned by campaign commercials, yet no one in the news media thinks the people who pay for or make those commercials should be covered or otherwise scrutinized. We have somehow defined these extraordinarily important players out of the story.

  8. Submitted by Hiram Foster on 05/07/2015 - 06:43 am.

    Today, we are about to have an election in Britain which has the sort of parliamentary government Ms. Guinier tends to favor but with some significant differences. This time around, the Brits have a lot of minority parties, of the kind which in Ms. Guinier’s terms, bring new voices to the discussion. Many British voices have lots of choices. The British elections, sadly, didn’t get that much news coverage over here, they seem to have collided with royal baby season. But with a little effort, American observers can see for themselves whether a parliamentary system of election and government would do a better job in reaching the goals Ms. Guinier would like to set.

  9. Submitted by Hiram Foster on 05/07/2015 - 02:08 pm.

    Voices

    A lot of people like to talk about how more voices should be heard in our political discourse, and the process should be changed to make that happen. Maybe it’s worth pausing for a moment and considering that under this system, a lot of voices are heard, they just don’t happen to belong to people we disagree with. The founders didn’t like parties very much and so they constructed a system that made it difficult for them to operate effectively, part of the reason for the gridlock we have to do. And they did want minorities to be represented and have political power even if they were a minority. Unfortunately, the minority whose rights and powers they were interested in protecting were southern slave owners, who were able to gridlock the nation on the issue of slavery to the point where the only alternative was civil war.

  10. Submitted by Hiram Foster on 05/08/2015 - 08:30 am.

    Elections

    So the Brits had their parliamentary majority and it looks like the Tories won a majority. Lots of minority voices were heard, but ultimately they lost. And now with the election over, effectively under this parliamentary system they won’t have any influence on policy, in all likelihood for five years.

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