Summary: Ignore the illusion of normality to see that we have entered an age of political revolution. The pressures are building on our political regime. This post describes one of the weakest links in our governmental system, perhaps soon to snap.
The Democrats, journalists, judges, and corps of law professors applauded as Obama shredded the Constitution. He dusted off the Espionage Act of 1917 to use against whistleblowers. He implemented the Paris Agreement, a treaty, without Senate approval. He implemented his Clean Power Plan, a law, without Congressional authorization. He executed American citizens not only without trial, but without warrant – violating precedents going back to Magna Carta.
With Trump in the White House, different rules apply. Every action is grounds for a court challenge, with judges cosplaying Priest-Kings empowered to judge his actions according to their personal values. Democrats, journalists, and law professors reverse the Constitutional order – placing bureaucrats (e.g., in the Department of Justice and the Deep State “interagency”) above an elected President.
These things are not matters of which policy or whose beliefs are right. The Constitution specifies only procedures. We are losing agreement on the Constitution as our rulebook. After that, only power will remain. It won’t end well for us.
- There cannot be two sets of rules, one for the Democrats and one for Republicans. That will create corrosive cynicism that erodes the legitimacy of our political regime.
- Putting unelected bureaucrats and judges over elected officials erodes the legitimacy of the Republic by weakening the bonds between the government and the people. Why vote if unelected officials make the big decisions.
No matter how rich and powerful we are, these things will put America on the path to weakness and chaos.
The bigger picture
Much of this is just politics conducted for short-term partisan gain without regard for the long-term damage – the destructive precedents – to the Republic. But one aspect of this results from a structural flaw.
Article III of the Constitution describes a relatively limited role for the Federal Courts. In 1803, the Supreme Court executed the single largest power grab in our history by ruling in Marbury v. Madison that the Court had the power of judicial review: the ability to strike down both laws of Congress and actions of the Executive. The boundaries of this asserted power are unclear. So, naturally, their power has grown. In the 1960s the Court became in effect a legislative body by inventing “rights” – without the tiresome bother of allowing the people’s involvement through elections.
Another extension of their power has been their micro-managing of the Executive branch – drawn in to referee partisan disputes about the actions of the President and his agents. Of course, there is nothing in the Constitution giving the Court that authority.
Like so many of our “hacks” to the Constitution, the Court’s authority has grown from small roots into a serious and illegitimate exercise of power.
Equally naturally, partisans began fighting for control of this powerful entity – with its ability to reshape America by diktat. Politicization of the Courts was inevitable, and the lifetime appointments of judges became existential struggles by the parties.
The Constitution provides a “check and balance” by Congress on the Courts in Article III Section 2 (analysis of that power, see here and here).
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.“
But how can the president push-back to the Courts? The tools are there for a President bold enough to use them.
“John Marshall has made his decision, now let him enforce it.”
— Pithy paraphase of what Andrew Jackson wrote to John Coffee about Worcester v. Georgia: “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”
So far, Presidents have followed Jackson’s example, and verbally attacked the Court but not otherwise pushed the Court very hard. And the Courts have, as they did in Worcester v. George, not pushed presidents too hard. But the Courts have slowly grown bolder in the use of their power in the 217 years since Marbury vs. Madison.
A collision is inevitable. The most recent crash was FDR’s 1937 court-packing proposal. FDR lost, but the Court has lost much of its legitimacy in the past 83 years. Eventually, the time will come when a President believes that a pushback is needed, or even necessary – and the Court will not back down. Many things could bring this to a decisive point. The courts might push too hard, or overrule an action the president considers essential, or become politicized – or just have a clash of personalities. Whatever the outcome, it will be an inflection point in American history.
Another path to a new regime
Politics is a field like any other. New ideas – innovations – change the game. To fight Trump, Democrats devised a way to cripple the Administration of their enemies when allied with powerful elements of the press and Federal bureaucracy. Despite having a majority in both Houses of Congress for the first two years, Trump accomplished little of his revolutionary agenda. The constant attacks from all sides drained away his energy and support.
Now these methods are in the public domain, and will be used again. Probably version two of these methods.
Eventually, a more powerful and competent president will strike back at his (or her) unelected enemies in the bureaucracy and courts. That conflict might determine the future of the Republic. Who will win? Elected officials, responsible to the people, or unelected officials responding to the needs of America’s elites?
Conclusions
This is more evidence that we have entered a revolutionary period. The Second Republic, founded on the Constitution (as the First was on the Articles of Confederation), is dying. I doubt that it can be saved after generations of accumulated (i.e., not reformed) glitches and our failure to adapt the Regime to the radical changes in the world since 1783.
We are seeing the foreshocks before the eventual and inevitable big one. We should be thinking of what comes next.
“{A} revolution is not a dinner party, or writing an essay, or painting a picture, or doing embroidery; it cannot be so refined, so leisurely and gentle, so temperate, kind, courteous, restrained and magnanimous.”
— Mao tse-tung in ”Report on an Investigation of the Peasant Movement in Hunan”, March 1927.
For more information
Ideas! For some shopping ideas see my recommended books and films at Amazon. Also, see a story about our future: Ultra Violence: Tales from Venus.
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about ways to reform America, about the Left-wing, about the Right-wing, and especially these…
- Our institutions are hollow because we don’t love them.
- After Independence Day, look to America after the Republic.
- About the coming civil war (our third) – The reasons America might suffer such a catastrophe, the stronger reason that we won’t, and the more serious threat.
- Cry as the Republic dies.
- Glimpses of the political revolution just starting.
- About the slow-mo revolution by the Left.
- None of the Democratic candidates are moderates.
- In 2020 America might resume the revolution.
Books about our growing government
The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution
The Executive Unbound: After the Madisonian Republic
A possible outcome may also be that the power of nomination results, by appointments, in a change of approach by the courts, particularly the Supreme Court?
“Article III of the Constitution describes a relatively limited role for the Federal Courts. In 1803, the Supreme Court executed the single largest power grab in our history by ruling in Marbury v. Madison that the Court had the power of judicial review: the ability to strike down both laws of Congress and actions of the Executive. The boundaries of this asserted power are unclear.”
Protected constitutions are the norm internationally, ie oversight by a “consitutional court” of legislation to make sure it does not contradict the constitution. I think only Israel and New Zealand have unprotected constitutions, and both of them are moving to a protected system.
Interestingly, the UK entered a protected regime when they entered the European Community in the 1970’s, the European Court of justice became the final arbiter of legislation if there was a dispute between private rights and parliamentary acts. This was a massive shift for the UK, the rest of Europe already had protected constitutions so this was not seen as unusual. Now that the UK has left the EU, parliament is fully sovereign again, whatever parliament decrees is law, the courts have been reduced to advisory role, government can simply choose to ignore them. Since the electoral system normally grants large majorities to the largest party and the house of lords has lost its ability to block legislation, the UK government functionally acts as an elected dictatorship while parliament sits.
This is the first time a democratic state has ever moved from a protected constitutional regime to an unprotected regime, it will be interesting to see if this new arrangement persists.
To my mind it is the unashamed politicization of the supreme court that is the main driver of its declining legitimacy, not the fact that they can overturn legislation if it is seen to contradict the constitution. For me the question is how do we appoint supreme court justices that are not politically partizan, when the entire court system is politicized? The first step would to be too educate the citizens as to the issue, then to convince both the democrats and the republicans that it would be in both there interests to change the current system…
“Eventually, a more powerful and competent president will strike back at his (or her) unelected enemies in the bureaucracy and courts. That conflict might determine the future of the Republic. Who will win? Elected officials, responsible to the people, or unelected officials responding to the needs of America’s elites?”
The only way I could see it happening is if a President managed to pack the supreme court with flunkies who promptly decided to allow legislation which overturned constitutional oversight of legislation by the courts.
Perhaps a terrorist attack on the sitting court which wiped out the justices. Say for example a left or right wing nut job, was particularly exercised by a potential judgement, say overturning roe vs wade, or some such. The President could elect a new tame cadre of justices. Its not beyond the realms of possibility, remember the Austrian corporal was able to skillfully turn the burning of the reichstag to his advantage.
Gerald,
(1) “Protected constitutions are the norm internationally, ie oversight by a “consitutional court” of legislation”
That’s a great point. However, those are all relatively recent experiments. Our experiment has been running for 217 years. Perhaps their Courts will evolve as ours have.
(2) “unashamed politicization of the supreme court that is the main driver of its declining legitimacy, not the fact that they can overturn legislation if it is seen to contradict the constitution.”
We can only guess at such answers, of course, but I think you have it backwards. A Court of limited powers can remain more-or-less apolitical. But a Court like ours, with such vast and ill-defined power, must inevitably become politicized. Partisans will fight for control of it, to use in their programs. It can create “rights” – making unchallengeable laws that could not be passed through the electoral process. Such as the right to abortion and the vast transgendered rights project that is reshaping America.
Unless we have saints as judges selected by Angels, politicization is inevitable.
(3) “The only way I could see it happening is if a President managed to pack the supreme court with flunkies”
You missed my point entirely. This is more likely to occur when the Court is held by opponents of the President. Otherwise, such a drastic confrontation would not be necessary.
As to how, the President could just refuse to follow the Court’s ruling. After all, the Constitution explicitly gives him the power to uphold the Constitution – whereas the Court’s power is something they invented themselves. He can declare their actions illegitimate. That’s the point of Andrew Jackson’s challenge – paraphrased as “now let him try to enforce it.” The Justices have historically known their weak hand, and showed restraint.
But their exercise of power has grown much much bolder since then. They might overreach in a confrontation with a president – and lose.
More broadly, FDR’s court-packing proposal failed in 1937. But I suspect that the Court’s legitimacy is far lower 83 years later. In another crisis, a president might have the political capital to just beat the Court into submission.
Larry: “More broadly, FDR’s court-packing proposal failed in 1937. But I suspect that the Court’s legitimacy is far lower 83 years later.”
Actually, that’s probably not true. The history of the US Supreme Court is full of folly with occasional moments of striking lucidity.
The big difference between now and most of history is that in the past, politicians sought compromise rather than allowing such decisions to go to the Courts because they could not control the decisions. The current reverence for the US Court system started with the desegregation movement of the 1950’s and the appointment of Earl Warren as the Chief Justice (1953-69). He and his successor, Warren Burger (1969-86) made critical decisions that allowed desegregation and the equal rights movements to become reality. In the case of segregation, after a century of wrangling and reversing several previous Supreme Court decisions (example: “Separate but Equal”).
These decisions, combined with the now continual political warfare between the parties for power, have led us to the current undesirable situation.
https://en.wikipedia.org/wiki/History_of_the_Supreme_Court_of_the_United_States
The single biggest problem with the Constitution is the fact it is an extremely short document, given the nature of the topic. Only 4,543 words to describe everything about how the federal government will operate. The amendments to the constitution add roughly another 45,000 words. It is an impossibly short document if you are going to use this document as the SOLE means of determining how the federal government will work. It needs additional rules and regulations to fill out the gaps.
https://usconstitution.net/constfaq_q90.html
The problem becomes even bigger when you consider historical context. In 1787, the political entity known as the United States (known for being inharmonious at best) was a relatively obscure, militarily weak, entity that mostly focused on avoiding becoming a pawn of the European Great Powers. Less than 200 years later, it became the preeminent economic power due to the self-immolation of Europe in WWII. Less than 50 years later, it became the preeminent political power on the planet due to the collapse of the Soviet Union.
Less than 30 years after that event, it is our turn on the firing line of souls.
Larry correctly identifies the problem (as usual) but his solution is (unfortunately) inadequate. A single document that describes how to keep something as complex and interwoven as the US government has become would need to be 500,000 words or more in length and enforcing it in our current period of heightened internal rivalries and ambitions would be incredibly difficult at best. The current document can be interpreted (or twisted) to fit too many ambitions.
I make the following statement with extreme sorrow: Given all of the above (especially the part about enormous political and economic power), the current turmoil NEEDS to happen. Things need to get worse, perhaps considerably worse, to drag our leaders to negotiation to hammer out a grand compromise and restore balance and order. This has happened before (most notably in Theodore Roosevelt’s administration) and it will probably happen in the future.
“Sooner or later everyone sits down to a banquet of consequences.”
– Robert Louis Stevenson
Heaven help us all if that compromise cannot be reached before open warfare breaks out as it did in 1861, and in Europe in 1939 and, to a lesser extent, in the old Soviet Union.
Pluto,
“The history of the US Supreme Court is full of folly with occasional moments of striking lucidity.”
True, but that’s irrelevant to what I said. People’s reverence for the Court lasted thru two centuries of the Court’s rulings – good, bad, and mad. After all, what rational person could expect more from judges selected by politicians? They are just people, not demi-gods.
But their assertions of power have eroded that support away. See Gallup’s Confidence in Institutions survey: confidence in the Court was 45-55% from 1973 – 2004, then the decline began. It was 38% in 2019.
(1) “However, those are all relatively recent experiments. Our experiment has been running for 217 years. Perhaps their Courts will evolve as ours have.”
That is very true, the US constitutional regime has provided the inspiration if not the basis of many of the worlds democracies. In the EU, Poland’s governing Law and Justice Party has recently introduced legislation to enable the government to select Judges, this has roused opposition from all the western European governments, the EU parliament and the commission, the danger of judicial politicization is well recognized, the question as you said is can it be avoided.
(2) ” I think you have it backwards. A Court of limited powers can remain more-or-less apolitical. But a Court like ours, with such vast and ill-defined power, must inevitably become politicized. Partisans will fight for control of it, to use in their programs. It can create “rights” – making unchallengeable laws that could not be passed through the electoral process. Such as the right to abortion and the vast transgendered rights project that is reshaping America.”
Thats the crux of the problem, in my personal opinion a constitutional court is essential to act as a referee on legislation, to make sure constitutional rights are upheld. the danger is when it is used as a means to subvert democratic will to favor a political view point. This can only lead to disaster. You might end up with a toothless court and a elected dictator, there has to be a middle ground.
We might see how much the courts legitimacy declines if Roe vs Wade is overturned,
I think you would see subversion of the law not seen since the run to to the civil war.
Gerard,
I agree on all points. Also, based on your comment I tweaked the text of the post to make some of these points clearer!
Note that the other govts you refer to almost all date back to after WWI or WWII. They have flourished in the Long Peace and Proserity since WWII. Everybody is a great sailor in calm waters. We will see how strong those regimes are when the next storms hit.
“constitutional court is essential to act as a referee on legislation, to make sure constitutional rights are upheld. the danger is when it is used as a means to subvert democratic will to favor a political view point”
And I want a five cent cigar that doesn’t cause cancer. I don’t know how to build such a court or find such a cigar. Nature’s god doesn’t care what we want.
In case anyone is wondering how a second American revolution could pan out, check out this podcast series from last year if you can find a few hours
https://podbay.fm/podcast/1449762156
The writer of the series is generally even handed despite his admitted left wing bias untill the last podcast. The wars that America has fought in the Middle East are his model for a second civil war
Raymond,
I’ve often written about this. It’s fantasy, dreams of an apathetic passive people of the Great Day When They Rise Up and Smite Their Oppressors. It makes us feel strong.
People who can’t bother to vote, let alone do the basics of political involvement are unlikely candidates for risking their lives, fortunes, and sacred honor in a civil war.
Pluto: Now that the UK has left the EU, parliament is fully sovereign again, whatever parliament decrees is law, the courts have been reduced to advisory role, government can simply choose to ignore them.
No.
Parliament always was sovereign, as is shown by the fact that it took the decision to leave the EU, and its decision was all it took. Its decision was to repeal the legislation which made it an EU member. It could do this because it was sovereign.
The courts have not been reduced to an advisory role. Their role has not changed. The government can no more choose to ignore court rulings after than it could before Brexit.
The UK has a constitution, its just not a written one. And the courts can, before and after Brexit, rule on government measures in the light of it.
If you want to see a clear example of this, look at the UK Supreme Court ruling on prorogation, in the Fall of 2019. This was a decision which was uninfluenced either way by membership of the EU.
What happened was that at least since 1688 (probably back to Middle Ages) the Crown, which is to say the Government, has had the power to prorogue Parliament. That is, dismiss it and start a new session. It has never been questioned in the last 300 years.
The Supreme Court however ruled that the Government prorogation last Autumn was unlawful. The Government, while making no secret of the fact it considered this wrong as a matter of law, complied and recalled Parliament.
Membership of the EU had no bearing either way on the Court decision or on Government compliance.
The fallacy with the original statement quoted in italics is the idea that by signing the various EU membership treaties, the sovereignty of Parliament was in some way reduced. It was not. The jurisdiction of the EU Court of Justice had been conferred by Parliament, and could be, as it was, at any time withdrawn.
Signing treaties passed by Parliament does not and cannot affect its sovereignty.
I would argue that the original federalist foundations of the U.S. have been eroded by two centuries of nation-building. This erosion has taken place because of unresolved contradictions that were built into our very constitutional framework.
Could it be that the unitary character of the nation is incompatible with the implied heterogeneity of the particular states coming together as a federation–that real federalism is not simply another version of the nation-state?
Certainly, as pointed out in the commentary, turning a federation into a nation required substantial constitutional modifications especially through the role of various “activist” Supreme Courts.
But there seems to be a kind of conflictual foundation implicit in the model “e pluribus unum.” which was initially resolved with the Civil War in favor of “unum,” without, however completely vanquishing the “pluribus.”
Does “pluribus,” capture more persuasively the proper institutional framework for American democracy?
Does the universalism that was originally deployed from the 18th century enlightenment to protect the country from the lingering threats of European powers and to facilitate internal development, inevitably deteriorate into the primacy of our modern bureaucratic/national security State?
Our modern state structure did not arrive from a space ship but somehow evolved from our contradictory constitutional foundations.