Not 1930s Germany, But 1820s Britain

Prof. Corey Robin, author of The Reactionary Mind, doesn’t see our former president as a political strongman, the harbinger of an American brand of fascism. He sees the Republican Party using the Constitution to hold the line against the majority’s desire for progress, and therefore truly conservative. From The New Yorker:

. . . Fascism called the young to the cause of novelty and creation. Today’s right is nothing like that. It is an artifact of the world’s most ancient and extant legal order, holding on to the Constitution, and the institutions it authorizes, for dear life. . . .

. . . Seeking to counter their waning position, the Republican Party and the conservative movement have come to depend upon three pillars of counter-majoritarian rule: the Senate, the Electoral College, and the Supreme Court. These institutions are not authoritarian or fascist—indeed, they are eminently constitutional—but they are antidemocratic. They are also mainstays of the right. In a remarkable statement, now forgotten, issued three days before January 6th, seven conservative members of the House warned their colleagues that [Republican] presidential candidates have

depended on the electoral college for nearly all presidential victories in the last generation. If we perpetuate the notion that Congress may disregard certified electoral votes—based solely on its own assessment that one or more states mishandled the presidential election—we will be delegitimizing the very system that led [our party] to victory in 2016, and that could provide the only path to victory in 2024.

The current moment is less reminiscent of the last days of Weimar than of Britain in the years before the Reform Act of 1832. With a scheme of representation dating back to the twelfth century, Parliament was the playground of grandees from rural and sparsely populated regions of the South. Growing cities in the Midlands and the North had no representation at all.

Standing atop this “aristocracy of mere locality,” in the words of the historian and Whig politician Thomas Macaulay, were the Tories. For six decades, virtually without interruption, they leveraged this Senate-like system of rotten boroughs to keep the Whigs out of power, enabling an increasingly isolated group of aristocrats and gentry to maintain their privileges. While “the natural growth of society went on” among the middle classes and in the cities, Macaulay said, “the artificial polity continued unchanged.”

Other features of this system will sound familiar. Polling places were few and far between; one of the leading items on the reform agenda was to increase their number. Electoral laws were so byzantine, and generated results so murky, that an army of well-paid lawyers was on the payroll for years, sorting out the returns and arguing over their validity. The “artificial polity” kept politics frozen in time, discouraging both parties from taking up vital economic questions of the day, and preventing new social forces and the partisan realignment that was eventually to come . . .

The “And” Defense Doesn’t Work

I’m trying to say less about our former president and his minions — including the entire Republican Party — now that they have a lesser role in our lives, but a correction to the previous post is in order. Therein I considered the argument that a president cannot be impeached after leaving office because of the way the Constitution is worded. Two law professors explain why this is clearly wrong (I apologize for not noticing what they point out):

. . . Some have argued that the constitutional clause providing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States” implies that any consequence of conviction must consist of both removal and disqualification from future office — which could happen only in the case of sitting officers.

That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case. Indeed, most convictions over the years involved only one, removal from office.

Clearly, if punishment cannot extend beyond X and Y, it means that X and Y are both allowed, but nothing else is. The Senate can’t add punishment Z to the mix, but they can apply either X or Y or the two together.

In this particular president’s case, it means that, although it’s too late to remove him from office, he can be barred from a future government position. Unfortunately, however, he can’t be forced to shave his head and wear a dunce cap.

Despite the above, Republican senators will still argue that he’s beyond punishment. They fear the former president’s radical supporters. But it’s good to understand why they’re wrong about the Constitution.

(Note: I still say we need to add “andor” to English, so we can easily say “this andor that”, while leaving “and” to mean “both” and “or” to mean “either this or that, but not both”.)

Making the Supreme Court More (Small “d”) Democratic

The fundamental objection to the Supreme Court’s powers . . . is that no one concerned to establish a democratic state would bestow on nine judges, appointed for life at the whim of the pre­sident, powers to determine society’s governing norms.

That’s from an Oxford fellow’s London Review of Books article about America’s Supreme Court, which now includes six Republicans (five of whom are Catholics) and three Democrats (one of whom is). The article continues:

Some progressives have begun to argue that the court’s problems can be fixed only if its powers are reduced. One possibility would be to introduce term limits for judges. This, though, wouldn’t limit their powers.

But the Constitution says federal judges “shall hold their offices during good behaviour”. That seems to mean term limits would require a constitutional amendment, which would be unlikely to pass when the Court is so unbalanced. Republicans wouldn’t agree to give up their big advantage.

Another suggestion is to change the voting rules on the court. Continental legal systems often require unanimity among the judges in all decisions. In the US, if the justices were unable to reach unanimous agreement, the lower court’s decision would be upheld. This already happens when an equal number of justices are in favour of and opposed to a ruling: the court can divide equally when . . . there are only eight members on the court, or when a justice recuses him or herself. A unanimity rule would not deprive the court of all its powers: between 1946 and 2009, 41 per cent of decisions were unanimous.

There is nothing in the Constitution that says how many votes are required for the Supreme Court to make a decision, so requiring a unanimous vote would merely require a new law, not a constitutional amendment. A Democratic president and Democratic Congress could easily make that happen, assuming a Democratic Senate got rid of the filibuster.

But it would mean that a single ideologue could exercise an outsized effect on individual decisions.

Some scholars propose a super-majority requirement, permitting one or two dissenters. That deprives the lone ideologue of ransom power, but it is also a conservative measure, entrenching the court’s existing decisions; the more controversial may never be overturned.

The proposal often mentioned is to enlarge the Court (so-called “court packing”). Congress and the President could add three Democrats, for example, creating a 12-member Court split evenly between the parties.

. . . When Franklin Roosevelt sought to pass progressive legislation during the Great Depression, the Supreme Court stymied his efforts by striking down key parts of the New Deal. In response, he resolved to appoint as many as six new justices. Roosevelt, for all his skills, was unable to get the measure through the Senate (though the court was chastened by his efforts). Pete Buttigieg revived the idea in his run for president, proposing an expansion from nine to 15 judges. There is no principled reason to settle on nine as the appropriate number of justices; the court initially had six, once had ten, and other Supreme Courts around the world often have more.

The author of the Guardian article thinks adding justices would be inadequate:

But ‘packing’ the court, even if it were politically feasible, still doesn’t address the problem of how to limit its powers. That said, the political confrontation it would generate might cause the justices to reconsider their attitudes to those powers. That would be no bad thing.

Chief Justice Roberts is apparently concerned that the Court’s right-wing activism may sometimes go too far. But depending on him or other justices to refrain from using all their power to carry out the Republican agenda is wishful thinking. Rather than waiting for the Republican majority to restrain itself, Congress should limit the Court’s powers. A University of Chicago law professor explained how last month in The Washington Post:

A new Democratic Congress could, for example, impose by ordinary statute a limit on the Supreme Court’s authority to declare federal legislation unconstitutional, permitting it to do so only by supermajority (say, 7-2) rather than the usual 5-4. In so doing, Congress would be using the same power it does to dictate how many justices constitute a quorum. This reform would implement, via voting rule, the sort of “clear error” approach to judicial review imagined by Harvard professor James Bradley Thayer in the late 1800s. Such a rule would permit a judicial veto in cases of uncontroversial constitutional violation (for example, an effort to reintroduce de jure segregation of schools or criminalizing the speech of political opponents) but otherwise require the court to stay its hand.

Alternatively, Congress and the president might (again by ordinary statute) “strip” the court of jurisdiction over constitutional challenges to specific legislation — the Green New Deal, for example, or HR1, the sweeping set of reforms first approved by the Democratic House in 2019 that includes establishing automatic voter registration, making Election Day a national holiday and ending partisan gerrymandering. (It could also strip its jurisdiction over whole areas of law, such as climate legislation). Here, Congress would be making use of its Article III power to decide what kinds of cases the Supreme Court may hear on appeal — the court has constitutionally mandated jurisdiction only over disputes between states and the like — as well as its authority to decide whether lower federal courts exist at all, and so what cases they are permitted to hear.

. . . The exact scope of Congress’s ability to strip jurisdiction remains controversial, and a recalcitrant court might resist. This is a situation in which additional sympathetic justices recently added to the court might be helpful; court packing, in other words, might pave the way for additional reforms. Whatever stance the court takes, the limits Congress may impose is a question that careful attention to the Constitution is unlikely to answer; rather, as with most of these disputes, the resolution would ultimately be political, as opposed to legal, with the political and judicial branches left to hash out a new status quo. As former dean of Stanford Law School Larry Kramer has observed: “The Constitution leaves room for countless political responses to an overreaching court” — including judicial impeachment, slashing the court’s budget, giving the justices onerous responsibilities or simply ignoring the court, as did Lincoln, after the Dred Scott case.

Conservatives made similar efforts at limiting the court’s authority in the 1970s and 1980s (backed by legal arguments from a young [John] Roberts, working as an attorney at the Department of Justice) — repeatedly introducing legislation to limit federal courts’ ability to adjudicate contentious cultural issues such as abortion and school prayer — and have made similar efforts since. Those efforts failed, in part because of a lack of support in the Senate, but one can imagine that a Democratic-controlled Senate might be exceptionally motivated to protect its potential legislative accomplishments from a hostile judiciary.

Given Republican rhetoric about unduly powerful courts, there’s a chance that at least some conservatives may embrace the cause of judicial disarmament (especially if liberal court-packing is the alternative). For both parties, of course, going down such a path would increase the stakes for who controls the political branches. Both sides would have to ratchet down the expectation that the Supreme Court would annul popular laws that they find distasteful — whether that means (on the right) a statute phasing out fossil fuel production or (on the left) a federal ban on affirmative action in higher education. In a democracy, however, that is exactly how things should be.


Seven days.

Using the Democracy We Already Have

Michael Lind, writing at Salon, argues that the agenda of the American right wing amounts to a “Southern Autonomy Project”: an attempt to attract investment to the South by insuring cheap labor and minimal government regulation, while limiting any negative response from Southern voters and interfering with possible corrective action in Washington.

Lind believes we need a progressive agenda to counteract the right, a “National Majority Rule Project”:

Setting political difficulty aside, it is intellectually easy to set forth a grand national strategy that consists of coordinated federal policies to defeat the Southern Autonomy Project.

He thinks these policies would do the trick:

1) A federal living wage, which would level the economic playing field among the states;
2) Nationalization of social insurance, so that Southern states couldn’t water down programs like Medicaid and the ACA to their advantage;
3) Real voting rights for all Americans, insured by Federal law;
4) Truly nonpartisan redistricting in order to eliminate gerrymandering of Congressional districts;
5) Abolition of the Senate filibuster (I’d add a change to House rules that would make it easier to bring legislation to a vote);
6) Abolition of the Federal debt ceiling.

Unfortunately, it’s really hard in practice to “set political difficulty aside”. As things stand now, any such reforms would require cooperation from the people the reforms are aimed at.  

The same problem applies to a Salon article that calls for a new Constitutional Convention. The author of this article argues that the Constitution should be amended to make it more democratic, including changes like:

1) Ten-year terms for Supreme Court justices;
2) Public funding for elections and the elimination of campaign contributions;
3) Abolition of the Electoral College;
4) Elimination of special voting rules and earmarks in Congress;
5) A requirement that Congress approve a yearly budget or face a special election;
6) Elimination of the need for state legislatures to approve constitutional amendments.

The author concludes, however:

Of course, it is unthinkable that the United States would do what its states have done 230 times, i.e., call a constitutional convention to design a modern framework of governance. This would require two-thirds of the states to agree. Amending the current constitution is also nearly impossible as it demands a two-thirds majority in both chambers of Congress as well as the approval by 38 states.

It’s reasonable to conclude that the only way to make our country more democratic is for more right-thinking people to participate in the democracy we already have. People need to vote for politicians who would support changes like those above. (We’d also have to get over the idea that our Constitution as written is a sacred document.)

Having the right people in office can certainly do wonders. Since the voters of California elected a Democratic governor and Democratic majorities in both houses of the legislature, California has started moving in the right direction again.

According to an article in the New Yorker (whose author argues, by the way, for Obama to ignore the debt ceiling if it comes to that), a similar phenomenon occurred after the Southern states seceded:

Throughout the Civil War and afterward, Republicans in Congress had enacted some of the most forward-looking legislation in American history: a national currency, the Homestead Act, a transcontinental railroad, support for higher education, the definitive abolition of slavery—all thanks to the extended absence of delegations from the self-styled Confederate states.

See, all we need to do is use the democracy we already have! (And keep having babies who grow up to be Democrats, especially in Texas, Florida and Ohio.)