In the 1820s, Alexis de Tocqueville posed this fatal question:
“Is it possible, after having destroyed feudalism and defeated kings, that democracy will retreat before the bourgeoisie and the rich? Will democracy stop now that it has become so strong and its adversaries so weak?”
Almost 200 years later, we have the fatal answer.
As the prior post discussed, the American polity, i.e., a hybrid of oligarchy and democracy moderated by a large middle class, -- the best form of government according to Aristotle -- died in 2008-2009. R.I.P.
Billions of freebee Bush-Obama dollars to the American rich demonstrate beyond any reasonable doubt to any sensible person that we now have an oligarchy with democratic accessories -- hat, wallet, gloves -- and aristocratic yearnings.
They say to be forewarned is to be forearmed. Not in this case. Aristotle’s 2,000-year-old warning that a polity dies under encroachments made by the rich went completely unheeded. Caught beneath the weight of D.C. megabucks, the American polity’s democratic component could not breathe, much less survive.
The death of the polity is why the following discussion is a total waste of time. However, delving deeper, on a personal level …
I suspect that you, Dear American Reader, may be in trouble. You are up to your eyeballs in debt. You may have already lost your house. Unable to tolerate the stress, your wife or husband split, took the kids and dog. Your car is making noises; the brake drums are shot, and you can’t afford new ones. You complain about the high price of frozen dinners, but keep eating them. The soles of your shoes and the cuffs of your shirts/blouses have seen better days. Rising, ridiculous utility bills mock your efforts to save water, turn off lights, turn down heat. You don’t have health insurance -- real insurance, that is. Your university diploma, which made your parents so proud, is still around, somewhere. Your job, assuming you still have it, pays less for longer hours. Even so, there are 14 people in the street who want it, who will replace you for a fraction of the salary you’re receiving. No wonder, despite your years of company loyalty, your boss is looking at you sideways; there are rumors. At your age, who will want you?
In spite of all that, the simple truth is you still have not suffered enough. Until the American economy crashes -- and it will (see prior post) -- you will not do what needs to be done. Pending that worldwide catastrophe, none of the suggestions made here for resurrecting the democratic component of the polity can be seriously discussed, much less implemented.
I value your time, Dear American Reader, your resources, your energy, your self. For that reason, I recommend you stop reading this post.
Part 1: The “Despotism of An Oligarchy.”
Want to see your name in Newsweek? Time?
I put that question to the news director of a big city TV station for which I was conducting public opinion polls.
How about the New York Times and the Los Angeles Times? The Washington Post? While we’re at it -- ABC, NBC, CBS, CNN? A rash of radio stations? They’ll be talking about you. All of them.
The director gave me a nonplused look. I dislike the word nonplused; however, like 7-UP The “Uncola,” it covers the case at hand.
The news director chain-lit another “ciggy-boo”:
Well, Thomas, you know that we in the media world work every day with famous people, interviews and so forth, so the fame game is personally of no interest whatsoever to me; in fact, I already am famous locally, it’s a nuisance -- I go to the supermarket and people want to stop and talk; well, in short, I really could care less; all that really matters is doing a good job and having the personal satisfaction that comes with it; tell me more.
Presidential election campaigns were cranking up. Our first public opinion survey was a week away. I looked the news director in the eye:
All you have to do is let me include the following question in the poll:
“Do you think Supreme Court Judges should be
1. appointed for life assuming good behavior, as is presently the case?
2. Appointed for a term, say 14 years, as are Federal Reserve Board members? Or
The idea was to start a national dialogue. Let candidates take positions; editorialists editorialize; people at water coolers and parents pontificate; university grants be granted.
The news director was taken back. Ah … humph … I gotta take it upstairs ...
To my knowledge, the Supreme Court Judge question has never been asked. I think I know the answer to it; so, too, did somebody upstairs. Which is why I wasn’t allowed to ask it.
No national dialogue then. Now, either. Why?
Answer: we no longer have a polity, much less a democracy, in America.
If you want to revive the polity, you must revive the democratic component. To revive the democratic component, you must weaken the oligarchy; such is the correlation of forces. Any approach that does not take that weakening into account is nonsense.
To weaken the oligarchy, you must start at the head. So, where is it? The White House? Congress? The Pentagon? Washington lobbyists? Hollywood? Bill Gates’ home? Wall Street? Wal-Mart? The C.I.A.? All of the above?
None of the above.
Thomas Jefferson found the head: the Supreme Court. In an oft-quoted letter that no doubt has made many a Supreme Court Judge feel his breakfast start to warm, Jefferson declared:
“You seem to consider the Judges the ultimate arbiters of all Constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy … The Constitution has erected no such tribunal …” (Letter to M. Jarvis, September 1820)
Jefferson had in mind the notorious Supreme Court case, Marbury v. Madison (1803), in which the Court cavalierly assigned itself the power to decide if laws are constitutional. Cavalierly, because the Constitution, as Jefferson observed, gave the Court no such power.
Here’s what the Constitution (Article III, Section 1) says:
“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behaviour …”
The one and only boundary, good behavior, is supposed to insulate the Court from dirty, terrible, nasty, corrupt, evil, mean, despicable, awful politics. However, as everybody knows, Supreme Court judges are nominated by the president and approved by the senate. Translation into plain English: the selection of judges by elected officials, coupled with the good behavior provision = political appointees with lifetime jobs.
In case you doubt the lifetime status, only one Supreme Court Judge, Samuel Chase, has ever been impeached; the Senate acquitted him, and he stayed on the job until his death in 1811. As for those inferior Courts, did the Constitution name them only too well? Fewer than 10 federal judges in over 200 years have been convicted, kicked out.
Political guys on the federal payroll, whom you can’t get rid of: there you have it. It should come as no surprise that the overall quality of Supreme Court decisions resembles something the cat dragged in. You disagree? You think the Court represents you, the people? Read Robert Dahl’s masterpiece, A Preface to Democratic Theory. It was written in 1956, when the polity still existed and you could say such things and get them published. Better hurry -- before the book, like democracy itself, is out of print.
In addition to Dahl, I have the highest regard for George Gallup (1901-1984), founder of Gallup polls and author of a must-read book on survey research, The Sophisticated Poll Watcher’s Guide. In keeping with that respect, I now call upon The Gallup Organization to break the taboo and pose the Supreme Court question I was forbidden to ask. You can do it. The question is, will you?
On second thought, no, you cannot. Or if you do ask it, you cannot release the results. Threats and insults in an avalanche of emails from a Twitter flash crowd; offhand suggestions and helpful hints in notes passed under the table; your secretary’s stack of telephone messages with concerned inquiries from shareholders, subscribers, clients, media magnates, friends, friends of friends. Forget it. Sorry I asked.
As for the Supreme Court’s unconstitutional power to decide if laws are constitutional, we saw their unabashed, unabridged interference in the executive branch a decade ago when they made George Bush Jr. president. (For the highly suspicious nature of the Florida vote, see this blog’s post of 12/30/2010). The same despotism is exercised over the legislative branch: for an example of outrageous meddling, see the Court’s batch of contradictory, contorted reapportionment decisions. Don’t omit cases the Court refused to hear.
Laws can, should, and must be reviewed for their constitutionality. There is one logical, commonsense alternative to the present despotism of the judiciary: a review commission consisting of members from all three branches. Perhaps, one or more members should be elected directly by the people.
Without changes in the Supreme Court, any and every change made in the name of re-equilibrating oligarchy and democracy is at best a waste of time, at worse a case of the sham rights and illusory benefits Aristotle warned about. Why?
Thomas Jefferson gave the answer. Fearing the consolidation of the Supreme Court’s power as the ultimate arbitrator of constitutionality, Jefferson warned in another oft-cited, breakfast-warmer letter: “The Constitution [would be] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” (Letter to Judge Spencer Roane, November, 1819)
Twist and shape it has been, and will be. Wax is why nothing said here about the Supreme Court will perturb American oligarchs. Princes and princesses can sleep peacefully in their palaces.
To those who would seek to establish a commission to review the constitutionality of laws, as well as to change how Supreme Court Judges are selected and how long they serve: before taking action, I advise you to contemplate the immortal words of Johnny Cash:
we’ve ever seen.
Dream on, then. While you’re at it, R.I.P.