WeeklyWorker

04.11.2021
Supreme Court: not supreme

The proletarian sovereign

Does the USA have a supreme source of authority? Daniel Lazare takes issue with Mike Macnair

Once more unto the breach with Mike Macnair and the question of political sovereignty …

Contrary to popular opinion, sovereignty does not mean just power, but total power: ie, power that, in the words of the 18th century legal authority, Sir William Blackstone, is “supreme, irresistible, absolute [and] uncontrolled”. It is “supreme” because it acknowledges no rivals, “irresistible” in that it brooks no resistance to its dictates, and “absolute” in that disagreements, second-guessing and the like are impermissible.

When Blackstone describes sovereignty as “uncontrolled”, what he means is that it is controlled by no-one other than itself. Sovereignty is Louis XIV declaring “L’état c’est moi” (‘I am the state’). But it can also be an expression of democratic absolutism: eg, the French constituent assembly’s declaration of the rights of man and citizen in August 1789 - a document formulated in such a way as to allow for absolutely no disagreement on the part of aristocracy.

Last month, I argued that America’s pre-Bastille rejection of sovereignty in even its democratic form is the distinguishing feature of US constitutional politics.1 I then went on to quote historian Henry Adams (grandson of one US president and great-grandson of another) to the effect that:

Supreme, irresistible authority must exist somewhere in every government - [such] was the European belief … America, on the other hand, asserted that the principle was not true; that no such supreme authority need exist in a government; that in the American government none such should be allowed to exist, because absolute power in any form was inconsistent with freedom, and that the new government should start from the idea that the public liberties depended upon denying uncontrollable authority in the political system in its part or in its whole.2

Writing in the late 1860s, Adams believed that America’s rejection of sovereignty was the great constitutional flaw that had paved the way for the Civil War - a diagnosis with which Thomas Hobbes, the great theoretician of sovereignty, would have heartily agreed.

But not Macnair. To the contrary, he insists:

… the USA has a sovereign. It is the Supreme Court of the US (Scotus). This is a body of members indirectly elected by a tortuous process (presidential nomination and senatorial approval) to hold office for life, which is sovereign within the US legal system.

Supreme?

Since the Supreme Court is considered to be the final word when it comes to constitutional law - which in turn is the ultimate source of authority in the US system - then at first glance it appears that comrade Macnair may be right and that, far from rejecting sovereignty, the United States embraces it just as much as any other modern state.

But he is incorrect. The Supreme Court is not sovereign for the simple reason that, names aside, it is not supreme at all.

One reason is that it can be pressured and curtailed. The elected branches, for example, can punish the court by filling it with appointees of a different ideological hue. This was something that Donald Trump accomplished in spades, when he nominated Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, thereby transforming the court from a mildly conservative institution to one that is now strongly rightwing.

But they can also overrule the court by refusing to implement its decisions. In 1832, Andrew Jackson famously remarked of a chief justice unusually favourable to native American interests: “John Marshall has made his decision; now let him enforce it!” With the White House refusing to comply, the court was thus left stranded. The notorious Dred Scott decision, which in 1857 declared that black people have “no rights which the white man was bound to respect”, resulted in much the same. Not only did Lincoln render the decision null and void by launching a civil war four years later, but, when its author, chief justice Roger Taney, turned around in 1861 and ruled that Lincoln had no right to suspend habeas corpus in the course of suppressing pro-Confederate forces in the border state of Maryland, he effectively nullified that decision as well by simply refusing to obey it. A century later, the elected branches might similarly have adopted a policy of ‘non-acquiescence’ with regard to Brown v Board of Education - the epic school-desegregation ruling in 1954. If they did not, it is not because the court forced them to, but because the civil rights movement left them with little choice.

Then there is the amending process - a third way of putting the court in its place. If conservatives do not like Roe v Wade - the 1973 ruling establishing the right to an abortion - then the solution is clear: circumvent the court by amending the constitution, so as to make it plain as day that the document does not guarantee anything resembling a right to terminate a pregnancy at all. The same goes for liberals appalled that Trump appointees may cancel Roe, thereby returning women to the dark days of coathangers and back-alley abortions. If so, the remedy is the same: an equal and opposite amendment firmly ‘constitutionalising’ abortion rights.

In either case, the effect is to affirm that, while the Supreme Court may be superior to other courts, it is not superior vis-à-vis politics as a whole. Of course, a fiendishly difficult amending process renders any such solution all but impossible. But the fact that such a constitutional end-run looms as at least a theoretical possibility means that the court’s powers are still less than absolute. And if they are less than absolute, then the court is not sovereign.

Finally, there is the interesting question of whether a constitutional court can be sovereign under any circumstances, given that sovereignty implies more than passive interpretation: it implies an active intelligence, according to Hobbes, capable of making peace and waging war, determining where property rights begin and end, formulating and enforcing criminal and civil penalties, and a thousand other things as well.3 Since this is far beyond the scope of what is essentially a group of rabbis endlessly parsing a dead text, the Supreme Court can be regarded as non-sovereign on these grounds alone. Its functions are too limited, its intelligence too constrained.

Macnair is thus wrong about the Supreme Court: it completely flunks the sovereignty test. But then Congress is not sovereign either, since its decisions are subject both to a presidential veto and to a judicial override. Neither is the executive branch, since their veto is limited - Congress can override it via a two-thirds vote in both houses - and it is likewise at the mercy of the Supreme Court. No-one is sovereign, therefore - not even ‘the people’, since their actions are constrained by a constitution adopted in a highly undemocratic manner more than 230 years ago and increasingly difficult to change ever since. In the final analysis, the US system is just what it claims to be: a system of separate but equal powers in which no-one is on top.

All of which is important, not only because the US is a big country with more than 330 million people, but because it is the global hegemon and has therefore impressed its constitutional values on the world at large.

Overawe the masses

Domestically, America’s rejection of absolute uncontrollable power has resulted in a bizarrely circular form of politics, in which debates drag on interminably. The second amendment is a perfect example: not only does no-one know what its 27 words of clotted 18th century prose actually mean, but no-one is in a position to issue a clarification, since that is something only a sovereign can do.

As a result, arguments about what to do with the millions of assault rifles filling American basements drag on and on, until everyone is exhausted and ready to drop. When al Qa’eda mows down innocent civilians, the US military will stop at nothing to track the terrorists down. But, when individual gun-owners do the same, liberal congressmen can only respond by cursing the National Rifle Association and introducing gun-control measures that they know will never pass. The constitution excites debate, on the one hand, while crippling gun control, on the other.

Something similar takes place at the international level, where the US has helped usher in a broad array of institutions since World War II - the United Nations, European Union, Nato, the World Trade Organisation, etc - that are also separate, but equal, and whose purpose is to overawe the masses and neutralise democratic politics as well.

This is one of the few things that Michael Hardt and Antonio Negri got right in their much-ballyhooed 2005 study, Empire. The global system, they wrote, consists of “a series of national and supranational organisms united under a single logic of rule” - an “imperial idea” that they traced all the way back to Jefferson in the 1770s and one that “has survived and matured throughout the history of the United States constitution and has emerged now on a global scale in its fully realised form”.4

Quite right: since 1945, the United States has been busily reshaping the world in its own image - which is that of a conservative pseudo-democracy, whose raison d’être is to neutralise the working class, safeguard property and insure a free flow of commodities and investment. It is the US constitution writ large, with its own system of separation of powers and judicial review - for lesser countries, that is, but never the United States, which, despite its rejection of sovereignty, enjoys a form of sovereign immunity regardless.

But Hardt and Negri are wrong in attributing the results to a “new global form of sovereignty”, when it is merely the same old anti-sovereignty dressed up in new clothes. While more ambitious, the goal is otherwise unchanged: to excite politics to higher and higher levels, while at the same time neutralising popular opposition by eliminating any concept of democratic sovereignty. The upshot is a neoliberal revolution that for 40 years has been strip-mining society and commodifying every last aspect of human existence, with no democratic forces in a position to say otherwise.

Socialists oppose such a system, not only because they want to create an international political system that is both democratic and effective, but because they want workers to adopt a world view that is even more totalising than that of capitalism. The goal is to see capitalism in its entirety as a system that is both political and economic, and therefore to see socialism as even more comprehensive: a force that will transform not only production from top to bottom, but politics, law, social structure and personal relations too.

America’s pre-modern constitutional assumptions are radically destabilising because they are increasingly at odds with the needs of modern society. However, they are not only destabilising nationally, but globally as well - institutions like the EU come apart at the seams, Nato loses its way, and the UN proves wholly inadequate to deal with the problem of global warming.

The purpose of working class politics is to establish a form of proletarian sovereignty that will enable man to discard constitutional shibboleths about limited government and the like, “so that he will think, act, and fashion his reality like a man who has discarded his illusions and regained his senses, so that he will move around himself as his own true sun”.5


  1. ‘Tudor, Whig or what?’ Weekly Worker October 7: weeklyworker.co.uk/worker/1366/tudor-whig-or-what.↩︎

  2. H Adams The great secession winter of 1860-61 and other essays New York 1958, p194.↩︎

  3. T Hobbes Leviathan part 2, chapter 18.↩︎

  4. M Hardt and A Negri Empire Cambridge Mass 2000, pxiv.↩︎

  5. K Marx, Introduction A contribution to the critique of Hegel’s philosophy of right: www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm.↩︎