30.06.2022

Democracy in America?

The latest attack on abortion rights shows the danger of worshipping the constitution, writes Daniel Lazare

Sam Alito, author of last week’s US Supreme Court decision overturning Roe v Wade on the right to abortion, is 72 years old. Clarence Thomas, author of a decision a day earlier overturning New York’s strict gun laws, is 74. If both men remain on the bench as long as liberal heroine Ruth Bader Ginsburg did prior to her death two years ago at age 86, they have a dozen years or more in which to continue issuing rulings that are ever more shocking and reactionary.

Nothing will be off the table. As Thomas indicated in his concurring opinion, the overthrow of Roe means that he and his fellow justices “should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell” - a reference to Supreme Court decisions legalising contraceptives, overturning a Texas state anti-sodomy law, and permitting gay marriage. Birth control, gay rights, even voting - no-one knows how far a deepening judicial dictatorship will go in wiping out rights that Americans have long taken for granted.

But there is one thing we do know: ‘We, the people’ will be powerless to stop it. It will not matter if 59% of Americans oppose overturning Roe, according to a recent poll.¹ It will not matter if, according to another survey, 79% of New Yorkers want to leave strict state gun laws intact.²

It will not matter because the people who supposedly created the US constitutional system in the first place have been effectively sidelined, now that the machinery is taking on a life of its own. A legislative branch structurally biased in favour of the ultra-right can be counted on to nip any and all attempts to rein in the court’s power in the bud. Whether the goal is to limit the court’s purview, pack it with liberals the way Roosevelt tried to in 1937, or punish it by cutting its budget, all will die aborning. Conservatives have ‘colonised’ the apparatus so thoroughly that hopes of a return to ‘normal’ are now close to zero.

Democracy is thus disappearing in what is supposedly the ‘original democratic state’. Reform is fading the more desperately it is needed. What is worse is that an allegedly democratic constitution is what is doing it in.

Culpability

A long list of people are to blame for the debacle. First and foremost, of course, are the Republicans - a party that is fast slipping into long-term minority status after losing the popular vote in every presidential election except one since 1992. But, instead of quietly fading away, the Grand Old Party, as it is popularly known, is compensating for its long-term losing streak by making the most of a seemingly endless list of minority advantages that America’s 235-year-old constitution confers. They include such gems as:

equal state representation, which allows the 54% of the country that lives in the 10 biggest states to be outvoted four-to-one in the Senate by a largely white rural minority that lives in the other 40;
the filibuster, which allows senators from just 21 states representing as little as 11% of the population to block nearly any legislation they do not like;
rampant gerrymandering that gives Republicans a small, but significant, edge in a supposedly more democratic House of Representatives; and
an Electoral College that doubles or triples the weight of white rural states, thereby tilting the executive branch in a racist anti-urban direction as well.³

The last is why the White House has been occupied for 12 out of the last 22 years by men rejected by the voters. (Even though George W Bush won the popular vote in 2004, he would not have been a candidate if he had not stolen the presidency four years earlier.) It is why two unelected presidents - Dubya and Donald Trump - handpicked four of the six rightists responsible for defenestrating Roe. It is a vicious cycle, in which, the more that Republicans fall behind democratically, the more they put such structural advantages to use. Democrats may cry that such tactics are “unconstitutional” - meaning in local parlance that they are wrong, immoral, ungodly or un-American. But Republicans do not care, since they are now highly adept at interpreting the constitution for their own purposes.

Government is grinding to a halt, as temperatures go shooting through the roof. Thanks to the filibuster, which means that 60 Senate votes are effectively required for passage, the upper chamber now approves just 2.8% of the bills that come its way, a 90% drop over the last half century.⁴ Yet, the more Dems protest, the more Republicans dig in their heels - not because they want to, but because that is what the constitution essentially demands.

But Democrats are not blameless either, since they have turned fealty to the high court into a high moral principle ever since ‘the Supremes’ began the turn toward liberalism in the late 1930s. So thorough was Democratic groupthink that no-one dared question whether placing unlimited power in the hands of nine lifetime appointees might be the slightest bit problematic. No-one dared argue that an ancient text might not hold the answers to all modern problems. “You know, in our country, we have always had, because of the brilliance and genius of our constitution, an expansion of freedom,” house speaker Nancy Pelosi said last month after a draft of the anti-Roe decision was leaked.⁵ That is why Democrats are in such a quandary, now that Republicans are using judicial and constitutional fealty against them.

Finally, there are the bourgeois feminists, no small force in modern-day America. Virtually a ladies’ auxiliary of the Democratic Party, they donned hand-knit, pink ‘pussy hats’ to protest Trump’s inauguration in 2017, eagerly took up Hillary Clinton’s cry about Russian interference in the months that followed, and then, in 2018, mounted a desperate, last-bid effort to block the appointment of a conservative Supreme Court nominee named Brett Kavanaugh.

The last was more damaging than many people realise. Since bourgeois feminists are incapable of criticising the bourgeois power structure, they chose not to criticise the court, but mounted a bitter personal attack instead. Kavanaugh was morally unfit, they said, because, 36 years earlier, he had sexually assaulted a 15-year-old high-school student named Christine Blasey Ford by tackling her on a bed. Feminists believed Ford as thoroughly as Christian fundamentalists believe the Gospels, yet her testimony before the Senate judiciary committee contained strange gaps and omissions. Although she claimed to remember the assault perfectly, she could not remember how she got to the party in which it supposedly occurred or how she travelled the half-dozen miles home. She could not explain why none of the other four people who were present were willing to corroborate her account. Indeed, a close friend named Leland Keyser, who supposedly accompanied her to the gathering, later told a pair of New York Times reporters that “the whole setup Ford described ... sounded wrong” and that her accuracy was questionable. “I don’t have any confidence in the story,” Keyser concluded - words, needless to say, that the liberal-feminist press ignored.⁶

Lost amid the uproar is the fact that harping on Kavanaugh’s supposed unfitness ended up burnishing the Supreme Court all the more. If Kavanaugh was unworthy, then the court would be even worthier than it already was without him. In the end, the nomination squeaked through by a margin of 50-48. But, by relying on a flagrantly undemocratic institution to defend a democratic right like abortion, bourgeois feminists only succeeded in shooting themselves in the foot.

Dilapidated

But Republicans, Democrats and bourgeois feminists are merely superficial aspects of an ancient constitutional structure that grows weaker and more dilapidated by the year. This is the real problem. Americans talk a language that no-one else understands - one filled with strange terms like ‘necessary and proper’, ‘penumbras and emanations’ and ‘original intent’. In the case of liberals, they favour a broad reading of the first amendment - the one that says that “Congress shall make no law … abridging the freedom of speech” - while favouring a narrow reading of the second to the point that the right to bear arms all but disappears. Conservatives, needless to say, believe the opposite.

Both claim to be ‘originalists’, in that both believe that the original text is on their side. But neither can agree about what originalism means or when it originated, whether it was in 1787-91, when the constitution and the Bill of Rights were drafted and ratified, or in 1868, when individual rights were supposedly federalised via the 14th amendment. Was racial equality part of the framers’ original intent, including the 25 or so who owned slaves? Were gay rights? Liberals who argue in favour of such absurdities are guilty of blowing soap bubbles that conservatives now take delight in popping - except that the conservative dream of returning to the golden age of states’ rights is a soap bubble too. It would take a Jonathan Swift to do justice to the incoherence on both sides of the divide.

The US constitutional system is a closed loop, in which all wisdom supposedly begins and ends with a single 4,000-word text that is now well into its third century. Since amendments at this point are all but impossible, the system is incapable of change, growth or reform and thus tends to draw back on hackneyed formulas in moments of stress. The Republican cure-all is thus to turn the clock back to the glorious 1830s and 40s, when the states were dominant, Washington was little more than a country town, and a few thousand large-scale slave-owners were skilled at using their minority veto to gain a stranglehold on the country as a whole.

To be sure, today’s Republicans no longer believe in slavery (or so they claim). But they still believe in reducing democracy to an empty shell. They want fewer individual rights, except when it comes to the right to bear arms, in which case they want more, because it is implicitly hostile to federal authority. The ultimate enemy is meanwhile unchanged: free labour in the period leading up to the Civil War and the organised working class today.

The result is the same as well: civil war. States are heading off in different directions, as some ban abortion and decontrol guns and others do the reverse - to the degree the Supreme Court lets them, that is. No-one knows how far this latter-day war between the states will go. But if last year’s January 6 insurrection was a replay of Fort Sumter, then bigger battles clearly loom.