Edward Luce
At the start of each school year, Rosa Brooks asks her freshmen what they think of the Constitution of the United States. Almost everyone is proud that at 233 years old America has by far the oldest constitution in the world. Brooks, a professor at Georgetown Law School in Washington DC, then asks, “You probably think it would also be great if our surgeons were working on the oldest neurological textbooks, or if our ships were steered by the oldest navigation charts?” The question usually puzzles his students. What does she think is so special about the age of a document as opposed to its usefulness? Clear answers are rarely available.
Until recently, Brooks’ line of research was confined to the mildly subversive corners of academia. Americans have always revered their constitution as a quasi-religious set of commandments handed down from Mount Sinai. In reality, it was largely a messy, albeit ingenious, compromise between slave states and non-slave states. The famous separation of powers in the United States between the legislature (Congress), the executive (the presidency) and the judiciary (The Supreme Court) was a sophisticated design to test the power of one branch of government over another. The aim was to prevent the return of royal absolutism rather than to create mass democracy. “Ambition must be made to counter ambition,” wrote James Madison, one of the main founding fathers.
The tribunal quickly became the noble arbiter of what was permitted under the constitution. The great 20th century jurist Felix Frankfurter scoffed at the perception of Supreme Court justices of whom he served as “impersonal vehicles of revealed truth”. William Taft, former president and chief justice, called the American judicial system in general a “high priest[s] in the temple of justice ”.
The Court remains the least despised of the three American branches, although American reverence for it decreased in the last generation. Since Donald Trump came to power, however, the hostility of the American left to conservative constitutionalism has grown sharply. Trump’s pact with the Christian right is successful two new Supreme Court justices and a third is in preparation. Trump’s actions also shattered confidence in the idea of checks and balances. From the president’s refusal to reveal his tax returns or resolve disputes over his family business to his general refusal to cooperate with congressional oversight, the separation of powers has acted as limited oversight of Trump’s actions.
As the first branch of the US government, Congress would have the power to hold the presidency to account through investigations, hearings, requests for documents and, ultimately, impeachment. In practice, however, this power is no longer really a failure. Trump appears to view Capitol Hill as an irritating mosquito. “Trump treats subpoenas like toilet paper,” says a senior congressional official. “There is almost nothing we can do about it.”
The conservative Supreme Court has not been of much help. Joe Biden, Trump’s presidential opponent, was almost the only candidate in the Democratic primary debates to say he wouldn’t do the trick by increasing the number of judges from nine to, say, 11 or 15. It would reduce the number of judges. conservatives to a minority. Now even Biden, an old-fashioned traditionalist, rings without obligation.
Last month, Ruth bader ginsburg, the country’s most revered liberal justice, has died of cancer at the age of 87. This created a vacancy that Trump immediately offered to fill. Amy Coney Barrett, a conservative nun who, aside from her gender, is the opposite of Ginsburg in almost every way. Ginsburg has done more to promote women’s rights than any other figure in modern American history. Barrett, as a member of People of Praise, a charismatic Catholic organization, belongs to a group that explicitly believes in the traditional family hierarchy with women in a subordinate role (belied, of course, by his own meteoric career).
Barrett’s near-certain confirmation opens up the prospect of a Supreme Court tilted six to three in favor of the Conservatives – an unassailable majority that could undo many of the gains of civil rights in recent decades. Among these could be Roe vs Wade, the 1973 decision which enshrined the right to abortion; Obergefell vs. Hodges, the 2015 ruling that legalized gay marriage; the existence of numerous federal regulators (potentially including the US Federal Reserve); and the removal of the remaining limits on the possession of firearms. A six-three court, in other words, could significantly stimulate the conservative movement’s counterrevolution against post-1960 America. “It would be a tribunal that would be much bolder in promoting Christian values - and religious ideas about how society should be ordered,” says Eric Posner, professor at the University of Chicago Law School. This could help break the already hesitant liberal tolerance for the constitution.
Barrett’s appointment is eclipsed only by the presidential election. On the eve of what the polls suggest could be a clear victory for Biden, his confirmation by a Republican Senate would steal with the legal hand what voters seem willing to grant Democrats with politics. As it stands, Barrett’s confirmation will likely be rushed through the Senate the week before the election – a jaw-dropping move as the Liberals are already enraged at the undemocratic leadership of the US justice system.
The controversy could ignite the fuse that culminates in a full-fledged crisis over America’s founding creed. “I think it’s hard to overstate how shocking this decision is,” says Norman Ornstein, a leading scholar on US politics at the American Enterprise Institute. “Barrett’s confirmation would worsen the already existing nuclear arms race between the Liberals and the Conservatives. It can’t end in the right place.
What can be done then to avoid an American constitutional collapse? The distressing answer is very little. The simplest step would be to change the constitution to make America more democratic. But the amendments must be approved by three-quarters of America’s 50 states and two-thirds of every house of Congress – an impossibility in today’s polarized climate. Aside from an insignificant congressional salary amendment, the last momentous one was passed in 1971, when the US 26th Amendment reduced the voting age to 18. The last serious amendment was the 25th Amendment in 1965, which allowed a US president to be impeached on the basis of incapacity. Trump’s critics have made the recitation of the “25th” a kind of chant because of its alleged mental instability.
The top of any Liberal wishlist for future amendments would be to remove the Electoral College, which gives small, rural conservative states, like North Dakota, disproportionate influence over larger liberal states like California. Twice in the past 20 years has a US president won an election after losing the popular vote – George W. Bush in 2000 and Trump in 2016. “Only once in the 44 elections between 1824 and 1996 was he clear that a presidential candidate had lost the popular vote. »Says Ornstein. “Now it becomes a feature of the system.”
If the polls tighten in the next two weeks, Trump could pull off that feat again. There’s almost no chance he’ll win the popular vote on November 3 – he’s following Biden too much. It is possible that he will win the Electoral College again. If he challenges the results in one of the swing states, as Bush did in Florida in 2000, the result could again be settled by conservative judges. This is what happened in Florida when the Supreme Court voted five to four to end the recount, effectively assigning the presidency to Bush. If Barrett had donned his robe, it would mean that a third of the court – including John Roberts, the chief justice, and Brett Kavanaugh, who joined in 2018 – would have worked as paralegals on Bush’s 2000 campaign.
The specter of another “judicial selection” to settle the US presidency has intensified efforts among constitutional apostates – a growing minority in US law schools – to revise America’s founding document, or even start afresh. zero. One of those dissidents, Sanford Levinson of the University of Texas Law School, argues that failing to change the U.S. constitution – either replacing it with a document suitable for the 21st century, or removing a written constitution – will result in three outcomes.
The first is the break from America. This year there has been an avalanche of books with titles such as American secession and Divided we fall. The two largest putative new countries oft-mentioned would be Cascadia, which would include the West Coast states, notably Northern California, and the Mountain West, and the older idea of the Republic of Texas, which would incorporate much of the South and Midwest. “Americans are used to seeing secession as a violent act because of civil war,” says Levinson. “But you have many examples of peaceful divorce around the world, including Scotland’s possible departure from the UK, the separation of the Slovaks from the Czechs in the 1990s, and Norway from Sweden in 1905.” A minor problem is that most scholars believe the constitution forbids secession, which is why America has gone to war with itself for slavery.
Levinson’s second result is Civil War. Much of the responsibility for the American Civil War of 1861-1865 stemmed from the famous Dred Scott decision of 1857, that black Americans could not be treated as citizens even if they lived in non-slave states. Black people, including Scott, a slave who claimed to have been freed after leaving Missouri for Illinois, where slavery was illegal, “are not included, and were not meant to be included, under the word” citizens “in the constitution,” wrote Roger Taney, the chief justice.
Taney was unfortunately right. America’s Founding Fathers expressly denied slaves citizenship. For the sole purpose of appeasing sparsely populated slave states, the constitution defined a slave as three-fifths of a human being, thus granting the south more representation in Congress than the number of its white citizens justified. Hence the famous joke of Stokely Carmichael, the black power radical of the 1960s, who referred to the American “Constitution” – he could only get three-fifths of the word.
Abraham Lincoln, in some ways America’s greatest founding father even though he was born years after independence, is the man who won the Civil War against the South. He frequently referred to the fact that the constitution denied citizenship to slaves. Lincoln, in other words, has effectively declared war on the American constitution. The Supreme Court also played a notorious role in enshrining the Jim Crow segregation of the south in its 1896 Plessy v Ferguson decision, which did so much to overturn the results of Lincoln’s victory in the Civil War. “Change in America has generally come from violating the constitution rather than joining it – until war included,” Levinson says. “Few constitutional experts talk about it.”
Levinson’s third option, which he considers the most likely, is that America not fall victim to either secession or war. He simply drifts to become “the sick man of the west,” a 21st century version of the once powerful Ottoman Empire, which gradually descended over the 18th and 19th centuries into sclerosis. In this story, which is arguably an ongoing one, America reluctantly comes to terms with the fact that renewal is not possible. Rather than providing a blueprint for modern reforms, its constitution acts as an increasingly entrenched roadblock to change. Like the grand viziers of Istanbul, Washington’s elected and berobic elites are comfortably acclimating to a system that meets their personal needs. Dynamism unconsciously turns into stasis. A country that prides itself on its political radicalism turns into a form of ancestor worship known as “originalism” – the legal doctrine that the country’s boundaries are defined by the words of America’s Founding Fathers or by the intended meaning behind their words.
“Originalism is a bit like the Protestant Reformation,” says Eric Posner. “You have to go back to the original text and read it literally.” In reality, Posner adds, the originalists simply read what they want in the constitution. A historic reading of America’s Free Speech First Amendment would tell you that it was explicitly intended to prevent the government from shutting down subversive publications in the feverish America of the 1790s. Somehow or another other, this text was reread in a right for the companies to spend unlimited money on the elections.
Likewise, a contextual interpretation of the Second Amendment, which enshrines the right to bear arms, clearly shows that its drafters in 1790 meant organized militias. Again, the originalists extracted drastically different interpretations. Now the Second Amendment means Americans can carry weapons concealed in malls and churches, or keep small armories designed for the battlefield in their basements. Neither interpretation of either amendment was common half a century ago. Yet it is as difficult today as then to read the actual words and to match the interpretations of the originalists. “In some ways, originalism is just a fig leaf to compose what you want to invent, just like you can find what you want in the Bible,” Posner says. “Originalism is a license to be creative.”
Among many others, Barrett is passionate about originalism. His mentor, Antonin Scalia, who served on the Supreme Court for three decades, is the lawyer who has done the most to advance the doctrine, sometimes called “textualism.” Almost none of the challenges the United States faces – global warming, becoming a majority-minority society, producing vaccines at high speed, high-tech competition with China – could have been foreseen by the founding fathers.
It was precisely in anticipation of the unforeseeable that Thomas Jefferson, America’s most poetic of founders, recommended that the United States change its constitution with each generation. “Imagine you are sitting in a room and trying to figure out how to solve a 21st century challenge that we are facing,” says Brooks. “Then someone barges in and says, ‘Hey, I got the answer. I found this document written at the end of the 18th century when America had a population of only four million, most of whom were farmers. “Do you really think they would have any idea?”
In the immediate future, the country faces two radically divergent forks. The first is a slow-burning constitutional crisis, which begins with a victory for Biden. Even if he beat Trump by a landslide, Biden’s plans would run into almost immediate legal difficulty. One of them would be a very conservative Supreme Court that is likely at some point to overturn the “individual mandate” that requires everyone to purchase health insurance under Obamacare. Indeed, the Supreme Court must hear a challenge of Obamacare the week following the elections. No vaguely affordable US public health coverage could work without compulsory insurance.
Biden would also face a Senate that could block his legislation, as he has done for the last six of Barack Obama’s eight-year presidency. Even though the Democrats took back control of the Senate winning more than 50 seats next month, Biden would still need a filibuster-proof supermajority of 60 to pass serious legislation. There are usually a few Democrats who join Republicans in key votes, often including Joe Manchin of West Virginia and Dianne Feinstein of California.
Running through those red lights instantly would present Biden with several temptations, all of which are technically legal. These would include the abolition of Senate filibustering so that bills can be passed by simple majority 51. It could also involve “wrapping up the states” by granting statehood to the district of Columbia, Puerto Rico, and possibly the US Virgin Islands. Since each state has two senators regardless of population, that would reliably add six Democratic seats to Biden’s column.
Democrats could also ‘wrap the court’, either by expanding the size of the Supreme Court and filling the newly minted robes of reliable liberal judges, or by imposing term limits on sitting judges. Currently, Supreme Court justices can serve for life. At 48, Barrett could shape America’s future for the next 40 years. Nowhere in the US constitution is it specified that the Supreme Court should be composed of nine judges. Before the Civil War, its size fluctuated between six and ten.
Although Biden is inherently married to tradition, reality may force him to act drastically. Even Obama, who barely mentioned constitutional reform when he was president, now supports abolishing Senate filibustering. The Conservatives would understandably be appalled at any of these changes, let alone all three. “All of these left-backed changes are supposed to make America more democratic,” said John Yoo, a Berkeley law professor and close ally of Dick Cheney, the former vice president. “They forget the fact that America was designed to be a republic, not a democracy. By design, change is difficult to bring about. The founders deliberately built in protections against the tyranny of the majority.
Yoo adds an ingenious argument from a conservative point of view. “Brexit would not have been possible with the US constitution,” he says. “The American system prevents radical changes with 51% of the population.” Under the US constitution, of course, Britain would have been barred from joining the EU in the first place. Earlier this month Mike Lee, a Republican senator from Utah, said even more cruelly, “We are not a democracy. The word “democracy” does not appear anywhere in the constitution. Like Chief Justice Taney’s take on slaves in 1857, Lee was right. If the founding fathers were wrong about slavery, and even about women (who were also denied the right to vote), would they also have been wrong about democracy?
Other conservatives view the left’s agitation against the system as un-American – a serious accusation in a country where traditionally it’s adherence to creed, rather than ancestry, that qualifies you for membership. “The essence of the problem is that liberals hate the constitution and conservatives revere it,” says Richard Porter, a leading corporate lawyer, who also sits on the Republican National Committee. “If you start packing the Supreme Court with your own people, then you will make it a super-legislature rather than a body that upholds the rule of law. What then would be the difference between America and Venezuela? Change should be difficult, Porter adds. The Senate was supposed, in George Washington’s words, to play the hot tea saucer of the House of Representatives. It was there that public passions would subside.
It might be a bit unfair to compare Joe Biden to the Venezuelan president, however. Nicolás Maduro, or Viktor Orbán, The Hungarian leader, who has also bent the justice of his country to his will. The Democratic hope would be to align the justice system with the opinion of the American majority on issues such as health care, abortion, environmental regulations and gun control – or at least water down the veto of the Supreme Court on the actions of elected officials. “Clear and established majorities of Americans support these reforms, but the system continues to thwart their will,” says Aziz Huq of the University of Chicago Law School. Orbán’s explicit goal, meanwhile, has been to create an “illiberal democracy,” which looks eerily like authoritarianism.
A better parallel comes from American history – Franklin Delano Roosevelt’s infamous 1937 effort to race the courts. His attempt to expand the United States Supreme Court came after it overturned most of the key elements of the New Deal during his first term. He was elected in the middle of the Great Depression. In 1933 he inherited a strongly conservative Supreme Court – dubbed “nine old men in kimonos”. In the year before FDR’s election, 100,000 Americans applied for jobs in the Soviet Union. History reports that Roosevelt’s plan backfired. The bill collapsed. However, from that point on, the Supreme Court radically changed its position. Its nine judges have stopped overturning New Deal legislation. “The point in time that saved nine,” the saying goes.
If this episode has any resonance, Biden could chastise today’s Supreme Court simply by threatening to race it. Joseph Stalin, the Soviet dictator, once asked: “How many divisions does the Pope have?” after Winston Churchill advised him to heed Vatican views. Like the Vatican, the power of the US Supreme Court ultimately rests on its moral legitimacy.
The second fork in the road is an explosive constitutional crisis sparked by a contested election result next month. Last year Rosa Brooks created a group called Transition Integrity Project which carried out “War games” exercises on the possible outcomes of a contested election. One of those scenarios involves Trump winning the Electoral College while losing the popular vote to Biden by 52-47%. The election is taking place against a backdrop of low turnout due to voter suppression – the closure of polling stations in urban minority constituencies, for example – and fears of Covid-19 are preventing others from running to vote in person. The result quickly escalates into a stalemate in which, it turns out, Trump holds almost all the cards.
Only in the United States, the constitution of the country maintains the holder in power for a full 11 weeks between election day and the inauguration of the next president. Like so many others in any constitutional democracy, the system ultimately survives through codes of behavior rather than the law. Rules are a matter of trust. If enough people refuse to follow them, they cannot be enforced. “The big secret of the US constitution is that it is based on public acceptance,” says Huq. “Without legitimacy, nothing can last long.”
In contrast to, say, Jimmy Carter in 1980 or George HW Bush in 1992, Trump shows no signs of abiding by an antiquated honour system that says the incumbent should respect the rules of the game. In Brooks’s range of scenarios, only one — a Biden landslide — does not lead to American conflagration. Though the exercises included liberals and conservatives (and also myself), Brooks has been accused in the Trumpian media of plotting a “Democratic coup”, which has led to a torrent of menacing emails. Such threats are nothing new for public figures in today’s America. I know of one Washington-based journalist who has temporarily had to move their family into a hotel on the advice of the FBI. Last week, the FBI uncovered an advanced plot by members of a rightwing militia to kidnap Gretchen Whitmer, Michigan’s Democratic governor. “This is probably the most polarised American climate since the build-up to 1860,” says Preet Bharara, a former Democratic US attorney for the southern district of New York. “My bet is the system will survive intact. But if Trump contests next month’s election, I might change my mind.”
Trump’s broader pandemic record, and the operatic way in which he responded to his own Covid-19 diagnosis, has lessened the spectre of such a breakdown. Biden’s poll lead has edged closer to double digits. The chances are that this dog will not bark — or at least not yet. Even if America descends into street hostilities next month, the odds are the Supreme Court would not want to stick its head above the parapet. “I would be hugely surprised if the Supreme Court would take such a risk with its legitimacy,” says Jeffrey Rosen, head of the National Constitution Center in Philadelphia, the city where the founding fathers hammered out the document. “They would not want to jeopardise their position.” Rosen points out that traffic to his centre has skyrocketed in the past year — the NCC is now the third most-visited museum website in America. This reflects the country’s heightened awareness over what is at stake. “Interest in the constitution is off the charts,” Rosen says. Let’s suppose that the likelier outcome next month is a Biden victory — and a slow-burn US constitutional crisis, rather than imminent breakdown. For how long can it slowly burn before it flares? “If the system is the same in 2030 as it is now, America will start to fall apart,” says Ornstein. He points out that within 20 years, 30 per cent of the US will elect 70 of its 100 senators. Levinson adds: “The US Senate is an affirmative-action programme for white, rural, Christian conservatives, who have an increasingly powerful veto over America.” Posner says: “We are likely to see a judicial expansion of religious restrictions dressed up as freedom in the language of originalism.” Brooks says: “Are we, as a country, able to debate whether we can change our furniture? Or has our constitution become a secular religion — too sacralised even to go there? History should teach us that nothing lasts for ever.”
Swamp notes In the countdown to the 2020 election, stay on top of the big campaign issues with our newsletter on US power and politics with columnists Rana Foroohar and Edward Luce. Sign up here It could be, as Levinson suggests, that America — and Washington in particular — will simply accommodate itself, Ottoman-style, to tenured stagnation but without the seraglios. It is probably worth heeding a historical warning from Kemal Atatürk, the Turkish nationalist who delivered the death blow in 1922 to the long era of the Ottoman sultans. “The evils which had sapped the nation’s strength had all been wrought in the name of religion,” Atatürk said. Or, to paraphrase distilled wisdom from almost any civilisation, whether it be in the Levant or North America, and all points east and west: “If things cannot bend, eventually they will break.” Is America capable of bending?
This article is taken from the source: USA-VISION.com
published: 22. 10. 2020
