It is disgusting almost beyond words that the onetime sexual predator and obvious dissembler Brett Kavanaugh will render judgement on matters of solemn legal, political, and societal relevance in Superpower’s most preeminent judicial body.
Troubling as the noxious Kavanaugh’s personal history and untruthfulness are, however, it was even more depressing to see the highly personalized soap opera over his past behavior trump momentous questions of law and policy (including sexist and patriarchal law and policy) – abortion rights, presidential immunity from prosecution, torture, and more in his nomination fight.
Equally distressing was our continuing abject failure to address the authoritarian absurdity of core political and judicial institutions crafted by 18thcentury slaveowners and merchant capitalists for whom popular self-governance was the ultimate nightmare.
Why in the name of anything remotely akin to democracy should Kavanaugh and his eight high court colleagues holds these powerful positions for life? That Constitutionally ordained silliness is owed to the slave-owning Founders’ stern determination to “check and balance” majority rule.
How does a right-wing Republican majority in the U.S. Senate get to pass a militantly anti-democratic and sexist, partisan hack through to the highest court in the land when majority U.S. public opinion stands well to the left of the widely hated GOP and Kavanaugh on numerous key policy issues, including union rights, affirmative action, environmental regulation, campaign finance, abortion, the need for viable third and fourth parties, gun control, same-sex marriage, taxation, and more? This can happen in no small part because the absurdly venerated U.S. Constitution assigns two U.S. Senators to each U.S. state regardless of differences in population.
Red Wyoming, home to more than 573,720 Americans, holds U.S. senatorial parity with blue California, where more than 39 million Americans reside. That’s one U.S. Senator for every 19.5 million Californians vs. one U.S. Senator for every 287,000 Wyoming residents.
Just one of New York City’s five boroughs, Brooklyn, has 2.6 million people. If Brooklyn were a state and US Senators were apportioned there at the same populace-to-Senator ratio as Wyoming, Brooklyn would have 9 U.S. Senators. It’s unlikely than a single one of them would be a Republican.
The following 13 states together have a combined population of roughly 34.4 million: Alaska, Arizona, Arkansas, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Oklahoma, South Dakota, Utah, and Wyoming. Together these 13 red states send 26 Republicans to the U.S. Senate. The single state of California, with a population more than 5 million higher than these 13 states combined, sends 2 Democrats to the upper chamber of Congress.
The District of Columbia is home to 693,972 people, more than all of Wyoming and just roughly 46,000 less than that of Alaska. It is absurdly denied voting representation in either the House or the Senate. It would not send any Republicans to Congress.
This preposterous apportionment system means that the Republican Senate majority answers to a very disproportionately white, rural, and reactionary section of the electorate. Due to “a growing population shift from the agricultural interior to crowded corridors along the coast,” Daniel Lazare noted last year,it is mathematically possible now to “cobble together a Senate majority with states that account for just 17.6 percent of the popular vote.”
Other farces of “democracy” continue practically devoid of serious critical scrutiny in the U.S.:
- + an openly undemocratic Electoral College system that “triples the clout of the eight smallest states and doubles that of the next six” (Lazare). This ridiculous system for not democratically electing the U.S. president has put the right-wing Republican loser of the popular vote in the White House in 2 (2000 and 2016) of the last 5 presidential elections.
- + rampant gerrymandering that tilts state legislatures and the House of Representatives far to the right of the populace.
- + strictly scheduled and time-staggered elections combined with absurd propaganda telling Americans that they get real and significant policy “input” by going into voting booths for 5 minutes to select from a narrow spectrum of major party contenders once every 730 or 1460 days.
- + a Supreme-Court-approved/-mandated “wealth primary” campaign finance system which helps guarantee that, in the words of the leading liberal political scientists Martin Gilens and Benjamin Page, “government policy … reflects the wishes of those with money, not the wishes of the millions of ordinary citizens who turn out every two years to choose among the pre-approved, money-vetted candidatesfor federal office”.
The openly plutocratic and even now oligarchic domination of U.S. politics by the upper class (explicitly validated in the Supreme Court’s 1976 Buckley v. Valeoand 2010 Citizens United decisions) is no small part of why the Democrats function as a dismal, dollar-drenched corporate-centrist Inauthentic Opposition in the face of the Republicans’ horrifying drift down the white-nationalist road to a chilling Amerikaner fascism.
Meanwhile, the Republican Party’s control of all three branches of the federal government (related to their domination of state governments) makes an abject mockery of the Founders’ claim to have pre-empted tyrannical government with a system of institutional “checks and balances.” What do “checks and balances” mean when the same party controls the executive, legislative, and judicial institutions – and when the other, out-of-power party itself a pale, corporate-captive reflection of an actual opposition party in a “constitutional republic” whose high court has helped hand the keys of state power over to the holders of concentrated wealth? (“Should Democrats somehow be elected,” Sheldon Wolin prophesied in early 2008, they would do nothing to “alter significantly the direction of society” or “substantially revers[e] the drift rightwards. … The timidity of a Democratic Party mesmerized by centrist precepts,” Wolin wrote, “points to the crucial fact that for the poor, minorities, the working class and anti-corporatists there is no opposition party working on their behalf.” The corporatist Democrats would work to “marginalize any possible threat to the corporate allies of the Republicans.” )
Much of the anxiety expressed by political and media “elites” over the nauseating soap opera that was the Kavanaugh nomination focused on the concern that it would “damage the legitimacy of the Supreme Court” and the process for appointing its members. But why shouldn’t this authoritarian institution and the way in which it is staffed be de-legitimized? As Lance Selfa recently wrote in a sharp Socialist Worker article titled “Losing the Legitimacy it Never Had”:
Despite the mythology surrounding the Court, it has long been the most insulated and least democratic part of the U.S. government. For much of its existence, it upheld the views of the most reactionary forces in the U.S. political system…Supreme Court decisions denied citizenship to African Americans (the Dred Scott case) and legalized racial segregation (Plessy v. Ferguson), overturned laws limiting working hours (Lochner v. New York) and upheld the internment of Japanese Americans in the Second World War (Korematsu v. U.S.). And that’s just a handful of the Court’s most consequential and backward decisions.
The unjustified liberal faith in the Supreme Court dates from a relatively brief period, running roughly from the mid-1950s to the early 1970s, when the Court issued rulings striking down racial segregation, prayer in public schools and bans to conception. It also expanded the rights of racial minorities, the accused, political dissidents and voters. It legalized abortion and (for a time) outlawed the death penalty.
While these decisions were all victories for democratic rights, they were also the product of a period of both unprecedented economic expansion and also the mobilization of millions in the civil rights, women’s and other social movements. But establishment liberals drew the wrong lessons from this period. Always more focused on influencing the state from within Congress and the courts than on the streets, they became increasingly reliant on a failed strategy of lobbying Democrats and relying on legal efforts to defend our rights.
Meanwhile, the right wing carried out a decades-long campaign to create a cadre of conservative judges who, with the help of Republicans (and some Democrats), are moved into lifetime appointments in the federal judiciary…Kavanaugh is the capstone of this strategy…
What’s wrong with damaging the authoritarian Supreme Court’s undemocratic legitimacy? (The same question applies, by the way, to the Federal Bureau of Investigation, a longstanding master agent of political repression in whose hands the Inauthentic Opposition party pathetically placed their case against the Kavanaugh nomination.)
If you listen across the centuries, you can almost hear the holy U.S. Founders laughing. “Those who own the country,” the leading Constitution framer John Jay once said, “ought to govern it.” As the celebrated U.S. historian Richard Hofstader noted in his classic 1948 text, The American Political Tradition and the Men Who Made It: “In [the U.S. Founders’] minds, liberty was linked not to democracy but to property.” Democracy was a dangerous concept to them, conferring “unchecked rule by the masses,” which was “sure to bring arbitrary redistribution of property, destroying the very essence of liberty.” Protection of “property” (meaning the people who owned large amounts of it) was “the main object of government” for all but one of the U.S. Constitution’s framers (James Wilson), as constitutional historian Jennifer Nedelsky has noted. The non-affluent, non-propertied and slightly propertied popular majority was for the framers what Nedelsky calls “a problem to be contained.”
Anyone who doubts the anti-democratic character of the Founders’ world view should read The Federalist Papers, written by the leading advocates of the U.S. Constitution to garner support for their preferred form of national government in 1787 and 1788. In Federalist No. 10, James Madison argued that democracies were “spectacles of turbulence … incompatible with … the rights of property.” Democratic governments gave rise, Madison felt, to “factious leaders” who could “kindle a flame” among dangerous masses for “wicked projects” like “abolition of debts” and “an equal division of property. … Extend the [geographic] sphere [of the U.S. republic],” Madison wrote, and it becomes “more difficult for all who feel it to discover their own strength and act in union with each other.”
At the Constitutional Convention, Madison backed an upper U.S. legislative assembly (the Senate) of elite property holders meant to check a coming “increase of population” certain to “increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings” [emphasis added]. “These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former.”
In Federalist No. 35, the future first U.S. secretary of the treasury, Alexander Hamilton, argued that the common people found their proper political representatives among the small class of wealthy merchant capitalists. “The idea of an actual representation of all classes of people by persons of each class,” Hamilton wrote, “is altogether visionary.” The “weight and superior acquirements of the merchants render them more equal” than the “other classes,” Hamilton proclaimed.
The New England clergyman Jeremy Belknap captured the fundamental idea behind the U.S. Founders’ curious notion of what they liked to call “popular government.” “Let it stand as a principle,” Belknap wrote to an associate in the late 1780s, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.” The Constitution was quite expertly crafted to make sure that that waspreciselyhow the great American experiment in so-called popular self-rule would work out.
Want to “amend” the holy parchment so that “we the people” rather than the wealthy Few govern the nation? Good luck. The Constitution’s Article V mandates that two-thirds of both the Senate and the House plus three-fourths of the states must agree before any constitutional changes can be made, no matter how small. That gives “thirteen states representing just 4.4 percent of the country” (Lazare) the power to block amendments designed to introduce basic democratic things for the common good like the banning of private money from public elections, the introduction of proportional representation, banning gerrymandering, banning concentrations of wealth that cancel out democracy, and requiring that economic and political activities respect the requirements of livable ecology. Gee, do you think the Koch Brothers, the Mercers and their ilk can rally enough money and influence to keep thirteen disproportionately white states on board with eco-cidal oligarchy and top-down class rule?
Every way you turn under the US constitutional oligarchy, it’s “checkmate” for democracy.
What we really need and is all too rarely advocated is a new kind of election: a popular referendum on the kind of government we want. More from Lazare last year:
The people should demand a vote, not on some specific constitutional feature, but on the document as a whole.Before it does any more damage, they should demand a say as to whether it should be allowed to continue strangling democracy…[by calling for a]… a constituent assembly… an extraordinary national gathering called for the purpose not of passing ordinary legislation but of redesigning the state… Once seated, the members’ remit would be unbounded. They could tinker with a few clauses here or there or throw the entire Constitution out and start from scratch. They could submit their recommendations to a referendum or decide that they had sufficient authority to institute them on their own. Instead of deriving their authority from Article V, they would impose it — on the amending process, on the Constitution, on society.
What do we demand? What are we for? A new and democratically designed state and charter, one based on the “Founding Finaglers’” (as David Barsamian calls them) original and ultimate nightmare: popular sovereignty.
Paul Street’s latest book is They Rule: The 1% v. Democracy (Paradigm, 2014).
This article originally appeared on Counterpunch.org.