The Problems with Our
Democracy
Only 9% of
Americans think democracy is working "extremely" or "very
well," while 52% feel it is not working well. The short answer is that
America's two-party system is not the same as democracy. Although voters are
dissatisfied with the two-party system, like one-party systems, there is no
alternative.
The United States Constitution never mentions political
parties. The Preamble to the Constitution starts: "We the people."
The purpose of the checks and balances in America's form of government is to
keep the people in control and prevent any one branch from achieving monopoly
power. In theory, power is divided between states and the federal government, and
within each, it is divided between a legislature, an executive, and a
judiciary. In practice, the two-party system is a shadow, extra-Constitutional
government.
Equal Time
Congress has contributed to the problems with democracy.
With the advent of radio and television broadcasting, government became
involved in awarding bandwidth to radio and television stations. As a condition
of their licenses, they were required to provide "equal time" to
points of view. If one candidate appeared on radio or television, equal time
had to be made available for her or his opponents.
But in 1960,
John Kennedy and Richard Nixon wanted to debate each other without any of the
six independent candidates who were running. Lyndon Johnson, who owned radio
and television stations, was Senate Majority Leader and Kennedy's
vice-presidential running mate. He obliged by passing a bill suspending the
equal time provision of the Federal Communications Act to enable the famous
Kennedy-Nixon debates to take place on television.
Excluding
the independents, especially Orval Faubus, the segregationist state's rights
party candidate, enabled Kennedy and Nixon to run for president as if the
greatest threat facing the nation was the Soviet Union's nuclear arsenal
instead of the internal time bomb of racial segregation smoldering in the
ghettos as the centennial of the Emancipation Proclamation approached.
Presidential
Succession
When President Kennedy was assassinated, and
Vice-president Lyndon Johnson entered the White House, the second spot remained
vacant. At that time, succession was controlled by laws passed in Congress.
Johnson took the opportunity presented by the death of Kennedy to propose a
Constitutional Amendment codifying the line of succession. Inter alia, Johnson wrote
political party processes into the
Constitution by
providing that when the
Vice-Presidency was vacant, the president could nominate a successor who then
had to be confirmed by a majority of both houses of Congress, mimicking the political
party nominating procedures.
Until 1936, the Democratic Party required a 2/3rds vote
to choose a presidential nominee. Making a simple majority in each house the
standard for picking a president seems like a low bar in retrospect. Not
surprisingly, this new method for choosing the chief executive was used for
political purposes just seven years later to put Gerald Ford, the first
appointed president in American history, into the White House.
The Federal Election Campaign Act
Although Congress could not formally establish political
parties, it tried to get control of the parties with the Federal Election
Campaign Act of 1971. The Act limited campaign contributions and expenditures.
In exchange, public funds were given to parties and candidates. The rules were
written so that the Republicans and Democrats received money up front to fund
their conventions, and public funds that matched private contributions once a
threshold was reached. In effect, this law became a publicly funded discount
for candidates who already had access to private political contributors.
Independents would be reibursed after the fact, and only if they reached a
certain threshold in the election.
President Ford
thought the Act was unfair, but declined to veto it. He said he would let the
Supreme Court decide, throwing away an important co-equal power. The Supreme
Court also admitted the law was unfair, but upheld it on the grounds that a
two-party system was important because it contributed to social stablility, as
opposed to the perceived anarchy in parliamentary systems that frequently
required coalitions among parties in order to govern.
The
Federal Election Campaign Act, for the first time, permitted government funds
to be spent on political campaigns. A clever workaround was that taxpayers were
allowed to check a box on their tax returns designating that $3 of their taxes
should be given to a presidential campaign fund. It was this money, technically
the taxpayers and not the governments, that was first used to subsidize the
Republican and Democratic presidential primary candidates and the parties'
national conventions.
In 1976, Eugene McCarthy, who had challenged Lyndon Johnson
in 1968, ran as an independent for president. Carter, fearing McCarthy would be
a spoiler and cost him the election, wanted to challenge McCarthy's petition in
New York to remove him from the ballot. The question was, given the expenditure
limits and sources of funding, was it legal to use federal matching funds to
pay the lawyers and staff to challenge McCarthy's petition. The Federal
Election Commission ruled "Yes." So, just as the appointment
provision of the 25th Amendment was used for political purposes to replace
Richard Nixon with Gerald Ford, the federal financing of presidential campaigns
was used in the first instance to reduce the number of choices available to the
voters.
The Federal
Election Campaign Act is the reason that Steve Forbes ran for president in
1996. He wanted to support Congressman Jack Kemp, but the campaign finance laws
limited the amount of money he could donate to Kemp's campaign. Thanks to a
Supreme Court decision, Forbes could spend an unlimited amount of his personal
fortune on his own campaign, although he couldn't do the same for Kemp.
Every president has contributed to this institutionalizing
of the two-party system. After Carter, Reagan got rid of the Equal Time
provision entirely, which is why there are now unabashedly partisan television
networks.
Clinton's
contribution was to exclude independent candidates from publicly funded forums in
Arkansas. The excluded candidate, Ralph Forbes, sued, and his case went all the
way to the Supreme Court, where he lost. The Court held that while a candidate
could not be excluded because of his or her positions on issues like abortion,
unions, or school prayer, he could be excluded because he was polling only 3%
and couldn't win. In effect, this decision outlawed poor candidates. If
candidates have to raise millions of dollars to get heard and elected, there
never will be a constituency for money-saving government programs.
In 2020, the presidential campaign cost $5.7 billion, and
the congressional campaigns cost $8.7 billion for a total of $14.4 billion or
$92.90 per voter, not including local campaigns for Governor, Mayor, state
legislature, and other local offices. So, one thing that is irrefutable is that
the current political system is completely money driven.
In 2000, George
H.W. Bush used his influence and his nominees on the Supreme Court to deliver
the presidency to his son, who actually lost the election. Once in office,
George W. appointed the right-wing justices who dismantled the campaign finance
scheme, claiming that money is speech because of the necessity of using mass
media to reach the voters. Of course, the United States could mandate a limited
amount of free use of the public airwaves for political broadcasts, as is the
case in many other democratic countries, but that might make it possible for
poorly funded candidates who represent the views of people without money to
win.
The Supreme
Court's Contribution
There are three
separate questions that need to be answered with reference to the Supreme
Court: its purpose, its composition, and its decisions.
The Purpose of
the Supreme Court
The Supreme
Court is the highest tribunal in the land from which there is no appeal.. It is
governed by a concept called Stare
Decisis, which means to stand by things already decided. According to the
Court, Stare Decisis is supposed to
accomplish several important things. "It protects the interests of those
who have taken action in reliance on a past decision. It reduces incentives for
challenging settled precedents, saving parties and courts the expense of
endless litigation. It fosters evenhanded decision-making by requiring that
like cases be decided in a like manner. It contributes to the actual and
perceived integrity of the judicial process. It restrains judicial hubris and
reminds us to respect the judgment of those who grappled with important questions
in the past. As Neil Gorsuch wrote in A
Republic If You Can Keep It, 'Precedent is a way of accumulating and
passing down the learning of past generations, a font of established wisdom
richer than what can be found in any single judge or panel of judges.'"
The Supreme Court is the least democratic branch of the
government. Each Justice is chosen by the President and confirmed by at least
51 votes in the Senate ‒ 52 people. Justices can not be fired.
The
Constitution begins with the words, "We the People." The structure of
the Constitution balances powers between and within the branches of government
so that the people remain in control. The framers of the Constitution were
trying to create self-government as opposed to being ruled by a despot, whether
a king, dictator, army, or any branch of government.
So, what would be the purpose of a Supreme Court in such a
system of checks and balances? It would be to be the decision-maker of last
resort adjudicating conflicts within and between branches of the government.
According to
Justice Alito, the Court's job is to interpret the law without regard to its
real-world consequences. As he wrote: "And even if we could foresee what
will happen, we would have no authority to let that knowledge influence our
decision. We can only do our job, which is to interpret the law, apply
longstanding principles of stare decisis,
and decide this case accordingly." For Justice Alito and his conservative
colleagues, the Constitution is a religious, not a legal, document. The people
who wrote the Constitution, however, were trying to create a consensus for
solving practical problems of governing.
The Current
Justices are Nothing but Lawyers
As the Justices
are appointed for life, and they decide the most important legal questions, it
would make sense that the Court be composed of a panel of wise people who command unquestioned respect and
confidence in their competence and integrity.
Until 1955,
people appointed to the Supreme Court had been major figures with independent
power bases. Appointment to the Court was an honor bestowed on people with a
lifetime of extraordinary feats in their past. There have been 113 members of
the Supreme Court. In the first 166 years, from 1789 to 1955, there were 86
Associate and Chief Justices. Seven had been Governors of their states.
Twenty-seven others had served in either the United States House of
Representatives or the United States Senate. Almost 40%, 34, had been either
governors or members of Congress. One, William Howard Taft, had been President
of the United States, and another, Charles Evans Hughes, had been the
Republican Party's nominee for President in 1916. Seventy-five had been elected
mayors, state legislators, or served in Cabinet positions. Some hadn't even
graduated from law school. These Justices were overwhelmingly well-known before
reaching the Court. Until 1955, Supreme Court Justices were mostly public
figures before they reached the bench.
By contrast, of the 27 Justices who have been appointed
since 1955, only one, Sandra Day O'Connor, has been elected to public office.
She was a State Senator in Arizona and the first woman minority leader in the
State Senate. Only one, Arthur Goldberg, had been a member of the Cabinet.
Stretching the point, Thurgood Marshall was Solicitor General. The other 24
were just lawyers who had been appointed to lower courts before ascending to
the Supreme Court. Clinton tried to return to a more diverse bench but failed
to get New York Governor Mario Cuomo to agree to go onto the Court.
The current Supreme Court is a clique of spoiled, connected brats. Less than 5% of students in the United States attend private high schools. Five of the six conservative Justices (83%) went to private Catholic high schools. Justice Kavanaugh and Justice Gorsuch went to Georgetown Prep, an all-male Jesuit high school, whose tuition is currently $40,000 a year for a day student and $60,000 a year for a boarder. (Jerome Powell, the powerful Chairman of the Federal Reserve Board, is also a graduate of Georgetown Prep. That's a lot of unaccountable power to come from one private, religious high school.)
Instead of an independent record of approval by the people,
the current crop of Supreme Court Justices were all promoted through the ranks
of lower courts. Has anyone of the general public heard of any of the current
Justices before they were appointed to the bench? For the contemporary Supreme
Court, being a Justice is what they are known for, not any previous
accomplishment.
Six of the nine Justices have clerked for other Supreme
Court Justices. Neil Gorsuch was the first Justice to serve with a Justice for
whom he clerked. The nine justices are graduates of three law schools: Harvard
(3), Yale (5), and Notre Dame (1). It's a self-selecting unaccountable elite
that, as Justice Alito now tells us, must act without regard to whether the
people approve of the decision.
Stepping back, the Supreme Court looks a lot like a
contemporary white shoe law firm. The Justices are the partners who have clerks
for assistance. When a partner retires, one of the clerks takes her or his
place.
So, what
happened in 1955 to change the membership of the Court from distinguished
public officials with independent power bases to unknown lawyers who owe
everything to their political sponsors? It was that old standby, racism ‒
the 1954 Brown v. Board of Education decision
that ruled racial segregation to be illegal. The Brown decision infuriated the racists, primarily in the south.
"Impeach Earl Warren" billboards proliferated. Virginia closed its
public schools for three years in opposition to integration.
The Political Decisions
So, if Justices are no longer appointed because they were
elected president, governor, senator, member of the House of Representatives,
local elected official or cabinet member, what are their qualifications? The
answer is their political opinions. They are appointed to the Court to pursue a
specific agenda. To do so, the law must be used to reach a predetermined
result.
In short, the Justices are liars, and not just in the sense of Brett Kavanaugh and Neil Gorsuch testifying during their confirmation hearings that Roe was settled law and then voting to overturn it at the first opportunity.
But they are clever. The court didn't say that abortion is or
should be illegal, it just said that making that decision was above its pay
grade and it is up to the states. In a typically lawyerly fashion, it claimed
the issue was in the wrong venue because there's no right to abortion in the
Constitution.
Next on the
agenda is going to be affirmative action. That all nine Justices have gotten
their positions due to affirmative action for their political opinions will
probably be no barrier to saying it's unconstitutional for everyone else. While
saying discrimination is allowed against people if it's religion-based, secular
choices designed to redress historical injustice is not permitted.
The really egregious example of its lying came in the Heller decision that rewrote the Second
Amendment to find an individual right to have a gun.
The Second
Amendment says, "A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall
not be infringed."
The Court then
decided to call the first two phrases a preface with no operational meaning.
Here's what the Court wrote: "The Amendment could be rephrased, 'Because a
well-regulated Militia is necessary to the security of a free state, the Right of the people to keep
and bear arms shall not be infringed.' See J. Tiffany, A Treatise on Government
and Constitutional Law §585, p. 394 (1867)"
The decision cites
J. Tiffany to justify rephrasing the Second Amendment. What does J.
Tiffany say in §585? "The second amendment to the constitution
provides that the right of the people to keep and bear arms shall not be
infringed, because a well-regulated militia is necessary to the security of a
free state. The militia are the citizen soldiers, as distinguished from those
who are trained to arms as a profession, and who constitute the elements of a
standing army. To be an
efficient militiaman the right to keep and bear arms is essential. This
provision had its source in that jealousy of power in the hands of the general
government, so manifest in the people, at the time the constitution was framed
and adopted. This right in
the people to keep and bear arms, although secured by this provision of the
constitution, is held in subjection to the public safety and welfare. Whenever
for any cause, the public safety shall require the substitution of martial for civil administration, then the maxim, salus respublicæ suprema lex (The welfare of the people is
the supreme law), applies; and this constitutional right may be temporarily
suspended. But while civil authority bears sway, this provision of the
constitution is the supreme law of the land."
J. Tiffany in the citation used by the Supreme Court firmly grounds the right to bear arms in the public safety function of the militia, the opposite of the Supreme Court's interpretatin. By inverting the order of Tiffany's phrases, the court changed its meaning. I guess all of the Justices and clerks were sick at home in the second grade when the teacher said, "never begin a sentence with because." My guess is that the Justices figure, correctly, that no one is going to bother to check to see if their citations truly support their conclusions.
The decision says the Second Amendment applies to "all
bearable arms, even those that were not in existence at the time of the
founding." (Heller p.8). The
Amendment says, "right to bear arms." Bearable arms is not mentioned
in the Constitution. Furthermore, in the eighteenth century when the Second
Amendment was written guns were hand made and notoriously dangerous.
Even with the
Court's dubious claim that the first two phrases are a preface, "But apart
from that clarifying function, a prefatory clause does not limit or expand the
scope of the operative clause. See F. Dwarris, A general Treatise on Statutes
268-269" the full quotation continues "But though the preamble cannot
control the enacting part of a statute, which is expressed in clear and
unambiguous terms, yet, if any doubt
arise on the words of the enacting part, the preamble may be resorted to, to
explain it." In other words, the Court omitted the
part of its citation that reaches a conclusion opposite to the individual right
to bear arms that it claims.
More to the
point, I think the Justices don't read their decisions at all. To start, they
are issuing too many and they are too long. Obviously, the bulk of the work is
being done by the clerks incorporating chunks of plaintiff and respondent
briefs into the decision. Also, as every writer knows, editing is a dead art.
The decisions are long, dense, with plenty of footnotes and citations. Who has
the time to check to see if the cited passage supports the decision's
conclusion?
It is possession of this secret, that the justices are
just executives overseeing the work of others to reach a predetermined result,
the antithesis of a judicial body, that is the reason for the clerks holding an
inside track to be nominated for the Court. The clerks have been doing all the
work, now they want the perks and credit.
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