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.
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.
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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