Summary: Ignore the illusion of normality to see that we have entered an age of political revolution. The pressures are building on our political regime. This post describes one of the weakest links in our governmental system, perhaps soon to snap.
The Democrats, journalists, judges, and corps of law professors applauded as Obama shredded the Constitution. He dusted off the Espionage Act of 1917 to use against whistleblowers. He implemented the Paris Agreement, a treaty, without Senate approval. He implemented his Clean Power Plan, a law, without Congressional authorization. He executed American citizens not only without trial, but without warrant – violating precedents going back to Magna Carta.
With Trump in the White House, different rules apply. Every action is grounds for a court challenge, with judges cosplaying Priest-Kings empowered to judge his actions according to their personal values. Democrats, journalists, and law professors reverse the Constitutional order – placing bureaucrats (e.g., in the Department of Justice and the Deep State “interagency”) above an elected President.
These things are not matters of which policy or whose beliefs are right. The Constitution specifies only procedures. We are losing agreement on the Constitution as our rulebook. After that, only power will remain. It won’t end well for us.
- There cannot be two sets of rules, one for the Democrats and one for Republicans. That will create corrosive cynicism that erodes the legitimacy of our political regime.
- Putting unelected bureaucrats and judges over elected officials erodes the legitimacy of the Republic by weakening the bonds between the government and the people. Why vote if unelected officials make the big decisions.
No matter how rich and powerful we are, these things will put America on the path to weakness and chaos.
The bigger picture
Much of this is just politics conducted for short-term partisan gain without regard for the long-term damage – the destructive precedents – to the Republic. But one aspect of this results from a structural flaw.
Article III of the Constitution describes a relatively limited role for the Federal Courts. In 1803, the Supreme Court executed the single largest power grab in our history by ruling in Marbury v. Madison that the Court had the power of judicial review: the ability to strike down both laws of Congress and actions of the Executive. The boundaries of this asserted power are unclear. So, naturally, their power has grown. In the 1960s the Court became in effect a legislative body by inventing “rights” – without the tiresome bother of allowing the people’s involvement through elections.
Another extension of their power has been their micro-managing of the Executive branch – drawn in to referee partisan disputes about the actions of the President and his agents. Of course, there is nothing in the Constitution giving the Court that authority.
Like so many of our “hacks” to the Constitution, the Court’s authority has grown from small roots into a serious and illegitimate exercise of power.
Equally naturally, partisans began fighting for control of this powerful entity – with its ability to reshape America by diktat. Politicization of the Courts was inevitable, and the lifetime appointments of judges became existential struggles by the parties.
The Constitution provides a “check and balance” by Congress on the Courts in Article III Section 2 (analysis of that power, see here and here).
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.“
But how can the president push-back to the Courts? The tools are there for a President bold enough to use them.
“John Marshall has made his decision, now let him enforce it.”
— Pithy paraphase of what Andrew Jackson wrote to John Coffee about Worcester v. Georgia: “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”
So far, Presidents have followed Jackson’s example, and verbally attacked the Court but not otherwise pushed the Court very hard. And the Courts have, as they did in Worcester v. George, not pushed presidents too hard. But the Courts have slowly grown bolder in the use of their power in the 217 years since Marbury vs. Madison.
A collision is inevitable. The most recent crash was FDR’s 1937 court-packing proposal. FDR lost, but the Court has lost much of its legitimacy in the past 83 years. Eventually, the time will come when a President believes that a pushback is needed, or even necessary – and the Court will not back down. Many things could bring this to a decisive point. The courts might push too hard, or overrule an action the president considers essential, or become politicized – or just have a clash of personalities. Whatever the outcome, it will be an inflection point in American history.
Another path to a new regime
Politics is a field like any other. New ideas – innovations – change the game. To fight Trump, Democrats devised a way to cripple the Administration of their enemies when allied with powerful elements of the press and Federal bureaucracy. Despite having a majority in both Houses of Congress for the first two years, Trump accomplished little of his revolutionary agenda. The constant attacks from all sides drained away his energy and support.
Now these methods are in the public domain, and will be used again. Probably version two of these methods.
Eventually, a more powerful and competent president will strike back at his (or her) unelected enemies in the bureaucracy and courts. That conflict might determine the future of the Republic. Who will win? Elected officials, responsible to the people, or unelected officials responding to the needs of America’s elites?
Conclusions
This is more evidence that we have entered a revolutionary period. The Second Republic, founded on the Constitution (as the First was on the Articles of Confederation), is dying. I doubt that it can be saved after generations of accumulated (i.e., not reformed) glitches and our failure to adapt the Regime to the radical changes in the world since 1783.
We are seeing the foreshocks before the eventual and inevitable big one. We should be thinking of what comes next.
“{A} revolution is not a dinner party, or writing an essay, or painting a picture, or doing embroidery; it cannot be so refined, so leisurely and gentle, so temperate, kind, courteous, restrained and magnanimous.”
— Mao tse-tung in ”Report on an Investigation of the Peasant Movement in Hunan”, March 1927.