The Confirmation, the Court, Legitimacy, and Power

The United States is a deeply divided country. These splits are cultural and regional. Some of these divisions surfaced during the Brett Kavanaugh confirmation process. He was imposed on the court by the far right which is hell-bent on controlling the country and her future. Never mind that once you remove labels the country is far more liberal than the minority that runs it. The ideological far right has taken power through the use of different techniques, that benefit this political minority.

The techniques range from the well known. Meaning voter suppression and gerrymandering, to far subtler ways. Demoralizing the majority means that these voters will voluntarily demobilize before elections. Why vote? It’s not like it matters anyway. We all have heard this from friends and family. Why vote? This cynicism comes from a very real sense that a vote does not matter, especially if you are not well connected. We live in a country that has become an oligarchy.

The country is also increasingly polarized. However, we are trending away from right-wing policies. PEW found the following:

Notably, the mix of political values held by the general public across these measures has shifted somewhat leftward in recent years. Today, across these 10 items, the median American takes four conservative and six liberal positions. In 2011, 2014 and 2015, the median American took five liberal and five conservative positions on these questions.

This is not a surprise. In Congress we have also seen less and less bipartisanship, starting in the 1990s. The reasons are manifold. Their include the extreme partisanship, as well as self-sorting and distrust. And we may be on the cusp of yet another wave election. They used to be far less common in the. 20th century. The Democratic Party held the House for forty years straight, for example. That was easily two generations ago. We have had wave elections often, starting with the 1990s. We expect another one in November, but it is hardly assured. Nothing is written in stone until the last vote is cast.

There are reasons to believe we will see a wave election. The Economist points out

When pollsters ask Americans which party they plan to vote for in the elections for the House of Representatives this November, those preferring the Democrats lead those preferring the Republicans by around seven percentage points. But this does not mean the Democrats are a shoo-in to win the House. The Economist’s statistical model of the race for control of the House of Representatives — which uses this sort of “generic ballot” polling, along with other data — currently says that, although the likelihood of a Democratic majority in the popular vote is a remarkable 99.9 percengt, the Republicans still have a 30 percent chance of holding on to the House

There are many reasons for this which include the protection of political minorities in the constitution. Let’s make this clear, Republicans are a political minority. There are fewer Republicans than Democrats. In fact, the majority of voters these days are non-partisans who do not identify with either political party. This matters because the country is divided, but not necessarily along party lines. However, we tend to look at this division in this way. According to PEW:

In Pew Research Center surveys conducted in 2017, 37 percent of registered voters identified as independents, 33 percent as Democrats and 26 percent as Republicans. When the partisan leanings of independents are taken into account, 50 percent either identify as Democrats or lean Democratic; 42 percent identify as Republicans or lean Republican.

The obvious question is how is it possible that Republicans hold the House, the Senate, and the White House? The House comes from extreme gerrymandering and political self-sorting. Democrats tend to live in very compact, densely populated urban centers. Republicans tend to live in the rest of the country, far more rural, and in some ways more conservative. Many of those areas also are monocultural. It is truly a story of the coasts versus the interior of the country. This is hardly new, and the pattern goes back to at least the 19th century. The United States is a continental nation. Therefore, divisions are expected. But they are likely as deep as they were before the civil war.

There are points of agreement across the board though. We know that there has to be a fix to both access to medical care, and run-away medical and prescription costs. Ironically it is these rural and poorer areas, where the opioid epidemic is worst. Politically it is not a mystery how people who have deeper levels of poverty, less access to medical care, and worst education continue to vote for very conservative politicians. There are reasons for this. The idea that they do not want help from the government is deep,y ingrained. So is the concept that local control overrides all, even if this means losing on better services. Distrust of the government, the more distant the worst the distrust, is pervasive. These are cultural divisions.

There is a lack of care, and the little that there is, is too expensive, at points distant. The belief in American exceptionality has made it almost impossible for the US to join the rest of the world. We refuse to regulate the costs of medicine and to implement a universal single-payer system.

These internal divisions parallel other periods of American history. It is not just the Civil War. There are similarities to the era leading to the American Revolution as well. Neither of those movements came from the desire of large majorities of the country. Yet, both came from an intersection of political and economic forces, combined with cultural changes that were deep and challenging. Both civil wars were likely unavoidable once the forces behind them manifested themselves.

You may ask, how so? Let’s first take a look at the American Revolution. This war and its origins are even less understood than the dynamics leading to the civil war. Partly it is the distance, and then there is the American foundation myth that prevents us from looking at conditions objectively.

The generation that led the revolutionary war lived in a mostly rural country. Throughout most of human history, humans have lived in rural areas. The heavy concentration in urban centers is a fifty-year phenomenon. It is a product of both industrialization and globalization. This was a generation full of intellectual giants who spent time reading both the classics and the enlightenment thinkers of their era, which led to a new polity. The Constitution reflects this. The framers used several strains of intellectual thinking that span millennia. The ideas did not spring from their heads Athena-like.

The American Constitution has elements of the Roman Republic. This is important since the founders read both Greek and Latin, and admired early Rome as a society to emulate as much as possible. They read Cicero in the original, so they also understood it was hardly perfect. Cicero was one of the deep critics as it transformed from a Republic to an Empire. The idea that the people should have agency over their government mattered to the Philadelphia generation.

The concept of who were the people for that generation was different from the 21st century. Citizenship was limited to white, male and property owners. Slaves, indentured servants, and non-property openers were not allowed to vote, for example. They were not full citizens. Poor whites were closer to denizens, with limited rights. Slaves and indentured servants had no rights. This included testifying in open court. Full citizenship was limited to the powerful, who were understood as limited to property owners. The concept of citizenship has expanded greatly from that early era. These days it includes whole groups that had no rights in the 18th century. They include the poor, and women.

The political system also has direct links to Magna and the Glorious Revolution of 1688 which had a direct effect on the founders. Some took refuge from the disorder in England in the colonies. The events of 1688 led to a Bill of Rights for all British men. When the original American constitution lacked one, the demand for one was deep and deeply felt. After all, one reason for the Revolution was the denial of rights to the colonists as British men. These were the rights of that Bill of Rights.

The first ten amendments to the constitution are collectively known as the Bill of Rights for that historic reason. They are all fundamental, even if the third could be seen as obsolete in our times. We have not quartered troops in homes for over two hundred years. It was put in place because it was common practice to house troops in private homes in the 1700s. Forts were used in the wilderness and were shared by troops and civilians as well, The second is highly debated in modern times. This matters, it was hardly a flashpoint throughout most of American history. It was put in place to ensure militia service.

The first is not just considered fundamental these days. It was the first time in modern history that any nation did not put any religion above all others. It was the first time in modern history that the press, a free press, was seen as fundamental to a self-ruling society. This is why it is considered the fourth estate. Incidentally, this is why the Postal Service is in the Constitution. You needed the papers, but also the technology to deliver them.

The Enlightenment, in particular, the British one, is the other major strain in the American Constitution. The question before the framers in Philadelphia was the nature of the state and how it would relate to citizens. The American project is not based on Hobbesian philosophy, which is a good thing. There are far more strains of John Locke and his ideas on government,

However, Hobbes is ever-present in modern-day libertarian thought. He asked the fundamental questions on the limits to power by the state. These are central to the American constitution and early history. Unlike Locke, Hobbes also asked what were the real limits to power for rulers. These are still at the center of modern-day political discussion.

This question is at the intersection of modern politics and the legal system. Since the third branch of government is supposed to interpret, and at times limit, the executive and legislative branches.

The Supreme Court

Modern nations, not just the United States, rely on an independent judiciary. However, how Brett Kavanaugh arrived at his post as associate justice raises many questions. None of those is minor and likely he will be a tainted Justice. There is a danger that American will question the legitimacy of the institution. Suffice it to say that Americans do not trust the other two branches already.

First things first, the court has been a mostly conservative body throughout American history. However, rarely has it been this ideological. It is critical to consider how Kavanaugh got to the court. First, there was a refusal to even start hearings for Merrick Garland for over a year on the part of Leader Mitch McConnell. He simply refused to start the process for a Democratic president of Color. Then there are the late allegations of sexual assault that will pursue Justice Kavanaugh for the rest of his life raise clear questions about the independence of the court. Will the court remain above politics? This is why Chief Justice John Roberts has requested an ethics review in the tenth circuit. Apparently, there is plenty of smoke, and Chief Justice Roberts wants to ensure a lack of fire. If the review should find a fire, it is a good equation how this will proceed. The request itself is unprecedented.

The short-term answer to how Kavanaugh got to the court was a power play, to ensure an ideologically conservative court for a generation or more. However, long-term the way this was done likely broke the Senate. The Senate was the last place where some bipartisanship existed within the legislative body. This is likely severely damaged if not gone. The language that senators on both sides of the aisle are using tells observers this. Comity is likely gone since the battle was bruising.

What should worry Americans is that previous conservative courts came to be from regular order. At no time during the 20th century did a Senate leader keep a seat open during a presidential election year. Leader McConnell had to go all the way back to the late 19th century to find an example where something similar was done. And that was during the gilded age. Like ours, industry was ascendant and so was income inequality. So was a crisis of trust in the political system.

The majority of Americans saw a political ideological minority impose a justice, one who had very serious allegation made against him. None of these were tested, and it was clear that Kavanaugh is hyper-partisan. He also had the political and social connections the rest of us do not enjoy. He was protected. This imposition may have a few effects short term, during the coming midterms. This activated the majority of the country in ways we have not seen in recent years. It activated women in ways not seen since Justice Clarance Thomas was confirmed to the court in similar circumstances. Thomas will be an asterisk on the court for that reason, and we are reminded of Anita Hill often. We will be reminded of Doctor Blasey Ford as well as the #metoo movement as well. This is far from over.

Long term is what should worry those behind this power play. When the majority of a country feels that their interests are not represented by their government, that government starts to lose legitimacy. This is dangerous in any country. When institutions, such as the courts lose their independence that is dangerous as well. It does not matter if this is perception or reality. The fact is that Americans are increasingly losing trust in all three branches of government. Americans are becoming cynical about institutions. They are losing trust in the system.

Enter the Constitution

The document that the Founders wrote was the most advanced political system of their era. It also encoded protections for slavery. Why? It was at the heart of the southern economy and would remain such until 1865. These protections included the Electoral College, which included something else. If there was one thing the founders did not trust was majority popular rule. The Electoral College was put in place to elect a president, and the electors were not chosen by any election. Some states selected theirs via their legislative bodies. Others were appointed This is how far protection from the mob went. Latter amendments made it slightly more democratic, but Americans still do not vote for president. We are voting for electors that could theoretically vote for somebody not even on the ballot.

Early in the history of the Republic, we did not have political parties. If there was one thing that the framers feared more than anything else, was factions, which is how they called parties. The electoral system they created did not take into account parties. The election of 1800 was the earliest test of that system, and the country almost failed it. The vision of the Philadelphia founders, which was non-partisan was replaced by the 12th Amendment. The mechanism that it adopted to select the president is as follows:

Electors would in the future continue to cast two votes (and one of them, as before, would have to be for a non-native of the elector’s home state), but, crucially, one of the two votes would explicitly be to fill the presidency, while the other designated who should become vice president. Never again could presidential candidates and their running mates face the embarrassing kind of tie vote that forced the House to choose between Jefferson and Burr. The Twelfth Amendment was proposed by the Eighth Congress on December 9, 1803, and submitted to the states three days later. There being seventeen states in the Union at that time, thirteen had to ratify it. Secretary of State James Madison declared that the Amendment had been added to the Constitution on September 25, 1804, at which time fourteen of the seventeen states had ratified it. Delaware, Connecticut, and Massachusetts had rejected it (though Massachusetts in fact ratified it in 1961!). The election of 1804 and all subsequent elections were carried out under the terms of the Twelfth Amendment.

We missed an opportunity to adopt a direct vote for the president and this is by design. There was no intention to create a direct democracy where popular rule matters. This is why democracies that have emerged after ours have adopted more direct means to elect presidents. Parliamentary systems, generally speaking, are a mixed bag. Members of parliament are elected in direct elections. Out of the majority party that controls Parliament, the party elects the prime minister.

The modern American system did not emerge until the 20th century with the 20th Amendment. This set the term for the presidency and Vice Presidency in stone, as well as the succession by the Veep to the presidency. And by that I mean the date a president was sworn in. Before that, by tradition, presidents were sworn in later in the year. Partly, you could argue, it was a horse economy versus rail.

This matters. We have had two elections that could potentially have gone to the House since 2000. Both defied the popular vote and the majority will of the country. To change the system into a direct election, we need to amend the Constitution. There are a few cute mechanisms that are emerging at the state level, but the only way to fully change it is to get rid of the electoral college and join other democracies with a direct election to the presidency. It would change the way they campaign for the post. At that point, states like Wisconsin and Ohio would lose their appeal and would be replaced by states such as California. This explains why many states in the interior will not willingly give up that power to decide the presidency. In my mind, it would also mean that the far right would lose power and that they will not do willingly either.

Potentially, a change such as this would open the way to a multi-party system, such as it exists in other advanced democracies. We have seen radical changes such as these only once, after the Civil War. This is when the flaws of the Constitution led to a struggle for the heart of the nation.

The loss of legitimacy by the courts, the Congress and the presidency is such that national divisions are deepening. The southern states maintained a grip on the levers of power before the Civil War, not unlike the current far right does. They had to do that to protect the basis of their economy. The defeat of the Confederacy after the Civil War led to the end of slavery. But it also had another important effect. The country’s wealth was concentrated in the south in 1860. By the end of the war, it had shifted northwards. Ergo the nation changed radically.

The current conflict is cultural more than economic, though there are important economic factors. The country is fast becoming a majority-minority nation, with the coasts becoming multicultural, while the interior remains monocultural and predominantly white and Christian. This is a values conflict since the multicultural world feels deeply threatening to the interior of the country. The exceptions in the interior are large urban centers, that are following these national trends. Why Austin, Texas is far more liberal than the rest of the state, for example.

It is also economic. And by that I mean the threat that things like single payer medical care pose to large insurance concerns, even if it would benefit the rest greatly and make the country more competitive on the world stage. The insurance companies will fight the imposition of a system that would effectively remove them from the scene. pharmaceutical companies will also fight reforms that are standard around the world. This is the limit to how much you can charge for any given drug. There are plenty of examples of medications that cost orders of magnitude more in the United States than it is logical. Insulin comes to mind. It is hardly a patent medication, or new. However, the cost is sky high in the United States. The same goes for Naloxone, which is cheap to make, but companies are charging insane amounts. Naloxone, the commercial name is Narcan, is used to reverse an opioid overdose.

However, it also pits capital against labor, which is quickly losing rights it gained over the course of the last century. With increasing automatization, whole fields of labor will be soon gone. Unemployment, chronic and all, will come to the country. Why? Between the loss of rights and the loss of jobs, it is the future. The leading edges of this are seen in the gig economy.

A country where larger swaths of the population see their government as less than legitimate, there is a clear danger of political violence. A nation where people increasingly have less to lose becomes more explosive. There is also, as we have seen, the clear and present danger of right-wing populism. The recent spike in hate crimes is one sign of this.

Divisions will continue to deepen. How this story will end is a good question. But it is clear that political reform will have to occur, to take into account the will of the majority. If it does not, we will see people increasingly sit out elections, and look for other means to assert their diminishing representation.

Historian by training. Former day to day reporter. Sometimes a geek who enjoys a good miniatures game.

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