The Other Greatest Threat To Democracy

There’s little question that Trump could, if someone around him demonstrates a modicum of competence in government, be a threat to democracy, whether by malevolence, ignorance or inconvenience. After all, insurrections are hardly the sort of thing that happens in a democracy when the election doesn’t go your way. But Trump’s ham-handed governance isn’t the only threat, even if it’s the most obvious because he lacks the capacity to conceal it behind rational rhetoric.

The other greatest threat to democracy is presented by two Harvard law profs of dubious renown and worse credibilty. No, not Larry Tribe. I guess “Harvard law prof” isn’t sufficient to narrow it down anymore. But I digress.

As Nikolas Bowie and Daphna Renan explain in the New York Times, it’s time for Congress to seize control of the Constitution from the Supreme Court. This strikes me as surprising given that could turn Marjorie Taylor Greene into a constitutional scholar, perhaps on the Equal Protection Clauses with regard to Jewish space lasers. But I digress again.

Today even Americans who decry these opinions largely accept the idea that the court should have the final say on what the Constitution means. But this idea of judicial supremacy has long been challenged. And the court’s immunity decision has set in motion an important effort in Congress to reassert the power of the legislative branch to reject the court’s interpretations of the Constitution and enact its own.

“Make no mistake about it: We have a very strong argument that Congress by statute can undo what the Supreme Court does,” Chuck Schumer, the Senate majority leader, said recently as he announced the introduction of the No Kings Act. The measure declares that it is Congress’s constitutional judgment that no president is immune from the criminal laws of the United States. It would strip the Supreme Court of jurisdiction to declare the No Kings Act unconstitutional. Any criminal actions against a president would be left in the hands of the lower federal courts. And these courts would be required to adopt a presumption that the No Kings Act is constitutional.

Do you ever get that feeling to yell “cite?” after every sentence because, sentence by sentence, it’s absolutely batshit crazy and utterly without basis in reality? Like most people with any knowledge of law, the Supreme Court’s opinion in United States v. Trump was not good. The extent of bad is a normative matter, with the crazy fringe claiming it turns the president into a king. No, it doesn’t. Being a bad decision doesn’t mean you have to shriek the stupidest possible criticism and go so far over the edge that you’ve fallen into the abyss.

But when your tribe has lost control of the Court majority (which is unfair, as the left wing hasn’t really had control of the Court since Earl Warren was Chief Justice and Wild Bill Douglas was putting whoopee cushions on the bench seats. Oh crap, I digressed again.), the “I stand for democracy” team doesn’t get to ditch the tripartite system of government and turn the most political branch, the one that ebbs and flows with every breeze of popular idiocy, into the least dangerous branch. There’s a really cool reason the founders came up with separation of powers, and it’s to stop megalomaniacs on either end, the presidency or the legislature, from ramming their singularly extreme agenda down a nation’s throat.

But what did Mitch McConnell do when he denied Merrick Garland a hearing using the bullshit excuse of the last year of Obama’s presidency? He outmaneuvered the Dems and violated the public trust, even if he beat the spirit of the Constitution to a pulp. The fix was denying his guy the vote, but that didn’t happen so McConnell got away with it.

What the solution is not, however, is devolving into the most moronic sophistry to ever come out of Harvard Law School, which is a very high hurdle indeed.

Though the court has declared itself supreme in constitutional interpretation, the only thing the Constitution explicitly allows the Supreme Court to do is exercise “the judicial power.” The Constitution does not define this phrase. Nor does anything about the phrase inherently give judges the power to review acts of Congress.

If that depth of legal reasoning doesn’t make you want to send your progeny to Harvard Law, nothing will. Nuts, I did it again.

Critics of these sorts of measures have charged Congress with attempting to allow a tyrannical majority to ignore the Constitution. They argue that the Supreme Court’s power to substitute its own interpretation of the Constitution over that of a law passed by Congress and signed by the president is essential for protecting political and racial minorities.

But the history of the court’s power proves otherwise.

The grievance is that the Supreme Court hasn’t always ruled the way Bowie and Renan, not to mention Schumer, want it to, apparently oblivious to the fact that from 2017 to 2019, Republicans held the majority in the House and Senate while Trump sat in the Oval Office. By what delusion do they assume their tyrannical majority would invariably prevail over the other team’s tyrannical majority?

At least Trump comes by his destruction of democracy honestly, through monumental ignorance of law and governance, and his refusal to abide anything that doesn’t serve his self-interest. It’s no less the destruction of democracy to call for the arrogation of our system of government for what they believe to be salutary rather than malevolent purposes. Wrapping it up in a woke bow doesn’t make it any less destructive of democracy where a Supreme Court, for better or worse, fulfills its constitutional duty in our tripartite system of government. And this time, I didn’t digress.

 


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3 thoughts on “The Other Greatest Threat To Democracy

  1. Thomas J Gafney

    … Do you ever get that feeling to yell “cite?” …

    Counsel Randle Jackson: In the book of nature, my Lords, it is written …
    Lord Ellenborough: Will you have the goodness to mention the page, Sir, if you please.

    (Frances M. McNamara, 2,000 Famous Legal Quotations, Page 84)

  2. Lee Keller King

    I am reminded of a scene from A Man For All Seasons:

    illiam Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
    ———————————
    William Roper: “Yes, I’d cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

  3. Pedantic Grammar Police

    The Democrat half of the Uniparty loves to do things that will give the Republican half awesome power after the next election. If I didn’t know better (because of course they aren’t working together to advance a common agenda), I would suspect that they are doing this on purpose. The alternative is that all of these people who have advanced themselves into positions of power and wealth are idiots who cannot foresee the inevitable consequences of their actions.

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