The death of Supreme Court Justice Antonin Scalia should be an occasion to re-examine one of his favorite themes: the intent of the Founding Fathers.
In one sense, Scalia did serve their principles in his Citizens United decision. Frequent invocations of the Constitution by the corporate media in celebratory contexts and the facile association of democracy with the U.S. Constitution allow us to forget that document’s many undemocratic elements. Unlike the separation of powers, intended to curb potential tyranny, the Constitution’s checks and balances prevent the formation and execution of democratic impulses. Of prime importance to the Founding Fathers was preventing the emergence of any coalition that might redistribute property. Even the elements that are checked and balanced are themselves undemocratic. The U.S. Senate, whose members are elected for six-year terms, gives as much power to Wyoming’s 584,000 residents as to New York’s 20 million.
The least democratic body is the most influential. One of the most remarkable aspects of our political system is the way we allow basic policy questions to be decided by an unelected gerontocracy. The Court enjoys an iconic status. Love or hate the current justices, few challenge the central role of the court in our political evolution.
Some Democrats worry African-Americans have been disappointed by President Barack Obama’s performance and may not turn out to vote in as heavy percentages. Their hope now is that worry that a Republican will name an archconservative to the court will draw them out. This strategy contributes in the long run to political demobilization and the shrinking concept of democracy itself.
The notion that a presidential election might be part of a process whereby leaders help embody and formulate broad transformations seems lost. In its place we have arcane speculation about whom a future president might nominate to a court that might on some future occasion rule on a specific case. Democracy shouldn’t need to wait for the right court case to appear. That mindset has poorly served advocates of abortion rights. While liberals have strived to achieve judicial protection of reproductive rights, social conservatives have mobilized in support of ever more restrictive laws, have placed those restrictions in the context of disdain for women’s sexual freedoms and have engaged in disruptive demonstrations in women’s health clinics.
American democracy is unusual though not unique in the range of issues it leaves to an unelected body. In a 1950s classic “The Liberal Tradition in America,” the distinguished Harvard historian Louis Hartz argued that only a nation that enjoys fundamental agreement about first principles would allow such important decision to be the province of an unelected body. Hartz argued the U.S. thrived under a Lockean consensus that valorized limited government, private property, markets and freedom of contract. Political parties argued over the best means and institutional structures to achieve those principles but generally accepted their validity, thus making for a peaceful political climate. Yet, even in Hartz’s time, that consensus often delivered limited benefits to working-class Americans and was built in part on exclusion of and periodic violence against a succession of others — Native Americans, African-Americans, immigrants.
The greater the faith that American constitutional democracy represented or could move toward an all-embracing consensus, the greater the exclusions, conflicts and subsurface violence it overlooked. The Supreme Court itself has often legitimized exclusions from the grand consensus and repressed consideration of new rights claims. Dred Scott and Plessy v. Ferguson are only two of the most egregious examples. Even the New Deal interventions that saved capitalism from itself depended more on rank-and-file pressures to force the Court to reverse its long-standing opposition to the mildest forms of social democracy.
Scholars and activists committed to original intent might ask themselves where in the Constitution is it written that the Supreme Court may not only interpret statutory law but also rule on its constitutionality? Assigning such powers to an unelected body has never guaranteed protection of basic civil rights. Nor has it blunted the most destructive forms of politics among those who feel excluded. The Court’s exceptional prerogatives represented the pride and triumph of its longstanding fourth chief justice, John Marshall. The Court’s right was simply asserted in what amounts to a judicial coup, analogous to the role the Court played in usurping the 2000 election. Marshall’s triumph has endured, and we are the worse for it.