Unfit for Democracy

The Roberts Court and the Breakdown of American Politics

Stephen E. Gottlieb

• Éditeur: NYU Press
• Année: 2016
• ISBN:
  9780814733011
• Sujet: Derecho
• Sous-sujet: Tribunales

Asked if the country was governed by a republic or a monarchy, Benjamin Franklin replied, “A republic, if you can keep it.” Since its founding, Americans have worked hard to nurture and protect their hard-won democracy. And yet few consider the role of constitutional law in America’s survival. In Unfit for Democracy, Stephen Gottlieb argues that constitutional law without a focus on the future of democratic government is incoherent—illogical and contradictory. Approaching the decisions of the Roberts Court from political science, historical, comparative, and legal perspectives, Gottlieb highlights the dangers the court presents by neglecting to interpret the law with an eye towards preserving democracy. A senior scholar of constitutional law, Gottlieb brings a pioneering will to his theoretical and comparative criticism of the Roberts Court. The Roberts Court decisions are not examined in a vacuum but instead viewed in light of constitutional politics in India, South Africa, emerging Eastern European nations, and others. While constitutional decisions abroad have contributed to both the breakdown and strengthening of democratic politics, decisions in the Roberts Court have aggravated the potential destabilizing factors in democratic governments. Ultimately, Unfit for Democracy calls for an interpretation of the Constitution that takes the future of democracy seriously. Gottlieb warns that the Roberts Court’s decisions have hurt ordinary Americans economically, politically, and in the criminal process. They have damaged the historic American melting pot, increased the risk of anti-democratic paramilitaries, and clouded the democratic future.

Part I

Traditions

1

Legacies

The question at the root of this book is whether history and political science have a message for the courts about how to treat American democracy. It turns out they do and what they say is extensive, important, and systematic. They put individual decisions in more significant contexts, and bring to the fore cases little thought about in their relationship to democracy.

Criticism of the Supreme Court need not be a matter of pure politics. This study looks for clear and shared premises that are deeper, more enduring, and important before evaluating the Roberts Court. This and subsequent chapters examine the Court’s work against the background of history, comparative law, political and social sciences, and jurisprudence.

The argument is simple. Since the founding of the United States, Americans have thought deeply about how to protect democracy in America and developed a set of prescriptions about how to do it. America projected those ideas onto the world stage, particularly after World War II, and many of them have been adopted as part of the constitutions of democratic states. As a result, they have been considered by foreign courts. That gives us the opportunity to review what happened to those ideas when they became part of constitutional law and whether those developments are encouraging—not out of any belief that we are bound to follow foreign courts, but in the scientific sense that their treatment provides a basis for predicting what similar choices would mean here. Political scientists have confirmed, modified, and added to those ideas while systematically examining the rise and fall of democratic governments. I examine what the Roberts Court has done against that background. Finally, I turn to the heated debate over how the Court should do its work, reaching the conclusion that the Court is bound by our Constitution to take these issues seriously. It is that combination of American thinking, foreign testing, scientific confirmation, and legal analysis of the role of the Court that provides a basis for evaluating the Roberts Court and seeing how seriously astray that Court has gone and the danger this poses to American democracy.

The implications for constitutional law, of what we can learn from history and political science after the Constitutional Convention, runs straight into arguments about the proper method of constitutional interpretation. Although that question has been debated at length, the answer here is simple and direct: everyone who participates in the American debate over constitutional interpretation uses some system or method that is based on assumptions about the demands of democracy—Scalia, Breyer, the conservatives and interpretivists, as well as the liberals and noninterpretivists. In effect the argument is based on false pretenses.

On that basis, the book challenges every aspect of conservative legal thought, its history, its ethnocentrism, its method of interpreting the Constitution, its values, and its democratic bona fides. Out of the chaos of the twentieth century, the book is designed to build a stronger vision of constitutional law that better accounts for the future of democracy in America, as well as the Founding Fathers’ thoughts, firmly grounded in a realistic understanding of the world we have been bequeathed.

The most basic definition of democracy is elective government. The question addressed in this study is what keeps elective government alive. Those who have addressed that question, however, have concluded that much more stringent standards are necessary. Since the different forms of democracy are parts of vicious as well as virtuous circles, it will become clear that not a lot depends on the definition. As electorates become less inclusive, pressures increase to turn democracies into more coercive and autocratic systems.

Part I explores American ideas about how to nurture and protect democracy so that it would survive. Once those ideas were exported and adopted abroad, much of the democratic world constrained at least some aspects of law by what may be necessary for democracy. Nevertheless, the Roberts Court and its predecessor, the Rehnquist Court, have not done so. Looking at other countries as well as our own will give us a basis for understanding what it would mean to constrain law by what is necessary for democracy and how those principles, with strong American roots, might have worked if the Roberts Court had been loyal to them.

Part II addresses what political scientists are telling us about why it is important to shape law by what democracy needs. Political and social scientists have studied the successes and failures of the many nations that have had some experience with democratic institutions. They have produced penetrating studies of individual countries, as well as comparative and statistical ones with large datasets. The results are as interesting and surprising as they are important.

Part III focuses on the Roberts Court and the Constitution. In chapter 9, based on the foundations laid in parts I and II, I address what the Roberts Court has actually done, consider how different its record could have been if it had taken our democratic legacy seriously, and assess the impact of the difference against the findings of political and social scientists about what leads democracies to fail. Sadly, it turns out that the Roberts Court has taken this country in directions that have proven deeply destabilizing to democratic governments elsewhere. Chapter 10 addresses what the Constitution has to say about taking the future of democracy seriously, and whether it is proper to interpret the Constitution with this information in mind.

Thus I will offer a tour of history, science, and law to evaluate the Roberts Court.

Forecast at the Founding

The rest of this chapter is devoted to ideas on protecting democracy from our earliest days as a nation.

As the Constitutional Convention of 1787 was finishing its work, a woman asked Benjamin Franklin whether the American people at the time had a republic or a monarchy. “A republic,” he responded, “if you can keep it.”1 The founders went well beyond faith in a bill of rights. They had to figure out how they could bring the country together and shape the population into one capable of managing self-government. They believed in the need to disperse both wealth and power and provide for an educated people. And they assumed that they needed unity, to encourage the population to mix, interact, and work together to develop the country for the benefit of all.

Success did not seem inevitable. Thirteen sparsely populated states were surrounded on three sides by British and Spanish forces and Native American tribes. The loyalty of settlers west of the mountains was in doubt. Those in power sought to keep it; the states were run by people with wealth, land, and connections who governed in an aristocratic manner, though in tension with revolutionary principles .

Wealthy patriots in Boston used armed criminal gangs to trigger the American Revolution. Participation by honest patriots made the demonstrations seem democratic, “the people out of doors,” a legitimate expression of popular will. After the war, wealthy men feared armed mobs. Shays’s Rebellion of farmers in western Massachusetts addressed the threat to their livelihood by judicial enforcement of stringent contract terms. It started as a demonstration, blocking or occupying buildings and closing courts so the farmers’ grievances would be heard. In their minds, government should respect popular sovereignty. Those with an aristocratic mind-set, however, perceived popular sovereignty as dangerous.

Many understood that Governor Bowdoin’s armed response had turned a relatively traditional popular attempt at self-rule into a shooting war. But Shays’s Rebellion became an organizing tool for a new, stronger union to control mobs, hotheads, and rebels. The aristocrats would get a promise of help against domestic insurrection in Article IV of the Constitution,2 while the French Revolution soon showed that popular revolution need not lead to democracy. In eighteenth-century thought, nothing was certain.

The overriding issue was to keep the new nation from shattering. Small states feared their larger neighbors; Southern states feared slaves, Native Americans, Spain, and westerners. They wanted guarantees against rebellion and invasion. But southerners also feared northerners would give away rights to the Mississippi by treaty, preventing southern expansion. Northerners feared the South would use the new nation to expand slavery, undermining liberty and “free labor.” Each feared commercial rules, fees, and taxes designed to favor a different region.

Their first assumption therefore was that they needed unity, to make one people out of many—e pluribus unum. In response they used politics, commerce, finance and education to bind the nation together.

Anti-Federalists argued that the country was too large and complex for a single central government. Differences of religion, language, national origin, ethnic background, and geography were enormous.3 Religious sects lived separately. Schooling was organized through churches. Towns and regions were settled by distinct language groups; English was far from universal.4 African and Native American slavery were increasingly divisive. James Madison and the Federalists replied that the size of the nation was an advantage because its diversity would force enlightened leaders, if not everyone, to rise above the pettiness of parochial interests. Integration at the electoral level would improve the politics of the new nation.5

But the Constitutional Convention did not rely on politics to integrate the nation. The Constitution protected citizens when out of their home states and supported commerce with post roads, uniform currency, weights and measures, commercial regulation and national courts.6 Educated colonists would have read Montesquieu’s remark that “commerce cures destructive prejudices.”7 It certainly forges ties. Aided by some theologians, commerce was also breaking down religious exclusiveness.8 The founding generation understood the advantages of these provisions for building the new nation.

The founding generation used education both to build democracy and tie the country together. It was the so-called Age of Enlightenment when people believed in the perfectibility of human institutions through education. By the end of the eighteenth century, a new American college opened its doors every two years. The founders thought training civic-minded people crucial because a democracy could be no better than its citizens. Education would help produce public-spirited citizens. Madison proposed a national university in the Constitutional Convention but it was left to the states. Franklin had already helped found the University of Pennsylvania and Jefferson would soon help found the University of Virginia.

Hamilton added finance: to make them loyal, he wanted the wealthy to rely on the new nation’s credit and make the new government central to commercial success. To do that, he created a national banking system and a federal debt. Both would tie investors to the success of the new nation.9 It was brilliant but partisan, powerful and contested—raising the specter that wealth could also be used against the general welfare.10

Focusing on travel, commerce, finance, and education, the founders consciously built the new nation and knit together its disparate parts.

Power Shreds Paper

The Constitutional Convention voted for a strong government. They chose a president rather than a cabinet or parliamentary system, and authorized lower federal courts to serve as our first federal bureaucracy. Nevertheless, they sought to control the powerful government they created by dispersing power within it. Their tools included elections, a broad suffrage, two houses in Congress, a president, and courts, each able to control the others. Checks and balances gave everyone a stake in the new nation and a defense against other regions.

Slavery dominated checks and balances. White Southerners got the ability to vote three-fifths of their slaves for representatives. Eighteenth-century calculation that an agricultural population would grow in proportion to the physical size of the states meant probable southern control of the House of Representatives. With two senators for each small New England state, the North got probable control of the Senate. Those two formulas were put together in the Electoral College for president, almost guaranteeing southern control of the White House. The census was the arbiter.11

Divide and conquer beca...