The President of the United States is considered by many to be the leader of the free world, and the United States itself considered to be a beacon of democracy. So it is profoundly disappointing to see the United States administration endorsing and encouraging something that is fundamentally undemocratic. I would like to ask you the following questions.The problem is that the author has just made a criticism of the EU that is just as valid a critique against the UK itself, viewed from the perspective of Scotland's independence movement. Indeed, it is just as valid a critique against the United States government. There is simply no possibility that such a criticism, however valid, can be entertained by the political class of either nation.* Would it be acceptable to you and your fellow United States citizens that over 70% of the laws and regulations they were forced to comply with across all 50 states were created by a supranational government comprising layers of complex political and judicial structures, mostly unelected and unaccountable, and made up of delegates from not only the US, but Canada, Mexico, Guatemala, Honduras, Belize, El Salvador, Panama, Colombia, Venezuela and Peru?If these scenarios do not sound very democratic or judicious to you and your fellow Americans it is because they are not.... No one who believes in democracy – people power – would endorse and encourage a continuation of this anti-democratic situation for the United Kingdom.
* Would it be acceptable to you, your fellow United States citizens and members of the Senate and House of Representatives that they were routinely handed diktats from the various bodies that make up the supranational government and were bound by law to implement the directives or be fined or dragged into a supranational court operating an alien form of judicial code and process? Further, that Congress was denied the ability to draft, and the President sign into law, other legislation of national interest whenever the supranational decided it was not appropriate?
* Would it be acceptable to you, your fellow United States citizens and the Justices of the Supreme Court that decisions made by the bench, the highest court in your land, could be appealed to a supranational court overseas with the hearing presided over by foreign judges and if overruled the Supreme Court would have to accept that as a binding ruling?
The only difference between the EU and the US in the first point is the question of whether the super-sized government is 'alien' or not. Measured in the most obvious way for a democracy, that is by the values that the people hold dear and want to see protected and furthered, the complaint may be no better. Probably the people of Belize, a former British colony, have at least as many common values with the people of the UK than the people of Alabama do with the delegates from California (whose people include some conservatives, but whose government no longer does). The Federal government here also generates a massive percentage of regulation via bureaucracy rather than democratic processes. These bureaucracies are staffed by people never elected to make law, who lack any actual Constitutional authority to make law, and who are only in a small percentage of cases vetted by elected representatives.
The same is true for judicial fiat. Is it acceptable to have laws settled upon by the state legislature, approved by state courts, overturned by the Supreme Court in direct defiance of the ordinary values of the people? It has become usual. When the Supreme Court set aside the laws of thirteen states in Lawrence v. Texas, the Bush administration said that they considered the issue a state matter. Linda Greenhouse replied that the SCOTUS had said otherwise: what had been a state matter was now a matter of "binding national constitutional principle." Yet this was only the latest occasion when the SCOTUS had taken a matter where states had legislated according to the traditional morality of their people, and pronounced the issue was one on which the democratic process could not be trusted. It has likewise removed the power from Congress to legislate on issues very traditionally ordered by law, and is considering whether to do so again in the Defense of Marriage Act. We find that more and more issues are matters of "binding national constitutional principle" from which no dissent from democratic organs is tolerated.
This is not democracy. The invention of "binding constitutional principles" by the court is the repudiation of the method by which such principles were meant to arise: that is, following rather than preceding the development of constitutional consensus. A new Constitutional principle was supposed to follow the process described in Article V of the US Constitution, whereby a supermajority of support from the states would be required. That was the democratic ideal: that we would alter the fundamental bargain governing American life only when the vast majority of Americans agreed it was wise and proper. Instead the Federal government has learned to pretend that the bargain always was whatever it now wants the bargain to be. We are told that we simply misunderstood the bargain when we ratified it, and perhaps for two hundred years after.
There's nothing magical about a "national" as opposed to a "super-national" government that gives the national government a better claim to legitimacy. Legitimacy was supposed to arise from adherence to the Constitution, whose limits and forms were meant to ensure that the government remained within the bounds of the powers actually delegated to it. The EU and the US are no longer different forms of government at all. The citizen of the United Kingdom who works to move her nation out of the EU is acting wisely, and in the defense of what remains of her democracy. But she can expect no support from the 'leader of the free world.' Our political class has learned to hate the ideal she advocates.
11 comments:
Grim,
While I do not disagree with you on the whole, there are a couple of things I feel I should point out.
The same is true for judicial fiat. Is it acceptable to have laws settled upon by the state legislature, approved by state courts, overturned by the Supreme Court in direct defiance of the ordinary values of the people?
You and I would say that in certain cases, such as the Kelo decision, the SCOTUS acted with imperial overreach. And yet, we cheered the Heller decision. The fact of the matter is, the SCOTUS rules some things Constitutional that we agree with and others Constitutional that we do not. We applaud the former, and decry the latter. But in each case, the Court is ruling in what they perceive is the spirit of the Constitution. Surely we may disagree when they rule in ways we find objectionable, and we may accuse them of not ruling in accordance with the Constitution, but yet does not the other side in these disagreements see the same decisions in reverse? I have seen many liberals decry the Heller decision as a poor reading of the Second Amendment. I think they are wrong, but then again, I think they are wrong when they thing the ruling on Obamacare was Constitutionally sound.
What I am saying is that I am humble enough to know that my reading of the Constitution is not the only correct reading. As passionate as I may be about my beliefs, I also recognize that my fellow citizens can disagree with me on what the Constitution says without attributing to them imperial aspirations.
Imagine a DC resident writing the following:
"When the Supreme Court set aside the laws of District of Columbia in District of Columbia v. Heller, the city administration said that they considered the issue a local matter. ... the SCOTUS had said otherwise: what had been a local matter was now a matter of "binding national constitutional principle." Yet this was only the latest occasion when the SCOTUS had taken a matter where local governments had legislated according to the traditional morality of their people, and pronounced the issue was one on which the democratic process could not be trusted. It has likewise removed the power from Congress to legislate on issues very traditionally ordered by law, and is considering whether to do so again in the suit against the city of Chigago."
I would consider that a slap at our Second Amendment rights, and would take umbrage at the idea that the SCOTUS had overreached in protecting it. I'm not saying the Supreme Court was right or wrong in the Lawrence decision, but to decry it as suppressing the rights of citizens in a state or even local community to write laws that suit their community while at the same time applauding the Heller decision seems a bit off to me.
Is it acceptable to have laws settled upon by the state legislature, approved by state courts, overturned by the Supreme Court in direct defiance of the ordinary values of the people?
There's another aspect of this, perhaps unique to us colonials. That is that the Supreme Court, in its rulings, is not at all acting in direct defiance of the ordinary values of the people, but in concert with them, whatever anyone might think of individual rulings, as Mike has pointed out.
Our Constitution notes that it is the supreme Law of the Land. Moreover, the Constitution could not take effect until a super majority of the Confederation's member States ratified it (and ultimately, it was a unanimous ratification, albeit Rhode Island came under some pressure to go along). That ratification was done by delegates who were chosen for the purpose by the general population, and the eligible voters for those delegates came from a much broader franchise than had obtained before, and that resumed after ratification--a broadening for the explicit purpose of giving the general population the final say in their governing document.
All those locals, in essence, said collectively that local law had to comport with the general law. Of course, incorporation and the 14th Amendment contaminates much of this, but I think the principle is sound.
Then Marbury, among others, have made the Supreme Court the legitimate final arbiter of whether a law passed locally and supposedly in accordance with local values is, in fact in accordance with them by determining whether that law is legitimate at all--in concert with the Constitution, and so in accordance with the people's (taken as a whole) values.
These are hard concepts for an individual steeped in Parliamentary Supremacy and no judicial review to understand.
Eric Hines
D.C. is a very special case, Mike, because it is a pure creature of the Federal government. It doesn't have the claim of sovereignty that the states have.
Heller is also a different case because the 2nd Amendment rights are actually enumerated. You can interpret it one way or the other, but the 2nd Amendment means something. In the case of rulings that read in new rights to things that have been illegal in unbroken succession since the time of the Founding, it's hard to see where they're coming from. I can't read that as analogous to an interpretation based on the original meaning of the text.
Finally, though, if our division on basic values are so very different, we may not belong in the same polity. That's what the UK is saying about the EU, it's what Scotland is saying about the UK, and I'm not sure it doesn't apply to Alabama and California the same way. If we can't have a mechanism for genuinely different laws within the system, as per the 10th Amendment's apparently-voided protections, we may want different systems entirely.
Ok then, the MacDonald case in Chicago. The SCOTUS overturned Cruikshank which specifically said the 14th Amendment only binds the States from stipping citizens of their civil rights. And Cruikshank further affirmed that the 2nd only was binding to State and Federal law, not to communities (like Chicago). Now, you and I agree that the Second Amendment affirms an individual right to bear arms. But Cruikshank (a nearly 150 year old decision... thus closer to the Founders time than ours) disagreed. I'm not saying that Cruikshank is gospel because of when it was made. In fact, I firmly believe the Cruikshank decision was made precisely because the perpetrators were white and their victims were black. But yet that was a community value of the time. One we no longer hold.
Believe me, I firmly am in the camp that the solution to many of our ills is to follow the Constitution (and ALL of it, especially the 10th Amendment) strictly. I think at its heart it is a very libertarian document. And I certainly get your point of the hypocrisy of a UK citizen who fumes about the EU but who also holds that Scotland has no right to independence. But I am uncomfortable about decrying a Supreme Court for imperial overreach because it sometimes rules in ways I think are wrong (Kelo, Roe, Obamacare, etc), but also manages to rule in ways I think are correct (Heller, MacDonald, etc). If it were always completely wrong, then perhaps I'd agree that it's ruling by fiat. Just as if it were completely right, I'd agree that it was doing its job well. But the very fact that I KNOW I don't hold THE TRUTH means that I'm willing to accept that my position may not always be 100% correct, and maybe, just maybe, the SCOTUS is actually ruling as evenhandedly as they (as fallible humans) can.
I certainly agree that humility and a respect for the opinions of others is wise, Mike.
That was the idea behind democracy, too. The idea was that an elite (say, of judges; but it could also be of aristocrats by birth) was not better suited to judge the rightness of a case than the ordinary man. This was especially true when the ordinary men involved were many rather than few.
That's one good reason to object to cases where SCOTUS turns over long-established laws instead of innovations. A small subset of people (say, the voting population in a given year) may give way to passion and do something foolish; but if a law has held for generations, it is often wiser than it may immediately appear to be. After all, it has struck many people over many generations as an appropriate guide.
We don't really see that at work in the cases you are talking about, where the laws have been passed by small numbers of people -- Congress, in the case of D.C., and a very narrow band elites in Chicago who have ruled the city for generations. SCOTUS is ready enough to defer to Congress when Federal power is increased, as in Obamacare, where it bent itself into a pretzel treating the mandate as a tax for some purposes and a non-tax for others. It seems less willing to defer to limits on Federal power, or to the ordinary morality of the people. A justice system that regularly violates the ordinary and basic morality of the people strikes me as illegitimate in a pretty fundamental way. What, after all, was the point of having a justice system?
I find those questions a little amusing, since the answer to them from our President and his inner circle would almost certainly be: "Why, yes, those all sound like excellent ideas."
And I certainly agree with the concept if you don't understand why something is there, you do not remove it. My point is simply that I am unwilling to condemn the SCOTUS as illegitimate when they also get so many things right, even in the face of old established law. I didn't know that the MacDonald v Chicago case overturned 150 year old law until I read up on it. And not Chicago law, either, but Federal law. Cruikshank has been accepted law for almost a century and a half. Now, as I have stated, I think it was bad law, but I still believe it fits the definition of "long-established laws instead of innovations". MacDonald is an innovation. The idea that the Second Amendment is a national standard that cannot be violated IS an innovation. At least it is for the most recent century and a half. The Anti-Federalists might even not agree with that decision in MacDonald, given their distrust of a powerful Federal government. But then again, maybe they'd see that as an incidental good. I will never know for sure as I can't ask them.
And even if I could ask them, is their opinion somehow sacred? And I ask this as a Constitutionalist. Are we perhaps giving them TOO much credit? After all, they were men, just as we are. Fallible and flawed, just as we are. There were different mores in those days, some for the better, some not so much. I'm certain they would not have approved of several of my wife's choices (voting, for instance). I think that's an improvement we enjoy over their day.
I don't have the answer. Ultimately, where my sympathies lie is that the Constitution is ultimately a restriction on what the Federal Government can do. The 14th Amendment shakes that up by saying that it restricts what the States can do. Fundamentally I am in favor of whatever guarantees us all the most liberty. But if fools in a foolish part of the country want to sacrifice their freedoms, then ultimately I just need to avoid that part of the country. Chicago has fine people in it, I know a few. But their community standards are not mine, nor would I want to live under their standards. Should we dissolve the Federal government because of it?
I'd be inclined to let Chicago keep its law, actually. As you say, it's better just to avoid the place. The price of being unwilling to endure liberals having liberal laws in liberal states (or cities) is having to fight for a single standard that doesn't satisfy either of us.
If we can't agree to live under different rules in different places, so that our morally diverse population can live side by side in peace, then I think dissolving the Federal government may be worth considering. There are really only two things that the Federal government does that makes it worth the candle, from where I sit: it provides the military force to order the world in a more-or-less benign way, and it provides an ease of movement that is an important liberty component (so that we can go from a liberal to a conservative state, for example).
If we are going to shift from having a strong military to a social democracy that replaces the military with health care, that's one of those two goods gone. And if we're going to insist on a single standard applied to the whole country on issues of law and morality, that's the other one -- moving is of little value if there's nowhere different to move.
At that point, I don't see the point of the project. Even then there remains the oath to uphold the Constitution. The Constitution includes the 10th Amendment, which is ignored; it includes the idea of restrictions on Federal power, which are ignored. At that point, we'd be in a place where the Constitution as I understand it no longer exists. What we have is a government unmoored from it, refusing to respect the parts it doesn't like, and interpreting the rest however it pleases. I can't call defending that state defending the Constitution.
Are we perhaps giving [the Founders] TOO much credit? After all, they were men, just as we are. and ... the Constitution is ultimately a restriction on what the Federal Government can do. and The Constitution includes the 10th Amendment...; it includes the idea of restrictions on Federal power....
I'm also one of those who thinks the Constitution ought to be followed as it is written and not as Congress, or the President, or a judge thinks it ought to be written. Amendments from the bench, or from Congress, or outright ignoring it in the White House, are anathema to liberty.
But the Founders knew they were fallible, and they knew the Constitution would need...updating...from time to time. They also saw that the Constitution included Article V.
It's extremely valuable to have a national, reasoned discussion about the 2d Amendment and about the debt ceiling and who should control it, for instance (I make no statement about the quality of national discussion underway). But changes that might fall out of that, to have legitimate force, need to be run through that Article V, not passed by Congressional, or Presidential, or judicial fiat.
Eric Hines
Eric,
I've long harped at people who wanted Obamacare, or gun control or any other (to me) blatantly unconstitutional things, that if they want to change it, the Constitution allows for that very thing. Yet strangely, they all seem to realize that they'd never get 3/4 of the States to ratify their idea. I had one tell me that the 10 Amendment was ruled obsolete by the Civil War. I told him that if his standard for what was Constitutional could be overridden by "Might Makes Right" then he better get used to the idea of dictatorships. He didn't like that.
I am a HUGE fan of the Amendment process. If you can get 3/4 of the US Congress and 3/4 of the States to agree that something needs to change, then maybe it needs to change. But since that's so HARD, it seems folks would rather try and find ways to sneak their (clearly unconstitutional) ideas through using other means. Not all judicial.
2/3 to get the process started, 3/4 to ratify. It would be an interesting test, though, to see the strength of an Amendment that began as a grass roots effort--bypassing the Federal Congress' role entirely--that then was ratified by the required 3/4 of the States.
...on the Application of the Legislatures of two thirds of the several States, [the Congress] shall call a Convention for proposing Amendments....
It also would be fun (as well as infuriating) to watch the weasel-word objections as to whether the States' Legislatures' petitions were sufficiently identical to constitute petitions on the same question.
Eric Hines
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