Class Warfare Blog

July 21, 2018

Things to Consider When Selecting Another Supreme Court Justice

This is not yet another post about who should be selected or how, but some background on how the SCOTUS fits into our system of government.

In a quite brilliant post [Time to Stop Playing “Simon Says” with James Madison and Alexander Hamilton by Paul Street (July 13, 2018)] at the author points out quite clearly that the Constitutional Authors were more than fearful of popular democracy, that they felt the “natural” leaders were people like themselves, wealthy landowners who had the time and education and sensibilities (Sniff!) to lead well.

Here are a few telling quotes:

At the Constitutional Convention, Madison backed an upper U.S. legislative assembly (the Senate) of elite property holders meant to check a coming “increase of population” certain to “increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings” [emphasis added]. “These may in time outnumber those who are placed above the feelings of indigence. According to the equal laws of suffrage, the power will slide into the hands of the former.”

In Federalist No. 35, the future first U.S. secretary of the treasury, Alexander Hamilton, argued that the common people found their proper political representatives among the small class of wealthy merchant capitalists. “The idea of an actual representation of all classes of people by persons of each class,” Hamilton wrote, “is altogether visionary.” The “weight and superior acquirements of the merchants render them more equal” than the “other classes,” Hamilton proclaimed.

Mr. Street goes on to say this:

Checkmating Popular Sovereignty
The New England clergyman Jeremy Belknap captured the fundamental idea behind the U.S. Founders’ curious notion of what they liked to call “popular government.” “Let it stand as a principle,” Belknap wrote to an associate in the late 1780s, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.”

It wasn’t just about teaching “the people” that they were incapable of self-rule, however. The Constitution was designed to make sure the popularity majority couldn’t govern itself even if it thought it could. The rich white fathers crafted a form of “popular government” (their deceptive term) that was a monument to popular incapacitation.

The U.S. Constitution divided the federal government into three parts, with just one-half of one of those three parts (the House of Representatives) elected directly by “the people”—a category that excluded blacks, women, Native Americans and property-less white males (that is, most people in the early republic). It set up elaborate checks and balances to prevent the possibility of the laboring multitude influencing policy. It introduced a system of intermittent, curiously time-staggered elections (two years for the House, six years for the Senate, and four years for the presidency) precisely to discourage sweeping popular electoral rebellions It created a Supreme Court appointed for life (by the president with confirmation power restricted to the Senate) with veto power over legislation or executive actions that might too strongly bear the imprint of the “secretly sigh[ing]” multitude.

It sanctified the epic “un-freedom” and “anti-democracy” of black slavery, permitting slave states to count their disenfranchised chattel toward their congressional apportionment in the House of Representatives.

The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. president—even on the limited basis of one vote for each propertied white male. It is still in effect.

U.S. Americans did not directly vote for U.S. senators for the first 125 years of the federal government.  The Constitution said that senators were to be elected by state legislatures, something that was changed only by the Seventeen Amendment in 1913.

It is true that the Constitution’s Article V provided a mechanism technically permitting “We the People” to alter the nation’s charter. But the process for seriously amending the U.S. Constitution was and remains exceedingly difficult, short of revolution and/or civil war.

I know this is a lot to absorb, so I recommend you read the entire article. I will add a couple of comments.

Regarding the quotation from New England clergyman Jeremy Belknap “Let it stand as a principle,’ Belknap wrote to an associate in the late 1780s, ‘that government originates from the people, but let the people be taught…that they are unable to govern themselves (my emphasis).’” I’m shocked, shocked I tell you, that a clergyman would oppose people thinking and acting for themselves! Realize that in the New Testament, the only descriptions of how Christians practiced their religion were very democratic. There were no clergy per se, unless you think wandering guides such as “Paul,” qualified. Congregations of Christians met in homes and “shared” with one another with no middlemen involved. But if there are no middlemen, there is no power structure and the early days of Christianity (first three-four centuries) was all about creating a power structure … by those wanting the power.

So, to hear that some clergy, although I suspect close to all clergy, believed that people could not rule themselves is hardly a revelation. In their religion, the people could not govern themselves, they needed “guidance,” otherwise they might believe the wrong things (“wrong” as determined by those in power).

Regarding “The Constitution was designed to make sure the popularity majority couldn’t govern itself even if it thought it could.” This is a stunning revelation to me. I knew quite a bit of this background and the attitudes of the “Founding Fathers,” but I had not had this point made so clearly and forcibly before.

Regarding “The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. President.” Isn’t it curious that the Electoral College was the instrument that got a populist President elected in 2016. The “best laid plans of mice and men,” indeed!

Oh, and on which side of this argument do you think Judge Kavanaugh is on?




  1. Hello Steve. I think Judge Kavanaugh would be on the side of an autocratic government. Your post clears up some confusion for me about the republicans in congress. No wonder they do not feel any need to listen to the people, instead they are focusing on the wealthy as they see as proper due to the founding ideas. Sorry but to live in a locked in class system is not a country I want to live in. I am thinking of the strict class system of places like India. However we have the opportunity to start making the country the democracy of and for the people we want. Hugs

    Liked by 1 person

    Comment by Scottie — July 21, 2018 @ 9:40 am | Reply

    • But we deny the obvious. we claim … vociferously … that there are no classes in the US. I argue that a great many of our politicians lack class but that is an entirely different thing. Hugs to you, Scottie!

      On Sat, Jul 21, 2018 at 9:40 AM, Class Warfare Blog wrote:


      Liked by 1 person

      Comment by Steve Ruis — July 21, 2018 @ 5:44 pm | Reply

  2. It’s not immune, I know, but I still hold that the parliamentary system has the best checks and balances against tyranny and political showboating. I do concede, though, that in the Commonwealth we’ve been spoilt rotten these last 60 odd years by having QE2.

    Liked by 1 person

    Comment by john zande — July 21, 2018 @ 3:47 pm | Reply

    • I have waffled pro and con on this idea: from pro to con and now back. But I think there is zero chance we will get a parliamentary system going here. If we had a chance I would leap at it.

      On Sat, Jul 21, 2018 at 3:47 PM, Class Warfare Blog wrote:


      Liked by 1 person

      Comment by Steve Ruis — July 21, 2018 @ 5:45 pm | Reply

      • Very hard to change because some (many?) would see it as admitting some sort of failure in your founders original idea, even though that’s not really the case. Still, try as they might have, I don’t think they ever envisaged a Mitch McConnell and Paul Ryan who’d actively work against the state… Let alone a Trump.


        Comment by john zande — July 21, 2018 @ 8:36 pm | Reply

      • If you get a chance, this is an interesting piece from the New Yorker


        Comment by john zande — July 21, 2018 @ 8:53 pm | Reply

        • Read it. I subscribe now. (Canceled the NYT, now it is The Guardian and The New Yorker.)

          On Sat, Jul 21, 2018 at 8:53 PM, Class Warfare Blog wrote:


          Liked by 1 person

          Comment by Steve Ruis — July 21, 2018 @ 9:16 pm | Reply

          • Can’t blame you. It’s a strange beast with atrocious editorial oversight.


            Comment by john zande — July 22, 2018 @ 5:58 am | Reply

            • Yeah, they seemed out of control and pandering to audiences rather than exhibiting a high standard of journalish. I started with the Chicago Tribune when I moved here and that was a severely decline newspaper. I tried the Times and was happy for a bit but …

              Now I get a lot of my news from The Guardian and Reuters because their coverage in the US isn’t so slanted (although there is still pandering to the religious). I also subsribe tot eh New Yorker because of their long form journalism (a declining service).

              On Sun, Jul 22, 2018 at 5:58 AM, Class Warfare Blog wrote:


              Liked by 1 person

              Comment by Steve Ruis — July 22, 2018 @ 8:44 pm | Reply

              • The Atlantic has some good essayists.


                Comment by john zande — July 23, 2018 @ 5:30 am | Reply

                • Dang, I had almost forgotten how much I use to enjoy The Atlantic. I will check it out … again. Thanks!

                  On Mon, Jul 23, 2018 at 5:30 AM, Class Warfare Blog wrote:


                  Liked by 1 person

                  Comment by Steve Ruis — July 23, 2018 @ 7:50 am | Reply

  3. The Bill of Rights, at least, does guarantee rights to the people as a whole. Most of the time, when people cite the Constitution as a great bulwark of freedom and democracy, it’s the provisions of the Bill of Rights they’re talking about. The nuts-and-bolts-of-government stuff in the main body of the document has a lot of flaws, as we’re increasingly discovering.

    The irony is that today the Senate and the Electoral College over-empower the least educated regions of the country, not the intellectual elite as the Founders apparently intended.

    Given that amending the Constitution to fix these problems would require the participation of the states which have disproportionate power under the current system, it’s hard to see how it will ever be fixed. The Constitution kept the government stable through upheavals like the Civil War and the Great Depression, but in some ways it’s starting to hold us back now.

    Liked by 1 person

    Comment by Infidel753 — July 23, 2018 @ 6:22 am | Reply

  4. The fact that so many find it acceptable that being ruled by the opinions of someone who calls himself “judge” proves that the “founders’ were correct in thinking that “the popularity majority couldn’t govern itself.”
    No Treason
    The Constitution of No Authority
    by Lysander Spooner

    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves.


    Comment by Ed — July 24, 2018 @ 9:26 am | Reply

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