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 www.counterpunch.org 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?

 

 

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