How important is the Supreme Court?

In 1831, two young Frenchmen visited America, charged by their government with investigating the American prison system. They finished in nine months. They also spent those months months investigating “all the mechanisms of this vast American society,” as the leader of the pair, Alexis de Tocqueville, put it (Tocqueville vi). The result is Democracy in America, a book that implicitly critiques the French government and society of Tocqueville’s time through its largely favorable review of American government and society.

One American institution that struck the twenty-five-year-old de Tocqueville as quite different from anything in Europe was the United States Supreme Court. He was amazed: the Supreme Court can tell the rest of the American government what to do. By contrast, all European governments, no matter their form, show “the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice” (123). He pointed out that, unlike European tribunals, when the Supreme Court hears cases between, say, New York and Ohio, it “summons sovereign powers to its bar.” And although Tocqueville didn’t mention it, he might have added that the 1803 case of Marbury v. Madison settled early on that the Supreme Court has the authority to declare acts of Congress invalid if it finds that they are without Constitutional basis. In Tocqueville’s time, this kind of authority in the hands of an independent judiciary was unknown in other modern societies.

Tocqueville was so taken with the Supreme Court’s role that he felt that its reputation and preservation were more important than that of the other two federal branches of government, the presidency and Congress. Yet, more than the other two branches, the court was also more subject to injury from popular disdain. The justices are the “all-powerful guardians of a people which respects law; but they would be impotent against popular neglect or popular contempt,” he claimed, pointing out that the Supreme Court must act consistently with the nation’s understanding of the rule of law (124). We, on the other hand, often see our Supreme Court as the least important of the three branches and, because of the justices’ lifetime appointments, the least subject to adverse popular opinion.

We have some good authority to support our view. Tocqueville’s equally famous countryman, the political philosopher Montesquieu who lived a century before Tocqueville, thought courts were inherently powerless. Montesquieu influenced the framers of the American Constitution by updating the Roman notion of separation of powers, giving us the executive, judicial, and bicameral legislative branches we recognize today. In so doing, however, Montesquieu claimed that the the judicial branch is “in some measure next to nothing” (Huntington 392). After all, nobody (we would say today) comes to a game to see the umps.

Which Frenchman is right? Is the United States Supreme Court the most or least important branch of American government?

In exploring this question, it may be helpful to make two distinctions. The first is between power and function, and the second is between power and authority. Clarifying those three terms may suggest how the framers understood sovereignty and the rule of law as well as the Supreme Court’s role in maintaining this understanding.

We generally think of the Constitution as balancing three primary governmental functions. The Constitution separates functions, however, only to the extent that such a balance of functions achieves the document’s greater goal — a separation and balance of powers. The Constitution is designed to keep sovereignty away from any single part of government, whether it be a branch of the federal government or whether it be the states vis-a-vis the federal government. For instance, as American political scientist Samuel P. Huntington pointed out, “the judicial power to declare what law is became the mixed judicial-legislative power to tell the legislature what the law cannot be” (393 – 394). The Supreme Court also has a quasi-executive role since it can pass on the constitutionality of many executive decisions, such as the suspension of habeas corpus or the issuance of executive orders. The Constitution gives the court more than a judicial function in order to balance some of the powers the Constitution acknowledges.

This sharing of functions to create a true balance of power isn’t a modern invention. In fact, Huntington argued that the American government’s separation of powers is a holdover from the late medieval period before the rule of law began to be replaced by the rule of men. Beginning in the seventeenth century, the nations of continental Europe placed their sovereignty in kings while the English Civil Wars and Glorious Revolution eventually caused sovereignty to be placed in Parliament. The American colonists, however, kept to Tudor-era notions of the supremacy of common and natural law. As British historian Albert Pollard pointed out, “Americans instinctively revolted against the doctrine of the sovereignty of the State” (Huntington 388). At the time of the American Revolution, Americans were still resisting the modern “tendencies toward the substitution of sovereignty for law,” as Huntington put it (386). Americans kept Elizabethan notions of law, just as the the residents of the Chesapeake Bay’s Tangier Island retain certain Elizabethan speech patterns.

It would be helpful to define both sovereignty and the rule of law. Sovereignty, the jurist Jean Bodin says, is the notion that there is “a supreme power over citizens and subjects, unrestrained by law” (Huntington 384). Sovereignty, then, is the assertion of power over others, a concept that political theorist Hannah Arendt said hinders freedom: “If men wish to be free, it is precisely sovereignty they must renounce” (Arendt, Between, 163). The rule of law, however, is the opposite of sovereignty. The rule of law is not to be confused with “law and order”; indeed, the significance of rule of law is in its scope and not its force or strength. Political Theorist Francis Fukuyama defines the rule of law as “rules that are binding even on the most politically powerful actors in a given society” (11). In other words, the scope of law must bind even kings and Parliaments. The American founders held to notions of natural law — law that is discovered by man but not generated by him — precisely to counter modern notions of sovereignty.

This idea of rule of law as exercising something like sovereignty points to the distinction alluded to earlier between power and authority. Power includes coercion, but Arendt said that authority cannot be equated with or rely on coercion — or, for that matter, even persuasion. In fact, she said that “practically as well as theoretically, we are no longer in a position to know what authority really is” (Arendt, Between, 92 – 93). She described where the political idea of authority came from — the founding of Rome — and she described also how the Roman Senate, even when it had no power, was consulted by Rome’s powerful rulers for its blessing on legislative or executive measures. The Roman Senate was the guardian of Rome’s founding, and its task was to measure every governmental action against that founding (120 – 122). That gives us some notion of what authority is even if the West no longer generally experiences it, as Arendt suggested.

Where, then, did authority in the West go when Rome fell? The Catholic Church took on the Roman Senate’s role; Arendt was fond of quoting a pope writing to an emperor at the end of the fifth century: “Two are the things by which this world is chiefly ruled: the sacred authority of the Popes and the royal power” (126). This pope-king tandem lasted in the West for over a thousand years, Arendt asserted, but it collapsed during the Reformation and the Scientific Revolution. One can infer this collapse in the preoccupation with governmental legitimacy in the writings of the period’s political thinkers. Political theorist Alexander S. Rosenthal pointed out that Richard Hooker’s question “‘what conditions make the power to rule legitimate?’ became particularly important in the sixteenth and seventeenth centuries” (107). Arendt believed that governments since then have frequently resorted to force — to power — as a tragic means of compensating for their lack of authority.

One modern institution attracted Arendt’s attention because of its authority, however — the American Supreme Court. Its lack of power and its lifetime appointments make it “the true seat of authority in the American Republic” (Arendt, Revolution, 192). She compared the Supreme Court directly with the Roman Senate, pointing out this small distinction: instead of giving political advice, the Supreme Court gives legal interpretations (193). She approved of Woodrow Wilson’s characterization of the court as “‘a kind of Constitutional Assembly in continuous session’” (192). The Supreme Court, then, gives the government and statutes the authority generated by the Declaration of Independence’s signers and the Constitution’s framers at our nation’s founding.

The Supreme Court’s powerlessness and its authority mean, of course, that both Montesquieu and Tocqueville are right. To maintain its authority — and thereby to maintain the entire government’s authority — the Supreme Court must not make mistakes regarding fundamental law that would undermine its standing with the American people. As Tocqueville warned, “If the supreme court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war” (124). He was right: within twenty years of Democracy in America’s publication, the Supreme Court’s infamous Dred Scott decision helped to bring about the American Civil War.

When the Supreme Court adjudicates, it must consider its function as the source of our federal government’s authority. If it fails to rule in accordance with the Constitution and natural law — i.e., in accordance with the rule of law — it will cause a large segment of the American people to lose their trust not only in the judicial branch but in our entire system of government.

Works Cited

Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. Penguins Books, 2006.

Arendt, Hannah. On Revolution. Penguin, 2009.

Fukuyama, Francis. Political Order and Political Decay: from the Industrial Revolution to the Globalization of Democracy. Farrar, Straus and Giroux, 2015.

Huntington, Samuel P. “Political Modernization: America vs. Europe.” World Politics, vol. 18, no. 3, 1966, pp. 378–414. JSTOR, JSTOR, www.jstor.org/stable/2009762.

Rosenthal, Alexander S. Crown Under Law. Lexington, 2008.

Tocqueville, Alexis de. Democracy in America. Edited by Isaac Kramnick, W.W. Norton, 2008.

The fallen sign

Looking out my window, I see a temporary sign face down on the traffic island between the east- and westbound traffic. In our suburban town, these islands themselves are signs. If a school bus stops in the opposite direction on a divided street (that is, a street with an island) to pick up children, you don’t stop. If the street isn’t divided, though, you must stop. The island creates a legal fiction: you don’t see the bus’s outstretched stop sign because of the island. The island, I suppose, suggests something about whether drivers along the road are expected to anticipate pedestrians.

There are islands like traffic islands along the Potomac where we live, above the falls.  (South of the Potomac, but above the falls.) You’d paddle or sail across the river, portage your boat across the narrow island, and paddle or sail again. And you’d be in Maryland. (“Mainland” Maryland, I suppose, since the the islands themselves, like the river, are in Maryland. Borders are fictions, too, and sometimes they are also invisible.)

Alexis de Tocqueville, my latest live-in author, never associates civilization with civility. Here’s an example of how he uses “civilization” from Democracy in America:

The celebrated communities of antiquity were all founded in the midst of hostile nations, which they were obliged to subjugate before they could flourish in their place. Even the moderns have found, in some parts of South America, vast regions inhabited by a people of inferior civilization, but which occupied and cultivated the soil. To found their new states it was necessary to extirpate or to subdue a numerous population, until civilization has been made to blush for their success.1

I ask for greater civic life, but I’m not asking for greater civilization or even greater civility. I ask that we act, and in acting we challenge our assumptions about public life and our own being. We act, and we discover new thoughts and words commensurate with the act. Our hands and our feet teach us, much as they did when we were young.

Philip Kenicott has a nice piece in today’s Post on the Glenstone Museum’s new facility in Potomac. The Glenstone hopes to make interacting with art more contemplative. In the process of describing how it navigates the museum-as-temple and the museum-as-civic-center tension, Kenicott discusses the slow art movement. The movement considers not only the sign (the art) and the signified (the eternal, the meaning, the feeling, the transcendent, what have you) but also the soul.

Our signs — our means of policing ourselves in our positivistic, malum prohibitum society — rarely involve an interpretant. They don’t rise to the level of malum in se, which would require conscience and a notion of right and wrong that transcends law and even society. Cars move too fast for the moral judgment democracy craves.

 

  1.  de Tocqueville, Alexis. Democracy in America (Kindle Locations 4641-4645). Packard Technologies. Kindle Edition.

If memory serves, Mr. Trump shouldn’t

I remember. I supported Mr. Clinton’s impeachment and, once he was impeached, I wanted him removed from office. It wasn’t only the perjury, after all; it was also the obstruction of justice.

The case for Mr. Trump’s impeachment is exponentially stronger than the one that persuaded me twenty years ago. While Mr. Clinton’s actions diminished his office, Mr. Trump’s actions threaten our republic’s existence.  Tom Steyer puts the case for Mr. Trump’s impeachment into eight categories, and I incorporate his summary herein by reference thereto. However, this week alone merits the president’s immediate removal from office. In his continuing effort to make our nation’s intelligence apparatus his own, he forcefully denigrated our intelligence services before a hostile, foreign power.  He also expressed his willingness to hand over American citizens to a foreign adversary for questioning regarding vengeful, trumped-up charges. We learned this week also that Mr. Trump had clear evidence of Mr. Putin’s direct involvement in the 2016 presidential election scandal even before Mr. Trump was inaugurated the following January. Mr. Trump’s many statements exculpating Mr. Putin and the Russians since then — statements we now know to be disingenuous — deaden any political will to defend ourselves from a like attack on our elections this year or two years hence. His preference for the Russian dictator over his own intelligence services suggest that our executive branch is being undermined by a resourceful enemy. Mr. Trump is an existential threat to our country.

We shouldn’t wait to learn from the Mueller investigation why Mr. Trump puts our enemy’s interests ahead of our own. We must act now to remove him from office on the clear evidence that he does put our enemy’s interest ahead of our own. Mr. Trump’s relationship with the Russian government is demonstrably a clear and present danger.

Yet the political, social, and financial dynamics that led to Mr. Trump’s election remain with us, and they make it difficult to discuss impeachment with about half the country. How can we reach people like me, who supported Clinton’s impeachment, with the argument for Mr. Trump’s?

One step toward reaching them would be to separate the issue of impeachment from our longstanding, divisive policy issues.

The day after Helsinki, I participated in a rally outside the White House gates. All of the speakers mentioned Mr. Trump’s craven actions before Mr. Putin. But two of the three speakers spent most of their time talking about the kind of issues that have been knocked about left and right for the past thirty years. These issues are important, but they don’t represent immediate dangers to the republic.

Listening to the usual liberal rhetoric, most open-minded conservative listeners at such a rally would find themselves re-riveted to their one-dimensional, left-right framework that they share with most liberals, and these conservatives would become effectively powerless to hear the argument for impeachment. Put another way, if they hear most voices for impeachment link the issue with the liberal side of well-worn unraveling-era issues (campaign finance, gun control, tax cuts, etc.), they’ll consider the call for impeachment merely the desperate scream of a political party currently shut out of power.

In one respect, at least, Mr. Trump is like the Apostle Paul: he can count on a crowd’s divisions to get out of hot water:

But when Paul perceived that the one part were Sadducees, and the other Pharisees, he cried out in the council, Men and brethren, I am a Pharisee, the son of a Pharisee: of the hope and resurrection of the dead I am called in question. (Acts 23:6)

Paul’s accusers then began bickering over the doctrine of the resurrection. Paul ended up with the backing of half the crowd, which had forgotten why Paul was before the Roman counsel in the first place. The captain removed him before things really got out of hand. The genre here is almost comic.

Paul later expressed regret for his role in the incident — read Acts 24:21 — but I doubt Mr. Trump will ever regret using such a tactic. He retreats to unravelling-era issues to make an implicit claim to half of us. “You need me to win the issues for which you’ve fought so hard for a generation,” he seems to say. “Your part in this bargain is to ignore the clear evidence that I’m undermining our nation’s security.”

To remove the president, we — liberals, conservatives, and centrists — must focus on the arguments and evidence for removing him and not remain distracted by what divides us. To avoid this distraction, we need to discover life outside of the one-dimensional, left-right framework that cramps our public space. We need to remember not only Mr. Clinton’s crimes and punishment but also the restorative principles, perspectives, and experiences of our nation’s founding. We need to start to read and talk about those principles, and we need to act according to them, too. The Declaration of Independence might be a good place to start.

I must love this author

I find most of my books while reading other books’ footnotes. Winton Solberg’s 1958 book The Federal Convention and the Formation of the Union, which came in the mail yesterday, is the latest example. I discovered it while rereading Hannah Arendt’s 1963 book On Revolution. Arendt cites Solberg’s book four times in her footnotes.

She sites him enough to tell me that she’s a magpie of a researcher. A main point here, an inference Solberg never made there, and an overall appreciation for the writer in all four notes. Her sources seem fewer and better considered than most academics’ sources. Her appreciation reminds me that all books are commonplace books; some are just better footnoted.

As I thumbed through this first-edition Solberg, which I got for pennies over the Internet (plus shipping), I thought about Arendt’s reading of Solberg. It occurred to me, pacing in my little library, that I was holding a copy of the very edition Arendt had held. And in a sudden bout of reverence, I almost dropped the book.

Displacement

We may be dreaming of great acts of displacement while failing to notice in the displacements of our own lives the first indications of God’s presence.

– Henri Nouwen

When I woke up day after Helsinki, I wanted to act. So I made a sign and took it to the White House.

There I met two women who had woken up the same way. They had met as I met them: their signs had served as signals. The three of us became a fast people.

We would separate, walking along the fences, and return. When things were quieter, we told one another something of our stories. We were heckled a little, not much. Many tourists, mostly from overseas, took pictures of their families standing with us. After a couple of hours, when it started to rain, we turned again to one another. “I’m coming tonight. Are you?” And we left.

I thought of the big tree in whose branches refugees from the town found one another in Capote’s The Grass Harp. I thought of Henri Nouwen: “Displacement is not primarily something to do or to accomplish, but something to recognize.”1 And Hannah Arendt’s concept of freedom in action separated, ultimately, from its consequences.2 And Rosa Parks, and all the Rosa Parks before and after her who were stoned and sawn asunder.

We didn’t see one another at the big rally that night. The big rally was kind of like a big rally. An overseas media outlet interviewed me. There were television cameras, a short speech, chants, a longer talk that, with its pacifying drone, frustrated the crowd. The rally was purposeful and strategic, as necessary in its way as the senseless act of faith.

Then I waited for the train home. Another woman sat beside me on a concrete bench and put her own sign at her feet. When the train came, we walked into separate cars.

  1. Nouwen, Henri. Seeds of Hope: A Henri Nouwen Reader, p. 145.
  2. Arendt, Hannah. Between Past and Future, pp. 166 – 167.

Maybe why writing is hard

This morning, the more I write, the more my thoughts jump ahead of what I’m writing. The writing is making me think, and the thinking is making the writing very difficult.

Writing is hard anyway. Some people would like to hire ghostwriters to capture their thoughts. These people mistake writing for the visual transmission of one’s thoughts. Instead, writing is thinking. Writing makes us think, and the process of writing makes us discover realizations and examples and exceptions and connections that slow down the writing.

Ghostwriting carries an essential fraud, and not because one person is writing in another’s name. The fraud is the illicit self-protection the ghostwriter provides, similar to the self-protection each spouse can access in marriage counseling. If I am in marriage counseling, I have an out: when the counseling gets too close, I tell myself and my counselor that it’s my spouse’s fault. If I hire a ghostwriter, I have an out: I’m not challenged to fix the words and the thinking they represent because they’re never thrown back at me. The best marriage counselors treat “marriage counseling” as a necessary euphemism and get their clients to take responsibility for their own lives. And the best ghostwriters insist on involving their clients in the writing process.

Our president and his immediate predecessor wrote important memoirs. President Obama wrote Dreams from My Father, and President Trump wrote The Art of the Deal. President Obama wrote his memoir. President Trump hired a ghostwriter to write his, and the ghostwriter latter admitted that he never challenged his client. The two presidents couldn’t be any more different in their integrity and capacity for reflection.

Liberal self-examination

My favorite part of a favorite book (Philip Gorski’s American Covenant, published last year) involves competing concepts of political time. Liberals understand political time as linear, pointing onward and upward on a graph (x = time; y = progress) – time as never-ending progress. In contrast, many conservatives understand political time as cyclical. For them, no new thing appears under the sun, and the future eventually leads back to the past.

Timothy Snyder’s book, The Road to Unfreedom: Russia, Europe, America, released two weeks ago, is largely structured around these time concepts. In Russia over the past decade, though, a cyclical cycle became “the politics of eternity” as Putin sought to keep power by way of creating crises and pretending that outside forces were acting to challenge the Russian people’s inherent innocence. Eternity is in the present; there is no political future — no plan of succession and no plan for a polity’s self-correction.

Russia has, therefore, already arrived in the political millennium. Putin’s millennium is different than the end of history Marx envisioned and the Soviet Union was working toward. Marx was, after all, a “Left Hegelian,” while the white nationalist philosopher championed by Putin, Ivan Ilyin, was a “Right Hegelian.” But all political eternities involve magical thinking as a replacement for history and facts, so Putin, in championing the old Soviet Union as an ideology-free Russia, can ignore Ilyin’s detestation of the Soviet model. Ilyin, as Snyder points out, would have loved Putin’s revisionism.

The ease by which Russia switched from cyclical to “eternal” thinking may explain how easily virulent nationalism has infected American conservatism over the past two years.

True American conservatives, mostly known by reference to their conquerer as “Never Trumps,” are already reassessing what went wrong and exploring how their political understanding was so quickly routed from the nation’s consciousness. Liberals, though preoccupied in opposing to Trump, need to reassess how their worldview also aided Trump’s rise.

How was liberalism complicit in the political atmosphere that gave rise to Trump’s election? Three things come to mind. First, American liberals failed to see how their “politics of inevitability,” as Snyder characterizes it, blinded them to Russia’s response to the failure of its own “politics of inevitability” in the late 1980s and the 1990s. Russia is, in this sense, thirty years ahead of us, Snyder argues. Our purblind politics is evident in retrospect: we laughed in 2012, for instance, when Mitt Romney declared Russia as our greatest adversary.

Second, American liberals failed to understand how their lockstep pro-choice position on abortion has for decades alienated half of the American electorate and undercut their fundamental argument about the primacy of life as a moral guide in crafting other areas of public policy. For many pro-life voters, national elections have for years represented a deflating contest between their hearts (morality) and their heads (middle- and lower-class oriented policies; financial regulations; steps to combat global warming, etc.).

Third, both the politics of inevitability and the politics of eternity purport to be irresistible. In this sense, both deny agency, and therefore both have little need of or care for a vibrant public sphere. Because the politics of inevitability is irresistible only in the long run, it better protects the public sphere and the positive freedom that the public sphere requires. But not much better. This failure to regard public freedom (i.e., positive freedom, as opposed to negative and private, First-Amendment freedoms, generally understood as freedom from politics) should be a matter of liberal self-reflection, too.

If liberals take up self-examination along with the conservatives, self-examination could become, to a large extent, a joint conversation, maybe the first sane and extended one between the two factions in generations. The means by which such a conversation would occur could p0int to the rebirth of the public sphere.

[Photo of Timothy Snyder taken in 1996. By Frauemacht – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=47883997 ]

Dénouement

Washing dishes this morning while listening to the HomePod play the New World Symphony. Hannah Arendt isn’t the only one who writes about the new world’s work on the old one’s mind. Reading between Tocqueville’s lines, of course, one learns more about the old world than the new. Democracy in America is about the beholder.

Dana Villa, writing in 2005, resolves his chapter on Tocqueville’s conception of a public sphere akin to “Montesquieu’s pouvoirs intermédiares” with this reversal of fortune:

It is an irony of history that the political conception of civil society Tocqueville introduced to Europe must now be reintroduced to America — from, of all places, a democratic and secular Europe.1

Researching the HomePod, I was sickened by this Apple ad. Our protagonist leaves a cramped public space — she apologizes her way out of an elevator car packed with impersonal shoulder blades — for her small apartment, which she widens with waves of her hand as the HomePod plays a favorite. If our new worlds are private ones, Tocqueville warns, the old world will hunt us down.

Title page of the autograph score of Dvorák’s ninth symphony

  1. Villa, Dana. Public Freedom (2008) at 45, 48.

DO NOT CONGRATULATE

I quit Facebook again. Maybe I’ll stay quit. I’ve seen hashtags encouraging people to quit Facebook. The irony is lost in a snowbank of wishful thinking. I’m not sure Instagram (owned by Facebook), Tumblr or Twitter is any safer or any more scrupulous.