This week, after another dismal showing by the Supreme Court, I asked myself whether our Constitution is all smoke and mirrors. A Potemkin Village. A parchment signifying nothing. Like Macbeth’s soliloquy for his dead wife, “a poor player that struts and frets his hour upon the stage, full of sound and fury signifying nothing.”
At least that is how I interpreted a recent series of Supreme Court’s shadow docket rulings. As someone who spent 29 years in law enforcement and for decades closely read the Federal Law Enforcement Training Center’s quarterly summaries of federal court rulings as they pertained to constitutional rights, it is my considered judgment that the Supreme Court has abandoned sanity and the rule of law in favor of partisan power.
One of my favorite references as to the intent of the framers of our Constitution is James Madison’s ‘Notes on the Constitutional Convention.’ My copy is well worn, with markers and scribbles in the margins and since January 20 has been a constant companion. I even had Chief Justice Scalia sign it when he visited the embassy in Lisbon when I was assigned there between 2005 and 2008.
Every time the Supreme Court makes a ruling, I go to Madison’s ‘Notes’ — and the Federalist essays — and read the debates at the convention relevant to the issue the Court just decided. The delegates at the convention did not leave many stones unturned in their debates, disputes we continue to dredge up and debate to this day. As for the conservative super majority, who fancy themselves die hard textualists and originalists, they seem to ignore the intent, spirit, and tone of the constitutional convention when it suits them, if not the very text of the Constitution.
The ‘Notes,’ are a compilation of Madison’s minutes of the daily proceedings of the constitutional convention in Philadelphia during the scorching summer months of 1787. It was published posthumously some 50 years after the convention. Revised and amended by Madison over the 50 years before publication, one must approach the ‘Notes’ cautiously. Nonetheless, they are a remarkable account of the discourse and debates that resulted in our Constitution. Madison’s summaries of the day-to-day debates, however flawed, provided unique insights into the worldview of the delegates that created our government and fundamental laws of the land.
Our Constitution was radical and captured the spirit and ideas of over 300 years of renaissance and enlightenment thinking, enshrining into a written constitution the primacy of the people as sovereign: We the people. Nonetheless, our new Constitution was far from perfect. In fact, it was deeply flawed because those at the convention convinced themselves that slavery was on its way to extinction, that it would diffuse and extinguish itself soon. Instead, they ended up sacrificing generations of captive African Americans to slavery for the sake of white national unity. As it turned out, they only deferred our country’s reckoning with slavery until 1861. It would take a ‘second’ founding after a Civil War to amend the Constitution to reflect the original premise of the Declaration of Independence, the bit about equality.
Our founding thinkers did not invent democracy, republics, or even the concept of separation of powers. The ideas that animated their debates go back to Greece and Rome,16th century Republics such as Florence, Renaissance writers such as Machiavelli, and later enlightenment thinkers such as Montesquieu, Hume, and Rousseau. If anything, our founders took their history seriously. They believed in the ancient notion of virtuous leaders and feared the mob, that is the tyranny of the majority.
The result a novel invention of a republic with two sovereigns – sovereign states within a sovereign federal union – and a hybrid government mix of the one, the few, the many (President, Senate, House of Representatives). The key ingredient: built in checks and balances. In short, compromise. A word now considered a pejorative by right wing conservatives.
They codified their fears into hard checks and balances into our founding document. Co-equal branches of government, designed to check one another out of jealousy for one’s own power. That is the foundation, the spine, the bedrock, whatever metaphor you want to use, of our Constitution. Without checks and balances it collapses like a dying star.
Our history is complex. On the one hand, America has a legacy of horrific racist policies since independence from England: slavery, ethnic cleansing of Native Americans, Chinese Exclusion Act, Separate but Equal segregation, interment of Japanese Americans are but a few. But there was also the New Deal, the long Civil Rights movement, and women’s suffrage. Through all this our constitutional system – the mechanics — functioned as designed for the most part.
The mechanics of our system is collapsing. Since January 20, ruling by decree, Trump is squashing America’s rule of law like a junkyard car crusher. The cowards in Congress mute as they render themselves into useless piles of worthless scrap. While Democrat leaders twirled and lurched like bungling idiots during the initial onslaught of presidential decrees, the lower courts held their ground, pausing many of these orders after hearing arguments. Unsung men and women if you ask me. For the most part the appeals courts also held firm.
The Supreme Court on the other hand is a disaster, ripping out the valves, pistons, and belts that kept our system humming. They continue to hand Trump unprecedented powers one shadow docket ruling after another. And in their own power grab, kneecapping the lower courts. In many cases, rulings are announced without even offering an explanatory opinion: the ‘why.’ Mostly I think because they don’t have a legally sound ‘why’ to back up their decrees. Yes, that is what their rulings have become in essence under this regime of shadow dockets: Decrees. Like a solar eclipse, the proliferation of these rulings is thrusting the rule of law into darkness, something one sees in authoritarian regimes.
So, here is where we are now.
In Philadelphia 238 years ago, a group of delegates representing 12 of the 13 states, assembled, debated, and drafted the rudimentary structure of a new type of government never seen before. The great experiment began. They knew the document they produced wasn’t perfect, and they recognized the need to be able to change the document with the times, outlining a process to amend the Constitution through considered debate and argument. They were also cleared eyed about power and how it corrupts, building in checks and balances.
Those checks and balances are disappearing like Epstein’s client list. We now have a President who unilaterally rewrites the Constitution through edict and is immune from official acts that are criminal in nature; a Supreme Court that unilaterally changes the Constitution through opaque shadow rulings; a Congress and Supreme Court willfully and energetically empowering a tyrant King. Like Macbeth’s monologue, I ask myself, “Is American democracy on its way to dusty death?” Our candle snuffed out?
It is not too late. The candle can be relit but will take time and effort. We should focus on what we, in Virginia, can control. The next step is to vote Abigail Spanberger in as Governor this November and keep our state legislature majority blue. This November’s election will be a bellwether for the mid-terms the following year. It is an opportunity for Virginians to send a message to Trump, the do-nothing Virginian Republican sycophants in Congress, and the Supreme Court.
