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Urgent: A TDS Strategy Memo on the Supreme Court

The Republican right has a deeply disturbing covert extremist agenda for the Supreme Court – end the separation of church and state, undermine the legality of Social Security and Medicare and give individuals the right to ignore any laws they choose.

Does this sound like a wildly hysterical exaggeration?

It certainly does. But unfortunately, it also happens to be true.

The unavoidable fact is that major elements of the Republican coalition – the elements most likely to become deeply engaged in the battle over the next supreme court nominee like the Christian Right, the Tea Party Movement, and the radical Federalist Society legal wing of the Right—do indeed harbor profoundly extreme views on the Constitution. In fact, since Obama’s election these views have veered even more sharply toward extremism.

• Since the 1990’s, the Christian Right has sought to replace the traditional American separation of church and state with the notion that the U.S. was actually created as a “Christian Nation” in which Christianity was intended to receive favored treatment by government policy. The most startling recent expression of this view was last month’s decision by the Texas School Board to remove Thomas Jefferson – the symbol of America’s tradition of religious freedom and tolerance - from the states’ history curriculum

• The opponents of Health Care Reform in the Tea Party Movement and among Republicans around the country have advanced the argument that Congress does not have the constitutional authority to enact health reform legislation and are now filing lawsuits based on this view. The basis for such suits - typically a denial of the power of Congress to legislate economic matters under the Commerce and Spending Clauses of the U.S. Constitution--is automatically and unavoidably a collateral attack on the constitutionality of a vast array of past legislation, including most New Deal/Great Society programs such as Social Security and Medicare.

• The Republican revolt against any cooperation with Democratic legislation and initiatives has carried an extraordinary number of conservatives into a general attitude of defiance towards the rule of law itself and flirtation with constitutional doctrines of state nullification and succession. These doctrines were developed as arguments for state sovereignty by the Confederacy in the civil war era and as 1950’s and 1960’s era segregationist strategies to thwart desegregation and civil rights for African-Americans.

Taken together, these three ideas actually amount to a covert three-pronged agenda to radically transform the American constitution:

1. To redefine America as a Christian Nation and treat Christianity as a state-favored religion

2. To create a legal doctrine that could justify the voiding of all social programs enacted since 1933.

3. To establish the right of individuals or states to ignore and disobey any laws that they happen to interpret as impinging on their freedom or natural rights.

Democrats can – and must -- respond firmly and categorically to this extremist philosophy. They must respond by saying that the Democratic Party proudly upholds the traditional American view of the constitution – the view of the founding fathers of this country – George Washington, Thomas Jefferson, Benjamin Franklin, Alexander Hamilton and John Adams.

1. That the constitution guarantees religious freedom and tolerance for all Americans of every faith and creed.

2. That the constitution guarantees the right of the freely elected representatives of the people in a democracy to pass laws for the common good. The people have the right to elect new representatives who promise to repeal laws with which they disagree, but not to simply ignore and violate laws of which they do not happen to approve

3. That the constitution protects individual liberty but is not a prescription for anarchy. It provides equal rights for all under a system of laws, but does not provide veto rights for anyone who happens to disagree with a particular law.

The battle between these two views is not a battle from which Democrats should shy away. Most Americans aren't likely to react well to the spectacle of conservatives demanding a virtual revolution against a popularly elected government, threatening to undermine the legal foundation of the social safety net many Americans depend on for their well-being and seeking to overturn constitutional doctrines that have been in place for many decades and even since the foundation of the Republic.

Republican strategists will desperately try to frame this debate as an argument between the “founding fathers” on the one hand and the “crazy liberal democrats” on the other. They will attempt to blur the distinction between the two fundamentally different visions of America embodied in the two interpretations of the constitution above.

Democrats should not let them get away with this deception. A substantial part of the Republican base deeply and sincerely believes in the three-pronged extremist agenda described above and will consider any attempt by the Republican leadership to shy away from those views as a betrayal tantamount to treason. If Democrats firmly and consistently demand that Republican leaders honestly say where they stand on these issues, the Republican coalition will become deeply fractured.

So if conservatives want to make a battle over Barack Obama’s next Supreme Court nominee, let them bring it on.

• Let them bring it on with all the rhetoric Tea Party folk and other radicalized conservatives have been using about Obama's "socialism" and the Nazi-like tyranny of universal health coverage.

• Let them bring it on with all the segregation-era legal strategies of succession and nullification.

• Let them bring it on with arguments that programs like social security and medicare are illegal and unconstitutional

• Let them bring it on with all the attempts to write Thomas Jefferson and the separation of church and state out of American history.

The truth is that Democrats don’t want an ugly ideological battle over the next Supreme Court nominee. They would much rather focus on important economic issues like financial reform.

But if the Republicans insist on a fight, let’s stand ready to give them a battle they’ll wish they never started.


3 Comments

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The framing of this article is correct. Yes the locus of the anti-democratic revolution

is the Supreme Court. And yes it is there that battle need be vigorously joined. I

also like the "bring it on" attitude to choice of ground to defend: generally the fundamentals of Constitutional government. But I think the article has chosen the wrong hills to defend, and indeed would divide its forces by defending too many - a sure tactical error. In fact there is only one hill where the battle is taking place

that will finally decide the war against democracy being waged by the right. Obama has even recognized this in saying he would be appointing "someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."


Anyone paying attention to the line of cases culminating in Citizens

United, would know that the revolutionaries have already taken over the high ground

and in a few more elections they will be so entrenched in all federal

institutions that there will be no democratic means to dislodge them.
Money, after all, drives policy and elections and the rest is smoke screen. Aside from

those irresolvable conflict-of-values issues (religion, abortion etc)

used by politicians to deflect attention from the more tractable issue

of their ongoing abuses of power in the US kelptocracy, dysfunctional policy on every issue that progressives care about (and issues of many conservatives, too,

e.g., bloated budgets, Wall Street bailouts, health insurance mandate)

can be traced to the influence of money in politics.


The Supreme Court is, and will continue to be into the indefinite

future, an entrenched obstacle to removing money from politics. The

Roberts 5 have abandoned the rule of law in favor of their anti-democratic ideology

disquised unde any notionally legal veneer they and their

law clerks can find to cover their politics. They are in the business now of

deciding elections for their ideological allies.


The solidest ground for defending against this existential threat to the

Republic is the bedrock doctrine of separation of powers, reflected in

the venerable political question doctrine. Chief Justice John Marshall

wrote in Marbury v. Madison (1803): “Questions, in their nature

political ... can never be made in this court,” 5 U. S. 170, and

provided the following definition of what "subjects are political. They

respect the nation, not individual rights." 5 U. S. 166. What could

affect the nation more than corrupted national elections?


To show just how extreme is the departure of the Roberts 5 from the

founder's conception of the separation of powers consider the following

unanimous view of an un-packed Republican-dominated pre-Roosevelt Court:
"The power of Congress to protect the election of President and Vice

President from corruption being clear, the choice of means to that end

presents a question primarily addressed to the judgment of Congress. If

it can be seen that the means adopted are really calculated to attain

the end, the degree of their necessity, the extent to which they conduce

to the end, the closeness of the relationship between the means adopted,

and the end to be attained, are matters for congressional determination

alone." Burroughs v. United States, 290 U.S. 534,547-48 (1934)

(Sutherland, J.). The country needs to return to these first

principles that were unquestioned by these most conservative justices ever to sit on the court, until recent years.


The Court's decision-making in the matter of elections does not only

violate the separation of powers and exceed the proper role of judges by

dealing with election matters. By seizing this illegitimate power in order to deny Congress "the power to protect the elections on which its existence depends, from ...

corruption" the Court has aligned itself with the latter of "the two

great natural and historical enemies of all republics, open violence and

insidious corruption." The KU KLUX Cases, 110 U.S. 651, 658 (1884). The

content of its decisions in this area beyond its constitutional

jurisdiction is undermining democratic government on partisan

ideological grounds foreign to the Constitution. By exceeding their authority for the purpose of undermining the Constitution

they are sworn to serve and the Republic it created, the Roberts 5 have ably served

corporate and often, in a global corporate economy, foreign interests. This is in

turn having predictably disastrous consequences for the policies and

finances of the country. In a Republic no higher political crime could be imagined. At this point in

its history the majority of the Supreme Court is "more supreme than

court" which is what Justice Stevens' s dissents have been warning in his genteel, judicious manner.


Restoration of democracy and nothing less than the survival of the

Republic requires a dramatic constitutional response to this existential

challenge. Impeachment for these actions would be appropriate.

Curtailing the jurisdiction of the Supreme Court would be more

economical of effort and ultimately more effective in making the

electoral changes that would be necessary before impeachment could even

succeed. The Roberts 5 are protected by the corrupted system they serve.

The successor to the moderate Republican Stevens will almost certainly be

more conservative than him on the matter of electoral corruption due to the entrenchment of corruption in

Washington.

The power must first be removed from these judges to do any more damage

before it will be possible to address other questions of political

importance. This would also serve to remedy part of the damage they have

already done by reviving for future use the many election laws they have

illegitimately invalidated on spurious Constitutional grounds. The most

direct and doctrinally sound way to curtail the damage done by the

Supreme Court is to enact into law the formerly judicial doctrine that the

Constitution consigns the regulation of elections to the elected

branches. This would require only an ordinary act of Congress under

Art.I, Sec. 4 of the Constitution depriving the Court of any

jurisdiction over the purely political question of the "appropriate

legislation to safeguard . . . an election from improper use of money to

influence the result." Burroughs v. United States, 290 U. S. at 545. In

other words the political question doctrine first established in Luther

v. Borden, 48 US 1, 47 (1849) and recently trashed by the Court in order to

enable its perncicious interference in elections needs to be

reestablished by legislation that will restore the Constitutional spearation of powers, and theregy isolate the revolutionary virus from spreading to the elected branches.


Forces need to be concentrated on this single issue immediately, or the

democracy within which any political discussion is relevant will become

a matter of American history.

This article and Larry's comment are exactly right. Quite frankly, given enough time to have its corrosive effect and enough fear and loathing to fuel it, the logic of right wing attempts to delegitimize government could lead a breakdown of any common ground for American politics and the eventual dissolution of the American polity. The right's new flirting with nullification and succession reveal this logic: in effect, if it's not going to be "their" America, then there won't be America at all. Give this a few decades and you might see the United States break apart. We just need to look to eastern Europe in 1989 to see how quickly states can shatter when the basis for their legitimacy dissolves. The Democrats need to call this out.

Bravo! An unanswerable indictment of the Republican Party, its increasingly erratic "satellite states", and its long battle against the rule of law.

I quibble with one detail, since it highlights one of the central ironies of today's Republicans. The doctrines of state nullification, interposition, secession, etc., have deep roots in the Kentucky and Virginia Resolutions crafted by Thomas Jefferson and James Madison in the 1790s. The right wing would have plenty of reason to claim intellectual kinship with Jefferson — if only they were intellectual.

What all this behavior points to, besides the appalling specter of today's Republicans eating their own, is the brain drain they're experiencing on their way to becoming an anti-intellectual rump. Pretty soon there won't be any smart people at all left amongst the Republicans.

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