The Inherent Illegitimacy of the United States Government

Burn it all down

It was 2006, and I was a sophomore political science student first learning about Marbury v. Madison, the 1803 landmark Supreme Court case that established the principle of judicial review. I lightly questioned the democratic wisdom behind this ruling to my professor and you would have thought I was doubting the very concept of gravity. This notion that a handful of unelected justices should be the final unquestioned arbiters of law in this country is so entrenched that it seems like no one realizes that this was not something enshrined in the constitution.

Not only is this “right” of the Supreme Court not in our founding documents, but they didn’t even use it for half a century after awarding it to themselves, because at the revolutionary time it was seen as far beyond the pale for an unelected body to overrule an elected body. Dred Scott v. Sanford in 1857 was the first time SCOTUS invoked judicial review, as the unelected politicians on the Court ruled that a former slave was not entitled to the freedom that Illinois and the Wisconsin territory provided him, and in fact he was not a citizen of the United States. This is a very helpful demonstration of when the Court has historically intervened to overrule legislation passed through democratic order. The goal of SCOTUS has always been to reduce the rights of anyone who is not a white property-owning man, while expanding the rights of those who are.

The Court is not a democratic institution and it never even has been vaguely interested in the advancement of democracy outside of the Warren court. Paul Campos at Lawers, Guns and Money summarized SCOTUS’s lack of legitimacy perfectly today:

The Supreme Court has always been a radically anti-democratic essentially reactionary institution, and the fact that it very occasionally squeezes out good political results, invariably by constructing various fantasy narratives about an imaginary history of the United States, is not a defense of the institution, which is not defensible on even the most tenuous democratic principles.

The Very Serious people who run the Beltway discourse wax poetic about our supposed democracy, and prefer to tell themselves childish fantasies perpetuating the myth that is our civic religion instead of assessing this government as it presents itself. The Senate exists solely to stall democratic progress. The founders said so. Article II of the constitution gives the president practically unlimited powers so long as they couch their actions in the boundless and endlessly opaque langauge of national security. One of the first things the founders wrote in the constitution is a foundational anti-democratic precept that still informs our politics today. Per Article I, Section 2, Clause 3 of the constitution (emphasis mine):

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This is not a democracy as we like to define it and it did not aspire to be one when it was created. The constitution is a compromise between Southern slave owners and the Northern capital who financed them. There was no mechanism to force the two sides to come to an agreement at the time, and so the constitution is simply just a document which reflects the agreements between 18th century slave owners and those who profited from genocide. You see this same dynamic span across all our laws, exemplified by the fact that slavery is not banned in this country despite all public belief to the contrary. The 13th amendment is very explicit about carving out a truck-sized loophole to keep slavery legal (emphasis mine):

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

That bolded section is the basis for Jim Crow, the War on Drugs, and all of the other anti-democratic measures enacted since the post-Civil War Reconstruction era aimed to give nonwhite Americans the rights supposedly promised to them under the constitution. In 2018, the Global Slavery Index estimated that there were about 403,000 people living in conditions of modern slavery in the United States.

The Civil War never ended and it began well before 1861. We have never been able to come to an agreement on what this government is supposed to be about because one faction has held the same beliefs since its inception: white property-owning men should be able to control the entire government. Meanwhile, the other leading faction is so dedicated to the political process that they value adhering to it over creating positive political outcomes. Last night’s leak that Roe will be struck down is just another example of this desired endgame for America’s reactionary forces who understand the true anti-democratic nature of this government better than anyone else.

The norms respecters on the left and in the center help to perpetuate this cycle of anti-democratic activity by blindly supporting anti-democratic institutions. This New York Times headline focusing on the leak over the fact that this will dramatically increase the mortality rate for women across the country is a perfect example of how the Very Serious crew allies themselves with the anti-democratic crew by completely losing sight of the goal of politics. There’s no other way to say it: the Very Serious folks prioritize doing politics The Right Way™ over improving people’s lives.

Peter Gleick 🇺🇸 @PeterGleick

Apparently the New York Times thinks the top story is about the leak, not the stripping away of fundamental rights.

We have two extremely stark choices facing us: either we reform our federal government to such a degree that it actually does become democratic, or we can protect its illegitimate institutions that the right is weaponizing against everyone who is not a white property-owning male. There is no middle ground anymore and the belief that one existed this past century in the face of mounting attacks against the progress established by the Civil Rights and New Deal eras has greatly assisted the right-wing’s project to dismantle all modern democratic reforms. Justice Alito’s opinion was extremely clear that Roe is simply one of many Civil Rights era gains that the Court aims to roll back, as he helpfully highlighted what the right-wing means when they say they want an “originalist” reading of the constitution. Per Alito (emphasis mine):

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered history.”

emily bell @emilybell

Alito’s draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale who, it should be noted, had at least two women executed for witchcraft and wrote a treatise supporting marital rape

This is the whole game, folks. It always has been. This nation was founded upon the concept that black people were three-fifths of a person (at best) and the only people deserving of true democratic rights were white men who owned property. This reactionary strain has permeated American government as long as there has been an American government, and upholding some abstract notion of norms and process upholds this explicitly authoritarian project as well. The only way to undercut this reactionary strain is to accept that the United States government is an active participant in it, and the only way to achieve democratic reforms is to reform the foundations of the government—like abolishing the Senate and revoking the Supreme Court’s ability to unilaterally decide what is and is not law in this country.

If you still need convincing that this government is inherently democratically illegitimate and central to the project of rolling back democratic progress, I’ll leave you with a passage from Mein Kampf that conveniently is never highlighted in this country because the notion that Hitler could like America is belied by our “back to back World War champs” chest-pounding self-serving bullshittery (not to mention how this attitude is a slap in the face to our allies in London who endured a year of sustained bombing while we decided whether we wanted to help them out, to say nothing of the tens of millions of Soviet soldiers and citizens who died fighting Hitler).

The Führer admired this strain of reactionary Americana and he wanted to use it as a model for Nazi Germany. Per Hitler in Mein Kampf:

There is today one state in which at least weak beginnings toward a better conception [of immigration] are noticeable. Of course, it is not our model German Republic, but [the US], in which an effort is made to consult reason at least partially. By refusing immigrants on principle to elements in poor health, by simply excluding certain races from naturalisation, it professes in slow beginnings a view that is peculiar to the People's State.