Tag Archives: Constitution

Nullification 2021

America’s factions of privilege have a long history with “nullification” in various forms, so it isn’t exactly surprising to see Republicans playing with the concept again. It’s at least a little strange to watch them open a door to judicial decisions carrying no authority unless one agrees with them right after they spent several years packing the federal courts with partisan Republican operatives, but that’s where we are.

Republicans don’t seem to have worked out any cohesive strategy for dealing with the January 6 putsch. To some extent this is a concentration of their overall problem dealing with Trump, but January 6 seems to have actually flummoxed them. The initial direction from leadership was basically “disperse, lie low, hold your breath” and the party seems like it hasn’t ever quite filled that vacuum.

First the Senate went into recess through the end of Trump’s term, effectively a refusal to look at any impeachment articles while Trump was in office. Then Republicans introduced the objection that “we can’t act on impeachment now because Trump is out of office.” This classic chutzpah is entirely typical of them, and they might have pulled it off if they still had the votes to control Senate business completely, despite the fact that the objection is not only hypocritical but totally false. Never mind obscure precedents; the Constitution itself says “The Senate shall have the sole Power to try all Impeachments.”

Republicans’ willingness to ignore that and claim that an impeachment trial is “unconstitutional” should shock people. If language that clear is “open to interpretation” then the Constitution might as well be oracle bones with no meaning except what judges say it has. But in a sense this is exactly what Republicans want: to transfer authority to an unelected, rigged judicial priesthood.

That strategy depends on judicial decisions having unquestionable authority, though, and now Republicans are actively flirting with a nullification doctrine. If Republican senators end up trying to evade reckoning with January 6 by saying “based on the evidence I would vote to convict Trump if the Senate had that power, but it does not so I have to oppose conviction” they will be declaring judicial decisions optional along with the language of the Constitution.

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A republic worth keeping

The American right strives to subvert representative democracy, with a curated electorate that will protect the privileges of a white, patriarchal ownership class, regardless of popular will.

This has been a dedicated project for at least 50 years, and is poised to shift America further toward that end, perhaps very soon.

Contemplating that possibility today, it occurred to me that this is actually much like the reality of America’s republic at its very outset.

Morton Halperin ends a new Slate article with a familiar story about Ben Franklin, and a familiar message:

When the Constitution was being drafted behind closed doors, many feared that the Framers would create a monarchy. As Benjamin Franklin left the hall as the meeting was ending, they shouted at him: “What is it?” Franklin replied, “A republic, if you can keep it.” Our ability to do so is being tested now. We must seize the moment to reestablish the republic that we were given.

We were given a republic which functioned to subvert representative democracy, with a curated electorate to protect the privileges of a white, patriarchal ownership class. We have not kept that republic, exactly, but I think the contemporary Republican Party is reestablishing it to a significant extent, and that this is the real threat, for all of Trump’s attraction to kingship.

We should not reestablish that original republic. We should, instead, reckon honestly with what it was, and with the long and far from finished efforts which went into creating a system of government worth defending.

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Authoritarianism for dummies

So this week, the president of the United States formally declared a “national emergency” on an indisputably bullshit basis, with no real pretense that it is anything except an attempt to do an end-run around Congress’s very clear refusal to pay for a ridiculous campaign prop (which the president has continually insisted will be paid for by Mexico).

To the extent that constitutionality is an objective standard, this seems to be unconstitutional. The fact that the president did so anyway has at last brought a plain statement from one authority that “this is a constitutional crisis.”

This is certainly serious. Among other things, I feel like if ever national political drama demands notice even in this occasional personal chronicle, it’s this week. I have of course already called members of congress. (Have been doing so for some weeks, in fact, as this fake “emergency” has been toyed with openly since last year.)

This is also absurdly stupid.

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The US Supreme Court in the 21st Century

The phrase “Save SCOTUS” began appearing in my inbox and Twitter feed fairly regularly within a few days of Justice Kennedy’s retirement.

I realize that it’s just a hashtag, probably grasped at in the same embarrassing, unplanned haste that has characterized most liberal response to a circumstance for which concerned parties should have had plans ready long before now.

Yet I believe that the phrase does, if only by accident, frame the related events much more aptly than most of its promoters have even considered.

We are in fact confronting the end of the US Supreme Court as it has existed for as long as I can recall. For those who wish that kind of institution to persist, the very last opportunity to save it is indeed quickly expiring.

Spoiler alert: I’m pretty sure the Supreme Court of the late 20th century is beyond saving, no matter who replaces Kennedy. Although that institution’s fundamental conservatism has resisted the changes around it for nearly two decades, a different Supreme Court is emerging in the 21st century, like it or not.

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