The word “liberal” originated in Latin, then made its way into French and from there into English. The Oxford English Dictionary gives this as its primary definition
“Willing to respect or accept behaviour or opinions different from one’s own; open to new ideas.”
However, it also has a political usage as in “the liberal senator from Massachusetts.” This meaning and usage must be relatively new: for one thing, we know that “liberal” was not given a political connotation by Dr. Samuel Johnson in his celebrated dictionary of 1755:
Liberal, adj. [liberalis, Latin, libėral, French]
1. Not mean; not low in birth; not low in mind.
2. Becoming a gentleman.
3. Munificent; generous; bountiful; not parcimonious.
So when did the good word take on that political connotation? Mystère.
We owe the attribution of a political meaning to the word to the Scottish Enlightenment and two of its leading lights, the historian William Robertson and the political economist Adam Smith. Robertson and Smith were friends and correspondents as well as colleagues at the University of Edinburgh; they used “liberal” to refer to a society with safeguards for private property and an economy based on market capitalism and free-trade. Roberts is given priority today for using it this way in his 1769 book The History of the Reign of the Emperor Charles V. On the other hand, many in the US follow the lead of conservative icon Friedrich Hayek who credited Smith based on the fact that the term appears in The Wealth of Nations (1776); Hayek wrote The Road to Serfdom (1944), a seminal work arguing that economic freedom is a prerequisite for individual liberty.
Today, the related term “classical liberalism” is applied to the philosophy of John Locke (1632-1704) and he is often referred to as the “father of liberalism.” His defense of individual liberty, his opposition to absolute monarchy, his insistence on separation of church and state, and his analysis of the role of “the social contract” provided the U.S. founding fathers with philosophical tools crucial for the Declaration of Independence, the Articles of Confederation and ultimately the Constitution. It is this classical liberalism that also inspired Simon Bolivar, Bernardo O’Higgins and other liberators of Latin America.
In the early 19th century, the Whig and Tory parties were dominant in the English parliament. Something revolutionary happened when the Whigs engineered the passage of the Reform Act of 1832 which was an important step toward making the U.K. a democracy in the modern sense of the term. According to historians, this began the peaceful transfer of power from the landed aristocracy to the emergent bourgeois class of merchants and industrialists. It also coincided with the end of the Romantic Movement, the era of the magical poetry of Keats and Shelley, and led into the Victorian Period and the well intentioned poetry of Arnold and Tennyson.
Since no good deed goes unpunished (especially in politics), passage of the Reform Act of 1832 also led to the demise of the Whig Party: the admission of the propertied middle class into the electorate and into the House of Commons itself split the Whigs and the new Liberal Party emerged. The Liberal Party was a powerful force in English political life into the 20th century. Throughout, the party’s hallmark was its stance on individual liberties, free-markets and free-trade.
Accordingly, in the latter part of the 19th century in Europe and the US, the term “liberalism” came to mean commitment to individual freedoms (in the spirit of Locke) together with support of free-market capitalism mixed in with social Darwinism. Small government became a goal: “That government is best that governs least” to steal a line from Henry David Thoreau.
Resistance to laissez-faire capitalism developed and led to movements like socialism and labor unions. In the US social inequality also fueled populist movements such as that led by William Jennings Bryan, the champion of Free Silver and other causes. Bryant, a brilliant orator, was celebrated for his “Cross of Gold” speech, an attack of the gold standard, in which he intoned
“you shall not crucify mankind upon a cross of gold.”
He was a national figure for many years and ran for President on the Democratic ticket three times; he earned multiple nicknames such as The Fundamentalist Pope, the Boy Orator of the Platte, The Silver Knight of the West and the Great Commoner.
At the turn of the century, in the US public intellectuals like John Dewey began to criticize the basis of laissez-faire liberalism as too individualistic and too threatening to an egalitarian society. President Theodore Roosevelt joined the fray, led the “progressive” movement, initiated “trust-busting” and began regulatory constraints to rein big business in. The Sixteenth Amendment which authorized a progressive income tax made it through Congress and the state legislatures during this presidency.
At this time, the meaning of the word “liberal” took on its modern political meaning: “liberal” and “liberalism” came to refer to the non-socialist, non-communist political left – a position that both defends market capitalism and supports infrastructure investment and social programs that benefit large swaths of the population; in Europe the corresponding phenomenon is Social Democracy, though the Social Democrats tend to be more to the left and stronger supporters of the social safety net, not far from the people who call themselves “democratic socialists” in the US today.
On the other hand, the 19th century meaning of “liberalism” has been taken on by the term “neo-liberalism” which is used to designate aggressive free-market capitalism in the age of globalization.
In the first term of Woodrow Wilson’s presidency, Congress passed the Clayton Anti-Trust Act as well as legislation establishing the Federal Reserve System and the progressive income tax. Wilson is thus credited with being the founder of the modern Democratic Party’s liberalism – this despite his anti-immigrant stance, his anti-Catholic stance and his notoriously racist anti-African-American stance.
The great political achievement of the era was the 19th Amendment which established the right of women to vote. The movement had to overcome entrenched resistance, finally securing the support of Woodrow Wilson and getting the necessary votes in Congress in 1919. Perhaps, it is this that has earned Wilson his standing in the ranks of Democratic Party liberals.
Bryan, for his part a strong supporter of Wilson and his liberal agenda in the 1912 election, then served as Wilson’s first Secretary of State, resigning over the handling of the Lusitania sinking. His reputation has suffered over the years because of his humiliating battle with Clarence Darrow in the Scopes “Monkey” Trial of 1925 (Fredric March and Spencer Tracy resp. in “Inherit the Wind”); at the trial, religious fundamentalist Bryan argued against teaching human evolution in public schools. It is likely this has kept him off the list of heroes of liberal politics in the US, especially given that this motion picture, a Stanley Kramer “message film,” was an allegory about the McCarthy era witch-hunts. Speaking of allegories, a good case can be made that the Wizard of Oz is an allegory about the populist movement and the Cowardly Lion represents Bryan himself – note, for one thing, that in L. Frank Baum’s book Dorothy wears Silver Shoes and not Ruby Slippers!
The truly great American liberal was FDR whose mission it was to save capitalism from itself by enacting social programs called for by socialist and labor groups and by setting up regulations and guard rails for business and markets. The New Deal programs provided jobs and funded projects that seeded future economic growth; the regulations forced capitalism to deal with its problem of cyclical crises, panics and depressions. He called for a “bank holiday,” kept the country more or less on the gold standard by issuing an executive order to buy up nearly all the privately held the gold in the country (hard to believe today), began Social Security and unemployment insurance, instituted centralized controls for industry, launched major public works projects (from the Lincoln Tunnel to the Grand Coulee Dam), brought electricity to farms, archived the nation’s folk music and folklore, sponsored projects which brought live theater to millions (launching the careers of Arthur Miller, Orson Welles, Eliza Kazan and many others) and more. This was certainly not a time of government shutdowns.
In the post WWII period and into the 1960s, there were even “liberal Republicans” such as Jacob Javits and Nelson Rockefeller; today “liberal Republican” is an oxymoron. The most daring of the liberal Republicans was Earl Warren, the one-time Governor of California who in 1953 became Chief Justice of the Supreme Court. In that role, Warren created the modern activist court, stepping in to achieve justice for minorities, an imperative which the President and the Congress were too cowardly to take on. But his legacy of judicial activism has led to a politicized Supreme Court with liberals on the losing side in today’s run of 5-4 decisions.
Modern day liberalism in the U.S. is also exemplified by LBJ’s Great Society which instituted Medicare and Medicaid and which turned goals of the Civil Rights Movement into law with the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
JFK and LBJ were slow to rally to the cause of the Civil Rights Movement (Eleanor Roosevelt was the great liberal champion of civil rights) but in the end they did. Richard Nixon and the Republicans then exploited anti-African-American resentment in the once Democratic “solid South” and implemented their “Southern strategy” which, as LBJ feared, has turned those states solidly Republican ever since. The liberals’ political clout was also gravely wounded by the ebbing of the power of once mighty labor unions across the heartland of the country. Further, the conservative movement was energized by the involvement of ideologues with deep pockets like the Koch brothers and by the emergence of charismatic candidates like Ronald Reagan. The end result has been that only the West Coast and the Northeast can be counted on to elect liberal candidates consistently, places like San Francisco and Brooklyn
What is more, liberal politicians have lost their sense of mission and have failed America in many ways since that time as they have moved further and further to the right in the wake of electoral defeats, cozying up to Wall Street along the way. For example, it was Bill Clinton who signed the bill repealing the Glass-Steagall Act undoing one of the cornerstones of the New Deal; he signed the bill annulling the Aid to Families With Dependent Children Act which also went back to the New Deal; he signed the bill that has made the US the incarceration capital of the world, the Violent Crime Control and Law Enforcement Act.
Over the years, the venerable term “liberal” itself has been subjected to constant abuse from detractors. The list of mocking gibes includes tax-and-spend liberal, bleeding heart liberal, hopey-changey liberal, limousine liberal, Chardonnay sipping liberal, Massachusetts liberal, Hollywood liberal, … . There is even a book of such insults and a web site for coming up with new ones. And there was the humiliating defeat of the liberal standard bearer Hillary Clinton in 2016.
So battered is it today that “liberal” is giving way to “progressive,” the label of choice for so many of the men and women of the class of 2018 of the House of Representatives. Perhaps, one hundred years is the limit to the shelf life of a major American political label which would mean “liberal” has reached the end of the line – time to give it a rest and go back to Samuel Johnson’s definition?
Conservatism as a political philosophy traces its roots to the late 18th century: its intellectual leaders were the Anglo-Irish Member of Parliament Edmund Burke and the Scottish economist and philosopher Adam Smith.
In his speeches and writings, Burke extolled tradition, the “natural law” and “natural rights”; he championed social hierarchy, an established church, gradual social change and free markets; he excoriated the French Revolution in his influential pamphlet Reflections on the Revolution in France, a defense of monarchy and the institutions that protect good social order.
Burke is also well known in the U.S. for his support for the colonists in the period before the American Revolution notably in his Speech on Conciliation with the Colonies (1775) where he alerts Parliament to the “fierce spirit of liberty” that characterizes Americans.
Adam Smith, a giant figure of the Scottish Enlightenment, was the first great intellectual champion of laissez-faire capitalism and author of the classic The Wealth of Nations (1776).
Burke and Smith formed a mutual admiration society. According to a biographer of Burke, Smith thought that “on subjects of political economy, [Burke] was the only man who, without communication, thought on these subjects exactly as he did”; Burke, for his part, called Smith’s opus “perhaps the most important book ever written.” Their view of things became the standard one for conservatives throughout the 19th century and well into the 20th.
However, there is an internal inconsistency in traditional conservatism. The problem is that, in the end, laissez-faire capitalism upends the very social structures that traditional conservatism seeks to maintain. The catch-phrase of the day among pundits has become “creative destruction”; this formula, coined by the Austrian-American economist Joseph Schumpeter, captures the churning of capitalism which systematically creates new industries and new social institutions that replace the old – e.g. Sears by Amazon, an America of farmers by an America of city dwellers. Marx argued that capitalism’s failures would lead to its demise; Schumpeter argued that capitalism has more to fear from its triumphs: ineluctably the colossal success of capitalism hollows out the social institutions and mores which nurture capitalism such as church-going and the Protestant Ethic itself. Look at Western Europe today where capitalism is triumphant but where church attendance is reduced to three events: “hatch, match and dispatch,” to put it the playful way Anglicans do.
The Midas touch is still very much with us: U.S. capitalism tends to transform every activity it comes upon into a money-making version of itself. Thus something once innocent and playful like college athletics has been turned into a lucrative monopoly: the NCAA rules over a network of plantations staffed by indentured workers and signs billion dollar television contracts. Health care, too, has been transformed into a money-making machine with lamentable results: Americans pay twice as much for doctors’ care and prescription drugs as those in other advanced industrialized countries and the outcomes are grim in comparison: infant mortality and death in childbirth are off the charts in the U.S. and life expectancy is low compared to those other countries.
On the other hand, a modern capitalist economy can work well for its citizens. We have the examples of Scandanavia and of countries like Japan and Germany. Economists like Thomas Piketty write about the “thirty glorious” years after 1945 when post WWII capitalism built up a solid, prosperous middle class in Western Europe. Add to this what is known as the “French paradox” – the French drink more than Americans, smoke more, have sex more and still live some years longer. To make things worse, their cuisine is better, their work week is shorter and they take much longer vacations – one more example of how a nation can make capitalism work in the interest of its citizenry.
In American political life, in the 1930s, the label “conservative” was grabbed by forces opposed to FDR and the New Deal. Led by Senator Josiah W. Bailey of North Carolina, democrats with some Republican support published “The Conservative Manifesto,” a document which extolled the virtues of free enterprise, limited government and the balance of power among the branches of government.
In the post-war period the standard bearer of conservatism in the U.S. was Republican Senator Robert Taft of Ohio who was anti-New-Deal, anti-union, pro-business and who, as a “fiscal conservative,” stood for reduced government spending and low taxes; he also stood for a non-interventionist foreign policy. His conservatism harked back to Burke’s ideals of community: he supported Social Security, a minimum wage, public housing and federal aid to public education.
However, the philosophy of the current “conservative” political leadership in the U.S. supports all the destructive social Darwinism of laissez-faire capitalism, reflecting the 17th century English philosopher Thomas Hobbes and his dystopian vision much more than either Burke or Smith. Contemporary “conservatism” in the U.S. is hardly traditional conservatism. What happened? Mystère.
A more formal manifesto of Burkean conservatism, The Conservative Mind, was published in 1953 by Russell Kirk, then a professor at Michigan State. But conservative thought was soon co-opted and transformed by a wealthy young Texan whose family money came from oil prospecting – in Mexico and Venezuela! William F. Buckley, like Kirk a Roman Catholic, was founder and long time editor-in-chief of the seminal conservative weekly The National Review. Buckley is credited with (or accused of) transforming traditional Burkean conservatism into what goes by the name of “conservatism” in the U.S. today; he replaced the traditional emphasis on community with his libertarian view point “individualism” and replaced Taft’s non-interventionism with an aggressive Cold War political philosophy – the struggle against godless communism became the great moral cause of the “conservative movement.” For a portrait of the man, click HERE .
To his credit, Buckley kept his distance from fringe groups such as the John Birch Society; Buckley also eschewed Ayn Rand and her hyper-individualistic, atheistic philosophy of Objectivism; a man of letters himself, Buckley was likely appalled by her wooden prose – admittedly Russian and not English was her first language, but still she was no Vladimir Nabokov. On the other hand, Buckley had a long friendship with Norman Mailer, the literary icon from Brooklyn, the opposite of Buckley in almost every way.
Buckley as a cold war warrior was very different from libertarians Ron Paul and Rand Paul who both have an isolationist philosophy that opposes military intervention. On the other hand, all three have expressed similarly eccentric views on race presumably justified by their shared libertarian concept of the right of individuals to do whatever they choose to do even if it includes discrimination against others. For example, Rand Paul has stated that he would have voted against the Civil Rights Act of 1964 which outlawed the Jim Crow Laws of the segregationist states “because of the property rights element … .”
In the 1960s, 70s and 80s, Buckley’s influence spread. The future president Ronald Reagan was weaned off New Deal Liberalism through reading The National Review; in turn Buckley became a supporter of Reagan and they appeared together on Buckley’s TV program The Firing Line. The “conservative movement” was also propelled by ideologues with deep pockets and long term vision like the Koch brothers – for a interesting history of all this, see Nancy MacLean’s Democracy in Chains.
To the Buckley conservatives today, destruction of social institutions, “creative” or otherwise, is somehow not a problem and militarism is somehow virtuous.
As for destruction, among the social structures that have fallen victim recently to creative destruction is the American middle class itself, as income inequality has grown apace. This process began at the tail end of the 1960s and has been accelerating since Ronald Reagan’s presidency as Keynesian economics has given way to “supply side” economics; moreover, the guardrails for capitalism imposed by the New Deal have come undone: the Glass-Steagall Act has been repealed, the labor movement has been marginalized, and high taxes on the wealthy have become a thing of the past – contrast this with the fact that Colonel Tom Parker, the manager of Elvis Presley, considered it his patriotic duty to keep The King in the 90% tax bracket back in the day.
As for militarism, despite VE Day and VJ Day, since the 1950s, the U.S. has been engaged in an endless sequence of wars – big (Korea) and small (Grenada), long (Vietnam) and short (the First Gulf War), visible (Afghanistan) and invisible (Niger), loud (Iraq) and quiet (Somalia), … . All of which has created a situation much like the permanent state of war of Orwell’s 1984.
Moreover, since Buckley’s time, the American “conservatives” have even moved further right: reading Ayn Rand (firmly atheist and pro-choice though she was) in high-school or college has become a rite of passage, e.g. ex-Speaker Paul Ryan. An interventionist, even war-mongering, wing of the “conservative movement” has emerged, the “neo-conservatives” or “neo-cons.” Led by Dick Cheney, they were the champions of George W. Bush’s invasion of Iraq and they applaud all troop “surges” and new military interventions.
As David Brooks recently pointed out in his New York Times column (Nov. 16, 2018), the end of the Cold War deprived the “conservative movement” of its great moral cause, the struggle against godless communist collectivism. And what was a cause has morphed into expensive military adventurism. Indeed, the end of the Cold War failed to yield a “peace dividend” and the military budget today threatens the economic survival of the nation – the histories of France, Spain and many other countries bear witness to how this works itself out, alas! In days of yore, it would have been the fiscal restraint of people known as conservatives that kept government spending in check; today “conservative” members of Congress continue to sound like Robert Taft on the subject of government spending when attacking programs sponsored by their opponents, but they do not hesitate to drive the national debt higher by over-funding the military and pursuing tax cuts for corporations and the wealthy. Supply-side economics cleaves an ever widening income gap, the least conservative social policy imaginable. Then too these champions of the free market and opponents of government intervention rushed to bail out the big banks (but not the citizens whose homes were foreclosed on) during the Great Recession of 2008. All this leads one to think that this class of politicians is serving its donor class and not the working class, the middle class, the upper middle class or even much of the upper class.
Perhaps semantic rock bottom is reached when “conservative” members of Congress vote vociferously against any measure for environmental conservation. But this is predictable given the lobbying power of the fossil fuel industry, a power so impressive that even the current head of the Environmental Protection Agency is a veteran lobbyist for Big Coal. Actually for these conservatives, climate change denial is consistent with their core beliefs: fighting the effects of global warming effectively will require large-scale government intervention, significantly increased regulation of industry and agriculture as well as binding international agreements – all of which are anathema to conservatives in the U.S. today.
Still there where the word “conservative” is most misapplied is in matters judicial. One speaks today of “conservative majorities” on the Supreme Court but these majorities have proved themselves all too ready to rewrite laws and overturn precedent in 5-4 decisions in an aggressive phase of judicial activism.
So for those who fear that corruption of its language is dangerous for the U.S. population, this is the worst of times: “liberal” which once designated a proponent of Gilded Age laissez-faire capitalism is now claimed by the heirs of the New Deal and the Great Society; “conservative” which once designated a traditionalist is now the label for radical activists both political and judicial. “Liberal” is yielding to “progressive” now. However, the word “conservative” has a certain gravitas to it and “conservatism” has taken on the trappings of a religious movement complete with patron saints like Ronald Reagan and Margaret Thatcher; “conservative” is likely to endure, self-contradictory though it has become.
In 2005, with the retirement of Justice Rehnquist, John Roberts was named to the position of Chief Justice by Republican president George W. Bush. Another change in Court personnel occurred in 2008 when Sandra Day O’Connor retired and was replaced by Justice Samuel Alito. With Roberts and Alito, the Court had an even more solid “conservative” majority than before – the result being that more than ever in a 5-4 decision a justice’ vote would be determined by the party of the president who appointed him or her.
It was Ronald Reagan who named the first woman justice to the Supreme Court with the appointment of Sandra Day O’Connor in 1981. It was also Ronald Reagan who began the practice of Republican presidents’ naming ideological, conservative Roman Catholics to the Supreme Court with the appointment of Antonin Scalia in 1986. This practice on the part of Republican presidents has indeed been followed faithfully as we have to include Neil Gorsuch in this group of seven – though an Episcopalian today, Gorsuch was raised Catholic, went to parochial school and even attended the now notorious Georgetown Prep. Just think: with Thomas and Gorsuch already seated, the Brett Kavanaugh appointment brings the number of Jesuit trained justices on the Court up to three; this numerologically magic number of men trained by an organization famous for having its own adjective, plus the absence of true WASPs from the Supreme Court since 2010, plus the fact that all five of the current “conservative” justices have strong ties to the cabalistic Federalist Society could all make for an interesting conspiracy theory – or at least the elements of a Dan Brown novel.
It is said that Chief Justice Roberts is concerned about his legacy and does not want his Court to go down in history as ideological and “right wing.” However, this “conservative” majority has proven radical in their 5-4 decisions, decisions for which they then have full responsibility.
They have put gun manufacturers before people by replacing the standard interpretation of the 2nd Amendment that went back to Madison’s time with a dangerous one by cynically appealing to “originalism” and claiming the authority to speak for Madison and his contemporaries (District of Columbia v. Heller 2008)
Indeed, with Heller there was no compelling legal reason to play games with the meaning of the 2nd Amendment – if the over 200 years of interpretation of the wording of the amendment isn’t enough, if the term “militia” isn’t enough, if the term “bear arms” isn’t enough to link the amendment to matters military in the minds of the framers, one can consult James Madison’s original text:
“The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” [Italics added].
The italicized clause was written to reassure Quakers and other pacifist religious groups that the amendment was not forcing them to serve in the military, but it was ultimately excluded from the final version for reasons of separation of church and state. This clause certainly indicates that the entirety of the amendment, in Madison’s view, was for the purpose of maintaining militias: Quakers are not vegetarians and do use firearms for hunting. Note too that Madison implies in this text and in the shorter final text as well that “the right to bear arms” is a collective “right of the people” rather than an individual right to own firearms.
The radical ruling in Heller by the five “conservative” justices has stopped all attempts at gun control, enriched gun manufacturers, elevated the National Rifle Association to the status of a cult and made the Court complicit in the wanton killings of so many.
The “conservative” majority of justices has overturned campaign finance laws passed by Congress and signed by the President by summoning up an astonishing, ontologically challenged version of the legal fiction that corporations are “persons” and imbuing them with new First Amendment rights (Citizens United v. FEC 2008).
Corporations are treated as legal “persons” in some court matters, basically so that they can pay taxes and so that the officers of the corporation are not personally liable for a corporation’s debts. But, there was no compelling legal reason to play Frankenstein in Citizens United and create a new race of corporate “persons” by endowing corporations with a human-like right to free speech that allows them to spend their unlimited money on U.S. political campaigns; this decision is the first of the Roberts Court’s rulings to make this list of all-time worst Supreme Court decisions, a list (https://blogs.findlaw.com/supreme_court/2015/10/13-worst-supreme-court-decisions-of-all-time.html ) compiled for legal professionals. It has also made TIME magazine’s list of the two worst decisions in the last 60 years and likely many other such rankings. The immediate impact of this decision has been a further gap between representatives and the people they are supposed to represent; the political class was at least somewhat responsive to the voters, now they are only responsive to the donor class. This likely works well for the libertarians and conservatives who boast “this is a Republic, not a Democracy.”
These same five justices have continued their work by
- usurping Congress’ authority and undoing hard-fought for minority protections from the Voting Rights Act by adventuring into areas of history and politics that they clearly do not grasp and basing the decision on a disingenuous view of contemporary American race relations (Shelby County v. Holder 2013),
- doubling down on quashing the Voting Rights Act five years later in a decision that overturned a lower court ruling that Texas’ gerrymandered redistricting map undercut the voting power of black and Hispanic voters (Texas Redistricting Case 2018)
- breaching the separation of Church and State by ascribing “religious interests” to companies in a libertarian judgment that can justify discrimination in the name of person’s individual freedoms, the “person” in this case being a corporation no less (Burwell v. Hobby Lobby Stores 2014)
- gravely wounding the labor movement by overturning the Court’s own ruling in a 1977 case, Abood v. Detroit Board of Education, thus undoing years of established Labor Law practice (Janus v. AFSCME 2018) – a move counter to the common law principle of following precedent.
These six decisions are examples of “self-inflicted wounds” on the part of the Roberts Court and can be added to a list begun by Chief Justice Charles Evans Hughes, a list that begins with Dred Scott. The recent accessions of Neil Gorsuch and Brett Kavanaugh to seats on the Court may well make for even more decisions of this kind.
This judicial activism is indeed as far away from the dictionary meaning of “conservatism” as one can get. Calling these activist judges “conservative” makes American English a form of the “Newspeak” of Orwell’s 1984. The Court can seem to revel in its arrogance and its usurpation of power: Justice Scalia would dismiss questions about Bush v. Gore with “Get over it” – a rejoinder some liken to “Let them eat cake” – and he refused to recuse himself in cases involving Dick Cheney, his longtime friend (Bush v. Gore, Cheney v. U.S. District Court).
The simple fact is that the courts have become too politicized. The recent fracas between the President and the Chief Justice where the President claimed that justices’ opinions depended on who appointed them just makes this all the more apparent.
Pundits today talk endlessly on the topic of how “we are headed for a constitutional crisis,” in connection with potential proceedings to impeach the President. But we are indeed in a permanent constitutional crisis in any case. Thus, there is a clear majority in the country that wants to undo the results of Citizens United and of Heller in particular – both are decisions which shot down laws enacted by elected representatives. Congressional term limits are another example; in 1995 with U.S. Term Limits Inc. v. Thornton, the Court nullified 23 state laws instituting term limits for members of Congress, thereby declaring that the Constitution had to be amended for such laws to pass judicial review.
In the U.S. the Congress is helpless when confronted with this kind of dilemma; passing laws cannot help since the Court has already had the final say, a true Catch-22. This is an American constitutional problem, American Exceptionalism gone awry. In England and Holland, for example, the courts cannot apply judicial review to nullify a law; in France, the Conseil Constitutionel has very limited power to declare a law unconstitutional; this was deliberately engineered by Charles de Gaulle to avoid an American style situation because per DeGaulle “la [seule] cour suprême, c’est le peuple” (The only supreme court is the people).
So what can the citizen majority do? The only conceivable recourse is to amend the Constitution; but the Constitution itself makes that prospect dim since an amendment would require approval by a supermajority in both houses of Congress followed by ratification by two-thirds of the states; moreover, states with barely 4% of the population account for over one-third of the states, making it easy and relatively inexpensive for opposition to take hold – e.g. the Equal Rights Amendment. Also, those small, rural states’ interests can be very different from the interests of the large states – one reason reform of the Electoral College system is an impossibility with the Constitution as it is today. Only purely bureaucratic measures can survive the amendment ratification process. Technically, there is a second procedure in Article V of the Constitution where a proposal to call a Constitutional Convention can be initiated by two-thirds of the states but then approval of an amendment by three-fourths of the states is required; this procedure has never been used. Doggedly, the feisty group U.S. Term Limits (USTL), the losing side in that 1995 decision, is trying to do just that! For their website, click https://www.termlimits.com/ .
What has happened is that the Constitution has been gamed by the executive and judicial branches of government and the end result is that the legislative branch is mostly reduced to theatrics. Thus, for example, while the Congress is supposed to have the power to make war and the power to levy tariffs, these powers have been delegated to the office of the President. Even the power to make law has, for so many purposes, been passed to the courts where every law is put through a legal maze and the courts are free to nullify the law or change its meaning invoking the interpretation du jour of the Constitution and/or overturning legal precedents, all on an as needed basis.
This surge in power of the judiciary was declared to be impossible by Alexander Hamilton in his Federalist 78 where he argues approvingly that the judiciary will necessarily be the weakest branch of the government under the Constitution. But oddly no one is paying attention to the rock-star founding father this time. For example, this Federalist Paper of Hamilton’s is sacred scripture for the assertive Federalist Society but they seem silent on this issue – but that is not surprising given that they have become the gatekeepers for Republican presidents’ nominees for the Supreme Court.
Americans are simply blinded to problems with the Constitution by the endless hymns in its praise in the name of American Exceptionalism. Many in Europe also argue that the way the Constitution contributes to inaction is a principal reason that voter participation in the U.S. is far lower than that in Europe and elsewhere. Add to that, the American citizen’s well founded impression that it is the money of corporations, billionaires and super-PACs in cahoots with the lobbyists of the Military Industrial Complex, Big Agriculture, Big Pharma, Big Oil and Big Banks that runs the show and you have a surefire formula to induce voter indifference. Even the improved turnout in the 2018 midterm elections was unimpressive by international standards.
This is not a good situation; history has examples of what happens when political institutions are no longer capable of running a complex nation – the French Revolution, the fall of the Roman Republic, the rise of Fascism in post WWI Europe … .