“…let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.” – President George Washington’s Farewell Address, 1796
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men” – Article XXX of The Massachusetts Constitution, attributed to John Adams
Thomas Jefferson was a hypocrite when he said the constitution was like wax in the hands of the federal judiciary. As president he disregarded that sacred document when he agreed to the acquisition of 828,000 square miles of land from the French, a responsibility belonging to Congress. However he was right about the immense power of the Supreme Court. Coincidentally the same year he unconstitutionally purchased the Louisiana territory, the nation finally came to understand the true power of the judicial branch. “It is emphatically the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in the courts decision of Marbury v. Madison. Over the course of our history the Supreme Court has used its power to decide who is a voter, who is a citizen and even who is a person. In 1857 the court ruled that Dred Scott, a slave, didn’t even have the right to argue for his own freedom because he was by law, property. In 1868, the court made freedmen, emancipated through the bloodiest war in American history, citizens of a country that had once enslaved them. In 1896 it made those same people “separate but equal,” in 1955 it said never mind, and in 2000, the Supreme Court ruled that the voter did not have a constitutional right to vote for president in Bush v. Gore. “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” Nice right? It is true Article II of the Constitution does not give citizens the right to vote for president, which is probably why most people don’t bother to vote anyway (you have Alexander Hamilton to thank for that one). One votes for an elector who votes for president alongside the other electors in the Electoral College, a right the Supreme Court has now said Americans never had. Just another extra check on the tyranny of people lest a demagogue should arise…
However Article II does give us a better understanding of why Republicans play the long game when it comes to politics, and why again they violated the constitution to get their own man on the Supreme Court. In recent decades judges have been chosen not to say what the law is but what their party wants it to be. The Republicans understand that if they play to the system and get their court majority the constitution will be their wax to mold. Although both Republican presidents of the last twenty years did not win the popular vote in their first presidential elections, they were able to appoint two justices to the Supreme Court respectively. In the election of 2000 George W. Bush would not have won if it were not for the notoriously partisan judges (including supposed “originalists” such as “Long Dong Silver” Clarence Thomas and the Antonin Scalia). Decided by and ultimately written by conservative judges, Bush v. Gore delivered the presidency to a conservative candidate, who then in turn appointed two more conservative Supreme Court judges. If Gore had won the case and there had been a recount the court would look very different than it does today. The courts decision in 2000 further ruptured our constitutional republic by casting doubt on the legitimacy of the election and taking power away from the voters by surrendering it further to a handful of ruling elites; Hamilton’s wet dream. This wasn’t a problem for many Republicans because for the moment their agenda would be fulfilled, their political judges appointed, their blood sated, all the while blissfully unaware (or uncaring) of the harmful generational and institutional impact their actions have.
Now it comes to the current occupant of the White House, as all things seem to do. He was another candidate put in office electorally (not to mention with foreign aid) under a cloud of illegitimacy, was able to appoint two more conservative Supreme Court judges, and who now, in his ineptitude, expects assistance from that court. Thanks to the eloquence of Bush v. Gore along with the now illegitimately packed Supreme Court, the president could plausibly argue that he does not need the voters to earn a second (or possibly even a third?) term. This all begs the question of whether or not he will use the court, in an attempt side step an election all together. This would surely be the end of the republic. Will he do it? Given his history of cowardice and megalomania, I do not believe it is above his character to argue such a case, which is bad enough. Irony has been the overtone of the last four years, so it is only fitting our founders’ obsession with avoiding tyranny of one form or another would now lead to it.
The president is not popular, in fact he was about three million votes from being popular when he won the election in 2016. However I hope the disengaged voters have learned elections have generational consequences. If Congress does not fulfill its constitutional duty, and impeachment and removal does not come, we must be ready to remedy our own miscalculation. The people must become the check on their own institutions (again, the irony). Let us remember the eloquent oratory of that former great mistake of 2000, “Fool me once…shame-shame on you…Fool me won’t get fooled again.” I also hope the democratic candidate is more eloquent.
https://www.landmarkcases.org/cases/marbury-v-madison - Marbury v. Madison
https://www.law.cornell.edu/supct/html/00-949.ZPC.html - Bush v. Gore