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Can We Get it Back?

Among my favorite quotes is what Ben Franklin said, upon being asked as he left the constitutional convention, what kind of government they'd come up with: "A republic, if you can keep it."

Well, we kept it for over 230 years, until July 1, 2024, when John Roberts, Samuel Alito, Neil Gorsuch, Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett - people I will not dignify with the title
"Justice" - enacted the MAGA fever dream of installing an authoritarian president. Ironically, the first monarch to benefit from this new status is Joe Biden, not Donald Trump, although the conclusion is inescapable that the primary intended beneficiary is the latter.

I've written about the decision in the aptly named case of Trump v. United States here. It is perhaps the greatest but not the first of the Supreme Court's enormous power grabs. That honor belongs to the case in which John Marshall established the Court as final arbiter of all constitutional interpretation. Few people know that the Constitution does not assign this function to the Supreme
Court, neither explicitly nor by clear implication. (Indeed, by granting Congress authority in Article III section 1 over the federal courts' composition and jurisdiction, the Constitution cuts in the other direction.) Notwithstanding, in 1804, in Marbury v. Madison, Marshall announced,"Somebody has to have the final say on what the Constitution means, and guess what? It's us." Or words to that effect. A contrary holding was possible: but, because Marshall, one of the greatest jurists this country has
produced, argued persuasively in favor of the result, and because the political environment of the times made it expedient to do so, the dominant reaction from the executive and legislative branches of government, and from society at large, was, "What? Um... yeah, okay."

A similar reaction appears to have greeted the present-day Court's apotheosis of the presidency. Day after day, the headline story in the major news media is not "SCOTUS Declares Prez Authoritarian Fuhrer," as it should be, but instead concerns gossip over whether the man currently running the executive branch efficiently and competently should decline to run for reelection because he appeared old and tired in a recent televised appearance. (Never mind that his opponent spoke incoherently, lied constantly, and displayed fundamental ignorance, racism, and cruelty.)

That being the situation, I am not optimistic about the short term prospects for remedying this situation by peaceful, legal means. It would take at least one amendment to the Constitution to do so. That amendment would clarify what never should have needed clarifying: nobody, and especially not the president, is above the law. A second amendment would restore the imbalance created by over two hundred years of uncritically accepting Marshall's self-coronation in Marbury v. Madison as the last word on the Court's power. It would specify that when the Court decides a case on the basis of a Constitutional interpretation, establishing the meaning of that foundational document which was signed in the name of "we the people," the representatives of "we the people" get to weigh in, so that the Court's decision is ineffective until ratified by Congress. I believe that Congress technically has the power to impose such a requirement by statute, but that could too easily devolve into a constitutional standoff in which Congress says "Yes we can" and the Court says "No you
can't." So amendment, though harder, is the better means; but I'll take the statute, if that's what we can get.

The problem is the throttlehold that MAGA acolytes presently possess over the means to enact statutes and constitutional amendments. One way to do the latter is for Congress to propose an amendment for ratification by the States. So long as the Rethuglicans control the House of Representatives, bend the knee to pretender-to-the-throne King Donald in the Senate, and control a
sufficient number of state legislatures, neither that nor a statute placing proper limits on the Court is going to happen. The other way to amend the Constitution is too scary to think about: a constitutional convention called for that purpose. Once convened, it could do almost anything. We're short on Ben Franklins, long on Lord Haw-Haws. Imagine the kind of things Tom Cotton or Josh Hawley (Josh HawHawley?) would propose.

I hasten to add that none of what I am saying should betaken as discouragement to vote this November. Rather the opposite. Vote like your life depended on it, and the lives of your children, and their children too. Biden probably won't make use of the immunity the Court has granted him from criminal prosecution which, coupled with the constitutional power to pardon, allows him to do or to engage or force others to do on his behalf absolutely anything with a high degree of impunity. The same most emphatically could not be said of Trump, who every day swears vengeance against the multitudes who he says have wronged him. It is the one kind of promise he generally has kept. Also, and perhaps even more importantly, wresting Congress out of the hands of Rethuglicans is utterly essential if a peaceful way out of this predicament is to be found.

One of the few lessons that history teaches fairly unequivocally is that power, once seized or granted, tends to be aggrandized by its holders. The more it is aggrandized, the more they cling to it, and the less scrupulous they become about the means of doing so. George Washington, declining the trappings of kingship, was the exception that proves the rule and is now a standing rebuke to those treasonous oath-breakers who on July 1 gave away everything he fought for. Right at this moment, we are fairly safe because Biden, despite his egregious errors of judgment about things like Netanyahu's war, is fundamentally a decent and honorable person who believes in democracy. But even so, he can be corrupted. His opponent, who doesn't believe in democracy, is already well down that path. And what of their followers and successors? So, the window of opportunity for peaceful correction is barely open, it is open for only a little while, and it closes rapidly.

Another lesson to be gleaned from history is that no form of government is permanently stable. Since America and France popularized the idea of "government by consent of the governed" in the late eighteenth century, authoritarian systems have become less stable than ever before. So even if a legal, peaceful solution to the SCOTUS majority's treachery is impossible, we can be reasonably confident that its poison will not rain down on us forever. The toothpaste of democracy is out of the tube, one might say. Sooner or later, the will to justice and freedom will reassert itself.

The tragedy is that such events nearly always involve bloodshed, often vast amounts of it. January 6 was a drop in what I fear will become a bucket. And that is added to the blood squandered, the lives diminished and lost, the aspirations and creativity squashed in the meantime. Thank you, Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett. May you all rot in hell and your works perish before you. I hope I live to see it.