Good essay from Prof. David Kaiser:

Political speech was free, or almost free, when the first amendment was passed, in two different ways: not only did the law now protect it, but the production and distribution of written materials (the only ones then available) was extremely cheap. In the early nineteenth century, yours truly might have started and turned out a weekly broadsheet almost as easily as I now turn out this blog. The point is not whether material like Hillary can be produced–of course it can, although it testifies to the decline of American political discourse in the last half century–the point is who will have the money to advertise it and broadcast it on cable television. Just as Anatole France remarked that the law impartially forbade both the rich and the poor from sleeping under bridges, the law now impartially allows David Kaiser, the heads of Citibank and Goldman Sachs, and Glenn Beck to make their views available on television to audiences of millions. The problem is that only three of them will be able to do so. The reformers of the 1900-80 era did not need rocket science to figure out that increasingly expensive modern forms of communication would obviously give incredible advantages to the rich and powerful and thus had to be regulated to give ordinary citizens a chance to be heard. A 5-4 Supreme Court majority has now thrown out a century of tradition and returned us to a form of political Darwinism (see my earlier posts on social Darwinism several years ago, easily located by a search at the top of the page.)

The current crisis in American life, I have been saying here now for five years, will lead either to a kind of New Deal revival or to a return to the Gilded Age. Karl Rove understands this and cited William McKinley as his political hero. The court just brought us immensely closer to a return to McKinley’s age.

Those like me who never have and never will abandon the New Deal principles they learned in their youth inevitably mourn the likely eclipse, for the rest of our lifetimes, of those principles. But once again my training as a European historian at least enables me to say that things could be much, much worse. Although the Republicans have frequently bent the law (most notably in 2000 and again this week), they have successfully undid the work of our parents and grandparents mainly through legal means. There is no Fascist movement or dictatorship on the horizon (although one could still emerge.) It was the America of the Gilded age to which my paternal grandfather came around 1900, making my own life possible. The liberal tradition will survive, even if will only be revived years after the Boom generation has passed from the scene. (I do not exclude the possibility that my own side might still prevail even in this crisis, but it does not look at all likely.) If the Founding Fathers managed to design a system that can preserve essential liberties and survive even severe swings to the right and left, they will still deserve our thanks.

Emphasis mine. Read the whole thing here.

The central theme of the recent book Packing the Court by Prof. James MacGregor Burns is the undemocratic and unconstitutional rise of Supreme Court power. He writes (emphasis mine):

In retrospect, the court has far more often been a tool for reaction, not progress. Whether in the Gilded Age of the late nineteenth century or the Gilded Age at the turn of the twenty-first, the justices have most fiercely protected the rights and liberties of the minority of the powerful and the propertied. Americans cannot look to the judicial branch for leadership.

Confronted with what he calls “unelected and unaccountable politicians in robes”, Burns proposes that the only way to break judicial power is for the democratic branches of government to challenge it, either through a constitutional amendment, or a somewhat more daring strategy:

Confronted by a hostile court repeatedly striking down vital progressive legislation, a president could declare that there is no place in a modern democracy for unelected judges to veto twenty-first-century laws. The president would announce flatly that he or she would not accept the Supreme Court’s verdicts because the power of judicial emasculation of legislation was not – and never had been – in the Constitution. The president would invite the partisans of judicial supremacy to try to write that authority into the Constitution by proposing a constitutional amendment. Through their representatives in Congress and the state legislatures, the American people would be given the choice denied them in 1803: to establish in the Constitution the power of judicial supremacy, or to reject that power. Only by this route could judicial rule be legitimated, “constitutionalized.” In the meantime, until the matter was settled, the president would faithfully execute the laws the Supreme Court had unconstitutionally vetoed.

It would be a risky strategy, an open defiance of constitutional customs and the myths and mysteries that have long enshrouded the court. Traditionalists would be outraged. Professors of law would express their concern in learned treatises. Powerful interests with a stake in the status quo – business groups, conservative lawyers, and their supporters in the political class – would spearhead a campaign of opposition. There might even be demands for impeachment. In the ensuing turbulence, though, the president would have an enormous strategic advantage. He would need only to sit tight. The burden would be on his adversaries to initiate the new and momentous amendment to the Constitution and to obtain a mandate for judicial rule. For once it would be the foes of reform, not the reformers, who would have to go through the constitutional hoops of amendment, with all the traps and delays.

Above all, it would be a test of leadership, of the president’s ability to mobilize followers behind a transformational goal, as FDR had so markedly failed to do in 1937. He would present the idea for what it was – a revolutionary challenge to judicial business-as-usual, to minority rule by a handful of judges, a fight for the Constitution as the people’s charter, not a lawyer’s contract.[…]

If judicial rule was not ratified by the people in the amending process, the Supreme Court’s exclusive grip on constitutional interpretation would be broken. Shorn of its supremacy, the court would still retain crucial tasks. It would still be called upon to interpret ambiguous statutes, adjust conflicting laws, clarify jurisdictions, and police the boundaries of federal-state power – virtually all of its present responsibilities except that of declaring federal laws unconstitutional. It would simply be brought closer to the role the Framers originally envisioned for it.

Quotation above taken from the Epilogue, “Ending Judicial Supremacy”, to Prof. Burns’ book.

Burns seems to expect that a constitutional crisis of this magnitude will occur at some point in the future, perhaps in the near future. With Citizens United, the opportunity for the democratic branches of govt. to reform judicial power may have occurred before even he would have expected it. What are the chances that the Democratic leadership in Congress and the White House will challenge the court?

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