I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, June 05, 2006

"Saving" democracy from an independent judiciary

By Hume's Ghost

In my previous post on gay marriage and flag burning a commenter expressed dismay that the subject matter deviated from Glenn's normal postings about the means by which the Bush administration usurps for itself unchecked powers and threatens our constitutional freedoms. Although I didn't develop the theme, I would argue that such is a part of how democracy is being undermined in this nation.

The flag burning amendment is a means by which a vital component of democracy - the right to express dissent - is criminalized, with the suppression of free speech being characterized as patriotism. This is dangerous to liberty because it conflates undemocratic activity with being a patriot. When you hear someone like Michael Reagan suggesting that Howard Dean should be hanged or jailed for offering a dissenting opinion you're merely seeing this mind set taken to its extreme.

Also, in the other post I mentioned that the amendment elevates the flag to the level of a sacred symbol, where burning it is akin to the religious crime of blasphemy. This is not surprising, as nationalism in its more jingoistic forms begins to resemble in many respects a form of political religion. For example, look at what Reagan is denouncing Dean for doing, for thinking that we can't win in Iraq, he's mad at Dean for expressing a heretical view, for which he accuses Dean of treason. This is familiar; whenever religion is conflated with state the crimes of heresy and treason become indistinguishable.

The anti-gay marriage amendment I concede it is a bit more difficult to see how this relates to the subversion of democracy. But scratch the surface and you will find the same general disregard and/or antipathy for this nation's democratic institutions that is characteristic of the current administration. Consider the purpose of proposing the amendment - to invite the Republican party's Religious Right constituents to the polls in November - and the link starts to emerge.

The Religious Right is a political movement that is inherently anti-democratic. The Dominionists and Reconstructionists which lead the movement understand that the democratic institutions which safeguard our civil liberties - the seperation of church/state and the seperation of powers between branches of government - stand in the way of their plan (given voice by D. James Kennedy) to:

"... exercise godly dominion and influence over our neighborhoods, our schools, our government, our literature and arts, our sports arenas, our entertainment media, our news media, our scientific endeavors -- in short, over every aspect and institution of human society."
Listen to the language being used to defend the passage of the anti-gay marriage amendment, and you will notice it's about protecting American values from "activist courts" run by "unelected" judges. The use of these terms is like blowing a dog whistle which the Religious Right can hear the message of, but most Americans can not. They understand that an independent judiciary, which was described by Alexander Hamilton in Federalist #78 "as the citadel of the public justice and the public security", is the last line of defense preventing them from achieving their theocratic goals. It just so happens that getting rid of an independent judiciary which can serve as a check on the legislative or executive branch by providing oversight also fits the purposes of neoconservatives and cultist/political religion conservatives.

To understand this point, take a look at this article by political scientist Shadia Drury who contends that attacking the judiciary is part of a neoconservative plan to use populism to vote out liberal democracy (bold emphasis mine).

In my view, the neoconservative enthusiasm for radical democracy has two sources. First, it is rooted in the hope and the gamble that the people are likely to be more conservative than their "parchment regime"—the Declaration of Independence, the Constitution, and the Bill of Rights. And if the last two presidential elections are any indication, this may well be true. Second, neoconservatives are hostile to America’s liberal traditions. They are smart enough to recognize that there is a gulf between democracy and liberty, and that the former can be used to defeat the latter. They are clever enough to grasp the self-refuting nature of democracy.

Conservatives understand that people are vulnerable to manipulation and can easily be made to turn against their own liberties. If the people can be convinced that liberty leads to licentiousness, children out of wedlock, drug addiction, prostitution, and rampant crime, and if they can be convinced that liberty also undermines national security, they will gladly rid themselves of liberty. In short, the neoconservative enthusiasm for democracy has its source in the very real possibility that democracy can be the most powerful instrument in the destruction of the liberal regime.
If you've been following this blog for a while now, this all should sound a bit familiar. This is why the amendments matter. They are both part of the means by which Americans are invited to vote against their own freedoms.


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