how is it that any one person — especially one representing the views of a small minority of Americans — has the terrifying power to rewrite our freedoms and upend our lives?
Photograph of “Double America 2,” 2014, neon sculpture by Glenn Ligon at the Whitney Museum of American Art, New York, NY.
(This story was original published in slightly different form in the LA Progressive, October 13, 2o2o, during Justice Amy Coney Barrett’s hurried confirmation hearings.)
As Mitch McConnell labored in the fall of 2020 to jam another ultra-conservative judicial nominee through the Senate, the unasked question was, “Why do we all have to care so much about one person?” In a system that celebrates itself as a “nation of laws, not men,” how is it that any one woman (or man) — especially one representing the views of a small minority of Americans — has the terrifying power to rewrite our freedoms and upend our lives?
The answer no one in politics wants to discuss is that the American system of government under the Constitution has proven itself to be vague, insubstantial, easily manipulated by the powerful, virtually impossible to amend and subject to the self-serving interpretation of those in power. This means that appointing one more right-winger to the Supreme Court — or electing a self-obsessed lunatic to the presidency — can literally “destroy our democracy,” as so many have loudly worried. This tells us we have a fundamental weakness at the heart of our scheme of government.
We’ve always been led to believe that our Constitution clearly sets out the rights of all people to liberty and justice, enduringly guarantees those rights, and provides the sharp teeth necessary to protect us from the caprice, greed and personal prejudice of powerful individuals who would deny the people equal justice. But nothing, it turns out, could be farther from the truth.
Most of our essential rights — guarantees of economic, racial, gender and environmental justice — are nowhere in our fundamental law. As Glenn Ligon’s neon sculpture “Double America 2” (pictured above) suggests, the real America may be the mirror image of what we’ve been taught, an upside-down-and-backwards version of the country we want and need.
“Trust no man living with the power to endanger public liberty.”
John Adams, the country’s second president, is widely credited with making laws, not individuals, our supreme authority. He enshrined the idea in Massachusetts’ original constitution of 1780. Adams had a prudent disdain for virtually everyone. He wrote in his diary in 1772, “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” Yet, here we are.
Adams, like most of his fellow “founding fathers,” made it clear that “a free government” is not the same as a fair one. Adams adamantly insisted that only a wealthy minority of Americans should make the laws. Working men without property must never share the power of self-government, he wrote in 1776, because they are all mere vassals of their propertied employers — “to all intents and purposes as much dependent upon others, who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.”
In practice, this meant the new United States of America was ruled by the commonly held notions of a small, homogeneous group of men who essentially shared the same interests and thoughts. Such a country could and would be governed by a sort of gentlemen’s agreement. There was no need or desire to define and protect the rights of everyone.
Nearly two-and-a-half centuries later, we are still stuck with America’s original contradiction: We are supposedly a free democracy, a government of the people and a nation of laws, but the laws are set by a minority of the people — still, largely, white men with property and money.
The political right, including Justice Barrett, has written copiously and admiringly about the wisdom of constitutional barriers that keep the majority from running roughshod over a minority’s rights. But their writings betray no conception of the many ways in which the Constitution empowers a wealthy minority to abuse the rights of the majority. (Needless to say, the “minority” that conservatives see as victims of a democracy are themselves — mostly rich white people. They lack all concern for the rights of real minorities, like the poor, people of color, queer people, immigrants, people who follow religions other than Christianity, and so on.)
The Constitution “is an invitation to abuse by whoever happens to be in power.”
Our Constitution is categorized as a “framework constitution,” more like an outline for a governing document than the real thing. Jamal Greene, professor of constitutional law at Columbia Law School, writes, “...the U.S. Constitution does little more than to describe, broadly, a political architecture.”
While it may have served well enough for a country with a homogeneous political culture, it is failing our diverse country, Greene argues.
Greene presented his arguments in late 2018 in a law journal article titled “Trump as Constitutional Failure.” The question Greene asks is not whether Trump’s presidency has been a disaster for America’s vast majority — it clearly is, he finds — but “whether Trump’s election also represented a failure of the U.S. Constitution.” He asks, “Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016?” He concludes that we will face more “populist demagogues” if nothing is done.
For starters, while the U.S. Constitution commands almost cult-like devotion from our political establishment, it is one of the shortest, least detailed and most difficult to amend of any national constitution on Earth. Greene writes, “These attributes contribute to its mystique, but also render the constitutional text a radical underspecification of the American constitutional system.” (Emphasis added by me.)
The Constitution's sparse and often ambiguous text does not and cannot govern us, Greene writes. Rather, our entire system of government has been controlled by “a set of norms and conventions” assumed by an outdated, homogeneous, 18th-century political culture. Relying on such “soft, unwritten norms is an invitation to abuse by whoever happens to be in power...,” he observes.
In other words, we are a nation of men, not laws.
Our Constitution’s open invitation to perpetual abuse of power by the powerful is the disease that makes it virtually impossible for democracy to function here. The greatest barrier to curing our virulently anti-democratic system has been the mythology of perfection surrounding it. Each generation has been schooled to treat the Constitution as a sacred, unchangeable text.
In addition, we’ve been continually overwhelmed by the symptoms of our system’s disabling disease. These symptoms go far back in our history and currently include Donald Trump, Bill Barr, and the Republicans’ control of the Senate despite representing a minority of Americans. Most recently, Amy Coney Barrett has joined the painful list.
Our basic law is totally silent on most essential rights, so the powerful can make it mean whatever they like. Mostly, no matter which party is in power, the prevailing meanings assigned to the Constitution have exacerbated corporate control of the government, resulting in growing economic inequality and spiraling desperation for the majority of Americans. (One relatively recent example of how this works was Citizens United v FEC, the 2010 case in which the Supreme Court’s conservative majority reached the conclusion that corporations are “persons” under the First Amendment and “speech” is the same as money. This removed any and all barriers to corporate cash controlling our political system.)
The gaps in our federal system begin with the failure to guarantee the most basic and essential right of a democracy — the right to vote. There is no right to vote in the U.S. Constitution, a failure compounded by a disregard for any provision to make each person’s vote count equally. So, gerrymandering and rampant voter suppression — mostly aimed at disenfranchising Black people, other people of color, poor people and Democrats — are completely legal.
“The rights the Constitution provides are sparse and are generally stated in abstract terms,” Greene confirms. Even the powers of our three branches of government — “the legislative, executive, and judicial—are nowhere defined in the Constitution.” There is not even anything there that explicitly empowers federal judges like Barrett to do what they do in dictating the law of the land, he points out. The Supreme Court gave itself that power in a famous 1803 decision. The Congress, in theory, can change all that by passing a bill and getting a president to sign it.
Time to “remake America into what we want it to be.”
All this is barely a start at enumerating the holes, oversights and intentional inequities in our fundamental law. Anyone looking for specific rights to guarantee access to the mythical America, land of equal opportunity, is forced to look to their dreams, not our laws. Americans enjoy no right to education, no right to health, no right to fair pay, no right to breathe clean air or drink clean water, and, as noted, no clear right to vote without interference.
James Baldwin famously declared, ““Not everything that is faced can be changed, but nothing can be changed until it is faced.” In the same 1962 essay in the New York Times Book Review, he said, less famously, “We are the generation that must throw everything into the endeavor to remake America into what we want it to be.”
No matter who wins the coming election, nothing will change unless and until we face the fact that the people of America need a new governing compact and only the people can force the writing of that compact. No politician will ever do it without being compelled by popular demand.
Until then, we are all subject to the whims and machinations of the powerful few. As we have seen throughout history, that’s a terrible place to be.
