Friday, February 03, 2017

Of popular sovereignty and collapsing constitutions


Four items briefly noted. Dramatic churn in what we may have thought immutable political arrangements in these days would be easy to miss amid the rush of everyday drama from the Trump regime. Here are some straws in the wind.
  • Last fall, citizens of South Dakota passed new ethics and campaign finance rules by a 52 percent initiative vote. Last week, their Republican dominated legislature and governor threw that measure in the trash can -- and even made it impossible for their voters to bring it back by another initiative.

    An emergency provision means the [repeal] bill would take effect immediately and couldn't be referred back it to the ballot. ...

    Rapid City resident Michelle Smith said before the [legislative] vote that it's wrong that the voters' voice is being overturned. She cast a ballot for the initiative and came to the Capitol to support it.

    "I've spent a lot of time saying, 'Somebody needs to do something,'" Smith said. "I'm somebody."

    So much for government by the people.
  • Meanwhile, in Britain, a vote of the British parliament kicked the legs out from under their several hundred year old "unwritten constitution" when they decided that a narrow national popular vote to leave the European Union must override their historic mandate and prerogative to govern through parliament. Writing at Open Democracy, Adam Ramsey and Anthony Barnett explain:

    ... a referendum which must be respected even if it upturns the views of MPs kills off parliamentary sovereignty. It is the people of Britain who are sovereign now.

    For a democrat, this is a good thing in many ways. It ought to be the people of this country who have the ultimate power to decide on the most important matters. But, here’s the problem. What we can now refer to as the old constitution had rules and procedures and, at least on good days, checks and balances. ...

    If we are to accept the new reality – that the people have spoken and must be heard; that it is us, the citizens of this country, who are the ultimate arbiters, then that means we too need rules and procedures. We need to figure out how we are to organise our new-found power. We need, in other words, a democratic constitution. Because without codification, the abstract idea of popular sovereignty is a path to tyranny. The people must be in charge, but that means we must organize ourselves to ensure minorities are respected, that there are proceedures for us to change our minds, and that the information put before us is honest. ...

    The need is the more urgent since the Scottish National Party won the vast majority of seats from its section of the country and stands against Brexit, for a far more equitable society, and popular sovereignty for the Scottish people exercised through the Scottish parliament. That is, so-called "Great Britain" is breaking up. We probably ought to notice.
  • And then there are manifold questions about the viability of the U.S. constitution. Legal scholars Jack Balkin and Sanford Levinson have been discussing this for a decade, long before our 18th century document yielded the present President, elected with a minority of the vote, who recognizes no constitutional restraints. Here are some abbreviated comments by Balkin:

    Demagogues do not usually sneak up unawares. Members of the public often know that demagogues are selfish, unethical, and unscrupulous, but they convince themselves that turning to such leaders is the only way to smash corrupt institutions and solve the country's problems. Once in power, however, demagogues become tyrants, bringing republican government to an end. This is the traditional story of how republics decay and fall. ...How well does the traditional account of the decay of republics match our present situation? The resemblance is altogether frightening. ...

    ... The credibility of a demagogue like Trump stems from his promise to shake up the lethargy of government, to bring change, and to improve people’s lives. The source of his power is also the source of his greatest vulnerability. To defeat him, one must bog him down, divert him, frustrate him, waste his energies. ... ... these kinds of leaders fail because people actively oppose them They fail because their political coalition begins weakened and falls apart in the face of constant political opposition. ... Above all, to defeat a demagogue whose power comes from the promise of change, one must make change difficult, and impede the smooth progress of his Administration’s ambitions.

    Democracy and Dysfunction is absolutely worth reading in its entirety; although written by high-end lawyers, it is accessible to anyone who are willing to invest a little effort.
  • And one more lawyerly contribution to understanding this moment: Mark Graber, in The Normal Politics of Abnormal Presidents takes up what we need to do now that our constitutional order is failing us.

    The normal politics that generated an abnormal president highlight the necessary repairs that must be made to the American constitutional order to prevent Trumpism.  If constitutional order A in the normal course of operation generates constitutional order B and constitutional order B is a terrible regime, constitutional order A has severe design flaws and cannot be restored merely by a temporary expedient that removes a particular manifestation of political outcome B.  ... If Donald Trump were to disappear today, the combination of campaign finance laws, media practices, party politics and sheer bigotry that produced Donald Trump will likely produce some variation on Donald Trump in the foreseeable future. ...

    ... The challenge that the normal politics of abnormal presidents present is finding the resources in the existing constitutional order for upending that regime with the understanding that the means by which this order is upended will likely become the normal politics of the next era.  A military coup that overthrows Mr. Trump provides the foundation for the military coup that overthrows President Elizabeth Warren.  If the left gains power through riots in the streets and general strikes, then opposition to a leftwing government is likely to take the form of riots in the streets and general strikes.  The best solution and the most challenging one is a campaign aimed at mobilizing voters under the most difficult circumstances for mobilizing voters since the passage of the Voting Rights Act of 1965.

    I agree profoundly with that last paragraph. Not being a lawyer, I'm also in favor of every popular initiative to impede the demagogue -- strikes, marches, blockades, Congressional call-ins, pray-ins, and modes of popular protest we haven't invented yet -- but we need to use the levers of popular sovereignty as much as possible along the way or we won't like where we arrive.

1 comment:

Classof65 said...

While I fully agree that we must push with as much backlash as we can muster in order to make it more difficult for Trump and his cronies as much as possible, we need experienced, innovative, intelligent, and calm individuals to lead us. We should develop a strategy to answer his every move and we must keep our supporters engaged. I'm not sure who the leader(s) should be. I'm not impressed with Nancy Pelosi. I totally back Elizabeth Warren and Bernie Sanders, but I'm afraid they have so much on their plates already that it would be asking too much for them to take over the leadership of the Democratic Party. I'm sure there are several people who could fill the bill, but I have limited knowledge of who is who and their strong and weak points. I have not been actively engaged with politics since the late 60s and early 70s when we were protesting the war, demonstrating for civil rights and ERA. Can you suggest some possible candidates who will fight?

I mean really fight. I'm sure there were people in the 30s who opposed Hitler, but were silenced, one way or another, and reduced to the point that they finally shut up and let it all happen. These are serious times -- I had no idea just how serious until Trump was actually elected. Obviously the rallies were to make us think he was just clowning around and not seriously running for office. I expected him to drop out of the race at the last minute. Boy, was I wrong.

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