Constitutional Skepticism among Modern Progressives
written July 29th 2022 by Nathaniel Bates
In the wake of the recent Supreme Court Decisions related to gun control, abortion, oil drilling and immigration, there is a justifiable concern among progressives that the Court has become politicized. I share the concern that the Court has become anti-democratic and beholden to elite rule. I am very disturbed by an under-reported ruling reigning in the EPA, as well as decisions affecting labor. The lack of concern for workers, the planet and our future deeply concerns me. What also overwhelmingly concerns me is the lack of concern among our supposedly “originalist” conservative Supreme Court Justices about democracy and our Constitution.
The “Originalism” of the Court is misleading. The Originalism of the conservatives on the Court is not an originalism about the actual thought of the Founding Fathers. It is an Originalism dealing with eighteenth century thought in general which was often highly conservative, whereas the Framers of our Constitution were outliers ahead of their time in their views on religious freedom and constitutional government. When the Justices of the Court use terms like “Originalism” and “religious freedom,” they are redefining terms in an Orwellian manner away from any actual analysis of the ideas that influenced the framers. Instead of any actual originalism, the Supreme Court has been key to expanding the national security and law enforcement State that has grown to replace our Constitutional republic. This deeply concerns me as much as any one ruling.
Also concerning to me is the ominous agreement among some Progressives with the conservative Supreme Court on one issue, the relevance of the Constitution. In an ironic turn of events, the justifiable outrage progressives feel toward the Court’s anti-democratic turn has led some of them to turn against the Constitution. The Constitution, this group argues, is an eighteenth century relic that prevents a more modern system to emerge that would better govern. In their forlorn appeal to some more direct rule of a unitary system of government they echo Donald Trump himself who appeals to unitary rule as the solution to social ills.
Presumably, for progressives this more “modern system” would be (or could be) some form of unfettered majority rule. This was a common early twentieth century solution to corporate rule, one that garners understandable sympathy seen in that light. Yet, ironically, the Supreme Court upheld just such a majoritarian deference when they overruled Roe v Wade. They deferred to State Legislatures and local majorities instead of applying “archaic” eighteenth century Enlightenment ideas and ninth amendment penumbras. The same could be said for the EPA decision in that it was purportedly a ruling of deference to Congress. (At least that was the pretext.) In no way, shape or form did the Court find any Ninth Amendment “penumbras” in either the repeal of Roe or the EPA decisions in favor of the unborn or in favor of corporate polluters. The Court is careful to disclaim any kind of belief in moral abstractions rooted in the Ninth Amendment, even those most conservatives would tend to believe in. This has been a hallmark of conservative jurisprudence for some time.
There is one decision that would make a difference if we did not apply Constitutional breaks on the legislative branch, and that would be the decision on the New York gun law. Like the abortion issue, this is a complicated question that often breaks down into clashes of absolutes, or cultural war ad hominems. What is notable in the gun law decision is that it was not based on a Second Amendment Originalism but on the Fourteenth Amendment. The discussions in Congress leading up to the Fourteenth Amendment did specifically address gun control laws forbidding Black ownership of firearms. Critics of the decision should note that it does appear as though there is at least a case to be made in the tradition of liberal “Incorporation” readings of the Fourteenth Amendment that could justify the ruling made by the Court. This ruling, based on a plausible reading of the intent of the Fourteenth Amendment to forbid discriminatory laws, stands in contrast to most if not all other Court rulings that have tended to minimize individual rights in favor of corporations or police.
I stand in agreement with progressive critics of the Court in criticizing the general direction of the Court away from protecting individual rights and toward protecting corporations. What I fail to see is how abandoning “archaic” Constitutional ideas would prevent that slide. If anything, one would be throwing out Warren Court precedents, and “Footnote 4” jurisprudence, much more than any ideas of Clarence Thomas. Indeed, the replacement form of government that would emerge when the Constitution is abandoned would not actually be a majoritarianism at all. Most likely, it would be our fully formed national security and police apparatus that would emerge to take over where Constitutional ideas leave off. For those among progressives who are “totally over” old fashioned ideas like Independence Day, the Constitution and counter-majoritarian relics, I would ask them how their own rights would fare under an authoritarian state apparatus controlled by Trump or a majority rules School Board meeting where they are teachers accused of “spreading CRT” by those who do not know what the term actually means? I fail to understand how giving the state total power would do anything other than help the powerful. And I fail to understand why so many progressives think that ending our best heritage of the Enlightenment would end racism, other than as a form of Origins Fallacy in which the beginnings of something completely define what it is in the present.
I understand and agree with the claim of most if not all progressives that the Electoral College is out of date, a claim that is highly justifiable and in line with the general idea that American civilization is best when it progresses. We progress when we listen to King, Eugene Debs and Thoreau. We regress when we listen to demagogues. On this point, I agree with those who do not want to hold on to eighteenth century relics. But the solution is a difficult one involving building electoral power and not fetishizing division based on demographics or identity. Fantasies of unlimited power, and of not dealing with opponents, never end well. Mostly they end with disillusionment. Often they end with worse. Authoritarian fantasies create unpredictable realities. Remember that the tools you use your opponent will use also.
I believe that a new system of Constitutional government may yet emerge, one without the electoral college, the Senate and lifelong Judges. However, I am still wedded to the eighteenth century Enlightenment ideas that made the imperfect democracy we have possible. Critics of democracy from the Right are increasingly seeing those principles as weakening our society. And critics from the Left are increasingly seeing Enlightenment principles as smokescreens for White privilege. But it is the Right that is in position to seize power at this point and they often mirror attacks from the Left and co-opt them. The Left would be best to retain the moral high ground and to also organize workers, the latter being its best strategy for winning. Giving repressive organs of state-power more power will not work in the best interests of the Left if that state power is used for repression. The alternative to our imperfect democracy is corporate power and militarism, hardly allies of people of color, workers, students, or women.
One last point: While it is generally politically popular to defend “the Constitution,” it is less popular to uphold “Enlightenment principles.” The latter are often seen as an attack on Christianity, and by some on the Left as vestiges of Imperialism. I myself have criticisms of some Enlightenment thinking and do recognize the hegemonic biases of the eighteenth century bourgeoisie. But, the alternative to reason and science as a guide to social problems is a bleak alternative. The only alternative to our malaise is the hard work of democracy. The hard work of democracy is imperfect because it means speaking with opponents. We have lost the art of how to do this. But the alternative to the Enlightenment is not “Christian principles,” nor is it a primitivist utopia. The real alternative at this point is a national security state aligned with either Trumpism or perhaps some form of pseudo-progressivism. I will stick with Voltaire in that case.
Nathaniel Bates
