Is Anglo-American Democracy Done?

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A pleading in a civil suit does not have to “exclude every misinterpretation [of the Philippine Bill of Rights] capable of occurring to intelligence fired with a desire to pervert.” — Oliver Wendell Holmes, Paraiso v. United States (1907).

Don’t look now. And try not to act surprised. But Anglo-American Democracy may be finished.

It’s had a good run—804 years since Magna Carta, give or take. But the current generation of adults may be the last to see it fully functioning as a democracy, at least in its country of origin and its powerhouse, the US. Maybe it’ll survive for a while in the “outback:” Australia, Canada and New Zealand.

It doesn’t seem to matter whether your ostensibly democratic constitution is written, like ours, or unwritten, like the Brits’. What matters is whether the men and women who put it into practice, who interpret and apply it on a day-to-day basis, have the desire—and the wisdom—to “exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.”

When they do, your constitution guides your society down the mainstream of governance, with wisdom and common sense, as your most fundamental law. When they don’t, your fundamental law itself becomes a perversion. It drives your society to permit, if not foster, human error, societal excess, and empire.

Bit by bit, it lets the self-interest of the powerful turn your society away from simple majority rule and toward oligarchy. Then custom overcomes law, and culture overcomes custom. Both custom and culture favor the rich and powerful, including the Executive, who comes to resemble a king or emperor. This is what happened to ancient Rome.

In the end, our much vaunted written American Constitution is just a piece of parchment paper. It’s quite explicit on who has the power to spend the national government’s money. Article I, Section 9, Clause 7 says “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law[.]”

Yet President Trump is pushing money around, without appropriation, to build a wall on our Southern border. Not only has Congress never appropriated money for his complete border wall; it has considered the request more than once and explicitly rejected it. Now Trump is encouraging his underlings to violate the law and Constitution by promising to pardon them. When called on it he claims he was joking. And he has taken for his wall money from our emergency services, weakening our response to Hurricane Dorian, which has grown to a Category 4 and is now approaching Florida.

Our Constitution also says (in Article II, Section 2, Clause 2) that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court[.]” (emphasis added). But a single senator, in blatant disregard of this clause, custom and precedent, stole a Supreme-Court appointment from President Obama, letting the next president—the one who so flagrantly disregards congressional appropriations—appoint two.

Our much-heralded Second Amendment is very short. It says, in full: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The short preamble self-evidently qualifies the sense of this simple sentence. It limits arms-bearing to collective and state purposes. Yet our Supreme Court has perverted it into a supreme right of individuals and even hinted at a right to rebel against government.

So individuals now bear weapons of war capable of killing dozens in a minute or so, and they wreak regular massacres upon innocent populations. The latest massacre left five dead and 21 injured at a traffic stop in Texas yesterday.

Our First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” It’s pellucidly a carte blanche for political dialogue, not bribery. Yet our high Court, in Citizens United, has made it a carte blanche for disguised bribery, in the form of campaign contributions made anonymously by the rich and by corporations.

I could go on. I could mention Congress’ explicitly exclusive power to declare war, in Article I, Section 8, Clause 11. Congress has abandoned this power like a paralyzed muscle, preferring to adopt ambiguous “authorizations for the use of military force.” Several presidents have used them to make major wars, like the ones still ongoing in Afghanistan and Iraq, now the longest in our history. Some presidents have twisted these “authorizations” like the proverbial nose of wax for that purpose.

The point here is obvious, now a matter of fact and history. Our Constitution means nothing but what people in high places let it mean. When Executives and judges can take such liberties as these, its actual words restrain little. Then what, pray tell, is the difference between the Brits’ unwritten constitution and our so-called “written social contract”?

Open today’s newspaper and you will find how small the difference. The Brits’ current Prime Minister, Boris Johnson, has used the obscure (but customary and constitutional) process of “prorogation” to suspend the operation of Parliament for almost all of the time remaining before Britain is pledged to leave the EU with no deal. He has done this although prorogation customarily lasts a week or so, not the two months remaining before the October 31 Brexit deadline.

Johnson says he prefers a no-deal Brexit. Yet many suspect (and some hope) that his ploy is a means of putting pressure on the EU to make a last-minute deal with the Brits’ Parliament in Britain’s favor. If this presumed brinksmanship doesn’t work, a no-deal Brexit will occur. According to many experts, it will produce at least temporary shortages of food and medicine in Britain.

The major sticking point in the Britain-EU talks is the status of the border between Northern Ireland (a part of Britain) and Ireland itself (a separate nation and a now and future part of the EU). Many fear renewed violence among the separately-governed Irish—mostly Protestant in British Northern Ireland and mostly Catholic in the rest—if that border becomes encumbered with customs duties and limits on passage and immigration.

But what if not, and what if Britain leaves the EU with that border open? Then that little border in Ireland will become the only point of contact between Britain and the rest of the world that is free of customs, duties and restrictions on migration.

Will Belfast then become the Panama Canal of what used to be the British Empire? Will free trade from and to Britain run through the Irish isle, leaving “hard” borders everywhere else? Will the Ireland that has exploited low taxes to make itself a center of high technology and commerce then seize all the benefits of the global trade that has been Britain’s for half a millennium?

A distant observer, like this Yank, would like to think that all Brits, whatever their ethnicity and descent, might want to discuss these weighty matters fully. Yet if PM Johnson’s ploy prevails, they will have only days to do so. Think of that: the Brits’ millennial predominance in international trade up for discussion in mere days, as if at stake were only the receipts from parking meters in a far suburb of London.

On both sides of the Atlantic, citizens rely on the judicial branch to restore and maintain constitutional traditions, and to keep them consistent with common sense. Yet the judicial branch is nearly always the slowest and weakest of the three. It cannot, by itself, enforce respect for a constitution, real democracy, or common sense. Instead, it must rely on the other two branches for coercive power. Judge by themselves have no police and no army; those forces belong to the executive branch.

Judges often make things worse by playing with abstractions like children’s games, sometimes heedless of consequences, sometimes with hidden ideological agendas. The crux of the matter is that words on paper—like customs, culture and tradition—mean nothing unless people interpret them truly and enforce them. If people with the power to stop transgressions don’t do so, no one else can or will. If executives, leaders in Congress or judges find clever (or even crude) ways to bend a “supreme law” to their or their supporters’ purposes, there is little that the helpless majority of mere citizens can do.

During the Cold War, many Yanks and Brits castigated the Soviet Union, “Red” China, and their leaders for governing with a view that “the end justifies the means.” In practice, those words denied any consistent “means” for taking state action. There was no required procedure, no due process. There was only what the leaders wanted to do and the most expeditious way to do it, often at the cost of injustice, suffering, and even death for large populations. Stalin became famous for saying, “A single death is a tragedy, a million deaths only a statistic.”

What now makes this kind of horror possible, in both the United States and Britain, is the division and polarization of their respective societies. In the United States it involves a host of issues, including mammoth economic inequality and the treatment of minorities and asylum-seeking migrants. In Britain it mostly involves a single issue: whether to remain part of the EU and so allow free migration from the rest of it.

Yet whatever the cause or causes, the fierceness of the respective conflicts threatens abandonment of what makes “America” American and what makes the Brits British. Sincere devotion to a fair and orderly process of respectful decision making by the majority will become a casualty of ideological war. So will a “constitution” that accords with custom, tradition, and common sense.

Once that abandonment occurs, judges cannot save democracy. The executive or dominant faction in the legislature will simply ignore the judicial orders, as Trump and his Executive have done so many congressional subpoenas. Or the powers that be will twist the meaning of laws and orders in a clever or even a crude way. (Is Trump ever anything but crude?)

Then the people of the United States and those of Britain will be in precisely the same position as the people of Venezuela today, waiting for a divided military to enforce judges’ orders and breathe new life into a moribund democracy. If Yanks and Brits aren’t in that sad position today, they are far too close for comfort.

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