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Can American democracy survive its betrayal by the government?The
unbalance among the three branches of government is threatening democracy.
Last
Modified: 03 Jul 2013 08:36
Mark
LeVineMark LeVine is professor of Middle Eastern history at UC Irvine, and
distinguished visiting professor at the Center for Middle Eastern Studies at
Lund University in Sweden and the author of the forthcoming book about the
revolutions in the Arab world, The Five Year Old Who Toppled a Pharaoh. RSSUniversity of California,
IrvineBooks
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Depending on your
point of view, the last few weeks have sounded either a very loud wake-up
call or the death knell of democracy in the United States, at least for the
foreseeable future.
For the first time in
generations, American citizens have been betrayed, and indeed, attacked, not
merely by one over-reaching branch of government, but by all three. The
actions of President Obama and the Congress as revealed in the the Snowden
Affair, and the revelations of the NSA's activities it has brought to light,
and now the Supreme Court's decision effectively to overturn the Voting
Rights Act, show conclusively that Americans today can no longer trust their
government to protect their most fundamental rights, either in principle or against
the abuse by one or more arms of the state.
Every American child
learns about the unique set of "checks and balances" laid out in
the US Constitution, which established a tripartite division of power between
the Executive, Legislative and Judicial branches of government. This balance
of power, whose history returns (in a much simpler form) to ancient Greece
and Rome, was established precisely because the "Founding Fathers"
held a deep distrust of the ability of those with political power to use it
fairly and according to law, and not arrogate it or otherwise abuse it for
their own individual or corporate benefit.
The separation of
power and the checks and balances between the three branches of government it
established ensured that the functions of making, executing and interpreting
the law remained the provenance of the Legislative, Executive and Judicial
branches respectively. Each branch have always had, as a core responsibility,
checking any over-reach by one or both of the other two. At the same time, by
placing supreme power at the Federal level, the Constitution (as laid out in Article VI), ensured that individual states could not
act to ignore, undermine or violate Federal laws by enacting their own laws
that either superseded or contravened them.
State power
The Civil War was
fought in good measure over whether the Supremacy Clause, as laid out in
Article VI of the Constitution, or the 10th Amendment, which
declared that "the powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people," was the ultimate authority in the land.
The US experienced a
strong and activist Federal government in the middle two thirds of the 20th century,
roughly from FDR's New Deal till the Reagan Presidency. In the last two
generations, and particularly under the Bush II presidencies, Republicans
have acted both to restrict the power of Congress and the Courts in favour of
a reinvigorated "states' rights," and to assert an unprecedented
power of a "unitary executive." The focus on states rights was
ostensibly intended to "return power to the people" by reining in
the "morally zealous and apparently unconstitutional" actions of
the Federal government (as Reagan Administration Assistant Attorney General
William Bradford Reynolds put it in a 1987 New York Times OpEd).
In practice, however,
states rights has meant the weakening of rights and protections of citizens
in favour of religiously conservative social and economically
corporate-dominated agendas. Ironically, back in the 1980s, when the great
rightward shift in American politics was first solidified, it was the
judiciary that was considered by Republicans the most overly zealous branch
of government. Today, after nearly two dozen years of broad Republican
control over the appointment of Federal and Supreme Court judges (through
their broad control over the Congress), the Judicial Branch is no longer the
main problem.
The theory of the
unitary executive, pushed by Bush administration officials and their
neoconservative allies in the midst of the War on Terror, argued that the
President has authority not merely to execute laws passed by Congress, but
also to interpret the law, particularly when it comes to actions taken by the
Executive Branch. As far back as 1803, Supreme Court Chief Justice John
Marshall argued that only the Judicial Branch has the authority to interpret
and declare "what the law is."
Now that the Supreme
Court is, on crucial issues, firmly in conservative hands, the Executive
Branch is in the hands of a Democrat who on crucial issues related to the most
fundamental power of government is following the path laid by his Republican
predecessors, and the Republicans have a veto on all congressional
legislation, the issues of the competition for power between the three
branches of government and the need to weaken any one or two of them to
restore "balance" is no longer so so important.
'Perfect storm of
disempowerment'
Indeed, what exists
now in the US is a perfect storm of disempowerment of Americans by all three
branches of their government when it comes to the most basic rights citizens
can possess. For three presidential terms the Executive Branch has been
firmly the hands of presidents and officials who believe that the government
can contravene the most basic rights of any person - citizen or foreigners -
as long as they can justify such actions in the guise of "protecting the
American people" and other raisons d'Etat.
Congress, in theory
should have checked such untrammeled Executive Power, most recently revealed
by Edward Snowden's leaking of NSA and other Executive Branch surveillance
and spying policies. But what the Snowden affair reaffirms instead is the
reality that Congress has little will to oppose such policies and indeed by
and large supports the military-industrial-intelligence behemoth that so
threatens the rights of all. Given the corporate control of the Congress and
the political process more broadly, there is little incentive for legislators
to draft and/or support any kind of legislation that would protect and
enhance the rights of individual citizens at the expense of state power or
its corporate sponsors.
And finally there is
the Supreme Court. Here three cases in particular have enabled unprecedented
constriction of the power of ordinary people vis-a-vis the political and
economic elites who govern--better, rule--over them. The first is the Citizens
United decision of 2010, which declared any restrictions on
independent corporate campaign spending unconstitutional, thereby giving
corporations equal rights and far more power than ordinary citizens. Next was
the Clapper v. Amnesty decision this past February, in which
the Court ruled in a case involving the surveillance programs revealed by
Edward Snowden that human rights activists and journalists do not have the
right to challenge secret FISA wiretaps that might collect their data, since
they couldn't prove they were a target (an impossible standard since by
definition the authorisations to collect data are secret). This ruling
"jettisoned the bedrock requirement of the Fourth Amendment," in
the words of Georgetown University Constitutional
Law professor David Cole, by allowing the surveillance of individuals without
any indication they were involved in wrongdoing. Finally, there is
the effective overturning of the Voting Rights Act in Shelby v.
Holder, decided last week, which will by most accounts ensure that
Republican-controlled states pass legislation whose only result - whatever
the putative intent - will be to make it much more difficult if not
impossible for millions of citizens to carry out their most important
democratic obligation. Some may argue that the Court's ruling
that bans on same sex marriage are unconstitutional reveals a high degree of
ambivalence in the Court's position on fundamental rights. But as important
is the victory on marriage equality it is of a fundamentally different order
than the stakes involved in the voting rights, which impacts a far broader
spectrum of citizens and constitutional principles--namely the ability of
government actively to subvert the enfranchisement of its poor and minority
citizens. It is far more closely tied to the most basic historical
structures of inequality in the United States than were the dynamics
behind the uconstitutional prohibition against gay mariage.
The question remains
as to what Americans will do in response to this tripartite aggression
against them by their government. Almost 36 months ago the tactics and
bravery of the early Arab uprisings helped inspire the Occupy movement
globally, and particularly in the US. But however powerful the initial
outburst, the movement has lost much if not most of its political and
cultural momentum. Today protests sweeping across countries as diverse as
Turkey and Brazil serve as another reminder of the power, and at times,
obligation, of "the people" to take to the streets in order to
force their governments take their core needs and concerns into consideration
as part of the normal practice of governance.
With no where to turn
politically, and an economic system that despite all the scandals and damage
of the last half decade still remains firmly in the grips of the hyper-corporate
forces that led the country into the "Great Recession," Americans
have no one but themselves to rely on to reassert control over a political
system that was designed precisely to ensure this kind of stacking of the
deck against citizens by their government wouldn't happen. Occupying public
or virtual spaces will not solve their problems unless it is done on a far
greater scale and level of intensity and perseverance than were exhibited by
the first incarnation of the Occupy movement. Even the civil rights
revolution offers too narrow a model of protest and strategy for the present
situation.
It's hard to know how
Americans can actually "take back their government," as Republicans
and Democrats routinely urge them without a hint of irony, utilising any of
the political and cultural tools presently available to them. But at least
with the events of the last few weeks they can no longer say they didn't
understand the full spectrum of forces arrayed against them. If that doesn't
generate enough urgency to produce the kind of conversations and grass roots
practices that can lead to new political models emerging, then the death
knell of democracy as most Americans have for generations understood it has
most definitely sounded.
Mark LeVine is professor of Middle Eastern history at UC Irvine
and distinguished visiting professor at the Centre for Middle Eastern Studies
at Lund University in Sweden and the author of the forthcoming book about the
revolutions in the Arab world, The Five Year Old Who Toppled a Pharaoh. His
book, Heavy Metal Islam, which focused on 'rock and
resistance and the struggle for soul' in the evolving music scene of the
Middle East and North Africa, was published in 2008.
The views expressed in this article are the author's own and do
not necessarily reflect Al Jazeera's editorial policy.
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