“Should There Really Be a Supreme Court? Its Role Always Has Been Anti-Democratic”

Posted on by

Yves here. I’m running this Michael Hudson post to provide grist for discussion, but I have to say I have a great deal of difficulty with the premise. In any system of government with multiple jurisdictions, and a Federal-State-local or even merely Federal-State, there will be conflicts in rulings and often conflicts of laws. The Constitution sets forth which areas are ones where the Federal government has sway, and which are the purview of states. But those boundaries are not tidy.

The Supreme Court has issued some profoundly anti-democratic rulings that most would still applaud, such as Brown v. Board of Education, where the court overthrew segregated public schools, which were not just legal but also popular in many states. As for Roe v. Wade, the right to an abortion was already of limited value to poor women in conservative states, since a dearth of free or low cost clinics and 24 hour cooling off periods, which necessitate staying 2 days near the site of the clinic, are big roadblocks for low income hourly workers. But as we also pointed out, other advanced economies chose to deal with the matter of abortion rights via legislation, and in Europe, despite the presence of the Catholic Church, restricting it to the first trimester. But during the 1970s, the time of peak feminism, N.O.W. and other activists set their sights on the sure-to-never-get-done Equal Rights Amendment, and ignored the opportunity to get nearly all the way there by passing legislation securing specific rights, most importantly to equal pay and abortions.

And as for the legislature being the better candidate for protecting the rights of individuals, it was Congress, with Obama’s backing, that ended habeas corpus, a critical protection in English law treated as sacrosanct since 1066. From ACLU:

President Obama signed the National Defense Authorization Act (NDAA) into law today. The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course shortly before Congress voted on the final bill.

“President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony D. Romero, ACLU executive director. “The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield.”

Hudson mentions that the shift of  the judiciary came about of a long and hard-fought campaign but after acknowledging that, seems to skip over the implications. The result was not inevitable but the result of New Deal backers, which back then was pretty much anyone, assuming those reforms would never be rolled back and thus ignoring the right shift until it was too late. Of course, the 1970s stagflation discredited (whether correctly or not)  deficit spending and the expansive Great Society policies, giving these crusaders a big wind at their back.

What were then radical conservatives, with John Birchers, the Kochs, and the Cohrs family as major players, and they specifically launched and funded a campaign to change jurisprudence in America to be more business friendly. Remember, the great socialist Richard Nixon propose a minimum guaranteed income.

I discuss the establishment and tactics of the law and economics movement in ECONNED.  What was then the mainstream and would now be regarded as liberals and the left saw its promoters as marginal cranks, until they weren’t. Hudson mentions the Federalist Society in his piece below, but its existence is a symptom not a cause,  and it was founded  in 1982, well after the law and economics movement, the initiative  to make jurisprudence more conservative, was getting traction   One can point to earlier roots, but the  law and economics movement started on its road to legitimacy  when Aaron Director and Richard Coase founded the Journal of Law and Economics in 1958.  But the big leap forward started in the 1970s, when Henry Manne set out to change how law was interpreted by changing how it was taught, and successfully created a cadre of conservative journals and instructors.

Progressives and American social democrats have a tendency to see their political preferences as morally correct and therefore assume that they are marching towards the perfectibility of society. Their sense of virtue blinds them to the fact that how the pie of production is whacked up is more often than not a function of power struggles, not merit or effort or some other way of determining groups as more or less deserving.

Remember it was a Republican president, Eisenhower, who wrote in 1954:

Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions. I oppose this–in some instances the fight is a rather desperate one. But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should be undertaken by it….Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.

It was these very same stupid men who by the mid and later 1960s managed to figure out how to achieve their ends and roll back the very New Deal reforms that Eisenhower saw as unchallengeable. The Powell Memo of 1971 formalized the road map for an open-ended, well-funded campaign to get there.

By Michael Hudson, a research professor of Economics at University of Missouri, Kansas City, and a research associate at the Levy Economics Institute of Bard College. His latest book is The Destiny of Civilization

The Supreme Court’s takeover by “conservatives” claiming to be “originalist” interpreters of the constitution, have led to the most widespread protests since the Franklin Roosevelt threatened to pack the court in the 1930s by expanding its membership with less oppositional judges to create a more democratic majority. Appointed by elected presidents and consented to by Congress, to be sure, the judges’ lifetime tenure imposes the ideology of past elections on the present like a dead hand. But the deeper problem is whether their role is needed at all. Why not permit existing representatives to make laws reflecting the needs of the time? Court judges themselves have pointed out that if Congress doesn’t like the Court rulings, it should pass its own laws, or even a constitutional amendment, to provide a new point of reference.

That is not a practical solution in today’s world, for two reasons. The most obvious one is that Congress is locked in a stalemate, unable to take a firm progressive step because of how far the U.S. political system has deteriorated. This deterioration is largely a result of enormous sums of money corrupting the political process. The problem is topped by a long lobbying effort by corporate and financial interests, mainly via the Federalist Society, to groom and promote judges to serve today’s vested interests.[1] When the Supreme Court asks what the original drafters of the Constitution wanted or meant, they are using these as proxies for today’s ruling elites.

Long before the U.S. Supreme Court’s “originalist” ruling rejecting as unconstitutional laws that most Americans want – on the excuse that they are not what the wealthy New England merchants and southern slave-owners who drafted the Constitution would have intended – classical Greek and Roman oligarchies created their own judicial checks against the prospect of Sparta’s kings, Athenian popular assemblies and Roman consuls enacting laws at the expense of the vested interests.

Sparta had two kings instead of just one, requiring their joint agreement on any new rules. And just in case they might join together limit the wealth of the oligarchs, they were made subject to a council of ephors to “advise” them. A kindred Roman spirit called for two consuls to head the Senate. To ward against their joining to cancel debts or redistribute land – the constant demand of Romans throughout the Republic’s five centuries, 509-27 BC – the Senate’s meetings could be suspended if religious authorities found omens from the flight of birds or other airy phenomena. These always seemed to occur when a challenge to the oligarchy seemed likely to pass.

The historian Theodor Mommsen called this tactic “political astrology.” The most blatant attempt occurred in 59 BC when Julius Caesar was elected consul and proposed an agrarian law to settle some of Pompey’s veterans as well as urban plebs on public land in Italy. Additional land was to be bought from private owners, using funds from Pompey’s campaign in Asia Minor.

Cato the Younger led the Roman Senate’s Optimates who feared Caesar’s (or anyone’s) popularity. Opposing any change in the status quo, he started one of his famous all-day speeches. Caesar ordered him led away, but many senators followed Cato out, preventing a vote from being taken. Caesar then simply bypassed the Senate to put the measure before the Centuriate Assembly, composed largely of army veterans. That was a tactic that the reformer Tiberius Gracchus had perfected after 133 to promote his own land redistribution (for which he was assassinated, the oligarchy’s traditional fallback defense in all epochs).[2]

When Caesar’s opponents threatened violence to block the popular vote, Pompey threatened to use his own force. And when the time came for the Senate to ratify the law, Caesar and Pompey filled the Forum with their soldiers, and a large crowd gathered. Cato’s son-in-law, M. Calpurnius Bibulus was Caesar’s annoying co-consul, and tried to suspend the voting by claiming to see bad omens, making public business illegal.

Caesar overruled Bibulus, based on his own higher authority as pontifex maximus, leading Bibulus to declare the rest of the year a sacred period in which no assemblies could be held or votes taken. But the crowd drove him away and broke his insignia of consulship, the ceremonial fasces carried by his lictors, and beat the tribunes allied with him. Cato likewise was pushed away when he tried to force his way to the platform to block the vote. He and Bibulus fled, and Caesar’s bill was passed, including a clause requiring all senators to take oath to adhere to it. Bibulus went home and sulked, insisting that the entire year’s laws be nullified because they were passed under threat of violence. It was the oligarchy, however, that settled matters by assassinating Caesar and other advocates of land and debt reform.

Athens, which turned oligarchic in the 4th century BC after losing the Peloponnesian War with Sparta, used a tactic closer to today’s Supreme Court by trying to subject laws to conformity with an alleged “ancestral constitution” that presumably should never be changed – at least in a way that would favor democracy. Claiming to restore the supposed constitution of Solon, the Thirty Tyrants installed by Sparta’s oligarchy in 404 BC downgraded the Athenian boule’s governing five hundred citizens into a merely “advisory” group whose views had no official weight.[3]

The great watershed in Athenian history was Solon’s seisachtheia – literally “shedding of [debt] burdens” in 594 BC, cancelling personal debts that bound debtors in near bondage. New demands for debt cancellation and land redistribution remained the primary democratic demands for the next four centuries. Androtion (ca. 344 BC), a follower of the oligarchic Isocrates, went so far as to deny that Solon actually cancelled debts, claiming that he merelyrevalued the coinage, weights and measures to make them more easily payable.[4] But there was no coinage in Solon’s time, so this attempt to rewrite history was anachronistic.

In a similar tradition, the authors of America’s constitution created the Supreme Court to provide a check on the danger that political evolution might lead Congress to pass laws threatening oligarchic rule. There no longer is a pontifex to block democratic lawmaking by claiming to read auspices in the flight of birds or other airy phenomena. Instead, there is a more secular subordination of new laws to the principle that they must not be changed from what was intended by the authors of the Constitution – as interpreted by their counterpart elites in today’s world. This view rejects taking into account how the world is evolving and how the legal system should best be modernized to cope with such change.

I have found it to be an axiom of the history of legal philosophy that if the popular political spirit is for democratic reform – especially supporting taxes and other laws to prevent the polarization of wealth between the vested interests and the economy at large – the line of resistance to such progress is to insist on blocking any change from “original” constitutional principles that supported the power of vested interests in the first place.

The U.S. political system has become distorted by the power given to the Supreme Court enabling it to block reforms that the majority of Americans are reported to support. The problem is not only the Supreme Court, to be sure. Most voters oppose wars, support public healthcare for all and higher taxes on the wealthy. But Congress, itself captured by the oligarch donor class, routinely raises military spending, privatizes healthcare in the hands of predatory monopolies and cuts taxes for the financial rent-seeking class while pretending that spending money on government social programs would force taxes to rise for wage-earners.

The effect of the corporate capture of Congress as well as the Supreme Court as the ultimate oligarchic backstop is to block Congressional politics as a vehicle to update laws, taxes and public regulation in keeping with what voters recognize to be modern needs. The Supreme Court imposes the straitjacket of what America’s 18th-century slaveowners and other property owners are supposed to have wanted at the time when they wrote the Constitution.

 James Madison and his fellow Federalists were explicit about their aim. They wanted to block what they feared was the threat of democracy by populists, abolitionists and other reformers threatening to check their property “rights” as if these were natural and inherent. The subsequent 19th century’s flowering of classical political economists explaining the logic for checking rentier oligarchies was far beyond what they wanted. Yet today’s Supreme Court’s point of reference is still, “What would the authors of the U.S. Constitution, slaveowners fearful of democracy, have intended?” That logic is applied anachronistically to limit every democratic modernization from the right of unionized labor to go on strike, to abortion rights for women, cancellation of student debt and the right of government to tax wealth.

Even if Congress were not too divided and stalemated to write laws reflecting what most voters want, the Supreme Court would reject them, just as it sought for many decades to declare a national income tax unconstitutional under the theory of “takings.” The Supreme Court can be expected to block any law threatening the victory of the Thatcherite and Reaganomics doctrine of privatization, “small” government unable to challenge the power of wealth (but big enough to crush any attempts by labor, women or minorities to promote their own interests), a state of affairs that is an anomaly for a nation claiming to be a democracy.

A nation’s constitution should have the flexibility to modernize laws, taxes and government regulatory power to remove barriers to broadly-based progress, living standards and productivity. But these barriers have been supported by oligarchies through the ages. That was why the Supreme Court was created in the first place. The aim was to leave the economy in the control of property holders and the wealthiest families. That anachronistic judicial philosophy is helping turn the United States into a failed state by empowering a wealthy minority to reduce the rest of the population to economic dependency.

We are repeating the economic polarization of ancient Greece and Rome that I have described in my recent book The Collapse of Antiquity. The 7th– and 6th-century BC crisis of personal debt and land concentration led to social revolution by reformers (“tyrants,” not originally a term of invective) in Corinth, Sparta and other Greek-speaking city-states and Aegean islands. Solon was appointed archon to resolve the crisis in Athens. Unlike reformers in other Greek cities, he did not redistribute the land, but he did cancel the debts. He called this the “shedding of burdens” (seisachtheia). It removed the debt-stones from lands cultivated by Athenians. The ensuing 6th century led Solon’s successors to lay the groundwork for Athenian democracy.

But the next three centuries saw the rise of creditor oligarchies throughout Greece and Italy using debt as a lever to monopolize land and reduce citizens to bondage. These increasingly aggressive oligarchies fought, with more and more overt violence, against new reformers seeking to cancel debts and redistribute the land to prevent the economy falling into austerity, clientage and reliance on the dole. Their ideology was much like that of today’s right-wing Supreme Court’s approach to constitutional law. The common denominator is an age-old drive to prevent democratic change, above all by using wealth as a means of controlling the political process. That is the philosophy outlined in the Powell Memo, and in the Supreme Court’s Citizens United ruling permitting the political campaign system to be financialized and, in effect, privatized in the hands of the Donor Class.

As in classical antiquity, today’s the exponential rise in debt has polarized wealth ownership. Personal debt bondage no longer exists, but most home buyers and wage earners are obliged to take on a working-lifetime debt burden to obtain a home of their own, an education to get a job to qualify for mortgage loans to buy their home, and credit-card debt simply to make ends meet. The result is debt deflation as labor is obliged to spend an increasing proportion of its income on debt service instead of goods and services. That slowis the economy, while creditors use their rising accumulation of wealth to finance the inflation of housing prices, along with stock and bond prices – with yet more debt financing.

The conflict between creditors and debtors is a red thread running throughout American history, from the Whiskey Rebellion of the 1790s to the monetary deflation of the 1880s as “hard money” creditor interests rolled back prices and incomes to be paid in gold, increasing the control of bondholders over labor. U.S. debt and tax policy is passing out of the Congress to the Supreme Court, whose members are groomed and vetted to make sure that they favor financial and other rentier wealth by leading the Court to impose the founders’ pre-democratic philosophy of constitutional law despite the past few centuries of political reforms that, at least in principle, have endorsed democracy over oligarchy.

The victory of rentier wealth has led to the deindustrialization of America and the resulting predatory diplomacy as its economy seeks to extract from foreign countries the products that it no longer is producing at home. This is why foreign countries are moving to pursue a philosophy rejecting debt deflation, privatization and the shift of economic planning from elected governments to financial centers from Wall Street to the City of London, the Paris Bourse and Japan.

Any resilient society’s constitution should be responsive to the evolution of economic, technological, environmental and geopolitical dynamics. U.S. legal philosophy reflects mainstream economics in trying to lock in a set of principles written by creditors and other rentiers fearful of making the financial system, tax system and distribution of wealth more conducive to prosperity than to austerity and economic polarization. There no longer is an attempt to roll back the clock to impose the outright slavery in which most framers of the Constitution endorsed, but the spread of debt deflation and debt dependency is becoming a form of economic bondage that is the modern “conservative” counterpart to what the “original” power elite are thought to have wanted if we chose to get into a time machine and ask them instead of looking to a less oligarchic future.


[1] The Lewis Powell memo to the U.S. Chamber of Commerce on August 23, 1971 laid out this plan. https://www.greenpeace.org/usa/democracy/the-lewis-powell-memo-a-corporate-blueprint-to-dominate-democracy/. For a review of how this almost conspiratorial propaganda and censorship attack was financed see Lewis H. Lapham, “Tentacles of Rage: The Republican propaganda mill, a brief history,” Harpers, September, 2004. Available at: http://www.mindfully.org/Reform/2004/Republican-Propaganda1sep04.htm.

[2] See Cassius Dio, Roman History 38.2.2. I discuss this affair in The Collapse of Antiquity, chapter 18.

[3] Athēnaion Politeia 35.2 and Xenophon, Hellenica 2.3.2 and 11.

[4] Plutarch, Solon 15.2.

Print Friendly, PDF & Email


  1. MFB

    It seems to me that Hudson is more right than wrong. Obviously the situation is not simply to be blamed on the existence of a Supreme Court which is designed to take the part of the rich and powerful against the poor and weak. However, it does seem to me that the existence of this Supreme Court, exactly like the existence of an electoral college and the structuring of the Senate, is a major factor promoting the control of the rich and powerful over the U.S. and in particular the way that the poor and weak’s interests are disregarded.
    In most countries, such circumstances would lead to revolution. But, of course, the U.S. doesn’t have revolutions . . .

    1. Yves Smith Post author

      Hudson is presenting an inaccurate stereotype. He is implicitly applying a contemporary notion of income and social disparity to an era where the income and wealth distribution were pretty flat. From Common Dreams in Want to Reclaim the Spirit of 1776? Reduce Inequality :

      On the eve of the American revolution, as researchers have documented, England’s 13 American colonies had a much more equal distribution of income and wealth than the nations of Europe…

      In both 1776 and 1976 America, the top 1% overall took less than 10% of the nation’s income. The top 1% share today, economist Emmanuel Saez details, is running at over double that level, well over 20%.

      The judicial takeover by the right was not an inevitable result. It was politics, with one side engaging in an open-ended war which the other side ignored until too late.

      1. Paradan

        When the colonies revolted, Americans had the highest standard of living in the world. Best fed, high literacy rates, farmers owned their own land, etc. They also saw what was going on with the East India Company and its like, and new they were next on the list.

        During the siege of Boston the Revolutionary army went through something like 2.5 gallons of cider, a gallon of beer, and a pint of whiskey, per man, per day. They must of been washing in it or something, it’s just not humanly possible…

        1. NotTimothyGeithner

          Without searching, you can sell whiskey, so my guess is the whisky was rarely distributed but used to pay local vendors via account books.

          The beer was probably watered down, and the cider was there to disguise the taste of additives that were used when food diversity is limited. It’s still a lot of cider. I dont know it’s shelf life.

          1. Bart Hansen

            The internet tells me that Pasteurization dates to 1860, so they did not have that. Unpasteurized apple cider from the farmers markets will last a few weeks but only by being kept in the fridge while its container slowly swells and the cider turns alcoholic. Of course it depends on the local ambient temperature. If the siege of Boston was in the Winter that would help.

            1. JBird4049

              Today’s ability to have clean water even in the United States is an anomaly.

              They drank alcoholic beverages all the time and even gave children “small beer” or beer with a very low amount of alcohol (IIRC 0.5% or 1 proof) because it was the only good way to get water without dying from disease.

              While people of the time often had an amazing amount, of often hard, drink to where I wonder just how they could continue to breath, let’s forget standing up, there was a good reason.

              I have read multiple accounts of both parties and political meetings where the kinds and amounts of drink bought for the occasion was listed and apparently all consumed with it being gallons per person. More than once, I am reading the list and going wtf? Admittedly, it might last for an entire day, and not everything was hard, but still.

              I believe one of the accounts I read is in Barbara W. Tuchman’s March of Folly in her description of British society right before the American Revolution.

      2. NotTimothyGeithner

        Clicking through, they are including slaves on the property side, so moving farther north, things get better.

      3. Darthbobber

        One quibble. 1776 and 1976 are snapshots. Between them there’s the era extending from the post civil war to the New Deal in which distribution was otherwise. 1976 was BACK to earlier levels as a result of the semi-successful struggles of the 30s on.

        1. Yves Smith Post author

          Hudson’s issue is the powers of the Supreme Court, hence income distribution at 1778 is germane.

          And as for the 1976 point, that is germane because we did have a period when the top marginal Federal income tax rates were 91%. That roughly overlapped with the Warren Court which disproves that the Supreme Court has alway been anti democratic.

      4. JonnyJames

        True, but inequality was indeed present. And what about slaves? the indigenous population? A more equal distribution of income and wealth compared to today is not a very high benchmark either. It’s not quite a simple as that.

        1. Yves Smith Post author

          Sorry, Hudson’s analysis is based on the premise of oligarchy. That was not present at the time of the Founding Fathers. You do not contest that. You are shifting grounds of the argument. That’s bad faith argumentation

          1. TomDority

            Thomas Jefferson on Oligarchy
            …”It may be asked, what, in the nature of her government, unfits England for the observation of moral duties? In the first place, her King is a cypher: his only function being to name the oligarchy which is to govern her. The parliament is, by corruption, the mere instrument of the will of the administration. The real power and property in the government is in the great aristocratical families of the nation. The nest of office being too small for all of them to cuddle into at once, the contest is eternal, which shall crowd the other out. for this purpose they are divided into two parties……….
            I think the divide when getting the constitution was one of using the english constitution as is and in alignment with england with all its warts and problems (Hamilton’s view – federalism Julius Caesar was his idol) or Jeffersonian version where the people would be entrusted to self government

      5. JonnyJames

        “…In both 1776 and 1976 America, the top 1% overall took less than 10% of the nation’s income. The top 1% share today, economist Emmanuel Saez details, is running at over double that level, well over 20%…”

        In 1776 were slaves and indigenous populations figured into these numbers? I would guess the numbers would be quite different if they were. That muddies the waters a bit.

      6. NoFreeWill

        The actual left was fighting hard the whole time, until dismantled by COINTELPRO/massive repression. it was the liberals that worked hard to let creeping fascism take over.

      7. Kouros


        On the morning of May 29, 1787, in the Pennsylvania State House in Philadelphia, Edmund Randolph, governor of Virginia, opened the meeting that would become known as the Constitutional Convention by identifying the underlying cause of various problems that the delegates of thirteen states had assembled to solve. “Our chief danger,” Randolph declared, “arises from the democratic parts of our constitutions.None of the separate states’ constitutions, he said, had established “sufficient checks against the democracy.

        1. rob

          It was the founding father’s disdain for “democracy”, and all the dangers that posed to decide THIS nation was going to be a “republic”.

      8. Kurtismayfield

        Ms Smith, I have to contest that the fight was “ignored” by the Democratic party. They have been feigning fecklessness for decades, meanwhile the other side has zero problems ratcheting the machine to the right. I personally think the Democrats are happier than pigs in mud at the current situation. They get to run against a Supreme court every two years and don’t have to deliver anything.

        1. Yves Smith Post author

          Sorry, the Democrats did fight for these policies in the 1960s and into the 1970s. Hudson’s argument is that oligarchs always rule. That is not true. In fact, the word elites has come into mainstream use only after the financial crisis. If you used it before then, you would have been seen as an Alex Jones fanboy.

          The 1970s stagflation broke the credibility of mainstream economists and their Social Democratic policy views. That allowed the right to take groung.

      9. tevhatch

        We the Elites; Why the US Constitution Serves the Few, by Robert Ovetz makes a pretty strong case that the system of the constitution’s government was set up as an anti-democratic system which attempted to distribute power to property while trying to establish a weak check on any Bonapartist tendency of a future strong executive, as a last check bar assassination. All of this was in order to undo many of the democratic gains that arose through the revolution, and to allow the enrichment of the elites while taking away land from small farmers, etc. The Supreme Court had a role, abet a very limited one, in this schema, primarily to act as a check on the more democratic state courts systems. I do Ovetz’s book poor service, it is a extremely well footnoted text.

        1. Lambert Strether

          > We the Elites; Why the US Constitution Serves the Few, by Robert Ovetz makes a pretty strong case that the system of the constitution’s government was set up as an anti-democratic system which attempted to distribute power to property while trying to establish a weak check on any Bonapartist tendency of a future strong executive, as a last check bar assassination.

          You don’t need to read Ovetz to find that out; the Federalist papers will do. Federalist #51:

          A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

          Asssuming the geopolitical state of the USSR was such as to make this possible, the Bolsheviks might have done better to install some “auxiliary precautions.” Stalin’s rise to power might have taken a different form.

          1. tevhatch

            Yes, Ovitz uses the Federalist Papers, which are a sort of PR program, but with the internal paper communications available from The Small Committee, etc; to disclose many additional hidden intentions and functions. There was an intense backlash because some of these intentions did leak out at the time, but the anti-democratic function of the court is really laid bare in these internal writings. Gouverneur Morris, shister extraordinaire, seems to have been even more active that role than Madison in the designing, not to underplay Madison’s own role.

              1. tevhatch

                Did he invent it? or only apply Freudian “science” to the selling of a brand of PR? Did “government” exist before the word? or that we should not apply that word to structures that existed before the vocabulary was created?

          2. Grayce

            Remembering, of course, that “the Federalists” are not in fact the same as “the Founders.” The Founders are the actual elected officials of their time. The Federalists were a PAC, Political Action Committee. They divided up the persuasive topics for the newspapers, just like an Op-Ed or Letter to the Editor. These were not generalized debate writings but one-sided opinions designed to influence readers. The collection of the essays is called The Federalist Papers” for a reason. They supported ratifying the constitution and forming a strong central government. Reagan would not have fit in: get government off our backs. Remembering, too, there were Anti-Federalists.
            And James Madison said this, Federalist 62
            The qualifications proposed for senators, as distinguished from those of representatives, consist in a more advanced age and a longer period of citizenship. . . . The propriety of these distinctions, is explained by the nature of the senatorial trust; which, requiring greater extent of information and stability of character, requires, at the same time, that the senator should have reached a period of life most likely to supply these advantages. . . .

            1. Lambert Strether

              > The Federalists were a PAC, Political Action Committee.

              I believe I remarked on the amazing tendency evinced in this thread to project our present into the past? No, the Federalists were not a PAC, any more than the Abolitionists were NGOs. Sheesh.

      10. rob

        I don’t think income /wealth distribution were equal at the time of the revolution. I also do think they had every bit the notion of what we call “oligarchy”(of course their definition would be different, since the economics/”making a living”-isms are different)

        I’m pretty sure they had plenty of awareness of the landed families. There were the virginia dynasties. And all through-out the colonies there must have been early settlers that ended up with LARGE tracts of land. The rensselear family in ny? I know some people whose family came here in 1649, and opened up/ owned a good chunk of long island timbering for the shipbuilding that was going on in connecticut at the time.
        And the colonists still had monarchy and european examples of every bit of oppression that “the elite” can decide for the “rest”.

        1. Yves Smith Post author

          There was not great conspicuous consumption, hiring of artisans to create personal monuments (see the “cottages” at Newport or grand houses and castles all over England and the Continent). No sumptuous kitchens or patronage of artists. Talleyrand fled to the US after the French Revolution got bloody for a couple of years and was simply appalled by how grubby everything was here. By the world standards of Gini coefficients then, the distinctions were what the Japanese would call a height competition among peanuts. Admittedly thought the average standard of living was high by world standards then.

          1. rob

            I guess I would ague what us little people know of the powers that be is more the whimsical nature of deciding for WHOM the laws apply, and how much; as opposed to the fineness of their living standard.
            Which is my feeling on the current supreme court. That it means nothing, except to fetishists, when anyone can see the hypocrisy. I have never felt the decisions of the supreme court ,during my lifetime ;were ever anything other than patronage, with moments of begrudging acceptance.
            And considering the problem the justices all have with “ethics”, I don’t see a change. Not that , that means we don’t NEED one…. I would just rather have a “real” one.

    2. Michael Fiorillo

      ” …the poor and the weak’s interests are disregarded.”

      Yes, and along with those should be included the interests of cities and city dwellers. Not only the Constitution, via the Electoral College, subordinates cities/more urbanized states, but custom and practice. Witness the moving of the US Capitol from NYC to then-remote Southern wetlands, and the location of almost all state capitols in areas distant from their largest cities. That, along with people like Jefferson railing against urban vice, makes for a deeply-ingrained and still-powerful bias.

      1. JBird4049

        The District of Columbia was placed where it was in the center of the states of the time, this reducing the objections of the states, and because it was a swamp nobody wanted to live in. I am not too sure that I want to know why a then malarial swamp was considered an acceptable place for the national capital.

        1. tevhatch

          That’s the PR they agreed on, but Fiorillo is closer to the spot on the real reason as stated in letters exchanged between Madison and other members of The Small Committee. BTW, Will Rogers use to include a bit in his act about how Washington and Adams (via his wife, who also speculated in debt which went up in value with the new Constitution) speculated on land in that Swamp. Interesting how something so common knowledge back in the early part of the last century does not show up at all in the Paeans to the founding fathers that PBS produces in our times.

          1. JBird4049

            Very interesting. It is much like how Washington lived on and profited from his expense account during the war. Like any general his expenses were expected to be covered by the government, but who created the list of expenses? He and his staff. I wish just when in the past thirty years I saw that program. Probably on BookTv. The writer had gotten access to the original documents. Two centuries old documents stored away by the government. It is probably in the Smithsonian. It could be in the National Archives.

            Any particular book on the subject of DC?

          2. Lambert Strether

            Washington’s land:

            In 1752 Washington made his first land purchase, 1,459 acres along Bullskin Creek in Frederick County, Virginia. This act inaugurated the second and more profitable phase of his cartographic career, in which he assumed the role of land speculator. Over the next half century Washington would continue to seek out, purchase, patent, and eventually settle numerous properties. His will, executed in 1800, lists 52,194 acres to be sold or distributed in Virginia, Pennsylvania, Maryland, New York, Kentucky, and the Ohio Valley. In addition to these properties, Washington also held title to lots in the Virginia cities of Winchester, Bath (now Berkeley Springs, West Virginia), and Alexandria, and in the newly formed City of Washington.

            And Bloomberg:

            When he was elected president in 1789, George Washington was one of the nation’s largest landowners. Most of his holdings were on the wrong (western) side of the Appalachian Mountains, though, and thus of dubious financial value.

            Donald Trump arrives for a rally Oct. 2 at Spooky Nook Sports center in Manheim, Pa.
            Washington had been working to remedy that. In 1785, he had gotten the Virginia House of Delegates to charter the Patowmack Company to build canals and otherwise improve navigation on the waterway (you know it as the Potomac River) that Washington was convinced could eventually, with a short portage or two, link the Ohio River to the Atlantic. This connection would knit East and West together and make the country stronger, Washington believed. It would also, not entirely coincidentally, make both his Western landholdings and his home base at Mount Vernon on the Potomac more valuable.

            I got this from Joel Achenbach’s “The Grand Idea: George Washington’s Potomac and the Rise of the West.” As The Washington Post reporter tells it, Washington was aware of the potential for conflict of interest in his endeavors. He hemmed and hawed before accepting Virginia legislators’ offer of shares in the Patowmack Company in 1785. Thomas Jefferson had advised against it, but Washington finally agreed with a promise to “turn the destination of the fund vested in me from my private emoluments, to objects of a public nature.” As president of the company in its early days, he accepted only a nominal salary.

            Still, the effort mixed public and private interest in remarkable ways. In an effort to settle Maryland and Virginia’s competing claims to jurisdiction over the Potomac River, Washington set in motion a series of meetings that ended up leading to the Constitutional Convention, over which he presided.

            That makes Washington a good bourgeios (but then we knew that). It doesn’t make him a despot.

            1. Heraclitus

              My college girlfriend’s ancestor, Thomas Cresap, surveyed much of Western Maryland, including the course of the Potomac. He had been an indentured servant at Mt. Vernon, and had learned to read, write, and survey as an young adult. I think a society comprised of his descendants meet annually to celebrate his life.

  2. Lambert Strether

    From Federalist 78:

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

    There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

    In a Constitutional order, especially one designed on separation of powers principles*, this “limitation” function will have to be performed somehow. There’s no getting around it. The “resilience” or lack thereof of that order is less a consequence of design than on the evolution of the larger political system within which the Constitution is embedded, which may or may not distort (by some standard) the design over time.

    Of this evolution (or lack thereof) Hudson writes:

    A nation’s constitution should have the flexibility to modernize[1] laws, taxes and government regulatory power to remove barriers to broadly-based progress[2], living standards and productivity. But these barriers have been supported by oligarchies[3] through the ages[4]. That was why the Supreme Court was created in the first place. The aim was to leave the economy in the control of property holders and the wealthiest families. That anachronistic judicial philosophy[5] is helping turn the United States into a failed state by empowering a wealthy minority to reduce the rest of the population to economic dependency[6].

    [1] This is a category error. Constitutions are documents; they don’t modernize anything. Only political systems do that.

    [2] I think “broadly-based” is doing a lot of work there. First, for its time, the Constitution was broadly based; manhood suffrage is “broad” compared to no suffrage at all, and the franchise, at least, has been steadily expanded. Second, I think “broad,” “modern,” even “living standards” and “productivity” — did the Ancients even have such concepts? — are all “Preamble” material (“life, liberty, and pursuit of happiness”, for example; they sound pretty good!). They are not structural in nature. If one wishes to have a Constitutional order with debt jubilees and where the working class own and control the means of production (👍), write it up**. I would bet that many of the same drafting problems faced by the framers would appear.

    [3] It is not clear to me that a political system with manhood suffrage is necessarily an oligarchy, or that the United States in 1787 was one. (Athens during its short democratic experiment, for example, is not generally so characterized.) Bourgeois the new United States certainly was. But an oligarchy? (Athens, BTW, was a slaveholding society, so it can’t be argued that slaveholders are by definition oligarchs.) Oligarchy is “government by the few, especially despotic power exercised by a small and privileged group for corrupt or selfish purposes.” It’s hard for me to characterize the designers of a Montesquieu-inspired system of checks and balances as despots. A ruling class? No doubt. But despots?

    Possibly the key factor in converting the political system as conceived by the framers into the oligarchy we have today is political parties, of which they had no notion. Factions they understood, but parties had not been invented. (Had they been, perhaps provision might have been made for them.) In that case, the issues addressed by this post, even the Constitutional ones, would not be a function of the Supreme Court at all.

    [4] “Through the ages” indirectly asserts (a) that the United States of 1787 was an oligarchy and (b) that this was the only reason for the Supreme Court. (a) is debatable (see note 3). (b) is false (see discussion of Federalist 78 above).

    [5] To me, this reads a wished-for juridical present into the past (and not the only time). Personally, I think the “timeless value,” if you will, embodied in the Constitution is that no human is fit to exercise power over another. At the same time, humans must do what they are not fit to do (“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” I would urge that the framers who were slaveholders understood this with a special intimacy.)

    [6] Surely the primary causality is the other way round? Capital, embodied in a very small set of families and clans, is indeed transforming the United States into a failed state, as anyone with eyes to see can see. But surely the driver is capital -> philosophy, not philosophy -> capital?


    * It’s not clear to me that this is our current Constitutional order, but that is a topic for another day.

    ** There are 4,543 words in the Constitution, and 652 in the Bill of Rights (which is profoundly anti-democratic, I might add). Not bad duty at all!

    UPDATE 1787, dammit. I’m not sure why 1789 came to mind…

    1. Paradan

      You know for all the times in America that I’ve heard people complain about the Constitution, not once have I ever seen someone write a draft for a new one. With the amount of blogging, and bitching that goes on on the internet, you’d think there would be several floating round out there.

      1. Robert Gray

        Any such endeavour would make the Augean Stable project seem like a Sunday picnic. ‘Write a new one’, you say. What would that be, a new arrangement by which the existing 50 states would relate to each other, and to the federal government? But in many respects, it’s the status quo of having 50 states — widely disparate in terms of history, size (area & population), wealth, ‘development’ (for lack of a better word), etc., etc. — that underlies what may seem like constitutional problems. Writing a new document for the existing USA could too easily end up being nothing more than papering over the cracks.

        But let’s say a true restructuring is desired; in that case, how deep do you want to go? I have long believed that with the power of modern computers it would be possible to reorganise old political units to remove (a) barriers created decades (or centuries) ago by arbitrary lines drawn on maps and (b) the abuses of gerrymandering. Completely new units could be created that reflect modern population centres, transport corridors, etc. BUT if/when you overcome the objections of the diehards and get consensus to strip away one layer, there would immediately be clamoring to go even further — and where do you stop? I’ve thought a lot about this (i.e., some kind of ‘Second Republic’) but I just don’t see any way to do it politically; the vested interests are simply two strong. If such a new government were ever to appear, it would most likely arise from the ashes of some devastating chaos.

        1. Paradan

          Your right about it being a political no go, I just think its weird no ones slapped down a poorly written, unusable attempt, just to make a point or maybe try to get the ball rolling.

          1. tegnost

            I just think its weird no ones slapped down a poorly written, unusable attempt

            Well there’s the TPP and the patriot act.
            Didn’t richard haass say that sovereign nations must answer to globalist rules?

          2. Starry Gordon

            I used to see them in school essays, USENET postings, leaflets, cartoons, and other vulgar publications from time to time. It is true I have not seen any recently, but we live in an era when most of the people seem to have given up the belief that they have any choice or effect on the form of the government. There is also a reasonable countervailing fear that, should the Constitution become less rigid, things will only be made worse more quickly.

            1. JBird4049

              Changing the Constitution is dangerous thing if done without deep consideration and prudence. The Constitution and the Bill of Rights are more like a religious text than a secular political document. It is the glue, and no exaggeration, that keeps our society together even if many Americans do not consciously understand this.

              There are two ways to amend the constitution. It can be done by amendment going through the states’ legislatures or it can be done via a constitutional convention, which has not happened.

              People have suggested a Constitutional Convention for decades. The problem with a convention is anything can happen. It all on the table; the “conservative” or the hardline, economically libertarian, anti-democratic faction backed by the extremely wealthy American oligarchy of the putatively conservative faction has written its chosen changes to the Constitution. They are ready to pack the convention and put through their changes, which will cause far greater problems due to the method, than the changes themselves.

              The Constitution is meant to be hard to change, which means that when any changes due occur, it is after a usually long, often acrimonious, process that only started because of a general consensus that something needed to change. Even the losers could accept that the changes were broadly democratic and had been debated on.

              If a convention was to happen, the, let’s be honest here, extremely fascistic faction in America politics would probably take control and put in the changes that they wanted without any debate or input from anyone else. Not only would the new constitution be extremely unpopular with the vast majority of Americans, including moderate social and economic conservatives, the whole process would be considered more like a coup, than honest reform. A desecration of a religious text. One does not need guns for a holy war and even a lot of leftists and liberals have guns.

              Also, despite the problems with the constitution, it was meant to construct a balance between federal government and the states, between the individual states themselves, as well as between the individual and the state government, which when the Bill of Rights is included, has strong protections of the individual and checks against the government. It could, and should, be considered holistic.

              Changes in one part influences everything else. A failure of one part, let’s say a dysfunctional legislature that refuses to declare war since December 12, 1941, creates a dangerously unbalance system. The Supreme Court’s gutting of most of the rights in the Bill of Rights, excluding the First and Third also is creating a dangerous imbalance. Another failure could be considered the extent of the armed bodies, including the military, that now exist at all levels of government, municipal, state, and federal. The Founders and the creators of the Constitution in addition of not liking the common people being in charge were very fearful of a dictatorship in the modern sense or even a corrupt oligarchy that would take over and oppress the nation. The system of state militias and a very small, almost nonexistent military, with the exception of a navy was conceived as a check of a too powerful government becoming oppressive. There was even an expectation of an occasional war against the elites in charge.

              The examples of the war with the British Empire’s corruption and its dictatorial practices such as using the military to enforce the law, were in their mind, and the entire Bill of Rights comes from it.

              Since 1947 and the start of the Cold War, we have seen the negation of a growing part of the system set up by the generation of Americans that created. Worse we have seen it done in an ad hoc way, often by the very kinds of people that the original Americans would have opposed. The massive military and a police force turned gendarmerie with very little accountability with the continuous undeclared wars on countries that are no threat to us at all. All parts of the government, at all levels local, state and federal over the past five generations, increasingly refusing their responsibilities except to do actions that enhance the wealth of the wealthy, protect the ruling class and their minions from the law and justice, and now only the very minimum needed to keep the country going. Oh, and stripping the rights and protections of an increasing portion of the American nation.

              The dysfunction of the courts is not a result of the system as it was set up, but the result of powerful factions wanting more wealth, greater privileges, and to create means of keeping them.

              Truly, the forces doing the destroying are not what I would call conservative, nor liberal, but people seeking evermore of everything, despite any harm to others it might do. What are they trying to conserve? In the best sense of the word, it is keeping the best of what was or is. Destroying everything for mere greed and ego isn’t it. How is it (classically) liberal to do what they do? Liberalism, whatever its flaws, was meant to stop the endless wars, and the political and religious persecutions of the powerful, using something other than the threat of violence, giving everyone rights that protected them and everyone else.

              I hear a growing call to discard it all because reasons. The very reasons that the ideals of the Enlightenment and its creation of classical liberalism happened was to prevent; the writers of the Constitution used them to set up the American political philosophy and the system that they intended for us to live under.

              I do not see any consideration or prudence whatsoever.

          3. caucus99percenter

            John Muir, author of the counterculture classic How to Keep Your Volkswagen Alive: A Manual of Step by Step Procedures for the Compleat Idiot, came out with his blue-sky blueprint for a “Republic of North America” in 1973.

            Titled The Velvet Monkey Wrench, the book has been reprinted by OceanTree. Shown here as the second from the top:


            Totally impractical? Such were many of the dreams and visions of high hippie-era counterculture.

            1. JBird4049

              >>>Totally impractical? Such were many of the dreams and visions of high hippie-era counterculture.

              Which was shattered by the FBI/CIA and others.

              Can’t have the people actually believing in and getting what they should have.

      2. hunkerdown

        PMC virtue signaling isn’t an argument, either, and that’s all these competitive wish-fulfillment exercises of “I can be a better dictator than you are” are. Men make their own history, but not under circumstances of their own choosing…

      3. Kouros

        Amend the present one in which the states control how elections are conducted, and mandate a system with proportional representation that also provides no protection for the two incumbent parties… See what happens…

      4. tevhatch

        Haha, you have to understand that even our current constitution is illegal under the articles of Confederation. It was a coop of sorts, by the 1% against the 99%. Very unpopular but money won out.

        1. Lambert Strether

          > our current constitution is illegal under the articles of Confederation

          Under the Articles of Conderation the states would have been picked off one by one by the European empires. So I’m not sure what your point is. (I’m not sure that a Constitution can ever be “illegal” under another Constitution, because Constitutions are not laws, but form the basis of law. This whole post, and many of the comments on this thread, is replete with category errors like this, as well as historical anachronisms.)

          1. tevhatch

            My point is not that the articles were not suitable, but that not only they were not suitable, but they were replaced by work that would never have been accepted by the survivors of the war of independence who sacrificed so much (for so few it finally turned out).

              1. tevhatch

                ….but that not only they were not suitable, …

                I think my point was misunderstood, even many in the democracy recongised the need for a change, just not the change they got. That was the con. It was a close cut thing that a civil war didn’t start out then, which indeed would have presented a grand opportunity.

                That said, it’s interesting . An outright civil war only 4 score and 7 years after the war, and 74 years after most state had signed on to the new government was demographically beyond the UK and France, over-extended as they were, less so that 70 years earlier was too much to chew. Perhaps even with Spain it was too much a leap. Maybe Russia helped, but here is the USA frothing at China without with an aircraft carrier cum military base the size of Canada.

                1. Lambert Strether

                  > I think my point was misunderstood,

                  Your point was, in fact, perfectly understood, taking the words you actually wrote as a starting point.

                  > It was a close cut thing that a civil war didn’t start out then


    2. dingusansich

      Re [1]: Yes, but to be charitable, Michael Hudson may be alluding to what I consider among the top framing errors of the Framers: a lack of a sufficiently responsive iterative process for constitutional adaptation. They set the bar for amendment far too high. Pace Jefferson, the governed might not need to water the Tree of Liberty with blood every so often when they have a recurrently fundamental role in the evolution toward that more perfect union. I’m not saying it was a snap of a task. The Framers had to throw a dart at the dialectic between stability and change. I contend that they overshot the mark on the side of stability, and dialectics being dialectics, that didn’t cement stability so much as heighten contradictions and throw the works toward confrontations the document did not fully anticipate (how could it?) or flexibly address. Criticisms of the amendment process came up in the debates taken up in The Federalist Papers, only for the authors to wave them aside, pretty much saying, “We’ve got this covered.” The Anti-Federalists, by the way, also foresaw the structural flaw whereby the Supreme Court, given the power to render law passed by the Congress void, might usurp the role of the legislature. Call it the problem of Lambert’s “somehow,” a sort of Russell’s paradox for separation of powers. The workarounds may be as many as states in the UN. They each speak to what Yves remarks on in her headnote, the contingently recidivist nature of power relations, which resist any foolproof, end-of-history schema.

      1. Lambert Strether

        > Michael Hudson may be alluding to what I consider among the top framing errors of the Framers: a lack of a sufficiently responsive iterative process for constitutional adaptation. They set the bar for amendment far too high

        Fair enough as an argument; another solution might be regular, i.e. lower stakes, Constitutional Conventions (and blue-skying completely: Say every three Senatorial cycles in off years). However, I think if Hudson had meant what you say, he would have written it.

  3. John R Moffett

    The problem now is that some individuals have more money than entire nations. That is power in the extreme in a capitalist system. It obviously even affects who gets on the Supreme Court. Eliminating the top court would have zero effect on reigning in the ultra wealthy. Only a wealth tax of 95% or higher could do that. But that just isn’t going to happen, so people are grasping at straws trying to figure another way to fix the broken, rigged, rotten system.

  4. Polar Socialist

    We should not forget that there are currently four ways legislative systems deal with constitutionality of laws: supreme court, constitutional court, parliamentary committee and no control at all (a.k.a. parliamentary sovereignty).

    I personally live in a country that has a supreme court that only deals with guiding the administering of justice in future cases by setting precedents. It’s also the court of last resort. But it doesn’t have a say in interpreting the constitution whatsoever. The parliament can’t pass a law that is deemed unconstitutional (or violating any international agreement) by a constitutional subcommittee – which while completely political organ always bases it’s rulings on expert statements.

    tldr; there’s always a need for a supreme court, but maybe not for a constitutional court.

  5. The Rev Kev

    I can’t see how you can get past the need of a court on the national level whether you call it the Supreme Court or the High Court or whatever. For a start, the US is suppose to be a balance between the 50 States and the Federal government. So right there you need a Court that is capable of adjudicating any disputes between the two. But more to the point there has been a constant struggle between Congress and the Presidency. I think that the Supreme Court was in part set up to prevent one or the other gaining total control of the government. But in any case, it is not so much the Supreme Court ignoring what ordinary Americans want but the elites which have taken over both major parties. A university study showed that popular things only became law when they aligned with the interest of the elites. So it is not so much the Supreme Court that has to be brought to heel but the elites.

    1. Kouros

      “So it is not so much the Supreme Court that has to be brought to heel but the elites.”

      Hear, hear!

      That is done via actual revolution, or horrendous epidemic, or horrendous wars. Have your pick.

    2. ChrisPacific

      Yeah, I think a need for a highest court (whatever you choose to call it) follows naturally from a fairly small number of assumptions. A need to have laws. A need to have a method for adjudication of laws where there’s a dispute. A need for an appeal process. A limitation of some sort on the appeal process so that it can’t go on indefinitely.

      Already with these we’re implying a hierarchy or courts or court-like entities, which implies at least one highest court from which there is no further appeal. If it’s more than one then you haven’t fully solved the problem (what happens if they disagree?) so it’s typically a single court. Most countries in the world have this in some form.

      It’s only anti-democratic if voters lack democratic control over the Constitution. This is arguably the case in the US, as other commenters have pointed out, and is probably the more fundamental problem. There are certainly elements of the Supreme Court in the US that are problematic (most notably lifetime appointments) but I don’t think removing it entirely would solve anything. It would simply leave final arbitration to happen in a more fragmented and opaque way that would probably be even easier for oligarchs to manipulate.

    3. Rolf

      A university study showed that popular things only became law when they aligned with the interest of the elites.

      Gilens and Page (2014)? From their abstract:

      Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence.

  6. Lexx

    ‘What were then radical conservatives, with John Birchers, the Kochs, and the Cohrs family as major players, and they specifically launched and funded a campaign to change jurisprudence in America to be more business friendly. Remember, the great socialist Richard Nixon propose a minimum guaranteed income.’

    Yeah, what every happened to that ‘John Birch Society’? I was once told that Lewis County, Washington in the 60’s and 70’s had more JB members per capita than any place in the U.S., except Orange County, California. A joke I think and based in part on this billboard, clearly visible both north and southbound from I-25. It was built while I was in middle school and referred to at the time as ‘the Hamilton Farm sign’.


    Big movers and shakers in the local chapter were the Agnews, still headed by grandson, Dan.



    How the John Birch Society Won the Long Game – The Nation

    Locally, the Birchers were considered paranoid, just short of needing to be institutionalized. The butt of jokes every time Hamilton changed his billboard with a new message he had to share with the driving public. I went to school with Hamiltons and related families, the pressure on them in that small town must have been intense… but that was long ago and far away and I assumed the Birchers disappeared. Progressiveness had erased them. Outside of Lewis County, the state is deep blue.

    That is until the Koch brothers began to occupy the media, and then Trump, and then I thought ‘I’ve heard this before.’ It boggled my mind that that little group of nutjobs so derided locally had gained any traction nationally… I underestimated them.

    My actual physical impression of the Agnews was of a family I found neurologically disturbing*. I met Jay Agnew twice and was spoken to with contempt. It wasn’t personal, he considered most people beneath notice or deserving of basic respect. His son back in the day was a playboy and a drunk. I couldn’t remember a time when I saw him sober. Guess he got tired of that lifestyle, but not of exploiting animals for financial and social gain.

    Which brings me to ‘social mores’ and the ‘chicken or the egg’ question. There are those amongst who are incapable of accepting what their class and opportunities give them. They don’t like the rules and set about gaining, by any means necessary, the power to change them. They’re ‘Lucien Rael’ who can not live under Empire, can not change, will not bend, and won’t be conveniently offing themselves. Something has to give and they think it should everyone else. They’re not big on compromise. All their rhetoric is rationalization for pathological ambition and the need to control. It’s what I hear when arch conservatives speak… they’re playing god, remaking the world in their image, where social mores apply to everyone but them. Like philandering priests and supreme court judges for sale and they can’t seem to hear their own hypocrisy.

    * I expect people to be predictable and they usually have the good manners to do so, to be socially “safe”. Jay set off my alarm bells. He and his cronies occasionally dropped into a restaurant where I was waiting tables and I tried to make myself scarce. Fortunately their drop-ins were in the middle of the afternoon when things were slow and my absence from my station was hardly noticed.

    1. Lexx

      I just caught myself suggesting that if one could hear their own hypocrisy, naturally they’d change their behavior… and if not, must be deaf to it. Gads… somewhere in the back of noggin, I can hear a therapist counseling that people change their behavior when on balance it’s in their interests to do so.

    2. Old Ghost

      Lexx. The John Birch Society is still around. They are located in Appleton, Wisconsin, at 770 North Westhill Blvd Appleton, WI 54914 United States …

      I have driven past their office hundreds of times. I don’t know what they do. But it appears they have a lot of job openings at this time. Maybe you could infiltrate and let us know what they are up to ?

  7. Aurelien

    As a non-Murkin watching from abroad I have been completely perplexed by this debate.
    All counties with any pretensions to democracy have a “checks and balances” system since otherwise a government with a parliamentary majority would be able to do anything it liked, even if what it wanted to do was illegal or manifestly unconstitutional. Depending on the system, you can have lowish-level administrative courts, courts of recourse for specific issues, constitutional courts, supreme courts etc. and in each case their decisions are binding on the executive and parliament. Their job is to interpret the law, and to see whether the government is breaking it, or alternatively which of several suggested interpretations is the correct one. They are not there to make policy.

    Like many people, Hudson seems to be arguing that, because the Supreme Court sometimes gives answers he doesn’t like, it should be abolished. In that case, the classic answer is to change or clarify the law, which is often done in Europe. Anything else is just demanding that judges play an explicitly political role, not even pretending to consider the legal issues involved, but voting along party lines. At which point it’s not obvious what function these courts would actually serve.

    1. Kouros

      I think Mr. Hudson is beating a bit around the bush.

      It is not god given that private property is sacrosanct, or that debtholders rights are sacrosanct. Might be legal, but it doesn’t make it right and sound for the society in general.

      The right side of the brain knows this fact…

  8. Michael Hudson

    What I meant to be the central point of my article was to draw parallels with classical Greece and Rome. I wanted to show the parallel fight there — and I’m more familiar with the legal struggles in antiquity than I am with U.S. legal struggles.
    Especially problematic, as Yves points out, is the federal/local disparity of law. that’s the problem that China faces, above all with regard to local financing and land tenure. Antiquity didn’t have that problem, so I didn’t deal with it — and in fact, can’t really deal with it, as this introduces a much more complex point of reference than the parallels I was describing.

    1. JBird4049

      What is not taught clearly enough in American civics and history classes is that it is the United States of America and always has been. It is the reason why they are called states and not provinces or territories. Even at the beginning, the country was too varied in size, economics, and culture to be governed by a single national government. This is why we have the whole federal-state-local system as the Constitution would have not been passed. The states all wanted some real independence and connections. A way to square the circle.

      Look at the states of California, Maine, Mississippi, Indiana, and Utah. It is hard to find find four more different states. Yet, people keep wanting to govern the country as if it was their own home state with too many Democrats wanting to further restrict it to their Blue urban enclave. Not that the Republicans don’t have their own myopia.

      Despite the homogenization of modern society, it has been four centuries in its creation, and that is when you do not include the original inhabitants who are still around.

      I guess I should be happy that the states no longer routinely have their own militaries. The national guard exist, but seems to be treated as adjuncts to the regular military. Of course, a state can always create its exclusive military and a if it got real who knows what the people in the individual national guard units would do?

  9. James

    I had read elsewhere that Obama had ended habeas corpus but I did not think it could possibly be true – I had to read Yves say it to believe it. Wow.

    1. Synoia

      All the best totalitarian regimes must not have Habeas Corpus so that they can whip anyone into silence.

      It is a central facet of dictatorships, along with ineffective or servile parliaments.

  10. marym

    ”the franchise, at least, has been steadily expanded”

    The major expansion of voting and equal protection rights in the Constitution after the Civil War was met with Jim Crow laws in the states, enabled by the Supreme Court in 1896. The voting rights protection legislated by Congress in 1965 was undermined by the SC in 2013. The disenfranchisement of people convicted of a felony – initially a product of Jim Crow laws in the states, and continuing today in many states in spite of popular opposition – was upheld by the SC in 1974.

    This isn’t an argument for or against having a SC, but given conservative elite determination to enforce an agenda, and a “liberal” elite not committed to an alternative, the Supreme Court hasn’t been a friend to voting rights.

    1. Lambert Strether

      > ”the franchise, at least, has been steadily expanded”

      None of your examples disprove my claim. I wrote “steadily expanded,” not “universal.”

      Nor did I say, nor do I believe, that the Supreme Court is or should be the prime agent of expansion. See Amendments 19, 24, and 26.

  11. J Liam

    As Aurelian suggests, a mainstay justification for the existence of an independent judiciary is that it can act as a key part of a system of checks and balances. What is the judiciary, in the modern democratic republic, supposed to be independent from? Popular influence is one answer. While I think Yves provides some rich and important context and nuance, I would tend to agree with Mr. Hudson, in that the historical record seems to show us that such bodies are not truly independent in any real sense, but are mechanisms by which plutocrats can circumvent the practice of democracy. Current events bear this out as well (see the judicial coup in Argentina just last year). Speaking of South America, many military elites in that part of the world have fiercely defended the ‘independence’ of the military from the government, which at least in theory has levers of popular control. These elements have never argued for independence from, for example, American funding and training of their militaries. Whatever the justification, or method, established interests, benefiting from extreme economic polarization, will exert control over the political system to prevent reform. Here in America, our Senators are almost all millionaires, but they are not lifetime appointments, so it appears necessary for the maintenance of class rule that there be a backup, and this is not quite a banana republic, so a judiciary independent of popular influence will do.

  12. JonnyJames

    I still cannot get over Citizens United decision either. Sorry to repeat but, SCOTUS formalized unlimited political bribery and formalized US oligarchy.

    Still, many of us will not acknowledge this and operate from the assumption that the US has a functioning democracy of some sort. Of course, definitions need to be stated, but by any loose definition do we really believe the US is a democracy?

    Sorry to be crude, but the law is to beat down the powerless; prison and taxes are only for “the little people”

    1. aj

      I don’t get the fetishism of Democracy. What we currently have is a Democratic Republic that has been captured by oligarchs. There is nothing special about a democracy that prevents bad actors from taking over. As the Ben Franklin quote goes: “Democracy is two wolves and a lamb voting on what to have for dinner.” The problem really then is that all political and economic systems (democracy, communism, anarchism, etc) require (and often assume) good-faith actors. It’s not necessarily the fault of the system and changing the rules only causes the bad actors to operate by different rules.

      EDIT: not actually a Ben Franklin quote, but often gets attributed to him. Still, the sentiment is the same if not the source.

      1. Kouros

        If you don’t have The God Emperor of Dune running the show (quasi immortal and omniscient), then, in a population deemed more or less “equal” at individual level, only debates and decision by vote would do it.

        By and large, we call that democratic process.

      2. Cine Tee

        Conway’s law, Structure wins over process.

        Often in declining organizations you end up with an “espoused-theory” and a “theory-in-use.” Two parallel organizations, but not two separate groups of people. Each individual is enacting two disparate realities justified by logic which then has to grow increasingly magical.

        As knowledge becomes more superstitious to support an increasing volume of contradictions, it turns into an enlarger of ignorance for everyone.

        Generally the cycle seems to start when a very successful period ends. Rather than allow a new reality (or market) to re-invent them to what it needs, they hold on to the old beliefs for success to the point of a sense of supremacy over markets and reality.

        You can see it in the final years of just about any failed corporation like Xerox, Kodak, Compaq, cdc, Tandem computers, Yahoo, etc.

        Similarly, it seems, our political divides are incidental to our abilities as individuals to be self-compromised. While we still espouse the constitution, but vote our hubris, which is the inability to see what’s really there.

        We may not need to understand the role of the oligarchs and grand trends as much as the corruption in our own lives. One of them being easily distracted. Ideologies and arguments favored over curiosity. Without a new sense of purpose worth getting uncomfortable over, and a fairly rigorous sense of honesty, we’re sellouts in mass. The oligarchs and politicians are just hyenas having a feast on the sick herd.

        There always seems to be a way out though. Ironically, in the 70’s the Voice of America was a beacon of light in the middle of total distortion of truth and facts. Now it’s sites such as this, and the new media.

      3. JonnyJames

        And as Franklin warned, we lost the Republic. the US is an empire run by an oligarchy. Similar to what happened to western Roman empire.

      4. dingusansich

        Re democracy fetishism, there’s a Ben Franklin quote for that, from his remarkable remarks to the constitutional convention, no less, just before the delegates affixed their John Hancocks. He said this: “[T]here is no form of Government but what may be a blessing to the people if well administered.” Consider the political agnosticism of that remark. If you’re unfamiliar with Franklin’s envoi, definitely read it. It’s not quite 800 words of unparalleled wit and wisdom, modulating at times into almost Mozartian notes of dread.

    2. Jeremy Grimm

      I am not sure how crucial Citizens United is in the corruption of u.s. politics. It appeared that Bernie Sanders was able to collect adequate funds for running his campaign from multitudes of small contributions. His fate in runs for President suggested to me that the power of Big Money extends far beyond the impacts of Citizens United. Something more was at work. I am not sure exactly what happened behind the curtain. There are also after the elections punishments like those the Democratic Party applied to Dennis Kucinich. [The contributions to the candidates political party would have their impact … but I believe the machinery of both major parties have long been the property of Big Money.] While in office, compliant politicians can enjoy rewarding junkets funded at public and discreet private expense. There are also many compelling post facto perks available to politicians willing to sell their services while in office, book advances, speaking fees, very well paid “jobs”, appointments to government office, to name a few common perks.

      1. JBird4049

        Relatively small donations from the wealthy and corporations can get very generous returns. A Senator can get a donation in the thousands, which can millions in profit. If you have a similar problem throughout the federal, state, and local governments, then the entire economy gets twisted and bent in favor of the monied.

  13. Carolinian

    James Madison and his fellow Federalists

    A quick Wikipedia

    During the early 1790s, Madison opposed the economic program and the accompanying centralization of power favored by Secretary of the Treasury Hamilton. Alongside Thomas Jefferson, he organized the Democratic–Republican Party in opposition to Hamilton’s Federalist Party.

    It was of course Hamilton who allegedly said “your people, sir, are a great beast!”

    Madison was indeed a slave owning aristocrat but also believed the “great beast” must have a say in government to maintain the compromise of “checks and balances” and general consent that would keep the system going (as it has for 250 years).

    One can also challenge Hudson’s view that two trimester abortions and free education have overwhelming public support that is being denied by the oligarchs. In fact past polls have indicated that the public is more in line with the “legal but rare” view of abortion that Hillary herself once advocated.

    The truth is that in America at least the “people” are anything but a monolithic entity and it’s not just propaganda that produces sympathy for the rich or those plumbers and welders cheering Trump. We do have a crisis of representation but that’s the system itself more than the Supreme Court which keeps pointing this out. They struck down Biden’s student loan idea because it hadn’t been approved by Congress so those who object are in favor of Caesarism indeed by an old man who can barely find his way across the White House lawn. Caesar wasn’t just a good guy and economic populist but also a miltarist who committed vast slaughter in Gaul. Is that what we want?

    1. Kouros

      The slaughter in Gaul was just a means to gain power in Rome. Will the slaughter in Ukraine give Biden any points for 2024?

  14. Louis Fyne

    Democrats weren’t complaining when the judiciary promulgated decisions very sympathetic to left-of-center causes. Just saying.

    I prefer the concept “parliamentary sovereignty/supremacy” which ironically was been gradually eroded in the UK—anything legislated is constitutional, don’t like it…fight it out in the next election. (A concept probably hated by regardless of ideology).

    The founding idea that the judiciary is an apolitical, neutral, wise arbiter of law was at best naive/aspirational. At worst cynical spin to establish a tripartite government.

  15. David in Friday Harbor

    Thank you Yves for your introduction. Understanding the influence of the Chicago School and its twisted-up founder Aaron Director is more important to the current state of affairs than Prof Hudson’s comparisons to Greece and Rome or even Lambert’s erudite discussion of federalism under the U.S. constitution.

    As Lexx’s discussion of the Birchers of Lewis County WA illuminates, in Chicago School libertarianism rich bullies found a philosophical justification for hoarding everything in sight. It may not be mere coincidence that Ukrainian immigrant Aaron Director was scarred for life by the virulent anti-semitism of the 1917-20 Red Scare as a high-schooler in Portland OR just a few miles down the road from the Agnews. Both Director and the Agnews were virulently anti-middle class and libertarian elitism was where their paths met.

    The common thread here is the fear of “democracy” as “populism” and the ”need” for an institution to keep it in check. However the true source of power in modern America is how money shapes propaganda as discussed by Sheldon Wolin’s theories of Inverted Totalitarianism and Fugitive Democracy.

      1. David in Friday Harbor

        I think you’re on to something here.

        This is especially so in the way that the GOP panders to fears of the Bircher/Q-Anon crowd while the DNC panders to the fears of the Professional-Managerial Class — two groups who believe they have all the answers but who lack class/caste consciousness and hate each other passionately.

        This allows the two legacy parties to pursue virtually identical economic and foreign policies benefitting our Billionaire Overlords while differentiating themselves from one another on fringe issues in order to distract the electorate from the non-existence of an actual democracy.

        The Supreme Court is just part of the theater.

        1. Lexx

          I’m rarely on to anything, David. I’m a very passive student and poor follower of anyone who would propose to lead. I have a deep suspicion of the agendas of others… and there’s always an agenda whether they’ll cop to it or not.

          But I am a Hedges fan (passively again) and watched his eight part interview with Sheldon Wolin a few years ago on Youtube. I understood little of it; it’s interesting how his theory keeps coming around though. Unless I’ve misunderstood the Commentariat (when I take the time to read all their comments on politics and the economy), they’d probably agree that we in the U.S. are living within a state of ‘inverted totalitarianism’ since they’re often speaking to some point of that state.

          I agree with your point about the Supreme Court, in fact most of what is presented to us through the media feels like theater, meant to entertain not inform. It is left to us to connect the dots… if we have the time, energy, and maybe Achilles heel of morbid curiousity. Most people prefer their beliefs… the Blue pill.


  16. Jeremy Grimm

    After reading this post, I did not see an argument that the Supreme Court should be eliminated as the title of this post suggested. The argument did build a case that the Supreme Court has played an anti-democratic role at many times in u.s. history and particularly in the last and present century. I am not convinced the Supreme Court is inherently anti-democratic. The life-time appointments of Justices does make the Court a conservative feature of u.s. government — conservative in the sense that it lags and dampens the impacts of shifts in sentiment and party from one administration to another. I suppose it is fair to conclude that the Supreme Court at best provides ineffective checks and balances for preventing rule by an oligarchy although it has proven most effective at preventing rule of, by, and for the Populace. Rather than conclude the Supreme Court should be eliminated, I would conclude that there are inherent flaws in the checks and balances designed for assuring a u.s. government of the people, by the people, for the people that will form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. The present u.s. government falls far short of meeting these ideals.

  17. Another Scott

    I’m not sure that I agree with the implication that the recent headline cases (over student loans, affirmative action, and the bakery) represent the Supreme Court undermining democracy. The polling that I’ve seen over student loans and affirmative action support SCOTUS’s decisions. In addition, none of these involved overturning an act of Congress. Even when Rowe v. Wade was overturned, it didn’t overrule a legislative act.
    This is not to say that the current court is a defender of democracy or egalitarian (neither is likely true), but I don’t see the same level of contempt for democracy that was exhibited in Citizen United, Bush v. Gore or any number of pro-business rulings.

  18. spud

    Thomas Jefferson explicitly suggested that if individuals became so rich that their wealth could influence or challenge government, then their wealth should be decreased upon their death. Indeed, If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree…”


    Our most prominent Founding Father warned of the dangers of individuals becoming mind-bogglingly rich. In a letter to Joseph Milligan on April 6, 1816, Thomas Jefferson explicitly suggested that if individuals became so rich that their wealth could influence or challenge government, then their wealth should be decreased upon their death. He wrote, “If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree…”

    Also in 1816, Jefferson wrote a letter to Samuel Kerchival explicitly laying out the dangers of an entrenched aristocracy, as today’s billionaire class has now become. Jefferson wrote,

    “Those seeking profits, were they given total freedom, would not be the ones to trust to keep government pure and our rights secure. Indeed, it has always been those seeking wealth who were the source of corruption in government. No other depositories of power have ever yet been found, which did not end in converting to their own profit the earnings of those committed to their charge.”


    “I hope we shall crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.”
    – Thomas Jefferson

    “I believe that banking institutions are more dangerous to our liberties than standing armies. Already they have raised up a moneyed aristocracy that has set the government at defiance. The issuing power (of money) should be taken away from the banks and restored to the people to whom it properly belongs.”
    – Thomas Jefferson

  19. spud


    “So, from the very start of the debate on a new Constitution, Madison and other key framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic success and the public welfare.

    In the Constitution, they created a robust central authority, stating in the preamble the explicit responsibility of the government “to promote the general Welfare.” The document also granted the federal government broad domestic powers, including authority to regulate interstate commerce, the so-called Commerce Clause.”

    “Finessing the Opposition

    So, Madison – along with Alexander Hamilton and John Jay – began a series of essays, called the Federalist Papers, designed to counter the fierce (though generally accurate) attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.

    Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers.

    Today’s Right has sought to transform Madison from his role as the chief advocate for a strong central government into the opposite – a modern-day Tea Partier before his time – by citing Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” in which Madison used the pseudonym Publius.

    Trying to finesse the opposition to his plan for enhanced federal powers, Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.””

  20. spud


    “Free Trade, War and Debt: All Branches of the Same Tree

    by Geraldine Perry / June 30th, 2017

    Free trade, debt and war are all part of the same package, each feeding off the other. They are – each of them – rackets in their own right and they are all symptoms of the same problem. That problem has to do with the fact that our government – along with the rest of the world – has entirely forgotten the basic concept of how a national economy actually “earns” its way to prosperity.

    The American colonists understood this in a very visceral way. For example, Benjamin Franklin once remarked that there are only three ways a nation can become wealthy. (1) It can engage in war and war profiteering. (2) It can reap unearned profits through exploitation of wage and price differentials, under cover of “free” trade. OR (3) It can create new, earned wealth through a balanced domestic exchange economy.

    Franklin, like the other colonists, knew whereof he spoke, having witnessed firsthand the shenanigans of the British East India Company, which not only began using slave labor for its operations by the 1620’s but which required England to continually bail it out, heaping extra debt on the English people and forcing England to look for tax revenue from her increasingly disgruntled American colonies.

    But bailing out the East India Company was not the real reason why England was in debt. That state of affairs must be attributed to the fact that England had, in 1666, relinquished her prerogative to issue the nation’s money – a prerogative sanctified by the world famous Mix’t Moneys case of 1604. Instead of maintaining that prerogative for the benefit of her people, England was persuaded, through bribery, intrigue and various forms of subterfuge to surrender that prerogative over to private hands – those hands being those of the British East India company, through the Mint Act of 1666.

    The East India Company thus was given the right to coin – or issue – its own money, allowing it to reap handsome profits for the privilege. Still not satisfied, the merchants of the Company, together with London bankers, then instigated the creation of the Bank of England and a permanent national debt along with a method for expanding the private debt of England’s citizens, all to the financial advantage of these private interests. . .

    The “money question” which the East India Company had seized for the benefit of itself and not the public was the actual source of England’s growing debt, and the reason behind her endless wars waged on behalf of commerce. “

  21. Stephen

    Am a bit late to this and as ever it is an interesting article and set of comments.

    The U.S. (it is not alone) has a serious challenge in being able to make effective constitutional change and has an entire governmental system that nowadays is dominated by oligarchic interests. Professor Hudson is spot on with respect to the challenge.

    I am not sure that abolishing the Supreme Court helps so much though. A more thorough change in the way the system works is needed but the dominant interests will frustrate anything that is against their interests. Whatever the set up.

    Always worth remembering too that the founders were not democrats. Professor Hudson is right that they stood for oligarchy not democracy. They saw that as opposition to the reemergence of a dictatorial king who would repress them as well as opposition to the dictatorship of the masses. Very eighteenth century view and politically very close in mindset to many politicians of the time in London, many of whom supported them. Some of the best British generals even refused to serve for these reasons.

    The thirteen colonies had always been separate and an overweening federal government was also seen as potentially repressive given their diversity. Burke, for example, broadly supported the revolution because he saw it as intended to recreate the 1688 Glorious Revolution that George III had usurped with respect to the thirteen colonies. This was precisely because he saw it as rooted in historical precedence and not an attempt to redefine the world on the alleged rational grounds that underlay the later French Revolution. The Supreme Court is an integral feature of such a system as a check on power not a bug.

    A very smart Professor many years ago said to me in a tutorial that a lot of the time what matters is the custom and practice of what is considered acceptable behaviour in a political system and how you use it. Not the formal structures as such. Formally, for example, the British monarch can veto laws but never does. There is to my knowledge no written law that says they cannot: just an accepted practice that came into being from the 1640s.

    I think the current US problem (and ours in the UK) is more that he boundary of accepted political and judicial behaviour has shifted in recent years. This in itself simply reflects greater polarisation, an ongoing religious war over identity politics and economies that increasingly fail to deliver for most people. Explicit oligarchic “capture” is very related to that. We need to start from a perspective of how we fix these problems holistically. Which might even be incapable of being solved without some form of meltdown first. The debate over the future of the Supreme Court is a discussion of a point solution in that broader context. The whole set up needs to change how it works, not just one element. I think in a long winded way I am agreeing with my interpretation of Yves’ comment: ultimately power is what matters, however you set up the “system”. How do we change the power relations? Unless that is tackled then all solutions will only be palliatives at best.

  22. ben lebsanft

    it some things its a reasonable assessment but in others not.
    the younger generation have different attitude to “Status”

    Employment in a lot of cases is negative yielding for individuals., so those groups never become obligated by societies laws , politics or the market. to attain “status’
    so they look to other areas to attain it, in the pursuit of some meaning to it.
    or something like that at an individual level.

    its an interesting dynamic at present and way too early too draw any conclusions .

  23. spud

    A republic, Jefferson would write, “cannot invent too many devices for subdividing property.” jefferson, Americans must ever strive to avoid, the “numberless instances of wretchedness” that inevitably arise whenever some hold far more property than others


    “The balance of power in a society, accompanies the balance of property in land. The only possible way, then, of preserving the balance of power on the side of equal liberty and public virtue,is to make the acquisition of land easy to every member of society; to make the division of the land into small quantities, so that the multitude may be possessed of landed estates. John Adams From a letter to James Sullivan, 1776.”

    “This catchphrase, “fruits of their labor,” would pepper revolutionary era speeches and broadsides. The revolutionaries agreed that Republican liberty would surely fail if their new nation ever let elites expropriate what average Americans labored so hard to earn.To prevent failure, the new nation would have to be vigilant.

    Fortunes would have to be divided at every opportunity. In Europe, the laws of primogeniture and entail enabled wealthy aristocrats to pass on their fortunes, undivided, to their firstborn male heirs. By ending these laws, America’s founders believed, the young United States could prevent grand concentrations of wealth from accumulating — and threatening republican rule. State by state, in the decades after the Revolution, advocates of republican virtue would work tirelessly to abolish entail and primogeniture.

    These dangerous principles concentrate the property of the country, and with it the power and influence of a few.” But efforts to end aristocratic inheritance laws, America’s early leaders believed, could not by themselves keep property and power dispersed.

    Good republicans, the revolutionaries agreed, must attack aristocratic wealth at its source — by keeping the economy free from government interference. America’s revolutionaries subscribed, in effect, to the doctrine of laissez-faire.

    Egalitarians today, of course, consider laissez-faire an inherently conservative doctrine, a convenient fiction that those of wealth and power propagate to hoard what they have. But America’s revolutionaries saw the matter in a quite different light. They believed that politics, not economics, concentrates wealth and power. Wide disparities in wealth could only result when an elite manipulates politics to extract from hard-working citizens the fruits of their labor.”

    “A democratic republic, Americans agreed, must ever strive to avoid, in Thomas Jefferson’s phrase, the “numberless instances of wretchedness” that inevitably arise whenever some hold far more property than others. Jefferson did acknowledge, that a completely equal division of property would be “impracticable.” But he believed deeply that “enormous inequality” had left humankind with “much misery.” A republic, Jefferson would write, “cannot invent too many devices for subdividing property.” “

  24. Victor Sciamarelli

    It’s my understanding, and I’m no lawyer, that the Supreme Court has the power to strike down legislation and that this power is known as “judicial review.” It’s also my understanding that judicial review is nowhere to be found in The Constitution but was a power the Supreme Court merely gave to itself in a case from 1803, Marbury v. Madison, and we’ve lived with it ever since.
    Thus, if the originalists are doing the talking, I’m not sure what they’re talking about because the Court has power the founders never explicitly created.
    In my opinion, in a system of checks and balances we need legislation in order to have less check and more balance.

Comments are closed.