Democracy?
You couldn't handle democracy!
That's a paraphrase of Jack Nicholson as the Marine general at Guantanamo in "A Few Good Men," where he tells the Tom Cruise character, a Navy JAG attorney, "The truth? You couldn't handle the truth!"
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When this country was founded, the Framers made sure that we didn't get too much democracy. They didn't think we could handle it.
They left voting laws up to the states, even for the election of federal office-holders such as the president and House of Representatives.
Did I leave one out?
The Senate. Members of the state legislature for each state elected the two state senators, per Article I, Sec. 3, not the citizens. This changed with the 17th Amendment, ratified in 1913.
Was this a big deal?
Yes; here's why. Before the 17th Amendment, Senators didn't have to campaign to the public seeking votes and promising to do good things. The state legislature picked the senators based on what the senator would do for them, not the citizenry.
When you and I got to vote for our senator, he, or she, had to pay attention to us. We had the power of removal after the term expired in six years. Now the senator had to pay more attention to us, as opposed to the state legislature or the state.
We got a democracy injection with the 17th Amendment; more direct democracy was the result.
Another way the Framers indicated their distrust of you and me was by establishing the so-called Electoral College, a body that meets only every four years when we elect a president. You may think you voted for Bush or Gore in 2000, or Bush or Kerry in 2004, but although that's what it said on your ballot, your vote was recast, effectively, by a member of the electoral college, except in 2000 when it was recast by a five person majority of the Supreme Court. There was no risk of democracy breaking out in the 2000 election.
The Court-appointed president was able to ride to victory a second time in his own right with the help of incumbency awarded by the Court. Democracy took a beating. Nevertheless, the president wishes to export democracy to Iraq and is willing to see American soldiers fight and die for Iraqi democracy. Let's hope that the new Iraqi Constitution, which is supposed to be completed on August 22, 2005 will bear some resemblance to a democratic process in the making and the follow through.
It does little good to say that we have less democracy because our Supreme Court has the final say in matters of constitutional interpretation while the president and Congress don't. In order to measure how much democracy we actually have, one must take an overall view of all three branches of the federal government, and the states, as the Constitution reigns supreme over the three federal branches, which includes all of the federal departments and agencies plus the state and local governments. Local governments such as cities, counties, and various districts are considered parts of the state they are in.
That adds up to a lot of democracy but nowhere near a perfect democracy. What could that be? I suppose a perfect democracy was one in which the citizens constantly voted on everything through the medium of a portable voting machine which I call a v-Pod, for voting pod, a transmitter of votes to a central voting machine, in effect.
This would drive us nuts. We'd be too distracted to do our work. Our legislators, whom we trust to come up to speed on technical and policy issues so that we don't have to, would be out of work.
Things would happen too fast.
We need people to tell us no, that would be stupid or unfair, to slow us down. We need to be tied to the mast, like Ulysses, to use an analogy from Erwin Chemerinsky's book in Constitutional Law.
Allowing the Supreme Court to have the final say, through the exercise of the power of judicial review, may have produced a decision upholding slavery (Dred Scott v. Sandford, 1857), but it also broke the deadlock represented by the Southern Bloc of senators who killed all Civil Rights Bills between Reconstruction (just after the Civil War until 1876) and 1957 when LBJ twisted many arms to get the first modern civil rights bill passed, by deciding Brown v. Board in 1954 providing for public school integration in theory and often in practice..
While it may not seem very democratic to permit the least democratic branch to ride herd on the more democratic branches, what can one say except to note the good and to reason that in a democracy we are subject to doing foolish, ill-considered things that violate basic constitutional rights. So we rely on the Court to be our sea anchor. A sea anchor is not the iron hook on the bow of a ship that is lowered and grabs the sea-bed. A sea anchor is made of fabric, cloth generally, or it could be made of trailing hawser of sufficient length. It is used in storms to keep the bow of the ship pointed into the wind when tied to the bow, or the stern when tied to the stern. The purpose is to keep the ship into the wind so the wind doesn't capsize the vessel by knocking it over sideways. Metaphorically, as in real life, the sea anchor helps you weather storms. You may be blown some distance, but you remain on the surface with a sea anchor which drags along. It's a drag chute, in effect, deployed into the sea water.
Democracy is where we have our hand on the tiller, setting course and direction of travel in order to get to our goal.
The Supreme Court as sea anchor helps us from being blown too far off course in buffeting winds.
We trade democracy for survival.
To complain about the Court having the power of judicial review, final say in constitutional matters, is to have to state where else you would want the final say to rest.
The outfit I trust least is the White House. Next is Congress. And finally the Court. Each of them is quite capable of messing up big time. President Nixon. Bush v. Gore (2000), Congressional pork.
We live in a country run by human beings.
We do the best we can.
We tend to believe that insistence on a platonic ideal is not apt to work, in most cases.
So we settle for an approximation and hope things will work out.
It's "good enough for government work" is our watchword.