Blog #108 LAMENTATIONS (“From Bad to Worse”)

As if matters were not challenging enough for American democracy, the recent election results portend a virtual race to the bottom.

The establishment of the American architecture of government was the brilliant, erudite and wise creation of our founders. With their collective eye on the disastrous history of Europe, featuring tyranny, revolution and hardship, they set about to create a unique, secular and egalitarian form of government (most especially, including the Bill of Rights) responsibly conceived and responsible to its citizens.

They created an entity with three independent branches, Executive, to execute the law, legislative, Congress, to enact into law the people’s will, and a Judicial branch, to assure ultimate justice. Each branch, legally, had the function, when needed, to control the excesses of the other, a separation of powers a/k/a “checks and balances.” All other influences were excluded, including, importantly, the Church. Let us briefly examine the present state of health of this utopian creation.

The Supreme Court of the United States was constituted as the one final arbiter of legal issues. Of course, with jurisdiction over all courts, its capacity to function would be rendered as a practical matter, impossible without some limitation placed on the number of cases acceptable for adjudication by it. A procedure, “The Writ of Certiorari” was established as the first and prerequisite hurdle, which, wisely excluded from acceptance any cases with political issues or political overtones, including those that could have any political impact, purposely guarding the separation of powers, a foundational principle of our republic. This “black letter” law and admonition, was an historical precedent applied with relentless consistency.

Gore v. Bush, a case unprecedently accepted by SCOTUS, was more than “suggestive” of a random political issue, it was, in fact, a decision as to who would serve as the President of the United States. Worse, if possible, the later Citizen’s United case held that a corporation was a (real) person with the right to free speech, which includes the right to donate (unlimited) sums of money to an election.  Unfortunately, our legislators spend major time raising money for their re- election and so are easily influenced by business or political groups willing to donate needed cash, thus overriding the interest of their constituents as their legislative and moral responsibility. Not only did SCOTUS severely damage our democracy by the Citizen’s United case, but the legal basis was confusing and almost laughable, were it not so devastating in impact. Every law school freshman has already been taught that a corporation is a fictional person, created solely for use in commerce, to limit the liability of entrepreneurs; so, a corporation can be a contracting party, and a party to a lawsuit. Every law school freshman knows that a corporation is not a real person (with rights) and it must follow that the justices of that august court know it as well. (See: Blog#5)

This disappointing and disgraceful performance by our Judiciary and Legislative branches, was made almost bearable by the commendable, responsible and truly excellent performance of our Executive Branch, in the person of Barack Obama. Despite a “bought legislature” and the unprecedented and incomprehensible performance of the judiciary branch of government, he successfully endeavored to carry out the moral responsibilities of a head of state. It is highly commendable that he, in fact, did, despite these encumbrances, manage to effect very many good results in healthcare, immigration and governmental policy, domestic and international. As difficult as the task was, under the circumstances, this was done with dignity, intellect and professionalism throughout his eight- year term of office.

Thomas Jefferson famously said, for a democratic government to work, what is needed is an informed and literate citizenry. The philosophical theory of Jefferson (also Bentham and Mill) was that freedom of speech and the exchange of various ideas would lead to the ultimate, rational resolution of problems. He certainly was correct in theory but it seems, lately, most idealistic in his expectations.

It may be that our national inventory of “informed and sufficiently literate citizenry” is lower than anticipated. The shocking result of the current election evinced the selection of an individual, singularly unfit for presidential office; an incompetent television dude, selected to fill the office of the most potent and influential leader of the entire world. This person, a dangerous, ill tempered, incompetent was elected, presumably, by the flat-earth, climate change deniers, the ill- informed reductionists, which pliny calls, the “troglodytes” of society, unhappy with their life and too ignorant and unaware to discern the true reason.

This President-Elect, moreover, has shown himself to be a semi-literate, ill-tempered, bigot and an egotistical, and arrogant person with limited intelligence and a surfeit of bravado. These traits spell disaster, domestically and, internationally and are no less than frightening.

Pliny recommends the reading, or re-reading of Sinclair Lewis’s novel, “It Can’t Happen Here.”

-p.