Blog # 200   OUR AILING REPUBLIC (REDUX)

Let us start with a basic definitional statement: A Republic is a State in which supreme power rests in the voter and is exercised by representatives chosen by them to implement their will.

For more than three centuries, America has occupied the laudable position of the exemplar of representative democracy. Its founders, in the 18th Century, declared the moral principle that all men were created equal, thus legally eliminating the previous historic conception of privileged birth and class distinction. The governing philosophical mantra of the new American Republic was now to be “one man, one vote.” Except for the long and unfortunate struggle for the franchise for black people, this has been our consistent guiding and inviolate principle.

Thomas Jefferson instructed that for a democracy to succeed, requires an informed and literate citizenry. Jefferson and the other founders of our republic, followers of the English philosophers, John Stuart Mill and Jeremy Bentham, looked to the exercise of free speech and mature debate between citizens of disparate beliefs, as the way to rational and balanced decision making. This was a new, enlightened and salutary design, fashioned for equitable and morally estimable governance.

There are some people that seem inclined to credit ancient Athens with the origin of democracy. However, although the word, “democracy’, is of Greek etymology, the privilege of voting in ancient Athens was reserved to a relatively select class of Athenians, qualified to enjoy the designation of “citizen.” The accurate facts concerning the Magna Carta, another occasionally cited icon of democracy’s gestation, was no more than A surrender (at Runnymede) by the 13th Century English King of the right to collect taxes from certain enumerated Barons, nothing else.

Presidential campaigning by “whistle stop” appearances at strategic towns, at which candidates solicited votes by speeches delivered from open platforms on rented railroad trains, actually continued, it seems, through the 1980’s, during the candidacy of Ronald Reagan. Radio, newspaper advertisements, public billboards and later, television, were more effectively employed by candidates seeking voter support.

With the exponential development of mass media and the growth of electronic digital communication, candidates could now reach millions of prospective voters with their utopian promises and earnest assurances of superiority over their opponent. The outreach of public media was effectively unlimited and, unfortunately, strategically successful. This was so, particularly among citizens characterized by limited information and sophistication, easily won over by demagogic candidates promising utopian results. This was far from the classic Jeffersonian model for a successful democracy.

Political use of the media is unconscionably effective yet enormously expensive, requiring every political campaign with any practical aspiration to success, to be armed with vast financial resources. Here is the etiology of the pathogen, gravely infecting our laudable system of republican governance, which  mandated the foundational, democratic criterion of “one man, one vote.”

Thus, candidates and their supporting staffs were now obliged seek financial support from wealthy donors. Such donors seldom contribute substantial moneys without a reciprocal obligation on the part of the candidate to cast his vote, or exert his influence, in accordance with the donor’s business interest, or unique dogma. As a result, we are faced with a (sham) republic in which the will and interest of the voters are relegated to an inferior position relative to the influence of the few special interest donors.

There have been idealistic and patriotic attempts to eliminate inequitable financial dependence on the unjust  influence of special interests and to properly restore our agreed democratic principles, however, none seem to have been successful.

To make matters considerably worse, it appears that the constitutionally designated “highest law of the land,” the Supreme Court of the United States (”SCOTUS”), the fountainhead of our democracy, the revered institution of Marshall, Brandeis, Cardozo and so many eminent jurists and upholders of the American law and justice, has, of late, ruled disappointingly and shamefully, directly in contrast to its great juristic past, and in such a fashion as would exacerbate the pathological disease, of monetary influence, presently invasive of our body politic. It has, surprisingly, acted in a unprecedented manner, contrary to its consistent jurisprudical history and historically established, invariable priorities.

The precedential law of SCOTUS, from its inception, has eternally been, to refuse to accept (grant certiorari) to any case which may, albeit in some indirect fashion, have any political subject or impact.   This fixed precedent, was wisely enforced without exception, to avoid trespassing upon the strict, constitutionally mandated, “Separation of Powers.” Said legally required roadblock, strangely, seems to have been by-passed in the cases of Bush v. Gore, and in the infamous Citizen’s Union case, both strangely, accepted for review, despite their indisputable political nature.

In the Citizen’s Union case, SCOTUS expressly ruled that corporations are “people” and accordingly, under the citizen’s right to free speech, legally could contribute unlimited campaign funds. This continues to be an enigma. Such ruling necessarily destroys the foundational principle of equality, one man, one vote historically protected by SCOTUS, by its legal approval of the influence of the few major financial sources of campaign money, to the unfortunate detriment of the interests of many individual voters (one man, one vote).

Most confusing is the specious reasoning. Every law school freshman (and businessman) knows that a “corporation” is a fictional entity, existing only in commerce for the sole purpose of limited liability; contracts thus can be entered in a business’s registered corporate name, and the convenient entity may be a named party in a lawsuit, separate from the principal of the business. The law school freshman, like everyone else, understands that the statutorily created legal fiction, the corporate entity, is not a natural person [ with rights under the first ten amendments.] Certainly, the august Court is aware of this fundamental principle, existing since Victorian England’s “Limited Liability Act,” passed by Parliament in the !9th Century, and adopted by America’s State laws.  Yet SCOTUS seems to have gone to great, unprecedented and remarkable lengths to rule, as it did, to the delight of the influence peddlers, and the material detriment of our republican form of government. This bizarre and uncharacteristic ruling must be overturned, as soon as possible, if our democracy is to survive and SCOTUS retain its former respect and credibility.

There is an urgent need to consider creative methods of campaign financing which do not impair the appropriate significance of the vote.

-p.

 

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plinyblogcom

Retired from the practice of law'; former Editor in Chief of Law Review; Phi Beta Kappa; Poet. Literature Student and enthusiast.

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