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As Mitch McConnell labors to jam another conservative judicial nominee through the Senate, the unasked question is why must we care so much? In a system that celebrates itself as a “nation of laws, not men,” how is it that one woman (or man) — especially one representing the views of a small minority of Americans — has the terrifying power to rewrite our freedoms and alter our lives? 

The answer is that the American system of government under the Constitution has proven itself to be vague, easily manipulated by the powerful and subject to individual interpretation. So much so that appointing just one more right-winger to the Supreme Court, or electing a self-obsessed lunatic to the presidency, can “destroy our democracy,” as so many have said. This tells us we have deep, fundamental gaps in our scheme of government. 

We need a system that clearly sets out the rights of all people to justice — economic, racial, gender and environmental justice; a system that enduringly guarantees these rights and provides the sharp teeth to protect us from the caprice and personal prejudice of powerful individuals who would deny people equal justice.

“Trust no man living with the power to endanger public liberty.”

John Adams, the country’s second president, is widely credited with making laws, not individuals, our supreme authority. He enshrined the idea in Massachusetts’ original constitution of 1780. Adams had a prudent disdain for virtually everyone. He wrote in his diary in 1772, “There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”

Adams, like most of his fellow “founding fathers,” made it clear that “a free government” was not a fair one. Adams was adamant that only a wealthy minority of Americans should make the laws. Working men without property must never share the power of self-government, he wrote in 1776, because they were all mere vassals of their propertied employers — “to all intents and purposes as much dependent upon others, who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents.”

In practice, this meant the new United States of America would be ruled by the commonly held notions of a small, homogeneous group of men who essentially shared the same interests and thoughts. Such a country could and would be governed by a sort of gentlemen’s agreement. There was no need or desire to define and protect the rights of everyone.

Nearly two-and-a-half centuries later, we are still stuck with America’s original contradiction: We are a free democracy, a government of the people and a nation of laws, where the laws are set by a minority of the people — still, largely, white men with property and money.

The right, including Judge Barrett, has written copiously about constitutional barriers to keep the majority from abusing a minority. But there is virtually no conception of the many ways in which the minority is empowered to abuse the majority’s rights.

The Constitution “is an invitation to abuse by whoever happens to be in power.”

Jamal Greene, professor of constitutional law at Columbia Law School, says our Constitution is a “framework,” more like an outline for a governing document than the real thing. He writes, “...the U.S. Constitution does little more than to describe, broadly, a political architecture.”

While it may have served well enough for a country with a homogeneous political culture, it is failing our diverse country.

Greene presented his arguments in late 2018 in a law journal article titled “Trump as Constitutional Failure.” The question Greene asks is not whether Trump’s presidency is a disaster for America’s vast majority — it clearly is, he finds — but “whether Trump’s election also represented a failure of the U.S. Constitution.” He asks, “Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016?” He concludes that we will face more “populist demagogues” if nothing is done.

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For starters, while the U.S. Constitution commands almost cult-like devotion from our political establishment, it is among the world’s shortest, least detailed and most difficult to amend, Greene writes. “These attributes contribute to its mystique, but also render the constitutional text a radical underspecification of the American constitutional system,” Greene says.

The Constitution's text does not and cannot govern us, Greene writes. Rather, our entire system of government has been controlled by “a set of norms and conventions” assumed by our homogeneous, 18th-century political culture. Relying on such “soft, unwritten norms is an invitation to abuse by whoever happens to be in power....”

In other words, we are a nation of men, not laws. 

Our basic law is totally silent on many essential rights, so the powerful can make it mean whatever they like.

Our basic law is totally silent on many essential rights, so the powerful can make it mean whatever they like. Mostly, no matter which party is in power, what the powerful have liked has resulted in growing economic inequality and desperation for the majority of Americans.

The gaps in our federal system begin with the failure to guarantee the most basic and essential right of a democracy — the right to vote. There is no right to vote in the U.S. Constitution. This is compounded by a disregard for any provision to make each vote count equally. So gerrymandering and voter suppression — mostly aimed at disenfranchising Black people, other people of color, poor people and Democrats — are completely legal.

“The rights the Constitution provides are sparse and are generally stated in abstract terms,” Greene confirms. Even the powers of our three branches of government — “the legislative, executive, and judicial—are nowhere defined in the Constitution.” There is nothing there that explicitly empowers federal judges like Barrett to do what they do in reviewing the laws of the land, he points out.

Time to “remake America into what we want it to be.”

All this is barely a start at enumerating the holes and inequities in our fundamental law. Anyone looking for specific rights to guarantee access to the mythical America, land of equal opportunity, is forced to look outside the law. Americans enjoy no right to education, no right to health, no right to fair pay, no right to breathe clean air or drink clean water.

James Baldwin famously declared, ““Not everything that is faced can be changed, but nothing can be changed until it is faced.” In the same 1962 essay in the New York Times Book Review, he said, less famously, “We are the generation that must throw everything into the endeavor to remake America into what we want it to be.” 

No matter who wins the coming election, nothing will change until we face the fact that the people of America need a new governing compact and it is the people’s obligation to force the writing of that compact. No politician will ever do it without being forced to it by popular demand.

Kirk Cheyfitz 200

Until then, we are all subject to the machinations of the powerful few and, as we have seen, that’s a terrible place to be.

Kirk Cheyfitz