Those were Benjamin Franklin's words, when asked what form of government the constitutional convention had come up with. Now it appears the Supreme Court may be ready to piss it away.
Yesterday's oral argument in the Supreme Court was horrifying, genuinely so. You'd think that the main stream media might have greeted with alarm the revelation that a potential majority of the Court's members are ready to grant the President a right to commit crimes without impunity; that is, to make of the President a monarch such as this country was born to escape from. The true dimensions of this development are so enormous that they are only slowly sinking in, but one would have expected more immediate a reaction than it has received.
Possibly as many as six of the members of the highest court in the land are willing to contemplate presidential immunity from criminal law, an immunity nowhere mentioned in the Constitution to which they swore allegiance upon taking office. This was even more startling, given that all six of them have professed a commitment to "originalism" and "textualism," that is, to the idea that the Constitution must be interpreted strictly according to the terms in which it was written, as those terms would have been understood by the people who originally adopted them. You would think that this philosophy would preclude granting the chief executive an immunity from criminal prosecution nowhere mentioned in the document and inconsistent with values so basic to it as that no one is above the law and the primary job of the chief executive shall be to faithfully execute the laws.
But, as has been obvious from its very beginning, "textual originalism" is once again revealed as the merest of frauds, an intellectual hocus pocus used to obscure from view the penchant of so-called "conservatives" on the court to substitute their preferred result for whatever the law they supposedly are interpreting actually says.
I've written elsewhere about this cabal's abandonment of various practices basic to actual functioning as a legitimate court: respect for precedent; adherence to the facts of the case; standing, that is, the existence of an actual justiciable dispute between the parties, as a prerequisite for
jurisdiction. Now it appears that they may be prepared to cast themselves loose from any commitment to democracy itself.
I heard former Justice Stephen Breyer on the radio the other day, arguing that a critical underpinning of the rule of law is that we accept decisions of the high court even when we believe they are completely wrong and harmful. I guess he is probably right, so far as it goes. Otherwise, if we deny legitimacy to the institution just because we disagree with it, we invite mere chaos to govern
our affairs. That's the reason, the only reason, why Al Gore was correct to acquiesce when Antonin Scalia (may he rot in Hell) handed the presidency to George Bush. At the time, the court's action could be imagined as a regrettable, aberrant triumph of partisanship. But that was then, and this is now: what of the situation when the high court has abandoned all but the most transparent pretense of its own commitment to democracy and the rule of law? How are we to act, then?
