In the Discourses, Machiavelli says that a state is reliant on the wisdom of its founders to make good laws. That why this morning I woke up and just nearly jumped out of my skin I was so joyful I'm one of the few fortunates who can claim to live in this country of strong virtuous soul planted on an unshakable political bedrock. Yes, doesn't it just bring a tear in your eye to know that there are so many - maybe millions of unwashed, poor little people - who will never know the true joy of being an American? We should be happier, for their sorrow. Well, what made me particularly shocked at our founding institutions was that institution of institutions, the Supreme court.
So, in our ostensible democracy, we have a legislative body unelected by the people, who rule for life. And, as far as I can tell, there's no good reason for them to exist. If anybody out there has an excuse for why we should have a high court exist in the Land of Democracy and Freedom, tell me now, before I start to rant or something.
Now, what the Supreme Court is meant to do (I think) is judge whether any given law is Constitutional, as if the Constitution, in the founders' infinite wisdom, contained within it the secrets to best governance, and the only thing we mere mortals need to do to run our state properly is to study that ancient document as carefully as one would study the Bible, or Homer, or Seinfeld; so if a given law in twenty-first century America doesn't jibe with the imperatives set down by some white slave owners from the seventeenth century, then so be it - scratch the new wisdom, the old wisdom, while we do not understand it, has withstood the test of time - and so we get legislation that sells the Grand Olde Internete-Tubes piece by piece to the highest bidder, or some other bit of nonsense. It is okay (the argument would run) because there exists an ineffable and inarguable wisdom that our founding fathers mystically tapped into during their beer-fueled legislative orgy of which we and our Constitution, and our Democracy, are heirs. Call it the DaVinci Code theory of democracy.
What the Supreme Court actually is, when you get down to, is another legislative body. It makes laws. It does so by interpreting a vast canon of precedent and - who knows, maybe pig entrails. But it legislates nonetheless.
And having an unelected, unaccountable legislative body frustrates the very heart of our democracy. Just look at Roe vs. Wade. Now, I believe women should be able to have abortions because it allows them to have the freedom to decide whether or not to have a child: which is a pretty big decision, any of us would say. But I believe that Row vs. Wade, in basically imposing a law on the people- a good, just, moral law - pissed off a everyone who disagreed with it. Even though it does good it does so while side-stepping democracy. Part of the democratic franchise is that you fight for your cause and yet accept the outcome of the legislative process. Well, the anti-abortionists out there are pissed because they were never given a chance to actually get democratic about it.
And you know, the Court isn't some cabal of learned genius. They're humans, right? So they can be bought off. Just look at the Court's decision in the election of 2000. Or the Court's decision that somehow the right to free speech allowed companies to bribe our elected officials with campaign contributions.
The Court is just plain wrong for a democracy. Being moral isn't just about the morality of the outcome of our actions. It's about the underlying process and intention of the action itself. If being moral was all about doing things that had moral outcomes then nobody would be moral, or the wrong people would be moral, because we humans and our funny finite perceptions can't accurately track the long-term moral outcomes of what we do. We can only tell whether or not we do something with good in our hearts. And just because the Supreme Court sometimes does things that I agree with, it doesn't make those decisions just or right, because the process by which they were decided is fundamentally wrong - for a democracy. Whatever it rules carries the stench and taint of aristocracy and privilege that is so very antithetical to our basic political heritage.
This will be a bigger and bigger issue in the coming years. Bush got to put two judges on the Court. And with Bush, well, Bush just reeks of the brimstone, and while we'll probably as a nation be able to easily forget the War On Terror and No Child Left Behind and Plamegate and the lies and the fear and the steady inching towards the line that separates a fascist society from a free one - I mean, we'll forget it about as well as the Saturday night partier forgets the ugly girl he slept with - those Supreme Court justices are there until they die. And we're going to have to pay a heft alimony on them for at least half a generation. And that - it's scary.