Week-end Wrap – Political Economy – April 23, 2023
by Tony Wikrent
Strategic Political Economy
The Democrats’ Appalling Failure to Confront the Rogue, Right-Wing Supreme Court
Simon Lazarus, April 21, 2023 [The New Republic]
...For decades, Democratic politicians have dodged challenging the ultra-right’s drive to junk the post–New Deal liberal Constitution, with made-up doctrines that, in the apt words of liberal Justice Elena Kagan, would make “most of government unconstitutional.” ...[The] Democratic Party that has remained perversely tight-lipped in the face of the existential threat the Supreme Court poses to its aspirations. If Democrats want to change this dynamic, they will, at the very least, have to start talking about it.
In its first two terms following Biden’s ascent to the White House, the court’s right-wing justices have flaunted their zeal to validate Reagan Solicitor General Charles Fried’s 2020 warning that they would “take a constitutional wrecking ball to generations of Supreme Court doctrine.” In addition to their incandescent elimination of a half-century-old individual right to abortion, the reactionary justices have, with less notice, overridden explicit constitutional and statutory text to ax long-standing labor, consumer, health, safety, environmental, and civil rights regulatory and safety-net guarantees….
Biden, and most Democratic politicians, reacted to these body blows to liberal governance with little more than feckless press-release lamentations that treat these “retrograde rulings”—to use historian Jeff Shesol’s words—as “discrete events rather than the defining project of the court’s conservatives: to lay waste to the welfare state and the administrative state, the civil rights revolution, the underpinnings of an accountable, workable government.”
Conservatives don’t make these mistakes. They hoist the banners of “originalism” and “textualism,” as legal cover for yoking the courts to their policy and political agendas, even while ignoring originalist or textualist principles whenever they prove politically inconvenient. Right-leaning politicians, pundits, and policy advocates turn arguments developed by their academics, judges, and legal experts into slick talking points. When liberal politicians ignore the right’s fabricated claims that modern liberal governance flouts the Constitution, or that particular liberal measures disregard pertinent statutory text, the results can be devastating….
Liberals’ phobia about mastering and publicly messaging constitutional and legal claims is ahistorical. Not only do their current adversaries on the right assiduously wrap themselves in the Constitution and ignore the idea that certain discussions are somehow gauche; liberals’ own ideological predecessors did likewise. Icons such as Franklin and Theodore Roosevelt, Abraham Lincoln, and the original Framers, including Jefferson and Madison as well as Washington and Hamilton, crafted legally sophisticated but politically canny characterizations of the text and Framers’ design of the Constitution and relevant laws….
It was not always like this. Indeed, it was never like this. In the past, when the fundamental direction and structure of government was in play, great liberal leaders took their constitutional case directly to the public. Consider the messaging strategies deployed by FDR and his allies: Following the high court’s invalidation of the 1933 National Recovery Act, Roosevelt opened his next fireside chat by voicing “a hope that you have reread the Constitution [which] like the Bible, ought to be read again and again.” He delved into the Constitution’s text, quoted the dissenting opinions at length, and concluded by saying, “I want—as all Americans want—a Supreme Court that will enforce the Constitution as written, [not] amend the Constitution by … judicial say-so.”
Eight decades before Roosevelt arrived on the scene, Abraham Lincoln, as candidate as well as president, routinely furnished equally graphic examples of deep-dive constitutional messaging….
In an 1854 speech assailing the Stephen Douglas–sponsored Kansas-Nebraska Act, which repealed the 1820 Missouri Compromise that had banned slavery in new territories North of the Mason-Dixon line, Lincoln stressed that Thomas Jefferson, author of the Declaration, had also authored the Northwest Ordinance of 1787, which banned slavery in all new territories, arguing that the Framers intended “We the People” to include all people, not just whites. In his 1858 debates with Douglas, Lincoln acquired a national reputation through his compelling refutations of Douglas’s embrace of Taney’s whites-only Constitution. Unafraid of parsing the text in a political forum, Lincoln stressed that “nowhere in the Constitution, does the word ‘slavery’ or ‘negro race’ occur.” Lincoln argued that this textual silence meant that that the Framers’ “purpose was that [after slavery had, as the Framers expected, vanished] there should be nothing on the face of the great charter of liberty suggesting that such a thing as slavery had ever existed among us.”
Campaigning for the Republican presidential nomination, in his February 1860 speech at Cooper Institute in New York City, Lincoln documented that 21 of the 39 signatories of the Constitution supported federal control over slavery in the territories, and that most of the others were outspoken abolitionists, including Benjamin Franklin, Alexander Hamilton, and Gouverneur Morris. He also cited a letter from George Washington to the Marquis de Lafayette endorsing the prohibition of slavery in the Northwest Territories.
Democrats Struggle to Face the Illegitimate Court System
Ryan Cooper, April 21, 2023 [The American Prospect]
Last year, I argued against the principle of judicial review. For almost all of its history, the Supreme Court has been a reliable force for oligarchy and white supremacy—upholding slavery and Jim Crow, striking down child labor, minimum-wage, and civil rights laws, inventing corporate personhood and qualified immunity for police out of thin air, and on and on. Even on the rare occasions when it has expanded rights, it has commonly reversed itself later, as we saw with the Dobbs decision. Both of America’s greatest presidents, FDR and Abraham Lincoln, had to confront the Court head-on to deal with great crises tearing the nation apart.
[TW: I have written a number of times that “the left” has shot itself in the head by rejecting these lessons of American history as just part of the “racist, patriarchal, elitist origins of America.” It has allowed the conservative and libertarian movements — without opposition or impediment from “the left” — to popularize half-truths and outright lies as constitutional interpretation, and then masquerade as patriotic defenders of the Constitution. ]
