Say not the struggle naught availeth

by John Quiggin on June 28, 2018

With all the grim news from the US Supreme Court today, it’s easy to feel despairing. And there are certainly strong arguments to support a pessimistic view.

On the other hand, we’ve been here before many times before. Arthur Hugh Clough’s poem “Say not the struggle naught availeth” was written in 1849 the aftermath of the collapse of Chartism, a movement that demanded universal male suffrage, secret ballots and other democratic reforms. Clough himself spent 1848 in Italy during the “Year of Revolutions”, most of which were defeated within a few years. Yet, in the end, the Chartist demands were met*, and then surpassed through the struggle for women’s suffrage. The struggle for democracy in Europe as a whole has ebbed and flowed (it’s ebbing at the moment), but has so far been successful.

Coming to the US situation, even though the right has all the levers of power, they are still losing ground on lots of issues, both in terms of public support and in terms of actual outcomes

That’s not to say that we are necessarily on the winning side of history. It’s easy, for example, to imagine a scenario where the Republicans offset steadily declining support with steadily increasing voter suppression. And the strength of racist/xenophobic appeals to a formerly dominant group, on the way to becoming a minority, can never be underestimated.

On the other hand, if the existing support of the majority of the public translates into a Congressional (or at least House) majority in November and a progressive Democratic President and Senate in 2020, a right wing majority on the Supreme Court won’t be able to reverse trends like those I mentioned above.

  • The only exception being the demand for annual Parliaments.

{ 47 comments }

1

bob mcmanus 06.28.18 at 7:11 am

You missed the ongoing global march of maryjane, with recent mixed news from Oklahoma, Vermont, Delaware (fail), Texas (Republican Party accepts decriminalization) and Lebanon. Canada is old news already. New York? Can’t keep up.

Somehow I feel, since it’s global let us call them conservatives, by accepting small quantity decriminalization and/or non-enforcement and medical with various levels of regulation and limitation are keeping this down as a issue or a driver of turnout and partisan identification. It moves only a small number of voters, inevitability and easy access leading the pros to patience and the cons to tolerance.

Jeff Sessions did pot a favor. Nobody wants this fight.

2

nastywoman 06.28.18 at 7:13 am

– AND – Ocasio-Cortez
AND Alissa Quart:
Why Our Families Can’t Afford America,” – which means sooner or later everybody who can’t afford to live in the homeland anymore – will have to leave – like WE all did – and move preferable to Italy -(as Sydney doesn’t take immigrants) – and then the US – with all these very Rich Americans who still can afford to live in SFNYCLY or whatever can self-destruct without bothering US because we all will have our Aperol Spritzes at the Piazza Erbe and listening to Adriano Celentano singing about Azzuro!

3

Phil 06.28.18 at 8:54 am

It’s easy, for example, to imagine a scenario where the Republicans offset steadily declining support with steadily increasing voter suppression.

After the assassination of Jo Cox*, I wrote on my blog

As for Fascists, they’re simply the shock troops of the Right; their appearance on the scene tells us only that the legitimate Right is weaker than we thought, the Left is stronger than we thought, or both.

I remember that when I wrote that I was in “how can I know what I think until I see what I say?” mode – the thought composed itself with the sentence on the screen. But on reflection I thought, and think, it’s basically correct.

The danger the US faces isn’t that the Right is winning; it’s that the Right is losing, but slowly and from a position of strength, or rather several positions of strength. Just as the Right steadily lost ground in Germany from 1924 on.

*Hardly anyone seems to use that phrase, but I can’t see what else it was.

4

Lee A. Arnold 06.28.18 at 10:22 am

I agree that there is always darkness before the light. But let’s not forget that the Left is lazy and wants everything handed to it. They have to do better. The present situation merely shows that with good organization & lots of money the Right can trump logic, science, and lack of numbers. So what? If their rightwing Supremes deliver a decision that prevents something good, then you do it another way, or make an Amendment to the Constitution. It ain’t easy, but it can be done. The usual rejoinder heard here is, “but that’s almost impossible.” And there is the point. Almost all voters on the Left are as lazy and uncomprehending as on the Right, they are unequipped to counter the false claims of pop economists, and when choices aren’t ideal they are not smart enough to vote for the lesser evil. So maybe now more of them will wake up.

5

J-D 06.28.18 at 10:24 am

The only exception being the demand for annual Parliaments.

Thanks. I like to have that one remembered.

6

Cian 06.28.18 at 12:54 pm

Historically the Supreme Court has always been a reactionary, anti-democratic, force in US politics. Which if you look at it rationally (something liberals seem incapable of doing with regard to US institutions) is all it could really do.

The sane response to this stuff is to reform the Supreme Court. Short appointments (10 years max, with rolling appointment years), more judges (with only a subset on any single case) and mandatory retirement ages.

7

engels 06.28.18 at 1:32 pm

8

DRickard 06.28.18 at 1:38 pm

Equal marriage is firmly established, and talk of a constitutional change to stop it has disappeared.

Equal marriage is established by case law, so all it takes to eliminate it is one challenge reaching an anti-gay Supreme Court–a court pretty much to exist after Kennedy’s replacement is confirmed.

9

rootlesscosmo 06.28.18 at 2:34 pm

Just as the Right steadily lost ground in Germany from 1924 on.

Why do I not find this reassuring?

10

Stephen 06.28.18 at 3:08 pm

Phil: query what you thought about Fascism after the assassination of Airey Neave, and the attempted assassination of Margaret Thatcher? Particularly concerning the IRA as Fascists, and the reasonable UK Government response to them.

Genuine enquiry. I have no idea what you might think, or if you have any knowledge of these events which are in living if not in electronic memory.

11

Stephen 06.28.18 at 3:17 pm

OP, JD@5

Two other exceptions.

The Chartists wanted universal suffrage for all sane, unimprisioned, and male citizens over 21. At least 3 of these criteria have been repudiated by the present UK Left.

The Chartists wanted equal-sized constituencies. Since that would benefit the Tories, it is strongly opposed by the present UK Left.

12

David Rickard 06.28.18 at 4:02 pm

Equal marriage is firmly established, and talk of a constitutional change to stop it has disappeared.

Equal marriage was established by case law, and can be overthrown the same way. And with the Supreme Court soon to have six lock-step conservative ideologues on it, Obergefell will be one of the first targets.

13

Layman 06.28.18 at 4:43 pm

I think this post underestimates the effect of Kennedy’s departure and the impact his replacement will have on all of these gains.

Equal marriage results from the Court’s ruling in Obergefell, where Kennedy was the deciding vote. Roberts, Alito, Thomas and presumably Gorsuch all believe it was a mistake, and whoever Trump appoints will surely agree with them.

Kennedy was not the fifth vote for Sebelius – that was Roberts – but it isn’t hard to imagine a scenario where Ginsburg leaves the Court in the next 2 years. She is 85 now, the oldest of the sitting justices, and in poor health. If Trump replaces her, they’ll revisit the ACA. Even if that doesn’t happen, there are other challenges to the ACA working their way to the Court. They are facially silly, but I wouldn’t bet in Roberts to save the law again.

Gun control is going nowhere with this Court. It doesn’t matter if it miraculously appears on the legislative agenda. Under Republican control, it’s dead. Under Democratic control, this Court plus Kennedy’s replacementment will kill it. And it doesn’t matter that the tax cuts are unpopular, they are the law of the land, and there is little chance Democrats will have the power reverse them in the foreseeable future.

It’s all bad.

14

TM 06.28.18 at 5:03 pm

The comparison with history is helpful to remind us both how much has been achieved, and how much we have to lose. I often despair of the historical illiteracy I encounter here on CT. Whoever claims that the distinction between the lesser evil and the greater evil is meaningless, that the rotten status quo isn’t worth defending against the enemies of liberal democracy, must be totally impervious to learning anything from history.

15

Stephen 06.28.18 at 5:09 pm

Good man, Clough. I particularly like his “Amours de voyage”; a poem in hexameters, in the form of letters from Claude, travelling in Italy in 1849, to his friend at home Eustace, about the political situation and his equivocal relations with an English family there with three attractive daughters: and their letters to their friends in England about him. Try this sample, about a time when the armies of France and Naples are besieging, perhaps about to conquer, the Roman Republic:

Now supposing the French or the Neapolitan soldier
Should by some evil chance come exploring the Maison Serny
(Where the family English are all to assemble for safety),
Am I prepared to lay down my life for the British female?
Really, who knows? One has bowed and talked, till, little by little,
All the natural heat has escaped of the chivalrous spirit.
Oh, one conformed, of course; but one doesn’t die for good manners,
Stab or shoot, or be shot, by way of graceful attention.
No, if it should be at all, it should be on the barricades there;
Should I incarnadine ever this inky pacifical finger,
Sooner far should it be for this vapour of Italy’s freedom,
Sooner far by the side of the damned and dirty plebeians.
Ah, for a child in the street I could strike; for the full-blown lady——
Somehow, Eustace, alas! I have not felt the vocation.

Proto-existentialist, perhaps.

But note that Clough died disappointed and exhausted in 1861: that of the legacies of 1848, France received the autocratic Second Empire which lasted till destroyed by a German invasion in 1870, not a cure I would not recommend to anyone; and Germany received eventually Bismarck’s welfare-state but militarist and autocratic state which lasted till destroyed in World War I, an even less desirable cure. And in the UK, the first step towards the Chartist goals did not happen till a Conservative government widened the franchise in 1867.

The bright land to the west is not always undelusively bright.

16

Theophylact 06.28.18 at 5:49 pm

“He who laughs has not yet heard the dreadful news.”

Perhaps the original post was written before you heard of Anthony Kennedy’s retirement. Trump will now have the opportunity to appoint yet another right-wing Supreme Court Justice.

Even with Kennedy still on the Court, SCOTUS has shown a recent alarming tendency to overturn settled precedent. Essentially all the progress you have mentioned is once again on the table, and ready to be carved. Roberts’s opinion in the travel ban case claims to have overturned Korematsu, while actually reestablishing it with a modified set of facts. To pretend that a facially impartial rule can stand in the light of massive proof of the animus behind it would allow the reinstitution of Jim Crow laws such as the infamous “grandfather clause” and the literacy test.

17

CJColucci 06.28.18 at 7:37 pm

Other than Roe (other than that, Mrs. Lincoln, how did you like the play?), I doubt that, in the near-to-medium term, a new Trump appointee will change very little because the right has been getting what it wants and would generally continue to get what it wants with Kennedy on the Court. Obergfell is, I think, safe because too many people have married by now, and you can’t unscramble all those eggs. (Roberts, I think, is the kind of conservative who would hesitate to try.) Whatever progressive legislative agenda that can actually get through anytime soon will probably be too anodyne to be at risk. The rest of the right-wing judicial agenda would proceed apace with or without Kennedy. Long-term, being stuck with the new appointee for a few decades is another matter.

18

John Quiggin 06.28.18 at 7:56 pm

The Repblicans won’t use their SC majority to overturn Obergefell for the same reason they haven’t tried a constitutional amendment or more modest legal restrictions (beyond attempts to allow religiously-inspired boycotts) They’ve lost on the issue and they know it.

According to Wikipedia, there were, as of 2017, only two states in the US where a majority oppose equal marriage. So, even getting to the starting point of passing a new referendum or legislative restrictions that could be tested in the SC would be very difficult.

And while ACA is still in some danger, the Repubs in both court and congress face the same calculation. They can sabotage the existing ACA, but they will take the blame for it and they don’t have an alternative.

19

Barry 06.28.18 at 8:23 pm

John: “According to Wikipedia, there were, as of 2017, only two states in the US where a majority oppose equal marriage. So, even getting to the starting point of passing a new referendum or legislative restrictions that could be tested in the SC would be very difficult.”

John, the root of the current US political situation is that the GOP still gets massive traction, despite being in a minority position.

20

Theophylact 06.28.18 at 9:03 pm

John Quiggin @ #17:

You’re ignoring the fact that the Supreme Court this very term allowed “pregnancy crisis centers” to conceal the fact that they didn’t offer the kind of services that most people seek when in an unexpected pregnancy, or that requiring abortion clinics to have hospital affiliations when far more dangerous outpatient services (say, plastic surgery) don’t. Expect Roe to be chipped away until only dust remains, despite popular support for abortion.

The same is true for marriage equality. The “sincere religious belief” exception to civil rights, invoked so recently in Hobby Lobby and Masterpiece Cakeshop, will be extended to county clerks who won’t issue marriage licences.

The union-busting majority in <i<Abood were denounced by Justice Kagan as “weaponizing the First Amendment”. Expect a lot more of this; Citizens United was but a foretaste.

You are entirely too sanguine.

21

LFC 06.28.18 at 9:55 pm

Cian @6

Historically the Supreme Court has always been a reactionary, anti-democratic, force in US politics.

The Court was intended to be “anti-democratic” in the founders’ scheme, but the Warren Court is a big and important exception to the generalization that the Supreme Court has always been reactionary. That’s just not the case.

22

Asteele 06.28.18 at 10:08 pm

Absent an accident like Scalia which the Dems managed to bungle the Right can use timed retirements like today to maintain dominance in the Supreme Court indefinitely, as they have for 50 years. If the left takes power it was always going to need to pack the court, this just makes it obvious.

23

John Quiggin 06.28.18 at 10:34 pm

@20 Granting your supposition on marriage equality, such rulings would constitute a marginal setback for a cause that has been almost totally victorious. Go back ten years and Obama was running against equal marriage. His “evolution” on the issue took place only in 2012.

But I disagree with the supposition as regards religious belief exceptions on this issue. I expect the SC to keep ducking the question as they have done so far. They can see the polling evidence the same as the Repub politicians who have given up the fight. Why would they waste political capital on something like this when they have more serious business busting unions (something where Kennedy almost always went with them, AFAICT)?

24

Faustusnotes 06.28.18 at 11:05 pm

They will “waste” political capital John because the repubs have shown they don’t need political capital to government. You’re running under the rather naive assumption that the us functions as a democracy. This post is like watching Xi ban Winnie the Pooh in China and saying the free speech battle has been won.

And that doesn’t even begin to take in the difficulty the Dems will have taking action on climate change if they don’t have the supreme Court. They won’t be able to pass a carbon tax unchallenged, for example. But if they try to pass any law that doesn’t have E a guaranteed challenge in the supreme Court, leftists will claim it was a giveaway to big business. Which is what it will have to be, because that’s the only policy the repubs won’t challenge – and win against – in this court.

25

Lee A. Arnold 06.29.18 at 12:06 am

Congress may put the country in danger if it confirms a President’s nominee to the Supreme Court when the Court might judge a lawsuit regarding the President’s own indictment on criminal charges.

26

Whirrlaway 06.29.18 at 1:35 am

Obergefell means you are free to marry, and Freedom of Conscience means others are free to give you shit for it as of old as long as it is done with “sincerity”. To be effective law the ordinary government as well as the lords of justice would have to defend and enforce it and as you say they are frying other fish.

But personally I am hopeful. “The man scatters seed in the ground; he sleeps by night and wakes by day, and the seed sprouts and grows; the man doesn’t understand it at all. The earth produces by itself, first the blade, then the ear, then the full grain in the ear.”

27

t. gracchus 06.29.18 at 5:41 am

I think you may underestimate the development of of Arbitration Act cases on class actions, race and sex discrimination and other areas of civil rights law, and of gerrymandering. Equalization of districts for state legislatures initially depended on court decisions. If there are no judicial remedies for gerrymandering, then it will be possible for Republicans to make their dominance more or less permanent. (The last 20 years have seen very large developments in the ability of a party to tailor districts to maintain party control.)
I suppose with a long-enough perspective, it all will be overcome. I don’t see much light in the next 10-20 years if Kennedy is replaced by anyone on Trump’s list.
Evidence that the Supreme Court cares about ‘political capital’ is weak.

28

John Quiggin 06.29.18 at 6:25 am

@27 It’s certainly true that, from now on, reliance on court decisions to advance progressive causes isn’t an option. Equally, courts don’t represent an insuperable obstacle to legislative change.

The Arbitration Act is an Act of Congress and can be changed by Congress. Similarly with a voting rights Act. The Democrats need to expand their existing majority of popular support enough to get a majority of the Congress. Of course, that’s also necessary to pursue options like court expansion.

29

roger gathmann 06.29.18 at 6:51 am

6. Yes! People forget that Judicial reform, up to and including amending the Constitution, was a major issue for Lafollette’s Progressive Party in the 20s (so much so that it became an issue that all Very Serious People denounced in the 1924 election). Senator Norris introduced a bill to simply abolish federal courts, save for the Supreme Court. Lafollette called for a Constitutional amendment to allow Congress to reinstate any bill that the Supreme’s declared unconstitutional by a two thirds majority. Lafollette’s party had a large influence on the New Dealers. Unfortunately, I don’t think he went far enough. Cian is right that lifetime appointment is feudal and should be swept away. That, in combination with taking away the Court’s role in deciding what is constitutional (that could more easily and appropriately done by a mechanism they use, for instance, in France, of a constitutional council that vets legislation before it is voted on), would be a major advance. We also need to fund a huge expansion of courts – the scandal of not being able to have real trials because of crowding of court dockets makes a mockery of human rights in the States) and we need to discuss how to level the playing field for defendents – as it is now, the outrageous inequality in wealth is most strikingly reflecting in the general impunity of the wealthy in being either prosecuted or tried, and the general punity of the working class who are routinely routed through the prison system. In other words, the judicial division of power in the States is thoroughly corrupt and rotten from top to bottom. It is a major contributor to racial and class inequality.

30

Phil 06.29.18 at 10:15 am

Stephen @10 – I remember the events you refer to well (and you could have added Earl Mountbatten and Ross McWhirter to the list). The only Fascism-related concerns that they raised in my mind had to do with possible British government responses. It would have been only too easy to use the Brighton bomb, in particular, as a pretext for a lurch to the securitarian right. Fortunately the lady was not for lurching. I don’t think we’d have been as lucky if Tony Blair had been PM at the time.

As for why the assassinations themselves didn’t raise the same fears as that of Jo Cox, the answer is boringly obvious (I suspect you may know it already): the Provisional IRA and the INLA (who killed Neave) weren’t Fascist organisations – both were, in effect, armed offshoots of a movement for colonial liberation.

rootlesscosmo @9 – you weren’t meant to! A declining Right is a dangerous Right.

31

MisterMr 06.29.18 at 10:19 am

I have some doubt on the way the word “democracy” is used in the OP:

The struggle for democracy in Europe as a whole has ebbed and flowed (it’s ebbing at the moment), but has so far been successful.

In the most common sense of the word, “democracy” means that people are free to vote for their representatives, and he who gets more votes rules.
This means that, if for example a reactionary party like the Lega in Italy gets more votes, they get to rule (they didn’t really get so many votes but it seems to me that in the current alliance the M5s, that got more votes, cannot set a clear policy so the Lega is able to set the rules anyway).

In the way the word “democracy” is used in the OP, though, the Lega being a group of reactionaries are intrinsecally antidemocratic, so if they win the elections there is less democracy.
When used in this sense, the word “democracy” corresponds roughly with liberal, or lefish-liberal values. I can understand this use of the word because to a large degree what we now call democracy is the fulfillment of leftish-liberal values of the 18th, 19th and 20th centuries, however I think that it’s misleading because it sounds like “when we win it’s democracy, when they win it’s not”.

I think that it would be better to use other words, such as social justice, but also freedom (e.g. anti-immigrant policies are policies that are aimed at reducing freedom for immigrants).

Also in many cases the word “illiberal” is better than the word “fascist”, because in common use the word “fascist” means that there is no democracy (no or sham elections), but another charachteristic of fascism was that it was very illiberal, and when someone says that e.g. Trump (or Salvini) is a fascist he or she means that Trump (or Salvini) is very illiberal.

32

Cian 06.29.18 at 12:28 pm

@LFC – yeah my bad. I was taking that as implicitly understood, but I should have been explicit. The Warren court was an exception.

33

Cian 06.29.18 at 12:36 pm

Faustusnotes: Ignoring for the moment that the Democrats are kind of one step forward, one step backward on climate change (this is a huge issue for me – so I also pay attention to the stuff that doesn’t make the headlines), the Democrats didn’t really try to pass any legislation on climate change. Instead it was all administrative (which by definition can be unwound by the next administration) in ways that were very susceptible to legal challenge. Using old legislation in new ways is always going to be subject to legal review, and probably should be (albeit by a better system).

The simpler the legislation, the easier it is to make it bulletproof. However, to half agree with you. I think the lesson to learn from Roosevelt is that using the threat of packing is very effective – and if the Supreme Court ignores that threat, then they’ll have very little political capital left to resist changes.

34

Lawrence Maggitti 06.29.18 at 1:18 pm

“Equally, courts don’t represent an insuperable obstacle to legislative change.”

John, I don’t think you understand just how radical the theories espoused by the more conservative judges are. Gorsuch in particular is already laying the groundwork for jurisprudence that would effectively dismantle the administrative state. There are two justices who would happily join in that, and likely a 4th soon. Roberts would side with the “liberals” on that, but if Trump gets another appointment, there could be a majority that would effectively preclude ANY legislative change.

Now, this would indeed likely produce a constitutional crisis. But I wouldn’t be too sanguine as to how that crisis might play out.

35

t. gracchus 06.29.18 at 2:57 pm

The FAA could be changed by Congress, but, among other obstacles, is the challenge of obtaining Democratic majorities in both Houses. Democrats already receive more total votes in federal elections, and have for some time. But votes are not seats because of gerrymandering. If gerrymandering is non-justiciable or the USSC adopts, as seems to me likely, an extremely deferential standard of review, I don’t see how you get to a Congress that is not under the control of Republicans. Look at Mark Graber’s post at Balkinization.

36

Layman 06.29.18 at 5:12 pm

JQ @ 23

I confess I don’t grasp the value in of pointing to the popular appeal of marriage equality in the face of conservative control of a Court which is likely to strike it down. It is a fact that Republicans control the House, Senate, and Presidency while garnering fewer votes than Democrats because of structural advantages conferrred by the Constitution and gerrymandering. Popular approval of marriage equality can’t easily transfer into legislating for marriage equality because Democrats seldom have the political control needed to enact such legislation. Even if they did, if the Court opposes it, it’s dead. As are other gains that came through the Court. It is similar to gun control, where very large majorities favor more restrictions on guns, while Democrats in Congress and the White House are powerless to enact it, and if they do manage something, the Court will surely strike it down.

37

James Wimberley 06.29.18 at 6:31 pm

Layman #13: the admirable and courageous Ruth Ginsburg will I agree surely hold on as long as her body and mind allow. But the damage of her retirement will be limited if she sticks it out only to November, in the scenario of Democrats regaining control of the Senate. They will then block any reactionary Trump nominee until 2020, on the McConnell precedent.

I assume McConnell will rush to confirm Kennedy’s replacement this year, and there is only so much Schumer can do to stop him. That will leave a structural conservative majority on the Court – but that’s what we will have anyway, even with RBG. Sotomayor, Breyer and Kagan can be relied on to make the sharp dissents – Sotomayor dropped the traditional “respectfully” form her last. I hope President Gillibrand (or whoever) has the nerve to pack the Court if it blocks her/his legislation.

38

James Wimberley 06.29.18 at 8:51 pm

Layman #13: the admirable and courageous Ruth Ginsburg will I agree surely hold on as long as her body and mind allow. But the damage of her retirement will be limited if she sticks it out only to November, in the scenario of Democrats regaining control of the Senate. They will then block any reactionary Trump nominee until 2020, on the McConnell precedent.

I assume McConnell will rush to confirm Kennedy’s replacement this year, and there is only so much Schumer can do to stop him. That will leave a structural conservative majority on the Court – but that’s what we will have anyway, even with RBG. Sotomayor, Breyer and Kagan can be relied on to make the sharp dissents – Sotomayor dropped the traditional “respectfully” from her last. I hope President Gillibrand (or whoever) has the nerve to pack the Court if it blocks her/his legislation.

39

Name (required) 06.29.18 at 10:05 pm

Apropos of any contemporary discussion on the future of the United States is this short writeup from a South African on the rise of the National Party and apartheid in South Africa. The future appeared bright–and progress inevitable–there, too, until the rural people propelled a reactionary party into power. From there, things became worse as the reactionaries consolidated power, beginning with the courts.

History may not repeat, but it does rhyme.

40

Collin Street 06.29.18 at 10:42 pm

The simpler the legislation, the easier it is to make it bulletproof.

It’s not actually possible. Jurisprudence in the US has reached the “0 = 1” level of self-contradiction as a formal system; henceforth, literally any result — any result — is possible while still formally following what are laughably called “the rules”. As an exercise, I suggest you consider the Shelby Decision and the framework the US constitution offers the US congress for anti-racism and election-administration elections and try and draft a civil-rights act that would have survived.

[universal pre-clearence involves, explicitly, putting juristictions that didn’t have histories of racist electioneering under authority; consider the import of the words “appropriate legislation” in the fifteenth amendment and how the USSC would have viewed that]

[the only solution is not just a new constitutional text — texts will continue to be interpreted under preexisting jurisprudence, which currently means that texts are worthless — but a new constitutional order, a formal break in legal continuity to let the jurisprudential cruft fall out… but you can’t do that by following the amendment provisions, you have to do it extra-legally. This is a problem, because extra-legal actions are controversial at the best of times and many people don’t understand the need.]

41

Layman 06.30.18 at 12:08 pm

James Wimberly: “the admirable and courageous Ruth Ginsburg will I agree surely hold on as long as her body and mind allow. But the damage of her retirement will be limited if she sticks it out only to November, in the scenario of Democrats regaining control of the Senate. “

I’m certainly hoping this is how it plays out, but I’m also deeply skeptical Dems will take the Senate, and mindful that the likes of Manchin, Heitkamp, etc are waiting in the wings to give McConnell the votes he needs. If the Dems do retake the Senate, the easiest way to prevent a Trump nominee is to reinstate the 60-vote rule for cloture on all judges, stalling his nominees until the next election at least. Not sure they have the sense to do that, though.

42

alfredlordbleep 06.30.18 at 3:04 pm

Merely one of the latest examples of what Collin Street [06.29.18 at 10:42 pm] has in mind in his second sentence—
Gorsuch did so using a technique not unfamiliar, as Scott Lemieux points out at LGM, to seventh-grade English students everywhere. The argumentum ad Funk and Wagnall.
https://www.esquire.com/news-politics/politics/a21755073/neil-gorsuch-railroad-decision-gilded-age/

43

Hidari 06.30.18 at 6:52 pm

Another viewpoint (at least to positions such as #39)

‘Influential voices in academia and the media contend that democracy is in
decline worldwide and threatened in the US. Using a variety of measures,
I show that the global proportion of democracies is actually at or near an
all-time high; that the current rate of backsliding is not historically
unusual; and that this rate is well explained by the economic characteristics
of existing democracies. I confirm that breakdowns tend to occur in
countries that are poor, have had relatively little democratic experience,
and are in economic crisis. Extrapolating from historical data, I show that
the estimated hazard of failure in a democracy as developed and seasoned
as the US is extremely low—far lower than in any democracy that has
ended in the past. Some suggest that undemocratic public attitudes and
erosion of elite norms threaten US institutions, but there is little evidence
that these factors cause democratic breakdown. While deterioration in the
quality of democracy in countries such as Hungary and Poland is itself
cause for concern—as is the reversion to authoritarianism in Russia and
Turkey—alarm about a global slide into autocracy is inconsistent with
current evidence.’

Make of that what you will.

https://static1.squarespace.com/static/5a4d2512a803bb1a5d9aca35/t/5b1b0e5e562fa7f5d35b2d88/1528499808858/draft+june+7.pdf

44

J-D 07.01.18 at 7:32 am

Stephen

Your response has no relevance to my comment. I had (and have) nothing to say about which of the Chartists’ demands are or are not supported by ‘the present UK Left’ (no matter who it is you mean by ‘the present UK Left’, something which is not as clear as you may imagine it is). The only point of my comment is that I like to have it remembered that the Chartists demanded annual Parliaments, so if you actually want to respond to me (although there’s absolutely no reason why you should), that’s what you need to respond to.

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stephen 07.01.18 at 8:00 am

phil@30

I suspect there may be a fundamental disagreement between us as to whether a movement engaged in an armed anti-colonial struggle can also be described as Fascist. I don’t see the two as incompatible. Robert Mugabe, for instance. and in the cases we were discussing, the IRA.

Trouble is, that leaves a dilemma. Oppose the Fascists even though they’re anti-colonial: support the anti-colonial cause even though they’re Fascist?

In the case of NI there was of course a third option: support a nonviolent movement for democratic reform. Which, after the disarmament of the IRA, has had some success.

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M 07.01.18 at 1:47 pm

Justice, progressivism are historical anomalies. What we have and what we’re getting — an extractive economy, repressive policies, empowering of racism and hate — are the norm.
Flawed and dysfunctional as it is, we still have some sort of vote. But before then, it’s going to take a lot of educating of the electorate to vote in what’s needed: A super majority of true progressives who would serve us, not monied interests like our two main parties do.
It’a long game, a war that has too be fought daily. But the only alternative is fascism, a failed state, a shithole.

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Phil 07.01.18 at 10:16 pm

stephen – you seem to be using ‘Fascist’ to mean ‘a violent, authoritarian movement with which I don’t agree’. I think you’ll find these debates a lot easier if you use it to mean ‘Fascist’.

Also, on J-D’s point, it’s absurd to say that the contemporary Left “rejects” the Chartists’ suffrage demands on the basis that we’ve gone far beyond them – or that the Left rejects the principle of equal-sized constituencies, even if the implementation is subject to political horsetrading.

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