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On April 6th, in the year 43 BC, at the gates of Thapsus, Gaius Julius Caesar broke the Optimate forces of Scipio and Cato, ending the Roman Republic that stood a thousand years, soon after declaring himself dictator in perpetuity.
2060 years later to the day, in an ominous twist of poetic irony, Republican Majority Leader Mitch McConnell, while certainly no Caesar, also ended a Republic by changing the Senate rules for the number of votes necessary for confirming lifetime appointments. The so-called “Nuclear Option”.
This allows any party in control to appoint by simple majority, for life, Justices of the Supreme Court. To put this into historical context, Justice William O Douglas, appointed by Franklin D Roosevelt in 1939, served 36 years on the bench before retiring in 1975. He influenced the law of the land through six Presidencies and three wars. His replacement, Justice John Paul Stevens served 34 years, before retiring in 2010. 70 years of judicial review by two men.
In order to ensure that the Constitution of the United States of America is the supreme rule of law, impartial adjudicators appointed to the Supreme Court, subject not to the current politics of the time, but to the interpretation of the Founder’s intentions must have unimpeachable lifetime tenure. But what becomes of the responsibility of the Judicial check on Executive power if that impartial certitude cannot be guaranteed by a minority dissent?
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To be fair, in 2013, it was the Democrats under Harry Reid who first stuck their toes in these waters by changing the same rules for cabinet appointments. Cabinet appointments serve “at the pleasure of the President”, which means they can be dismissed upon the whims of the executive in office. While this of itself was not the blow to the American implementation of a democratic republic that this most recent change presents, it certainly set the stage and precedent Senator McConnell needed to sell this dramatic shift in governance. The issue here isn’t which party is currently in power, but that a single party holds all the power.
President George Washington, who reportedly thought of himself as a modern Cato the Younger, feared the establishment of a single-party state, and voluntarily removed himself from consideration for the nomination of a third term, saying in his final address:
“The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, (which in different ages and countries has perpetrated the most horrid enormities), is itself a frightful despotism.
But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
The common and continual mischiefs [sic] of the spirit of party are sufficient to make it the interest and the duty of a wise people to discourage and restrain it. It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passion.”
In our party system, the President, chief officer of the Executive Branch, is also the head of their political party, whose job it is to set the agenda for their administration. Soon, following the appointment of their Supreme Court nominee via the executed changes, that party will control a majority in all three branches of the government and have the capability to change any and all law, not specifically enumerated in the Constitution itself. This is a very, very bad thing.
When the framers established the three branch triangle, each with power over the other two, the idea was to ensure that the minority dissent always had a check on both of the other branches.With no opposition voice to insist upon a check, there can be no balance.
The fact of the situation we find ourselves now in is this, a President who was elected not by majority vote, but by the grand compromise system of the Electoral College, (which, by the by, was created solely to allow slave owners to count their voteless slaves as population needing representation in elections and securing the southern colonies to the Union), sets an unchallenged agenda for the direction of the American government.
A President who stands at the head of our vast military might, wielding vast unchecked powers to change international treaties; to tax; to create law, to veto law, to execute all duties ascribed to the Executive office, all while being unchallenged by a majority party whom he sits at the head of. All without a mandate to the will of the electorate he is required to represent.
The Anti-Federalist Papers: Number 73, used the following argument against the adoption of an electoral college for just this reason:
“Again I would ask (considering how prone mankind are to engross power, and then to abuse it) is it not probable, at least possible, that the president who is to be vested with all this demiomnipotence – who is not chosen by the community; and who consequently, as to them, is irresponsible and independent-that he, I say, by a few artful and dependent emissaries in Congress, […] he may render his suspensive power over the laws as operative and permanent as that of G[overnment …] and under the modest title of president, may exercise the combined authority of legislation and execution, in a latitude yet unthought of.
His uncontrollable power over the army, navy, and militia; together with his private interest in the officers of all these different departments, who are all to be appointed by himself, and so his creatures, in the true political sense of the word; and more especially when added to all this, he has the power of forming treaties and alliances, […], under all these advantages and almost irresistible temptations, on some pretended pique, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s point.
Or, may not the senate, who are nearly in the same situation, with respect to the people, from similar motives and by similar means, erect themselves easily into an oligarchy, towards which they have already attempted so large a stride? To one of which channels, or rather to a confluence of both, we seem to be fast gliding away; and the moment we arrive at it…farewell liberty… “ (AUTHOR’S NOTE: The quote has been edited for clarity. Several specific references to contemporary issues have been removed and replaced with […])
So here we are, in this worst case scenario, actualized; leaving us like Shakespeare’s Cassius to wonder why a man of such a feeble temper should so get the start of the majestic world and bear the palm alone.
And it is also true, as Cassius said, that the fault is not in our stars but in ourselves. That we have by circumstance of failure to heed the lessons of the past find ourselves again underlings, peeping about the legs of a Colossus, bestriding our increasingly narrow world. But, to further the metaphor, we are also masters of our own fates. We are afforded the right to bloodless revolution every two years, but we have to stand up. We must educate ourselves to the lessons of history. The failures of our fathers must be the foundation of their sons, to build strong above the rubble of our past, or we will watch our system of government, our great experiment in democracy, crumble to the ground.
Our American exceptionalism will not perish in attack from some foreign entity, or in bloody revolution, or civil war, but by our disinterest in its maintenance, it’s perseverance.
If we fail ourselves, American democracy will die not with a bang, but a whimper.
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