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Overruling Democracy: The Supreme Court versus The American People

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In 2000, the US Supreme Court ruled in Bush v. Gore, "The individual citizen has no federal constitutional right to vote for electors for the President of the United States ..." 125 nations' constitutions explicitly guarantee all citizens the right to vote; 15 don't, including the USA and Saudi Arabia.

In 2000, Al Gore won 500,000 more votes than Bush, but lost in the electoral college. Raskin therefore proposes abolishing the electoral college, since it contradicts the will of the people. He urges direct national majority rule for presidential elections.

The Court called off a state's counting of ballots in a presidential election, for the first time in US history, choosing the president. Of 100 million votes cast in 2000, 4-6 million were never counted.

It had earlier found, "The Equal Protection Clause does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote", robbing all 570,000 Washingtonians of the right to vote in congressional elections. Also, 1.4 million freed ex-offenders are unjustly disenfranchised, most for life. The Court cannot disqualify, for example, women or blacks, but it can, it would seem, disqualify all women and all men, or all blacks and all whites.

3.8 million US citizens living in Puerto Rico, American Samoa, the Virgin Islands and Guam cannot vote in presidential or congressional elections. In all Latin America, only Puerto Rico has not even the pretence of democracy.

As US Justice Brennan said in Texas v. Johnson, which upheld the right of dissenters to burn the US flag as a protest, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

No government official can prescribe what is orthodox in politics, religion or any other matter of opinion. In a democracy, public opinion should control authority, not vice versa.

The Supreme Court has ruled that there is no right to education The Constitution should say that all children have the right to an equal public education for democratic citizenship.

The Court upholds the suppression of all political parties but the Republicans and the Democrats. It upholds laws that discriminate against third parties by keeping their candidates off the ballot, out of debates and off the media.

It lets the Commission on Presidential Debates govern the corporation-funded two-party debates on the public airwaves. This is a private corporation set up by the Republicans and Democrats, comprising five Republicans and five Democrats. Corporate subsidies to pay for these two-candidate debates are illegal business contributions to the two candidates.

Raskin writes, "Today, the property rights of corporations are far more powerful than the political rights of the people." Currently, US employers interfere grossly in workplace decisions about unionisation. But employers should have no right to intervene in sovereign democratic elections among employees.

The corporate ideology is that the private corporate sector is the realm of freedom and public power the realm of tyranny. But laissez ain't fair. Corporations want to be private with respect to profit, accountability and decision-making, but public with respect to risk and loss.

If the state is indeed the enemy of freedom, then libertarians should be anarchists. Libertarians deny that public power can serve the cause of freedom, yet they want a strong state - public power - to enforce the rights of private and corporate property.

The corporation is a subordinate body with no constitutional standing outside of the individual rights of the people involved in it. It is not a democratic citizen, and should have no political rights under the Constitution.

In 1907, Congress passed the Tillman Act which banned corporate contributions in federal election campaigns. Yet Enron's directors famously put $6 million into election campaigns to promote `de-regulation', that is, to buy themselves freedom from democratic accountability. Shareholders invest their money in companies for economic reasons, not to have others put it to partisan political uses. Individual executives and directors can spend their own money, but should not be allowed to use corporate treasury money as well. No corporation should have the right to spend money in any elections.

Raskin opposes private funding of election campaigns, but this doesn't mean that the public should be made to fund election campaigns. The American people already give hundreds of millions of their tax dollars in public subsidies to Democratic and Republican presidential campaigns. Parties are voluntary bodies: if they can't raise the cash they want, this just proves that they are unpopular, it does not mean that we should therefore all be made to fund them!

Raskin sums up that the Supreme Court opposes democracy, promotes political exclusion and social injustice. He concludes that the American people need to reassert their sovereignty.

A set of essays that try to improve on the liberal mantra of trusting the courts to expand rights. Some essays are preaching to the converted- that is, they are unlikely to persuade anybody to the right of Raskin. But there are some essays I really liked.

I especially liked Chapters 5 and 6 (in which Raskin shows how government has impaired democracy by keeping third parties off the ballot and out of debates, and criticizes judicial deference to the two-party duopoly) and Chapter 9 (in which he criticizes attempts to amend the Constitution to prohibit flag-burning, pointing out (a) that an anti-desecration law might actually encourage people to burn flags to get publicity, and (b) that an anti-desceration law that allows nonpolitical destruction of used flags but outlaws flag burning by political extremists is essentially thought control, in that it would prohibit flag burning only by people with political messages to convey).

Other chapters are much more touchy-feely. For example, in Chapter 7, Raskin defends school busing on the grounds that racially integrated schools make society more "democratic"- but parents hardly feel like part of a democracy if unelected judges are telling their children where to go to school. Raskin proposes an amendment providing: "All children in the United States have a right to receive an equal public education for democratic citizenship." But the uncertainty of the concept of "equality" would give judges carte blanche to dictate virtually any concievable policy.

"Democracy" is a vague concept; some people see democracy as majority rule, others see democracy as at least partially about liberty or equality. On issues dealing purely with the former, Raskin's book is excellent. On issues dealing with possible conflicts between these meanings of democracy, Raskin understandably has more difficulty.

This book is extremely useful ammunition for all of us who argue with smug right-wingers. Raskin gets down to the nitty-gritty of what happened in Florida, and what's been happening for 30 years on the Supreme Court. Get this guy on the Supreme Court, already!

Jamin Raskin is one of the most brilliant constitutional scholars of our time. His arguments are as bullet-proof as they are engaging. It's a must read for anyone interested in the Supreme Court.

Raskin does an excellent job in showing how the Supreme Court has slowly eroded our individual rights guarenteed under the Constitution of the United States. It is frightening that most people don't even realize what is actually going on in our government. The only flaw in Raskins book is that he doesn't show how the average citizen can get involved in stopping this erosion of our Constitution or to get involved with his idea of Constituional Convention to change and improve this great document.