Yesterday, I didn’t get a chance to comment on the posts about increasing the size of the Supreme Court. When I started to write a comment, it grew long enough where I figured that I might as well create a post of its own.
The overarching question is what to do when McConnell and other Senate Republicans “violate democratic norms.” That’s weak phrasing. They have desecrated something sacred. Using this language of violation highlights that certain things should be inviolate, in a political sense, because the entire system of government depends on their preservation.
What have McConnell et al. violated? The political constitution, small “c,” of the United States as a democratic society. I’m using the term in the same way that Walter Bagehot, author of The English Constitution, did. Aside from the formal operation of any government, there is the “unwritten constitution” that animates and guides the formalistic side. Without the unwritten constitution, formalism easily devolves into a raw exercise of power within the boundaries of formal rules. Without it, opportunists and zealots will bend and break the formal institutions to suit their purposes.
When democracy collapses, formal institutions often remain, at least for a little while to provide a fig leaf of respectability. Officially, the Roman emperor was just a collection of existing titles, and the Senate continued to operate in the way it always had. The Reichstag continued to exist from 1933 to 1945.
While the current situation in the Senate is in no way as dramatic or sweeping as the creation of imperial Roman rule or the Nazi seizure of power, it is nonetheless a desecration or destruction of the political constitution. Formal institutions still exist, but they are either powerless, or a tool to undercut opponents who continue to operate within boundaries that the anti-constitutional faction have already negated. While there is a much bigger problem with constitutional desecration, since there are many Republican voters who believe that democratic opposition is illegitimate, we’re focused for now on the Senate and the Supreme Court.
The best response may not be packing the Supreme Court, or event alking about it right now. I think it was counter-productive, in a momentary political sense, for any Democratic leader or opinion-maker to start musing about that option, so soon after Justice Ginsberg’s death. It merely adds to the fevered politicization of a moment when we should be honoring her life, and fuels further Both-Siderism, especially in the press. However, in discussions like these, outside the forums of press conferences and op-eds, it’s worth saying that, whatever the solution is, it’s not going to involve working within the old boundaries and understandings.
It’s painful to admit that something sacred is dying, or has died. Many of those still in denial are likely to cling to the existence of formal institutions (“the Senate still rules in Rome”), even though the new regime is cynically using those institutions to keep people from opposing their public murder of the old order. Acceptance of the political constitution’s death requires the abandonment of hope that it will magically revive. “There must be some way that what we see with our own eyes right now is just a continuation of what we had before. If not, there must be some way, operating in the old ways, to restore the old order.” At some point, such sentiments must themselves die. Otherwise, we wander pointlessly in a dreamscape, oblivious of current realities, impotent to change them.
That’s not to say that something like the old order, the original political constitution, cannot be created. Democracy died in Spain in 1936, but a new democracy emerged after Franco’s death in 1975. Again, if we are talking about the restoration of the understandings that underpinned the operation of the US Senate and Supreme Court, we’re talking about a much smaller project than re-creating Spanish democracy after 1975, or German democracy after 1945. However, no project, big or small, will be possible without the recognition of its need.
Tyrannies don’t end because they succumb to sweet reason. The exercise of power will be required to resurrect our political constitution. Expanding the Supreme Court may not be the best solution, but it is not ipso facto the wrong type of solution.
