New Article: The Supreme Court Is Smothering American Democracy

Jacob Hamburger
21 October 2020

In addition to my ongoing column on the 2020 elections in L’Humanité, I have a new piece up in Jacobin on the Supreme Court’s, inspired by Tocqueville’s chapter on l’esprit légiste.

 

Here’s a preview:

After spending nine months traveling throughout the United States in 1831, Alexis de Tocqueville wrote a book to reassure the French ruling class that it had nothing to fear from democracy. Tocqueville’s definition of democracy was not exactly radical by today’s standards. Its main feature was an “equality of conditions,” under which no person was considered inherently inferior by birth, law, or custom — the type of formal equality that later radicals like Karl Marx excoriated as insufficient. For the aristocrats of the July Monarchy, whose families had only barely survived the French Revolution, this limited equality was nonetheless deeply threatening.

But Tocqueville had an answer ready. In America, he wrote, the lawyers are in charge. With their love of formalistic reasoning and their desire for order, lawyers mimic the “tastes and habits of the aristocracy,” and for this reason are “eminently conservative, and will reveal themselves as antidemocratic.” They “resemble somewhat Egyptian priests . . . the sole interpreter[s] of an occult science.” And though they may use their rhetorical skills to appeal to ordinary people when it suits them, they naturally gravitate toward those in power. Lawyers, then, could be counted on to rein in the democratic majority — none more so than the justices of the Supreme Court, which, “armed with the right to declare laws unconstitutional . . . penetrates all areas of political affairs.”

As the Supreme Court is set to welcome a fifth justice nominated by a president who lost the popular vote, it seems we are living in a democracy that would be more than acceptable to Tocqueville’s aristocrats.

You can read the full article here.

 

Photo Credit: Joe Ravi via Wikimedia Commons (CC BY-SA 3.0)

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