13 March 2024

Critical issues separating Right from Left, and not what most people think about

Yesterday I heard some very insightful discussions, the first coming mostly from Senator and Constitutional Scholar Sheldon Whitehouse, and the second from Journalist and financial/legal expert David Cay Johnston. Both illustrated how it's not just or even primarily policy that separates the now cultlike Right Wing party from the "real American" party. Democrats are far from a "left center" party... we are the only party that seeks to preserve the essence of American small-r republican government.

Whitehouse talked about how even in the worst times of Supreme Court jurisprudence, the Anglo Saxon common law principle that appellate review, and particularly constitutional review (dating back to Marbury v. Madison) is to be based on adjudicated facts originating in the lower courts. Constitutional and legal principles are to be applied to the facts, but if a court of review finds a deficiency in the factual record, they return the case to the lower court to redetermine the facts. What the ultimate court of review is not to do, and did not do, even in Plessy v. Ferguson and other horrible decisions of the past, such as Santa Clara Co. v. So. Pac. R. R.

Whitehouse has been vocal about his critique of recent Supreme Court decisions, notably Citizens United v. Federal Election Commission and Shelby County v. Holder, for what he perceives as the Court's reliance on false facts rather than established factual records from lower courts or legislative findings. In these cases, he argues that the Court engaged in inappropriate appellate fact-finding, deviating from its role of relying on trial courts for factual records and on legislatures for the factual bases of laws. This, according to Whitehouse, undermines the legitimacy of the decisions. For instance, the majority opinion in Shelby County, which invalidated a key provision of the Voting Rights Act, was criticized for relying on an outdated set of facts about voting discrimination, facts which Congress had not used when it almost unanimously extended the Voting Rights Act in 2006 The court chose to improperly substitute falsehoods of its own divining, which is just not the way it's supposed to work. Continuation of this process has become the norm, and has resulted in the Roberts Court being the worst court in history from the point of view of separation of powers and proper constraint of the arbitrary power of the Supreme Court.

Whitehouse's concerns extend beyond these cases to a broader critique of the Supreme Court's engagement with "phony front groups" and the impact of dark money in the legal process, which he discusses in his podcast "Making the Case." He and his guests examine how these factors have contributed to what they view as a "captured Court" that favors corporate interests and undermines democratic protections.

Whitehouse also connects these issues to a broader historical context, tracing the influence of corporate interests on the Court back to decisions and actions taken as far back as the Nixon administration. He emphasizes a continuous effort to establish corporate personhood and the equivalence of money to speech, culminating in decisions like Citizens United. This history showcases an ongoing struggle over the role of money in politics and the influence of corporate and dark money on the judiciary.

These developments, in my opinion, are one of the principal threats to the continuity of small-d democracy in our country.

Another is the fast and loose trashing of financial restrictions on Federal officials practiced by Trump and his administration, as discussed in detail by the brilliant David Cay Johnston. He points out that the founders of the Second American Republic (ours), after the failure of the Articles of Confederation, were particularly concerned about the effect of bribery and monetary influence. The emoluments clause, and provisions in the Constitution prohibiting the administration or Congress from taking money from states, foreign interests, or private companies or individuals due to the inherently corrosive effect of money on democratic processes. Trump immediately discarded any remnant of such principles, refusing to insulate his governance from the influence of money, or even disclose the improper financial arrangements. One could go on and on about this, but the point is the precedent is set, and without reversing Citizens United and significantly toughening the rules for financial incentives, the Founders' attempts to provide the nation with a government free of undue influence will have well and truly, and finally, failed.

It is our job as citizens to make sure this situation is fixed, and it's just as important as economic or foreign policy; probably moreso as it will determine whether the country founded in 1789 really still persists, or does so only in name.


The equal right of all men to the use of land is as clear as their equal right to breathe the air—it is a right proclaimed by the fact of their existence. For we cannot suppose that some men have a right to be in this world, and others no right.
—Henry George

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