Thursday, December 21, 2023

Dark Days

No, this is not a post about the Winter Solstice, which will occur at 10:27 p.m. tonight. The natural darkness of the Winter Solstice is a darkness I embrace. Winter (as in the photo above) is often beautiful. Meditating in my room in the early morning darkness, wrapped in my weighted blanket against the winter cold, this season seems supremely peaceful. In any case, we have remedies for the dark days and long nights of winter - a useful technological remedy (electric light) and a beautiful ritual remedy (Christmas).

No, the dark days to which I refer are what we are currently experiencing communally in our social and political lives.

Christmas comes in good times and bad, and because it always comes the promise of future good outweighs the present experience of bad. But the bad present continues to do damage.

All of which brings us back to the inescapable crisis in which our society finds itself this Christmas, a crisis which will undeniably dominate the new year, namely, the virtual collapse of constitutional democracy in the U.S., one increasingly probably consequence of which would be the reelection of Donald Trump as our 47th president. As everyone knows, our constitution puts numerous obstacles in the way of democratic governance - not least a seriously unrepresentative Senate and a largely out-of-control imperial Judiciary. Absent the extreme polarization of contemporary American life, those obstacles might not be so problematic. After all, there was a time, not so long ago, when presidents were occasionally elected by landslides, and when the two parties in Congress collaborated well enough to pass at least some significant legislation, let alone to keep the government open and in business from year-to-year. None of that can be presumed anymore. Instead, we begin election year 2024 with the imminent threat of another minority victory in the electoral college - or, even worse, in the House of Representatives if the several self-serving third-party and independent candidates can muster enough votes to throw the election there.

Then, there is the latest legal-constitutional wrinkle in the form of the recent decision of the Colorado Supreme Court to exclude Trump from the primary ballot based on the 14th Amendment's insurrection provisions in article 3. Whether that provision remains a viable constitutional impediment to qualifying for office or whether, like presidential impeachment, congressional declarations of war, and the emoluments clause, it is now essentially a dead letter remains to be seen. It is our out-of-control, imperial Supreme Court which will have to resolve this latest case of legal-constitutional chaos. 

My guess/hope is that the Court will find some way to privilege the democratic electoral process over this ostensible constitutional impediment. The Court could reaffirm the applicability of article 3, while rejecting the Colorado court's application of it on the sensible grounds that Trump has not (yet) been found guilty of insurrection. Of course, when Congress adopted the amendment in 1866, it was reasonably obvious who had committed insurrection - either by serving in the Confederate government or the Confederate military. (The omission of any specific reference to the office of President probably reflected the fact that the only one it would apply to, John Tyler, had died in 1862.) To many Americans, it may seem obvious that Trump is an insurrectionist, but to many Americans it is not (at least not yet). Many Americans may never be convinced, although perhaps a criminal conviction might convince enough to make the application of article 3 viable. But we are not there (not yet). 

Not being there means that a judicial decision to exclude Trump based on article 3 inevitably must appear as an anti-democratic effort to deny voters their say, something more likely to exacerbate our divisions rather than to heal them. Democracy means including non-elites in the political process. Democracy, therefore, inherently entails the risk of a populist Trump restoration. Democracy does not always produce the results that thoughtful elites believe it should. (If it did, Plato would not have opposed it.) As has been said so many times, the only satisfactory way to exorcise Trump from our politics is to defeat him at the polls - to defeat him by sufficient votes as to make the defeat decisive.

In 2000, the Supreme Court, in its infinite arrogance, intruded itself into the electoral process and decided a presidential election against the popular will. One would have hoped never to see us in a similar situation again. Already, however, given the way political decisions masquerade as legal-constitutional questions in our system, it is obvious that the Court cannot avoid intruding in the election this time around.

In any event, it is evident that truly dark political days lie ahead in the coming new year.


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