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Under Discussion: Democracy Demands More than Your Vote

photograph of protesters occupying Brookyln Bridge

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

It took roughly thirty minutes for people to start arguing about what to do once reports of Supreme Court Justice Ruth Bader Ginsburg’s death became public on the evening of September 18th. With fewer than two months left before Election Day, it was not immediately clear that Ginsburg’s replacement could — or should — be rushed through the confirmation process before November 3rd. And many were quick to say, in no uncertain terms, that they thought it inappropriate for the president to nominate another justice, given the political circumstances. Consider this tweet from author and producer Reza Aslan:

Nevertheless, it quickly became clear that partisan interests would indeed take center stage in the final weeks of the election cycle with (eventual nominee) Amy Coney Barrett’s name circulating as a likely contender for the seat even before Ginsburg’s body had been laid to rest. Despite public opinion polls indicating that a consistent majority of voters want the winner of the 2020 presidential election to nominate RBG’s replacement, President Trump and Senate Republicans have worked hard to pack up the Supreme Court before November, nonetheless.

And, despite Mr. Aslan’s September suggestion, nothing has been burned down.

While some protests, both in Washington and at the homes of several Senate leaders, have materialized, the dominant prescription to voice public opinion on the matter has pointed towards one place: the ballot box. In a manner reminiscent of former President Obama’s famous “Don’t boo; vote” call, politicians, pundits, and other media personalities have, with increasing fervor, exhorted the American people to get to the polls. And though it is hard to measure the impact of a “Souls to the Polls” event or a special reunion of Aaron Sorkin’s The West Wing, early calculations suggest that Americans are indeed voting in record-shattering numbers, with voter turnout in 2020 already matching 12% of total voter turnout in 2016.

Of course, for someone specifically interested in voicing their displeasure at the partisan abuse of the currently-vacant SCOTUS seat, pleas to vote in an election that won’t be decided (and whose winners won’t be installed) until well after Judge Barrett becomes Justice Barrett might seem beside the point. Furthermore, even if the timeline were different, the SCOTUS-motivated voter would be casting her ballot in support of a candidate who would also receive support from thousands of other voters and it’s far from clear that the entire group would be voting for exactly the same reasons. Politicians frequently aim to build coalitions of differently-motivated voters for precisely this reason: opinions vary, not only about answers to political questions, but about which questions are most important to ask in the first place. For all its virtues, the “one vote, one voice” mantra fails to account for the unavoidable homogenization of voter’s voices in support for a single candidate.

This is roughly why the French philosopher Jean-Paul Sartre called voting a “trap for fools” that prevents people from exercising their true power as citizens. Championing instead the formation of interest groups that can wield political power about the specific values around which they unify, Sartre saw voting as an institutional mechanism for “serializing” the citizenry into complacent powerlessness. According to Sartre:

“When I vote, I abdicate my power — that is, the possibility everyone has of joining others to form a sovereign group, which would have no need of representatives. By voting I confirm the fact that we, the voters, are always other than ourselves and that none of us can ever desert the seriality in favor of the group, except through intermediaries. For the serialized citizen, to vote is undoubtedly to give his support to a party. But it is even more to vote for voting…that is, to vote for the political institution that keeps us in a state of powerless serialization.”

By assimilating variable support for a panoply of initiatives and desires into the discrete affirmation of only a handful of individual politicians, Sartre saw representative-based voting as a flattening of a person’s public agency.

And, indeed, the drafters of the U.S. Constitution would seem to agree. Writing in the Federalist Papers, James Madison warned about the dangers of public sentiment forming “factions” that could ultimately overthrow the system he and his friends were constructing. To Madison, this was a problem for two reasons: firstly, populist forces could easily be swayed by the manipulative power of demagogues (a point Alexander Hamilton discusses at length in Federalist No. 68), and, secondly, voters could form factions — what Sartre would call “groups” — that would threaten the “various and unequal distribution of property” within the United States. In Federalist No. 10, Madison outlines a defense of what would become the Electoral College as a cooling mechanism that could prevent popular ideas from being quickly turned into federal policy, saying “A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.” Indeed, Madison’s “republican remedy” looks strangely similar to Sartre’s “powerless serialization,” but whereas the former views it as a solution to a problem, Sartre sees it as a problem of its own.

But, for all their disagreements, I think that Madison and Sartre would nevertheless agree on at least one thing: the practice of voting is not the chief duty of a democratic citizen. When not plagued by manipulative efforts to suppress voter turnout, the standard electoral process is a relatively easy responsibility that takes — again, in ideal circumstances — only a short amount of time every few years. But Sartre ridiculed those who “have been persuaded that the only political act in my life consists of depositing my ballot in the box once every four years,” arguing instead that the life of the political agent is suffused with a constant responsibility to attend to, speak up about, and organize both supports and protests in service of public issues.

In a similar way, later in his life, Madison defended not only public education, but specifically for “the poorer classes to have the aid of the richer by a general tax on property” so that, among other things, the electorate would be both more informed and more equipped to engage in political life; indeed, to Madison, the operation of such “learned institutions” to enlighten the public is “the best security against crafty and dangerous encroachments on the public liberty.” So, for both Madison and Sartre, politics was not simply a matter of semi-annually marking a ballot, but required diligent, regular attention to important matters of public concern, educating oneself and others so as to bring about the overall best state of affairs.

To be clear: my point is not to cast doubt on the value of suffrage, but to recognize that whatever virtues (pragmatic or otherwise) it may hold, the general election does not exhaust the duties of a responsible citizen in a modern democracy. Protestors, educators, and other servants of civic welfare who care for justice to be understood and upheld are just as crucial for the vibrant operation of our republic as are poll workers and voters.

As Hamilton himself wrote in The Farmer Refuted, “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature.” Democratic citizens who take that identity seriously should exercise these human rights and responsibilities in ways that far exceed the always-soon-to-be-musty ballot box.

“Ill-Humors” of Society: The Politicization of the Supreme Court

What is at stake in this generation’s Supreme Court? In light of the wave of impactful conservative decisions this year and a Congress embattled over the future of the Court’s composition and political leanings, the highest judicial body of the country has moved to the center of a broader political crisis and partisan divisiveness. Echoing Hamlet, something is “out of joint” in the structure of American politics. But to what extent has the Supreme Court been a sufficient and reliable joint of our democracy? Appreciating the situation of the Court requires considering both its origin as an institution and the partisan context in which it has, contrary to the vision of its architects, become entangled and politicized.

The question of the political nature of the Court has intensified of late partly due to a series of recent judicial decisions that divide along party lines: upholding executive bans on racially profiled immigration, (provisionally) vindicating the right of commercial groups to discriminatorily select their customer base, and declaring that public sector workers cannot be required to pay for collective bargaining with government employers. Social-liberalism must certainly reckon with these decisions from below, both legally and culturally, on behalf of the rights and liberties guaranteed by the Constitution and our obligations to international human rights statutes. There is a broader way of summarizing our situation via the Court and as a society: are we most protected by a court whose majorities adjudicate on principle or one that bases decisions according to political agendas? If the former, we should reflect on the principles by which the Court does or should judge. If the latter, we should rethink the role, existence, and coming-to-be of a Court whose origin James Madison once hailed as a “important and novel experiment in politics” and whose function Alexander Hamilton praised as “the citadel of the public justice and the public security.”

Debates and concerns surrounding the Supreme Court of the United States are neither new nor inconsequential. The Constitution itself outlines few and relatively open strictures to guide the make-up and operation of its highest federal court. Its current state (the number of justices, the scope of its judgment) has thus varied and been determined by legislative decisions, debates, and legal precedents throughout history. Given its evolution, the judicial body has had significant say in landmark decisions, hailed diversely as advancing progress and justifying the country’s worst moral atrocities. The same institution (albeit in different Courts) overturned its previous vindication of racial segregation (Brown v. Board of Education 1954) less than a century after ruling that African-American slaves were property and not citizens (Dred Scott v. Sandford 1857). The recent Trump v. Hawaii decision upheld the right of the President to deny specific ethnic groups entry on security grounds while also overruling the Courts’ past decision to intern Japanese citizens on the same justification (Korematsu v. United States 1944). History changes, and with it the appointed interpreters of its legal and social fabric who are themselves human products of their time and place. But to what extent is partisanship an essential and unavoidable feature of a court system that was originally intended to be a neutral, apolitical “bulwark” against the interests and fluctuations of political ideologies?

The arguments of Federalist Papers No. 78 are clear on the two-fold purpose of the Supreme Court: providing a final “interpretative” appraisal of the legality of all legislative acts according to the Constitution, and a stability in the conditional, lifelong tenure of the judges against the swaying political prerogatives of governing institutions. In short, for Hamilton, the Court should be an antidote to the partisanship of Congress. Its judgment should function as a check on the “force and will” of changing legislative bodies, and thus a source of principled decision against the caprices of the public and the partisan usurpation of public interest. Since the Constitution represents the inviolable rights of the “people,” the Court serves as the “intermediary” between the people and those who claim to govern them. It is a legal body, not a political one. It judges and interprets, and it neither rules nor should be ruled.

The language of disease evoked by Hamilton is neither arbitrary nor simply rhetorical, since the founders understood their novel project to be a complex and vital organism that would not function perfectly and which needed internal therapeutics. “This independence of the judges,” Hamilton argued, is necessary to “guard the Constitution and the rights of individuals from the effects of those ills humors [that] sometimes disseminate among the people themselves, and which … have a tendency … to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.” For Hamilton, there will inevitably be times when elected representatives, an ideologically feverish electorate, or the sway of private interest groups produce oppressive, damaging, or unconstitutional laws. The advantage of a Supreme Court is thus the protection of both minoritarian and majoritarian rights under the Constitution. Without judicial independence, the best feature of democratic worlds becomes the death of democracy itself: “liberty can have nothing to fear from the judicatory alone, but would have everything to fear from its union with either of the other departments.” Fearing the reprisal from partisan constituencies, current members of both parties in the Senate now weigh whether to vote in line with President Trump’s nominee. This fear of the partisan merger of the three branches is our current reality.

In 2017, with the support of a united Republican Congress, Senate Majority Leader Mitch McConnell spearheaded a successful effort to indefinitely postpone a Senate vote on then sitting President Barack Obama’s constitutional right to nominate a Supreme Court Justice. Through changes to Senate rules, this effort countered decades of relatively fair bi-partisan consideration of nominees in favor of a partisan obstruction of any oppositional nomination. In lieu of an upcoming election year, the Senators’ argument was that the voters should ultimately decide on who should appoint such a prominent and lengthy position. Critics will note the equivalence here in Justice Kennedy’s retirement three months before midterm elections which may turn control over the Senate. But for many, these exceptional situations only highlight the intense politicization of the Court’s appointment process. During McConnell’s effort, a Quinnipiac poll found that 68% of people polled thought that “the process of confirming Supreme Court justices has become too partisan,” while only 22% regarded it as “not partisan enough” or the “right amount.”

This is not a new concern. In 1881, Senator John T. Morgan, himself concerned with the disadvantage of Southern States in federal representation following the Civil War, noted that since the Courts’ birth “rival political parties … began to claim it as a right, and to urge it as a party duty, to put judges on the bench who were decided, able, and zealous in their support of party measures and party declarations of political principles. It would be very difficult, in recent times, to a cite a single exception to this rule.” Morgan continues: “To place the federal judiciary entirely under the control of one political party is an almost irrevocable step in the direction of absolute government.” Perhaps now we can say that to leave the Court in the hands of the party system would be to acquiesce to an oligarchic system of power that has long governed us.

Critics will argue that the political appointment of justices, whose tenures span over different legislative regimes, does not entail that they will necessarily vote along party lines or with political motives. Furthermore, focusing on partisan voting in the Court ignores the fact that the majority of its decisions are not split along these lines (though it has increasingly done so). These considerations, however, are dampened by the fact that the nomination process has now become an explicit political weapon in an open partisan war. Ethically, our situation is one of envisioning measures that, as the founders of the Constitution themselves intended, could mitigate the encroachment of the legislature on the judiciary. These range from the extremes of abolishing the Court itself to amending the power of appointment in favor or either “assisted appointments” or the direct democratic elections of Justices.

There are practical challenges to all these measures, but perhaps their arguments hinge on whether the American people want a say in the people and principles that judge them. If they do, then it is important to remember that the Constitution is changeable by design. Thomas Jefferson once criticized the idea of a Constitution that would be “too sacred to be touched” and a mentality of his generation that only the founders would have the right to, as Thomas Paine eloquently described their power, “begin the world over again.” The history of Amendments are one instance of an augmented political system, and the spirit of the Supreme Court itself another. As Hannah Arendt notes in On Revolution, the special authority of the Court’s interpretative power is “exerted in a kind of continuous constitution-making” (Penguin, 2006, 192). Crises and prolonged stalemates are, if anything, opportunities to return to the drawing board.

The American political system is a holistic structure, and the problems of the Court are not isolated. When treating a disease, practitioners know that addressing the symptom is inadequate. If the disease of partisanship has spread to those organs with the power to regulate it, then looking to the source of the party-system might be medically advisable for the sake of the health of the body politic.

Uninformed Public is Danger to Democracy

The economy continues to struggle, the educational system underperforms and tensions exist at just about every point on the international landscape. And there is a national presidential selection process underway. It seems, in such an environment, that citizens would feel compelled to get themselves fully up to date on news that matters. It also would stand to reason that the nation’s news media would feel an obligation to focus on news of substance.

Instead, too many citizens are woefully uninformed of the day’s significant events. A pandering media, primarily television, is content to post a lowest-common-denominator news agenda, featuring Beyoncé’s “Lemonade” release and extensive tributes to Prince.

Constitutional framer James Madison once famously wrote, “Knowledge will forever govern ignorance. And a people who mean to be their own governors must arm themselves with the power which knowledge gives.” Citizens who are unable or unwilling to arm themselves with civic knowledge diminish the nation’s ability to self-govern.

Technological advances have made it easier than ever for citizens to stay informed. The days of waiting for the evening television news to come on or the newspaper to get tossed on your doorstep are long gone. News is available constantly and from multiple sources.

A growing number of citizens, particularly millennials, now rely on social media for “news.” While that might seem like a convenient and timely way to stay informed, those people aren’t necessarily aware of anything more than what their friends had for lunch. Data from the Pew Research Center indicates that about two-thirds of Twitter and Facebook users say they get news from those social media sites. The two “news” categories of most interest among social media consumers, however, are sports and entertainment updates.

Sadly, only about a third of social media users follow an actual news organization or recognized journalist. Thus, the information these people get is likely to be only what friends have posted. Pew further reports that during this election season, only 18 percent of social media users have posted election information on a site. So, less than a fifth of the social media population is helping to determine the political agenda for the other 80 percent.

The lack of news literacy is consistent with an overall lack of civic literacy in our culture. A Newseum Institute survey last year found that a third of Americans failed to name a single right guaranteed in the First Amendment. Forty-three percent could not name freedom of speech as one of those rights.

A study released earlier this year by the American Council of Trustees and Alumni had more frightening results. In a national survey of college graduates, with a multiple-choice format, just 28 percent of respondents could name James Madison as father of the Constitution. That’s barely better than random chance out of four choices on the survey. Almost half didn’t know the term lengths for U.S. senators and representatives. And almost 10 percent identified Judith Sheindlin (Judge Judy) as being on the Supreme Court.

The blame for an under-informed citizenry can be shared widely. The curriculum creep into trendy subjects has infected too many high schools and colleges, diminishing the study of public affairs, civics, history and news literacy.

The television news industry has softened its news agenda to the point where serious news consumers find little substance. Television’s coverage of this presidential election cycle could prompt even the most determined news hounds to tune out. The Media Research Center tracked how the big three broadcast networks covered the Trump campaign in the early evening newscasts of March. The coverage overwhelmingly focused on protests at Trump campaign events, assault charges against a Trump campaign staffer and Trump’s attacks on Heidi Cruz. Missing from the coverage were Trump’s economic plans, national security vision or anything else with a policy dimension.

When the Constitutional Convention wrapped up in 1787, Benjamin Franklin emerged from the closed-door proceedings and was asked what kind of government had been formed. He replied, “A republic, if you can keep it.” Those citizens who, for whatever reasons, are determined to remain uninformed, make it harder to keep that republic intact. Our nation, suffering now from political confusion and ugly protests, sorely needs a renewed commitment to civic knowledge.