The leaked opinion of the Supreme Court suggesting that it will eliminate Roe v Wade has caused me to wonder about the institution’s performance in maintaining the “balance of power” between the three elements of government envisioned by the Founding Fathers. My understanding of the philosophy was that the three branches of the Federal Government (Congress, President, and the Supreme Court) have inherently different missions and points of views that create a dynamic that prevents any one point of view from taking over and getting too far out of control.  They specifically set up a system that balanced the three elements in an effort to avoid the ills of previous governments whereby one group gained too much power, control and wealth. It is the push and pull between these three entities that help maintain a fair and balanced government.

The interesting, and innovative, vision behind this three legged power structure was that all of them were created in support of the citizens rather than a special group.  The preamble to the Constitution starts with the words, “We the people in order to … promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity establish this Constitution…”   “The people” refers to all of the people, not just an elite group of powerful wealthy people.  This is the key element behind our idea, and belief, of democracy.  It is OUR government, and it is bound to change from time to time as society changes (hence the inclusion of means for amending modifying the Constitution when needed).

The idea of democracy based upon majority rule is inherent in the Constitution, albeit with varying definitions of how large the majority needs to be.  In some cases a simple majority, in others a larger percentage (for example, 2/3 vote) is required to achieve a “democratic” decision.  However, in all cases it is understood that the majority represents the majority of the citizens of the country – not just the majority opinion of those that happen to be in attendance.  This understanding is the basis of our “representative” form of democracy.  Those in attendance have a responsibility to represent the people in their district while following the Constitution in order to protect the rights of under-represented individuals.  Of course this is an impossible line to tread by the representatives, the best that they can do is attempt to do so, and at least prevent the most egregious violations of the rights of minorities. One of the great problems with our form of government is that it cannot be assumed that even half of the people in a given district agree with their representative. 

There is a great pushing and shoving of opinions within Congress, with enough parties involved that perhaps the dynamics result in something like a “middle way.”  The President’s veto power (and bully pulpit) tend to counterbalance some of the excesses created by the Congress’ attempts to garner favors for their voters (in exchange for votes during the next election).  The President is likewise constrained by their desire to continue to get the support (and votes).  However, the Supreme Court is a very different entity.  Once appointed to the Court, that individual is effectively removed from the vicissitudes of politics.  They aren’t elected, and their term does not expire. 

My understanding of the job of the Supreme Court is to ensure that laws passed by wide variety of law makers are “legal” in the sense of not violating the precepts of the Constitution.  They aren’t there to judge on the truth of any particular situation, they just focus on the legality of the laws involved in the sense of do they violate the terms of the Constitution.  Obviously, the Supreme Court does not limit itself to judging the Constitutionality of a law; rather it is in the business of creating new laws.  The example that first brought this to my attention was when they appointed George Bush President, even though he didn’t win the popular vote or the electoral vote.  They (the Supreme Court) decided that Bush should win, and Gore should lose, regardless of the inconvenient truth that he lost (or at least hadn’t yet been shown to have won).   The whole issue of how Presidents are elected is very archaic and out of agreement with what is generally understood to be “fair” by the public, but in no situation does the Supreme Court have authority to do so – they just “took” the authority and since there is no body higher than them, there is nobody with the authority to call “foul”. 

The Court used a giant hole in the Constitution, and took advantage of it.  The hole that they used is that nobody can stop them from doing anything they would like – THEY are the law of the land, beholden to no one. That opened up a process whereby the party in power at the time of the appointment of SC Judges can load up the court in ways that take the role of government away from the people and give it to a small group of politicians. 

It appears to me that this change in the role of the Court  from being one of determining the legality of laws in a general way to sculpting laws to suit their personal political agendas is taking a very dangerous step toward fascism.   

According to Robert Paxton, a professor emeritus of social science at Columbia University in New York, who is widely considered the father of fascism studies, fascism is “a form of political practice distinctive to the 20th century that arouses popular enthusiasm by sophisticated propaganda techniques.” That much of the story is clearly as true today in the 21^st century as it was in the 20^th century.  We are enduring a time of important political decisions being supported by popular enthusiasm generated by sophisticated propaganda techniques.  However, that doesn’t address my concern that we might be marching toward a fascist state.  What is fascism and why is it so dangerous? 

Paxton goes on to posit that fascism includes four characteristics:

•  anti-liberalism, rejecting individual rights, civil liberties, free enterprise and democracy
• anti-socialism, rejecting economic principles based on socialist frameworks
• exclusion of certain groups, often through violence
• nationalism that seeks to expand the nation’s influence and power

He goes on to note that: Fascism is always populist – there is a perceived enemy or oppressor – and elitist. The will of the people is embodied in a select group or supreme leader, from whom total authority proceeds downward.”

The first characteristic is the one that appears to be most at risk at this time.  Currently there is a lot of discussion by the “far right” (I don’t like this designation, but don’t know what else to call them) concerning what is an “individual right” or a “civil liberty”.  I think the 14^th amendment describes the general topic.  Section 1 of the 14^th Amendment says:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  Note: Unborn fetuses are not “citizens” and therefore are no subject to this amendment.

Preventing the fair election of a President by interference by the Supreme Court is an example of abridging the privileges (rights) of a vast number of citizens to choose a President by voting.  Hampering (abridging) the ability of some citizens to vote by making the election process too difficult for them to comply with the election process is another issue.  Abridging the privilege of a woman to make decisions about her health and well being by outlawing abortions is another.  There is an ever growing list of SC decisions that instead of unbiasedly determining the legality (Constitutionality) of a law are making judgements based upon their personal religious and/or political values.  Roe v Wade made it very clear that the ability to make personal decisions about abortions is a right that cannot be abridged by any State.  However, now it appears to be something else other than a privilege or a right.  What might that something else be?  Perhaps it is a taboo by a certain segment of the population – that’s fine; nobody is forcing those individuals who consider it taboo to have an abortion.

This change in the Court’s actions from judging the Constitutionality of laws based upon evidence to making rulings based upon political philosophies is a slippery slope where any law can be judged to be Constitutional, or unconstitutional, based upon the whims of five individuals having no oversight or boundaries.  Whatever they say IS the law of the land and nobody can do anything about it.

Apparently the office of the President is very close to this, with the exception that at least they are currently only allowed to stay in office for two terms.  They eventually go away, justices stick around until they decide to quite, or they die.    

I am going to leave the other three characteristics of fascism unexplored for the time being.  However, I don’t think it takes very much consideration to see the growing instances of these other characteristics in the voting behavior, and actions, of law makers at the State and Federal level across America.  Are certain groups being excluded from political and economic opportunities?  Are certain groups treated differently by government agencies (including law enforcement)?  Are we working to ensure economic fairness, or are we mainly supporting certain groups and individuals?  I leave it to you to consider whether or not we are treading the path of something other than the “democracy” in the pursuit of “liberty and justice for all” that we hold so dear to our hearts.