Eighteenth-century Democracy

 The founders of this great nation were 18th century types. What that means is that they had 18th century kinds of expectations about what was right and what wasn't.

Abigail Adams petitioned her hubby not to forget the ladies, but you know how that went. Ladies in the 18th century had no independence to speak of. Their agency was circumscribed by the tremendous power and authority of men. To be sure, there are individual cases of pretty independent women, but their independence was always contingent. It could end at any moment.

Dred Scott is a horrible expression of what the 18th century assumed as more or less a matter of fact. By the time that decision came down from the heights of SCOTUS, attitudes among northerners, some northerners, had changed. But the decision reflects 18th century assumptions. If those assumptions hadn't been in place, the three-fifths compromise would never have been contemplated.

Native Americans were savages, to be slaughtered, shunted off, contained, repressed, and self-evidently nugatory. The Trail of Tears, in the 1830s, isn't so unique a phenomenon. After all, it was the manifest destiny—the imperial ideology that masquerades as divine mandate—of white folks to dominate from sea to shining sea, and the Natives were just in the way. God didn't want them there, clearly.

The politics of the 18th century, as those politics were practiced in England, undergird the entire phenomenon of the founding of the country. The founders created a democracy, to be sure, but an 18th century one along the lines already established in England. Voting was restricted, not only to white men, but to white men of a certain level of society. Land owners, moneyed guys—sons of bankers, sons of lawyers, as Elton John sings it—had political authority. No one else did. It was that class of people who elected representatives, who represented them and no one else, and presidents. The presidents and the representatives then appointed judges, who judged from the seat of power that gave them political status.

Even the English practice of rotten and pocket boroughs is duplicated in the arrangement of political power that the founders gave us. A democracy traces the will of the people. In the founders' framework, "the people" meant that restricted and restrictive group of well-off white men; but the framework also gave to owners of land the same sort of privileged position of political authority that English practice gave to aristocrats. It's a bit disguised in the founders' arrangement, to be sure, but in early practice not so hidden away after all. If every state gets two senators, and in a new "western" state only a very tiny slice of the population has the wherewithal to count as having political authority, then it follows as night does day that that tiny slice of the population of the state controls the vote of the two senators from that state. The parallel to rotten and pocket boroughs is not exact, but the effect is the same. In both cases political power is absolutely no reflection of the will of the majority. If elections went to the winners of the popular vote, dear leader would never have been president.

The union has no doubt become "more perfect" since the late 18th century. Amendment after amendment has expanded the meaning of "the people," so that now "the people" means anyone 18 years of age or older regardless of wealth, race, creed, sex, national origin. That's why in some places election laws are geared to reducing the participation of the whole of the electorate in those states. We can't repeal all of those amendments that led to the "perfection" of the union, but paring is all that's necessary to maintain the privilege of the privileged.

And because the privilege of the privileged is so securely entrenched, the SCOTUS has become, essentially, a Taney court. Women do not own their own bodies now. The poor and/or ill-educated need not know they have a right to be represented by a lawyer and to remain silent unless so represented and advised. The rich have pluripotent voices because money is speech and speech can't be curtailed. We'll see what happens to people of color, to those of us who are gendered differently. For the time being I suspect that Loving v. VA won't be overturned because, after all, there's Ginni to keep in mind.

So we live in an 18th-century democracy. Keep that in mind as well.

Insurrection

The insurrection in DC in January of 2021 puts an American myth, sanctified in Scalia's misreading of the Second Amendment, into sharp conflict with the reality of American history.  The myth is that each citizen, alone or as part of a group, a "militia," as the myth would no doubt put it, has the right to bear arms, not only of primarily in defense of self and household but rather to protect the citizen from the government.  That's the idea that underlies the "sovereign citizen" idiocy, the "militia" movements, and the insurrection of last January.

History says otherwise.  I don't know of any nation or state in the history of the world that said it's ok for each citizen to assert individual sovereignty over the self, and therefore to assume immunity from the laws and customs of the nation.  In the US it's almost impossible to resist invoking the Gettysburg Address in this context:  "Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.  Now we are engaged in a great civil war, testing whether that nation, or any nation, so conceived, and so dedicated, can long endure."  The idea of "liberty" here is entirely contained within the continuing existence of the nation.

When they rebelled, which is to say, when they participated in an insurrection, the southern states were taking the myth quite literally.  Lincoln, on the contrary, understood that no nation can endure if it is subject to subversion by individuals, militias, or states.  The "new birth of freedom" that Lincoln goes on to predict is therefore contingent on the survival of the nation.

There are a whole bunch of highfaluting religious, philosophical, and political frameworks that assert more or less the same thing that Lincoln suggests.  But it doesn't take a St. Paul or a Hobbes to see that if every individual is literally sovereign, a law unto him/her/theirself, then we are in a state of nature where, in Hobbes's phrase, life is nasty, brutish, and short.  Without civilization, the collective enterprise of nations, there can be no civility.

The myth that Scalia made into a shibboleth of American manhood—and I choose that word with malice aforethought—is in practice the destruction of this thing we call America.  It undermines our civilization.  I understand full well that to participate in a civilization requires subordinating our own sovereignty to the supremacy of the nation.  Sometimes such supremacy produces injustice.  Consider the history of Black Americans.  But the genius of democracy is that there are methods for undoing such injustices that to do not entail insurrection.  The Preamble to the Constitution of the United States expresses that possibility in the idea that we are constructing "a more perfect union."  Article V provides a method by which such perfecting can be accomplished—within the terms of the Constitution itself.

Outside of the Fourteenth Amendment, the Constitution refers to insurrection, the "sovereign citizen" way of seeking the redress of grievance, only once.  Section I, Article 8 specifies that Congress has the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  Insurrection and "invasion," the domestic and the foreign threats to the nation, are made equivalent here.

As a relevant tangent to Scalia's dangerous reading of the Second Amendment, note as well that here is the first mention in the Constitution of the "militia," not as a body of "sovereign citizens," but as a arm of the government.  The Constitution reiterates the point in Article II, section 2, in which we are told that "The President shall be Commander in Chief of the Army and Nave of the United States, and of the Militia of the several States, when called into the actual Service of the United States."  Pace Scalia what the Second Amendment guarantees is the right of citizens to bear arms ae elements of the militia, which is to say as part of a state-organized, sanction, and trained band of citizen soldiers.