Should There Really Be a Supreme Court?
Its Role Always Has Been Anti-Democratic
Long before the US Supreme Court’s “originalist” ruling rejecting as unconstitutional moves laws that most Americans want—on the ground that they are not what the wealthy New England merchants and southern slave-owners who drafted the Constitution would have wanted—classical Greek and Roman oligarchies created their own judicial checks against the prospect of Sparta’s kings, Athenian popular assemblies or Roman consuls enacting laws at the expense of the vested interests.
Sparta had two kings instead of just one, requiring their joint agreement on any new rules. And just in case they might join together limit the wealth of the oligarchs, they were made subject to a council of ephors to “advise” them. A kindred Roman spirit called for two consuls to head the Senate. To ward against their joining to cancel debts or redistribute land—the constant demand of Romans for the Republic’s entire five centuries, 509-27 BC—the Senate’s meetings could be suspended if religious authorities found omens from the flight of birds or other airy phenomena. These always seemed to occur when a challenge to the oligarchy seemed likely to pass.
The historian Theodor Mommsen called this delaying tactic “political astrology.” The most blatant example occurred in 59 BC when Julius Caesar was elected consul, and proposed an agrarian law to settle some of Pompey’s veterans as well as urban plebs on public land in Italy. Additional land was to be bought from private owners, using funds from Pompey’s campaign in Asia Minor.
Cato the Younger led the Roman Senate’s Optimates fearing Caesar’s (or anyone’s) popularity. Opposing any change in the status quo, he started one of his famous all-day speeches. Caesar ordered him led away, but many senators followed Cato out, preventing a vote from being taken. Caesar then simply bypassed the Senate to put the measure before the Centuriate Assembly, composed largely of army veterans. That was a tactic that the reformer Tiberius Gracchus had perfected after 133 to promote his own land redistribution (for which he was assassinated, the oligarchy’s traditional fallback defense in all epochs). 1
When Caesar’s opponents threatened violence to block the popular vote, Pompey threatened to use his own force. When the time came for the Senate to ratify the law, Caesar and Pompey filled the Forum with their soldiers, and a large crowd gathered. Cato’s son-in-law, M. Calpurnius Bibulus was Caesar’s annoying co-consul, and tried to suspend the voting by claiming to see bad omens, making public business illegal.
Caesar overruled Bibulus on his own higher authority as pontifex maximus, leading Bibulus to declare the rest of the year a sacred period in which no assemblies could be held or votes taken. But the crowd drove him away and broke his insignia of consulship, the ceremonial fasces carried by his lictors, and beat the tribunes allied with him. Cato likewise was pushed away when he tried to force his way to the platform to block the vote. He and Bibulus fled, and Caesar’s bill was passed, including a clause requiring all senators were to take oath to adhere to it. Bibulus went home and sulked, insisting that the entire year’s laws be nullified because it was passed under threat of violence, although it was the oligarchy that then settled matters by assassinating Caesar and other advocates of land and debt reform.
Athens, which turned oligarchic in the 4th century BC after losing the Peloponnesian War with Sparta, used a tactic closer to today’s Supreme Court in trying to subject laws to conformity with an alleged “ancestral constitution” that presumably should never be changed—at least in a way that would favor democracy. Claiming to restore the supposed constitution of Solon, the Thirty Tyrants installed by Sparta’s oligarchy in 404 BC downgraded the Athenian boule’s governing five hundred citizens into a merely “advisory” group whose views had no official weight. 2
Androtion (ca. 344/3), a follower of the oligarchic Isocrates, went so far as to deny that Solon actually cancelled debts in 594, claiming that he merely revalued the coinage, weights and measures to make them more easily payable. 3
But there was no coinage in Solon’s time, so this attempt to rewrite history was anachronistic.
In a similar tradition the authors of America’s constitution created the Supreme Court to provide a check on the danger that political evolution might lead Congress to pass laws threatening oligarchic rule. There is no longer a pontifex to block democratic lawmaking by claiming to read auspices in the flight of birds or other airy phenomena, but a more secular subordination of new laws to the principle that they must not be changed—as if the world itself is not evolving and calling for modernizing the legal system to cope with such change.
I have found it to be an axiom of the history of legal philosophy that if the popular political spirit is for democratic reform—especially supporting taxes and other laws to prevent the polarization of wealth between the vested interests and the economy at large—the line of resistance to such progress is to insist on blocking any change from “original” constitutional principles that supported the power of vested interests in the first place.
The US political system has become distorted by the power given to the Supreme Court enabling it to block reforms that the majority of Americans are reported to support. The problem is not only the Supreme Court, to be sure. Most voters oppose wars, support public healthcare for all and higher taxes on the wealthy. But Congress routinely raises military spending, privatizes healthcare in the hands of predatory monopolies and cuts taxes for the financial rent-seeking class while pretending that spending money on government programs would force taxes to rise for wage-earners.
The effect is to block Congressional politics as a vehicle to update laws, taxes and public regulation in keeping with what voters recognize to be modern needs. The Supreme Court imposes the straitjacket of what America’s 18th-century slaveowners and other property owners are supposed to have wanted at the time they wrote the Constitution.
James Madison and his fellow Federalists were explicit about their aim. They wanted to block what they feared was the threat of democracy by populists, abolitionists and other reformers threatening to check their property “rights” as if these were natural and inherent. The subsequent 19th century’s flowering of classical political economists explaining the logic for checking rentier oligarchies was far beyond what they wanted. Yet today’s Supreme Court’s point of reference is still, “What would the authors of the US Constitution, slaveowners fearful of democracy, have ruled?” That logic is applied anachronistically to limit every democratic modernization from the right of unionized labor to go on strike to abortion rights for women, cancellation of student debt and the right of government to tax wealth.
Even if Congress were not too divided and stalemated to write its own laws reflecting what most voters want, the Supreme Court would reject them, just as it sought for many decades to declare a national income tax unconstitutional under the theory of “takings.” The ideological victory of the Thatcherite and Reaganomics class war doctrine of privatization, “small” government unable to challenge the power of wealth (but big enough to crush any attempts by labor, women or minorities to promote their own interests) is an anomaly for a nation claiming to be a democracy.
A nation’s constitution should have the flexibility to modernize laws, taxes and government regulatory power to evolve in a way that removes barriers to broadly-based progress, living standards and productivity. But these barriers have been supported by oligarchies through the ages. That was why the Supreme Court was created in the first place. The aim was to leave the economy in the control of property holders and wealthiest families. That anachronistic judicial philosophy is turning the United States into a failed state by empowering a wealthy minority to reduce the rest of the population to economic dependency.
We are repeating the economic polarization that I have described in my recent book The Collapse of Antiquity. It was to oppose the 7th– and 6th-century BC crisis of personal debt and land concentration that led to social revolution by reformers (“tyrants,” not originally a term of invective) in Corinth, Sparta and other Greek-speaking city-states and Aegean islands. Solon was appointed archon to resolve the situation. Unlike reformers in other Greek cities, he did not redistribute the land, but he did cancel the debts. He called this the “shedding of burdens” (seisachtheia). It removed the debt-stones from lands cultivated by Athenians. The ensuing 6th century led Solon’s successors to lay the groundwork for Athenian democracy.
But the next three centuries saw the rise of creditor oligarchies throughout Greece and Italy using debt as a lever to monopolize land and reduce citizens to bondage. These increasingly aggressive oligarchies fought, increasingly with violence, against new reformers seeking to cancel debts and redistribute the land. That attempt at disinformation and class bias was much the spirit of today’s right-wing Supreme Court’s approach to constitutional law. The common denominator is an age-old drive to prevent democratic change.
As in classical antiquity, today’s the exponential rise in debt has polarized wealth ownership. Personal debt bondage no longer exists, but home buyers and most wage earners are obliged to take on a working-lifetime debt burden to obtain a home of their own, an education to get a job to qualify for mortgage loans to buy their home, and credit-card debt simply to make ends meet. The result is debt deflation, slowing the economy while creditors use their rising accumulation of wealth to finance the inflation of housing and other real estate prices, along with stock and bond prices—with yet more debt financing.
The conflict between creditors and debtors is a red thread running throughout American history, from the Whiskey Rebellion of the 1790s to the monetary deflation of the 1880s as “hard money” creditor interests rolled back prices and incomes to be paid in gold, increasing the control of bondholders over labor. US debt and tax policy is passing out of the Congress to the Supreme Court, whose members are groomed and vetted by anti-labor ideology to favor financial and other rentier wealth by locking the legal system into a pre-democratic philosophy of constitutional law despite the vast political revolutions that at least in principle endorse democracy over oligarchy.
This victory of wealth is what has led to the deindustrialization of America and the resulting predatory diplomacy as its economy seeks to extract from foreign countries the products that it no longer is producing at home. This is why foreign countries are moving to pursue a philosophy rejecting debt deflation, privatization and the shift of economic planning from elected governments to financial centers from Wall Street to the City of London, the Paris Bourse and Japan.
Any resilient society’s constitution should be responsive to the evolution of economic, technological, environmental and geopolitical dynamics. US legal philosophy reflects mainstream economics in trying to lock in a set of principles written by creditors and other rentiers fearful of idea of freedom, labor, property obligations, finance and the environment, all of which are being radically transformed.