I grew up in what I call “the heart of the heart of the country,” beside the Mississippi River in southern Iowa. During that time, I was happily immersed in the belief that our country’s democracy was as solid as the granite at the core of the Washington monument. Our government was exceptional in the world, and so cleverly structured that it was immune to the greed and lust for power that plagued so many other countries.
Each day at elementary school, with a child’s hand covering my hopeful heart, I reaffirmed my visions with the rote repetition of our Pledge of Allegiance: “… one Nation … indivisible, with liberty and justice for all.”
In the 1960s and ’70s, those words failed me as the Civil Rights movement, the Vietnam War, and the Watergate scandal belied their truth. But I was unwilling to give up my faith in America, and inwardly concluded that those events, and so many others, came from attacks on our values that were explicitly prohibited by the Constitution and could be addressed with legal, Constitutional remedies. We could strengthen voting and other civil rights through legislation, end the Asian war that was authorized with a lie, and remove Nixon and his henchmen from power.
But today, I am forced to accept the fact that the laws controlling our government are no more binding than our tax code. At over 2,500 pages, it is still filled with loopholes eagerly exploited by people whose income runs to six, seven, eight, nine and ten figures. (Our previous president boasted that paying very little in taxes on a large fortune made him “smart.”)
Two recent examples show that democratic traditions may be more important than the letter of the laws in the Constitution. When the Republican Senate refused to consider President Obama’s nominee to the Supreme Court in March 2016, it did not break Constitutional law. Instead, it broke a tradition in which nominees testified and were voted upon soon after nomination. The Republican Party found a loophole and used it to increase and maintain its power, regardless of the intent of the Constitution. Their supposed reasoning was shown to be a lie when they rushed through Amy Coney Barrett’s confirmation.
But just as important is a broken tradition for trying cases in the Supreme Court. The recent decision by the Supreme Court on the Texas abortion law did not come after oral or written arguments and consisted of a single, unsigned paragraph. What might be a crucial decision in controlling women’s lives for many years was not decided through the “merit” process that involves months of full hearings and written decisions, but instead uses a loophole formally called the “orders” docket, or more aptly, the “shadow” docket.
Intended to make the court more efficient by allowing quick decisions on routine, “anodyne” (noncontroversial) matters, it has evolved into a major tool that allows the Court to make important decisions without requiring individual justices to explain or justify their votes. During President Trump’s four years, the Supreme Court handed down “shadow” decisions at 20 times the rate of the previous 16 years under Bush and Obama. Legal scholars say that quick, “shadow” decisions, especially ones that may set precedent for lower courts or a future Supreme Court, run substantial risks. A quick decision may be the wrong one; it is unfair to parties that should be heard on the matter; it is more susceptible to political pressure; and it harms transparency because the learned members of our highest court are not required to come out of the shadows and “show their work.”
One recent, cutthroat business philosophy (popular in the tech industry) is “Move fast and break things.” As much as I’d like to trust our Constitution and government, politicians and judges eager to move fast and break traditions (if it suits their desire to maintain power) have pushed me into the 80% in a recent poll who don’t trust the government to “do the right thing” most of the time.
Somehow, we need to get more people into government and the courts who believe in democratic traditions, who believe in maximum voter participation and transparent legal decisions. It will be a long battle to get the pendulum swinging back in that direction, especially when those eager to find and exploit loopholes in the Constitution are so well-funded and determined to push their agenda until they have total control, even if it means breaking our democracy.
Allen Woods is a freelance writer, author of the Revolutionary-era crime novel “The Sword and Scabbard,” and Greenfield resident. His column appears monthly on a Saturday. Comments are welcome here or at awoods2846@gmail.com.