America will come out of CONSTITUTIONAL ROT, if at all, through political action
( Long and excellent - good honest people will never give up ! )
Saturday, October 06, 2018
Constitutional Rot Reaches the Supreme Court
JB
The fight over the Kavanaugh appointment exemplifies our country's advanced case of constitutional rot. The rot has been growing for some time, and has now reached the Supreme Court of the United States. The Supreme Court is unlikely to save us from decay. We will have to do that ourselves.
As I have argued in this lecture, our country has gone through cycles of constitutional rot and renewal throughout its history. We are at (what we can only hope is) the most extreme point in a cycle of constitutional rot. Unfortunately, we are also at the high point of a cycle of party polarization. And, to make matters worse, we are also at the end of the debilitated Reagan regime, with a new political regime yet to be born. The endings of political regimes are highly confusing periods regardless; extreme party polarization and advanced constitutional rot make our current period even more difficult.
A few week's back I gave a Constitution Day lecture at Drake Law School. The question I asked was this: How does the cycle of constitutional rot affect the Supreme Court and the federal courts? Can courts help us come out of constitutional rot? Does judicial review help counteract the slide into political corruption, or the accelerating loss of democracy and republicanism?
The answer, sadly, is no. In times of severe constitutional rot, coupled with high party polarization, courts are not the solution. They are part of the problem. Courts will not drag us out of a period of constitutional rot; they will either do little to help or actively make things worse. Moreover, as we have seen, the courts are a special prize in these periods, and politicians are likely to engage in ever more outrageous hardball tactics to entrench their power in the judiciary.
Consider the last two periods of pronounced constitutional rot in American history: the years just before the Civil War, dominated by the Slave Power, and the Gilded Age, dominated by what Teddy Roosevelt called "the malefactors of great wealth." In neither age was the U.S. Supreme Court the great protector of democracy and republicanism. Quite the contrary, the Supreme Court behaved very badly during both periods, and produced Dred Scott in the first period, and Plessy, Pollock, Lochner and Coppage in the second. The corruption of an age rubs off on the courts of that age. In a period of constitutional rot, the Supreme Court will be sullied as well.
https://balkin.blogspot.com/2018/10/constitutional-rot-reaches-supreme-court.html
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Response to BeckyDem (Original post)
