John Roberts spent the past decade gutting the Voting Rights Act of 1965, green-lighting unlimited corporate spending in American elections, immunizing extreme partisan gerrymandering from constitutional challenge, insulating prosecutors who withhold exculpatory evidence from legal accountability, restricting the capacity of consumers and workers to sue corporations that abuse them, and legalizing most forms of political bribery.
But don’t let that impeccable record of abetting voter suppression and plutocracy get you fooled — the chief justice was only trying to teach us all a valuable lesson about not taking things for granted. Or so one might conclude from Roberts’s year-end “Report on the Federal Judiciary”.
In this year’s missive, the Supreme Court justice treated the public to a lecture on the evils of fake news, and the vital importance of “civic education” to the maintenance of democracy. Roberts opened his sermon with the story of the Doctors Riot of 1788 — an outbreak of mob violence that was triggered by baseless “reported accounts that medical students were robbing graves so they could practice surgery on cadavers.” One of our Constitution’s framers, John Jay, was injured in the process of trying to quell the fury of the corpse-avengers. Roberts uses this bit of trivia to set up the following rueful reflection:
In the fall of 1787, Alexander Hamilton enlisted James Madison and John Jay to join him in producing what became America’s greatest civics lesson — the Federalist Papers. The three authors collectively wrote 85 brilliant essays for publication in New York newspapers over the next year, successfully advocating for ratification of the United States Constitution. Originally addressed “To the People of the State of New York,” generations worldwide have hailed their works as an enduring exposition on the core principles of our constitutional democracy.
… It is sadly ironic that John Jay’s efforts to educate his fellow citizens about the Framers’ plan of government fell victim to a rock thrown by a rioter motivated by a rumor. Happily, Hamilton, Madison, and Jay ultimately succeeded in convincing the public of the virtues of the principles embodied in the Constitution. Those principles leave no place for mob violence. But in the ensuing years, we have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.
Many political reporters read this as a tacit critique of the rumormonger-in-chief — one with special significance on the eve of an impeachment trial over which Roberts will preside. This interpretation is bolstered by the justice’s previous rebukes of the president’s attacks on judicial independence. Although, the justice’s ideological fellow-travelers should have little trouble interpreting his remarks as a reprimand of the liberal mobs that came for the children of Covington Catholic, or myriad other conservative innocents.
But whatever the intended target of Roberts’s fretting about fake news, his remarks are quite telling in a separate sense. At first brush, the justice’s warning about the fragility of our democracy appears to be in (brazen) tension with his habit of taking a sledgehammer to voter protections and constraints on corporate domination of American politics. But the two look less contradictory upon closer inspection.
In Roberts’s framing, the threat to democracy issues not from the avarice of would-be oligarchs, but from the ignorance of ordinary people. Civic-minded elites like Hamilton, Madison, and Jay are democracy’s champions — the irascible mob of common folk, its adversaries. Self-government was not won when ordinary people rose up against the domination of privileged classes, but rather, when enlightened elites “succeeded in convincing the public of the virtues of the principles embodied in the Constitution.” Thus, Roberts’s call for revitalizing our democracy does not involve expanding voting rights to marginalized populations (let alone reducing disparities in economic power), but rather, increasing opportunities for citizens to receive civic lessons from judges like himself.
Civic education is certainly important. And the capacity of irresponsible political media to manipulate the lay public is a genuine and enduring challenge to popular self-government. But so is elite contempt for the civic competence of the masses, and the oligarchic tyranny that such contempt rationalizes and engenders.
This is true in our era, when the Senate majority leader argues that “voting is a privilege,” and Republican state legislatures exploit the Roberts court’s evisceration of the VRA to insulate their regressive agenda from majoritarian rebuke. And it was true at the moment of our nation’s founding. In “convincing the public” of the Constitution’s virtues, the Federalists didn’t merely need to overcome the masses’ susceptibility to rumor, but also, their aspirations for a more democratic society than Alexander Hamilton & Co. wished to abide. As the historian Terry Bouton writes in Taming Democracy: “The People”, the Founders, and the Troubled Ending of the American Revolution, the Federalists’ Constitution was, among other things, an attempt to roll back popular democracy in the states. In 1776, Pennsylvania had enacted a state constitution that eliminated property requirements for voting or holding office; enfranchised free African-Americans; “equalized political power by linking representation in the assembly to a county’s population, rather than allowing the older counties in the east to wield power well beyond their numbers”; enshrined Pennsylvanians’ inalienable right to overthrow any government that ceased to work for “the common benefit, protection, and security of the people”; and aimed to minimize checks on the will of the voting public. Bouton emphasizes the importance of that last provision:
Modern Americans are accustomed to thinking about the height of democratic government as a divided legislature (House and Senate) and a powerful executive (president) armed with the veto. Pennsylvania’s revolutionaries thought otherwise. They viewed such a government as checking democracy rather than promoting it … The solution they developed was to put most of the power in a new state assembly with an unchecked unicameral house.
The idea, as Thomas Paine wrote, was “common sense.” If the lower house in the legislature was the voice of the people, then any check on the house-such as a senate or a governor ernor with a veto-was a check on the will of the people by the rich and well-born. Guided by this belief, the framers of the 1776 constitution refused to institute a senate. They also intentionally created the state executive without veto power. In fact, this new executive, called the “President of Pennsylvania” could do little more than advise the legislature and enforce laws. As observers at the time commented, this was the most democratic government in the new nation; according to Benjamin Franklin, that meant it was also “the safest and best.”
The “principles embodied in the Constitution” of Madison, Jay, and Hamilton were quite different — and emphatically less democratic. As the Federalist Edmund Randolph said in a speech before the Constitutional Convention, “Our chief danger arises from the democratic parts of our constitutions … None of the constitutions have provided sufficient checks against the democracy.”
Hamilton, meanwhile, opposed a unicameral legislature on the very same grounds that Thomas Paine had demanded one, arguing before the convention that the federal assembly should be checked by a permanent body of “rich and well born” individuals:
All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government … Nothing but a permanent body can check the imprudence of democracy.
Hamilton settled for the Senate. Meanwhile, the Framers worked to structure House districts in as undemocratic a manner as possible. Bouton again:
[T]he framers believed that they could check the voice of the people in the most democratic branch of the federal government — the House of Representatives —by making it hard for ordinary folk to get elected to office. According to James Wilson, large election districts would ensure the selection of “men of intelligence & uprightness” (by which he meant members of the gentry). James Madison said that large election districts would provide a better “defence agst. the inconveniences of democracy.” Madison explained that large districts would “divide the community” and make it difficult for ordinary citizens to “unite in the pursuit” of a “common interest” like paper money and other policies by which “Debtors have defrauded their creditors.”
As Bouton goes on to show, these arrangements worked largely as designed. The Constitution provided enough “checks against democracy” to allow America’s elite class of creditors to milk their debtors dry, and pursue a deflationary monetary policy so ruinous for the common people, “by nearly every measure, the postwar scarcity [of money] was even more severe than the one that had [helped generate] the Revolution. A little over two centuries later, unrepresentative House districts, an undemocratic Senate — and that other “check against the democracy,” the Electoral College — allowed John Roberts’s political party to enact sweeping tax cuts for the wealthy amid historic levels of economic inequality and overwhelming public opposition.
Thus, Roberts is no hypocrite to cast himself and his fellow judges as the guardians of the Founders’ system of government. Like his forebears, the chief justice merely subscribes to a peculiar conception of “constitutional democracy,” one that is less concerned with empowering the demos, than domesticating it.
The patriots who wrote Pennsylvania’s 1776 Constitution believed that the outsize political influence of the wealthy was such a dire threat to popular sovereignty, they nearly included a provision empowering the state to confiscate “property when it became excessive in individuals.” The conservative majority on John Roberts’s court, by contrast, holds that the true threat to democratic freedom are laws that restrict the liberty of the superrich to influence electoral outcomes through paid advertising. Let’s hope that — with enough civic education — the American people will recognize which of these two most resembles a superstitious mob at war with democracy.