There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.


  1. Sheila, I really value your eloquent descriptions of today’s politics and what’s happening to our country today. Can you help us all by commenting on an alternative “platform” that will improve life for all Americans and give them all hope for their future?

  2. If our citizenry CANNOT SEE AND RESPOND to the “Tax Reform Bill” as anything other than a Republican effort to feather the nests of their donors and the cancerous plutocracy at the expense of 98% of us, or the bizarre appointment by the POTUS to cripple all things good, or the divisiveness of the POTUS and his very questionable motivations…not to mention the fact that he is very likely to be as bad an example of a sexual assaulter as one could find but was voted in by a forgiving set of voters willing to ignore his deviancy, how can “We the People” have the power it would take to close the flood gates that have been opened to make us tools of the plutocracy?

  3. The Big Question:

    How do we regular citizens, who don’t have bottomless pockets, fight the plutocrats and oligarchs who do have bottomless pockets?

  4. Honestly, the constitution was a great beginning for our country but in my humble opinion, it needs to be rewritten. Let’s remove the 2nd amendment and make sure the justices on the court have a 10 yr term or something, instead of life long. Equal rights for women should be included in the rewrite. And healthcare for all.

  5. I do not regret the strong influence the courts have. The alternative could have been much worse. James Madison suggested to the delegates at the Constitutional Convention that whenever a state passed a law in conflict with a federal law, Congress should be allowed to veto that state law. The delegates rejected that, which is good, because it is not likely that the states would have ratified the Constitution if it contained that provision. And then where would we be? Working under the Articles of Confederation?

  6. It’s pretty evident to me at least that Mrs. Kennedy and you eloquent posters ought to figure out that you need, for the benefit of all of us, to get together, to get organized, to take action, to invite other bloggers until we have a “yuge” bloc with a single most urgent objective. Will you please do it?? Enough breeze shooting. “Aux armes citoyens!”

  7. “There Is No Alternative To We The People” but…the majority of Americans have been disenfranchised over the past 10 months by the current “Trumpistration”.

    I love this blog; depend on it each morning for Sheila’s in-depth information and observations as well as the “family” we have become…even when we disagree. But; are we actually accomplishing anything; do we matter in the broader scope of the political world we try to stay abreast of? Are our messages being heard by those who can take action against the current Fascist government; or convince Democratic members of the House and Senate whom we are paying to protect us? Trump is getting worse almost by the hour; never in our history has there been this level of destruction of our diplomatic relation with years -long allies in addition to destruction of our civil, civic and human rights from within.

    I no longer feel part of “We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.” “WE”, as individuals or as Americans, no longer possess the right to any of the issues stated above in the preamble to the Constitution. We no longer have a Constitution other than Amendment II, which is privately owned by the NRA who are top stock holders in the current administration.

    “…we are going to have to do it by ourselves.” I am going to have to agree with Mark Kramer’s often repeated admonition that we are “doing” nothing; he gave no solutions and I have none to offer. Only the question of how do we accomplish anything when we are virtually powerless under Fascism…as powerless as those ‘good Germans” were at the beginning…are we going to continue in the current vein of talk, talk, talk? I am running out of money to join and maintain supposedly active organizations who are working for us and continue donating to a currently weakening political party which has no apparent plan of action…but I will continue doing so till the 2018 elections when I can take action. Of course I still doubt, due to the questionable circumstances of three attempts to enter my ballot last November, that my vote was even counted in this Trump supporting city and state and country.

  8. Steve @ 7:21: “Can you help us all by commenting on an alternative “platform” that will improve life for all Americans and give them all hope for their future?”

    I am actually working on a book right now that addresses that question. Working title is: Governing the Brave New World: A New Social Contract. I’m just at the research stage, so it will be awhile until it’s written. But the “million-dollar” question is: how do we make the changes that are needed? I don’t anticipate coming up with anything like a definite answer to that one.

  9. We are about to see yet another travesty as Roy Moore gets elected to the US Senate. Mr. Moore will be elected by a small percentage of the eligible voters of Alabama. What can the good people of Alabama, who don’t want this travesty do about it? They can VOTE!


    I’m beginning to hear Buyer’s Remorse from those Trump voters who say in a whining voice:, “…but I believed his promises in the campaign.”

  11. I agree with the thrust of Sheila’s essay today, that a continuation of our democracy depends upon an active citizenry, and I thought Jeff’s well-stated question of how do we do it germane to the issue. However, bad and right wing as Trump’s appointments to the judiciary are, there are examples of conservative judges who become aware of their place in history and have become more liberal in their decision-making. (See FDR’s appointment of Blackman and Roberts’ vote on Obamacare.)

    Jeff asks how “We the People” can have the power to reverse things. I think we already have the power; it’s a matter of our resolve in exercising it. I also note that modern-day democratic Japan and Germany overcame their Tojos and Hitlers, so there are historical examples to lead me to believe that (with citizen activism) we can overcome Trumpism. I can only hope that it will not take a war (as in WW II) to effect a return of sovereignty to the people.

    The irony of this modern day spectacle is that Germany and Japan follow their newly-gained democratic institutions better than we are following ours, what with a demented man in the Oval Office who is ignorant and divisive for the purpose of creating chaos so that he can come in on his law and order white horse and play the pre-WW II authoritarian roles played by Tojo and Hitler. He must be removed from office and sent to Elba on bread and water (as I often write). How? Via an active citizenry who boldly and unrelentingly insist on living up to the principles enunciated in our democratic institutions, without which we are mere ATMs of the oligarchy.

  12. There is a fire storm of anger in the United Kingdom directed at the Trumpet as result of his retweeting the far-right anti-Muslim group Britain First.

    Examples: As Labour MP Stephen Doughty said Thursday, Trump is trying to “sow hatred and division.” He added: “By sharing it, he is either a racist, incompetent, or unthinking — or all three.”

    Tim Loughton, another conservative MP, said Twitter should act and delete Trump’s account for him, as it would “any other citizen of the world who peddles such hate crime.”

    Labour MP Naz Shah proposed a simpler solution. The “commander-in-tweet” should be banned from the country for promoting “the hate-filled ideology of fascism,” she said.

    Now this breaking News: >>>>Donald Trump’s former national security adviser Michael Flynn was expected to plead guilty on Friday morning to making false statements to FBI agents in their investigation of Russian meddling in the 2016 presidential election.

    About four days after Trump became president, Flynn made “materially false, fictitious and fraudulent statements” to law enforcement about a meeting he had with then-Russian ambassador Sergey Kislyak, according to court documents.

  13. The solution is really simple. You vote. You get all of your family to vote. You get your neighbors to vote. You get your co-workers to vote. You get your church/organization/association members to vote. Democratic change takes place at the voting booth. It really is that simple. Timidity and laziness get in the way.

  14. JoAnn,

    “…we are going to have to do it by ourselves.” I am going to have to agree with Mark Kramer’s often repeated admonition that we are “doing” nothing; HE GAVE NO SOLUTIONS and I have none to offer.

    Bull shit!

  15. Bill Bailey makes a good point – that it’s all about arithmetic, i.e., turnout. With the advent of Trumpism, it is clear that one can stay on the couch and lose his/her democracy, or one may arise from the couch, go to the polling places, and save democracy for him/herself and posterity. I have not missed an election since Truman, and I am not to be congratulated. I was merely fulfilling a citizen’s obligation, as I believe every citizen should do. I have also served in WW II but have rejected those who say “Thank you for your service” for the same reason. If we are going to maintain and enjoy the fruits of democracy we have to fight for it against the Trumps and oligarchs of this world, because the old saying that “Freedom isn’t free” most certainly applies.

  16. As others have already said, VOTE!!!!!!!!!!!!!!!! The voting participation rate in the US has been pathetic for decades. If progressives had gotten to the polls, as they should have, we would not be having these discussions. If you hear someone saying “my vote doesn’t matter” figuratively knock them into next week and drag them to the polling station in 2018.

  17. As a matter of fact with respect to solutions, I tweeted the following to Ulla Gudmundson, former Ambassador to the Vatican from Sweden, this morning:

    At this point N history,the only effective weapon against Trump/Bannon would B an MRI or SONAR like TIME LINE of the Religious Right/Far Right Movement’s UNAVOIDABLE TRAGIC END like N Nazi Germany. Reference 2 Milton Mayer’s classic: “They Thought They Were Free.”

  18. My greatest fear is that in absence of the rule of law we are left with anarchy. Our Supreme Court is already facing a crisis of legitimacy with the stolen seat of Gorsuch. With the appointment of other judges of the same ilk I feel that I have no recourse but to prepare myself for the onset of anarchy. This is not pleasant to me and I certainly do not advocate it at this time, but I feel that preparation is absolutely necessary.
    The other things this Administration has done to reverse our society can be repaired but the judiciary is long term damage.
    We are indeed in uncharted waters.

  19. Platform or no platform the key to change is having a candidate like Barack Obama that can eloquently capture the imagination of potential voters and then inspire them to actually vote. He got his old Republican white guy to see the light and subsequently work the phones for Senator Sanders. We need a new Barack with the same fire and passion, and a John Sweezy type in every red state. MoveOn is doing some great things, but they need to become a real machine that can find the talent and get voters behind them. Oh, by the way and not as a gender thing –no more Clintons

  20. JUST IN: @BrianRoss on @ABC News Special Report: Michael Flynn promised “full cooperation to the Mueller team” and is prepared to testify that as a candidate, Donald Trump “directed him to make contact with the Russians.”
    10:10 AM – Dec 1, 2017

    Due in April (260 pages deep at the moment), my coming novel, WHO THE HELL IS JOHNNY PISTOLSEED (Legacy Tree Books), is another publication that deals with reconstructing a failed society. In it a woman’s suddenly murdered husband leaves her with the challenge of running the Indiana cartel that since 1824 and the murder of a group of Indians near Pendleton, Indiana has dictated the lives and politics of central Indiana citizens.

    Mary Jean Kruegerrand awakes from her retreat into alcoholism with a resolve to atone for her husband’s brutal reign as Indiana’s premier political boss and do right by her “subjects”. But she realizes that her mission faces all the problems of nation building. As in a third world country, Kruegerrand County and Ak-wy-yeth, Indiana has lost the citizen skills required to self-govern. And Mary Jean finds that her husband’s cartel has a will of its own, which refuses to rehabilitate and mutinies against her. What to do? And how does she move her reforms forward when a police action shooting brings everything in Kruegerrand County to a halt and seems to validate the system of ruthlessness her husband’s family had established? Her only allies are the local artist, with whom she had once been in love, a female junkyard owner, currently the artist’s lover, and an orphaned 15-year-old Hispanic girl who happens to be a raving genius with all the leadership intangibles of Winston Churchill.
    Don’t bet against the artist. Don’t bet against the two women. Don’t bet against genius.

  22. Can disorganized votes overcome campaign donations buying air time for propaganda to recruit votes? We have already empowered propaganda with a big brother outlet in every pocket, purse and living room. Business already has social media “pursuation architecture” developed and successful. The lobbying business has openings for every retiring Congressional friend of theirs.

    Congress has added economic meltdown to the President’s penchant for nuclear holocaust solutions. The world has shown itself to be addicted to fossil fuel destruction of the only climate humanity has ever known, the one we built our entire civilization adapted to. Public education and health care promise to become entitlements of wealth.

    It would appear that our goose is dripping fat into a very hot fire.

  23. One of the first targets of armed invaders is the capture of communications vehicles to control the flow of information. Trump has ‘invaded’ our political culture, controlled daily air time with his headline grabbing and diversions, and then proclaimed all news he doesn’t like as ‘fake news’. The Koch Brothers want to buy Time magazine. Citizens United has equated money with freedom of speech. The oligarchs are doing their best to capture and control the flow of information.

    But take heart. Social media rides to the rescue and enables each of us to mobilize our own informational artillery and foot soldiers. We can all start by encouraging our friends to sign up for Sheila’s blog, register to vote, and help register and turnout others to vote.

Comments are closed.