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Like a Piece of Swiss Cheese: American Democracy Has Many Holes In It!!, by Dr. Yassin El-Ayouty, Esq.

Like a Piece of Swiss Cheese: American Democracy Has Many Holes In It!!, by Dr. Yassin El-Ayouty, Esq.
Like a Piece of Swiss Cheese: American Democracy Has Many Holes In It!!, by  Dr. Yassin El-Ayouty, Esq.


Trumpism did not arise from a vacuum. The 242-year old Constitution, plus judge-made law, lie at its roots. A great Justice of the Supreme Court, Oliver Wendell Holmes, once wrote of the Constitution: "It is an experiment, as all life is an experiment." Well, that "experiment" was expressed darkly by President Trump as he alluded to that great document as "archaic."

Trump is a president who was catapulted to the White House by less than the majority of those who voted. His adversary, Hillary Clinton for whom I voted, garnered 3 million more votes than that "reality show" host.

The Constitution intended to establish a government "of the people, by the people, and for the people" (the words of President Abraham Lincoln at his first State of the Union message.) But the electoral votes are counted twice: once for citizens voting; the other for a non-democratic allocation by a pre-determined formula to each state. The magic number of 270 is calculated through a non-elected body called the Electoral College.

It could therefore be said that the Trump presidency, though in accord with the Constitution, is a presidency that is "undemocratic;" when measured by the formula "one man, one vote." 

So was the Bush presidency in 2000 during the Bush-Gore contest.But in that earlier instance, it was the US Supreme Court, a non-elected body of 9 justices, which ordered the stoppage of the Florida ballots. The deciding vote was that of Justice Sandra O'Connor who tipped the scale of the conservatives on that divided 5 to 4 court.

This is where the recent nomination by Trump of Brett Kavanaugh as Associate Justice of the Supreme Court, replacing retiring Justice Anthony Kennedy, represents a further politicization of that Court. It pushed that body further to the right to serve a decidedly non-democratic purpose, namely-interpreting law, thus making law by a non-elected body.

A close reading of the Constitution as written does not give the Supreme Court a clear right to give a final say over the meaning of the Constitution and federal laws. Nor do they have the power to order state and federal officials to comply with its rulings. They can only make decisions on cases that are brought to them by in application a person who is actually affected by the laws. So why is the practice different?

It was in 1803 that Chief Justice John Marshall, in a case called "Marbury v. Madison," interpreted Article III (of the Constitution) on the judicial powers to give the federal courts that final say. That opinion by John Marshall made the Supreme Court a sort of a co-legislative branch of the U.S. system of governance.

Herein lies the anticipated problem of possibly confirming Kavanaugh by the Senate. The extreme right in a highly tribalized America would then hold sway over the White House, Congress, and the Supreme Court. This would be a sure recipe for a fascist-like America. No checks and balances.

The Kavanaugh nomination caused Peter Baker of the New York Times of July 10 to describe it as follows: "That has raised the stakes for groups on the left and the right, guaranteeing an incendiary, ideological, partisan and well-financed confirmation battle in a capital already driven by incendiary, ideological, partisan and well-financed politics."

Speaking of "well-financed politics," the U.S. Supreme Court, in the case of Citizens United had, in effect, made money a decider of the outcome of American elections at federal and state levels. The First Amendments which guarantees "the freedom of speech" has been re-interpreted to make the unlimited wealthy nonprofit corporations, with millions of dollars in assets, free to support without limits political action committees (PACs). The dollar, now, has the unfettered freedom to speak on behalf of the causes of its donors.

As to the sovereign right of all eligible voters to express their political choices through the ballot box, we, in America, have the inequality of the application of that right.

This has come about through political gerrymandering at the state level. Even the ultraconservative late Supreme Court Justice, Antonin Scalia had said in 2004: "Severe partisan gerrymanders are incompatible with democratic principles."

So what is a gerrymander? It is defined as "the creation of a civil division of an unusual shape within a particular locale for improper purposes."

This process, in which the right in America has, for the past 50 years, worked assiduously, has created legislative districts of unequal population.Hence the constitutional rule of "one man, one vote" required by the equal protection of the law has been violated.

In his seminal book (2014) calling for amending the US Constitution, retired US Supreme Court Justice John Paul Stevens (a liberal) called for requiring federal judges to apply the same rules in cases challenging political gerrymanders as those applicable to racial gerrymanders.

The remedy proposed, but seems to be quite far from attainment, is that voting districts should be compact and composed of contiguous territories.

At present, democracy in a disunited United States, suffers from destruction by the Republican Party, now the party of Trump, of the pillars on which this great enterprise was launched:

  • The wall between the State and religion has been shaken to its foundation. The primary example is the recent endorsement by the Supreme Court of Trump's ban on Muslims from six States, from entering the U.S.;
  • The call by Trump for an "America First" is in essence a call for "an America for whites only;"
  • The tearing up of children from their parents (3000 of these) seeking asylum at the southern border, dispersing them throughout the US without much hope for family reunification, is as close as possible to being a genocidal act;
  • The daily attacks by Trump and his submissive machine on the Department of Justice and the investigations presently conducted by special counsel Robert Mueller, are nothing but a direct vilification of the Rule of Law in America;
  • The various legal infractions by the Trump family and the Trump Foundation are being overlooked as petty incidents by a so-called "non-political" president;
  • The senate hearings, in today's America, have become devoid even of a modicum of due process to be accorded to witnesses.
  • Powerful special interests, like the National Rifle Association (NRA), have amply demonstrated that they are able to dictate to Congress legislation in favor, not of the nation, but of their membership.

The party of Trump is no longer the party of Lincoln. Lincoln, the historic leader who ended slavery of the blacks in America. In his first State of the Union message to Congress in 1861, he set forth a legal standard for government. As the civil war raged, he inspiringly declared:

"It is as much the duty of Government to render prompt justice against itself, in favor of its citizens, as it is to administer the same between private individuals."

In the Trump era, that legal standard, on which American democracy was based, is no more. The sad fact is that America still regards itself as the world's mentor of liberal democracy. 
"The carpenter has a house whose door creeks for lack of repairs!!" (An Arab proverb).