Columns
Our Two Branch Democracy
Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.
Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.
The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. No so our federal judges.
In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.
The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.
Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.
The Briar Patch
Joel Chandler Harris, AKA Joe Harris (1848-1908), was born in the state of Georgia before the Civil War and worked on a slave-holding plantation as a teenager. After the war he became an associate editor at The Atlanta Constitution newspaper. Harris had lived and worked around the evils of slavery and he had absorbed the folk wisdom of slaves who were prohibited by law from formal education. Harris created his fictional writings using Uncle Remus as a wise and shrewd observer of human nature hidden within animal behavior.
Harris intended his writings as compliments to the ability of Uncle Remus to explain human foibles by giving animals human failings such as arrogance. In the story of Br’er Rabbit and Br’er Fox contained in Harris’ Uncle Remus: His Songs and His Sayings, the meanness of the Fox is used by the Rabbit to escape by getting the Fox to “punish” the Rabbit by throwing him into a briar patch. Of course, that is exactly what the Rabbit really wanted.
Unfortunately, due to our current misguided wokeness in many areas, the slave dialect used by Harris now interferes with the appreciation of the literature of The Song of the South and a great number of those pro-African American folk tales are no longer read. However, for those of us whose time of birth helped us escape the ravages of the current misguided ignorance in the area of children’s literature, Uncle Remus is still imparting wisdom, such as enjoying a proverbial briar patch. Or in my case, Peg’s banishment of me to the solitude of our bunkhouse when I got COVID and Peg did not.
At first, I was offended when Peg handed me my toothbrush and a set of clean underwear and locked our cabin door behind me after she forcefully shut it. It was not that I wanted Peg to share in my experience of a sore throat, lethargy and endless amounts of crud being expelled from my body. It was more the feeling that a one-person leper colony was a rather lonely possibility, plus I really missed my favorite recliner and ready access to the refrigerator. Oh, and Peg too, of course.
Be that as it may, Peg sentenced me to two weeks of quarantine with the same lack of ceremony she would have exhibited if a door-to-door encyclopedia salesman had appeared with a sample case. You remember encyclopedias don’t you, Gentle Reader? You know, those things with pages, tables of contents and indexes that went the way of the dodo bird after Google came along. Well, that may call for a different column.
Anyway, here I am alone with the piles of books I never read, the piano I used to play and old photographs of friends and relatives I barely recognize. I have been rummaging through boxes and drawers filled with the most interesting stuff not seen by me since high school. What a strange looking dude I was with dark colored hair and a discernible jaw line. Who was that and who are those undecipherable young people around him wearing weird clothes?
Say, Peg, what is this thing that says Maytag on it? Is this where my clean clothes came from? It must be a miracle machine. How does it operate? By the way, there is no stove out here and after several days of eating the leftovers you sent with me, I am ready for some real food.
By the way, I have done my Paxlovid and am pretty sure I am not Typhoid Mary anymore. On the other hand, the bunkhouse refrigerator is stocked with leftover beer from our Fourth of July Family Reunion and the TV is constantly tuned to Gunsmoke reruns. The bunkhouse is the answer to every boy’s escape from his mother and every husband’s escape from constant inspection by his wife.
Clothes are in a pile where I take them off. The bed never has to be made to drill sergeant standards and every door knob and chair back is a hanger. But the most serendipitous of all? Peg is afraid to step foot in my little slice of heaven. I may claim to be eternally toxic. Bring on that Briar Patch!
Judicial Proclivities
Three of the United States Supreme Court’s own members Elena Kagan, Stephen Breyer and Sonia Sotomayor warn us the Court has appointed itself, instead of Congress or the EPA, the decision maker on climate policy. An outcome the three dissenters found frightening. See the dissenting opinion of Kagan as joined by Breyer and Sotomayor in West Virginia v. EPA decided June 30, 2022. What they meant was that the unelected Supreme Court installed the Judicial Branch as the policy maker for an issue, management of the environment, that should be within the Legislative Branch that is subject to democratic control, as the Court is not.
Most of us are unable to see the irony in our own actions. The same is true of the Supreme Court. The six-member majority of the Court couched its decision in terms of preserving policy making in Congress as opposed to unelected bureaucrats at the Environmental Protection Agency. But, according to the Dissent, what the Court did was simply replace the EPA with the Court as the ultimate decision maker on the broad, critical issues of environmental management.
In the similarly ironical decision Dobbs v. Jackson Women’s Health handed down 24 June 2022, the same majority set the U.S. Supreme Court up as the final policy maker on the volatile issue of abortion by deciding Roe v. Wade must be overturned and each state should decide the issue.
The same three dissenting justices warned in Dobbs that:
“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”
It is not the substance of either the EPA case or the abortion case that is our concern in today’s column. Those emotional issues of global warming and human reproduction are just too volatile and complicated to be adequately discussed in one short column. Instead, what I am struck by is the obtuseness of nine unelected, life-tenured people who arrogate themselves as final arbiters of issues so vital to the lives of 330 million Americans. Perhaps the Supreme Court has finally brought in to focus that the justices are merely politicians on a micro scale. What I wish to discuss is how we might retain our three equal branches of government through a macro democratic process.
Does any rational observer of the Court deny the justices are simply politicians who wear black dresses and pretend to be apolitical? The justices are not to blame. If you, Gentle Reader, or I were placed by Presidential nomination and Senate confirmation on the Court, we would take our prejudices and “proclivities” with us. The problem lies not with the members of the Court but with the undemocratic way they are selected coupled with their life-time tenure. It is our Court and our Constitution and we should change both.
We have amended our Constitution 27 times. We should do so again. I suggest that the members of the U.S. Supreme Court and all federal judges be elected in a non-partisan election for one 10-year term. Once their term is honorably served, we should pay them their full salary for life and they should never serve as a judge again. The impeachment process should remain an option in case we make a mistake.
In summary, federal judges are no better or no worse than the rest of us. They are human, they have “proclivities”, they are politicians. We should drop the façade of “philosopher kings” and have our federal judges recognized as a full-fledged branch of our democracy as selected via a democratic process.
D-Day
“Throughout the 200-year history of the United States the American nation has been at war.” That was how author William Koenig led into his 1980 book, Americans at War. Although ostensibly a study of American warfare from about 1775 at Lexington and Concord to 1975, the end of the Viet Nam War, Koenig actually starts with the arrival of the Mayflower in 1620 and Native Americans meeting the ship. Had he waited until today to publish he could have included another fifty years of Americans at war, right up to Ukraine.
In general, we Americans view our involvement in foreign wars, that is, non-Native American warfare, as justified by the belligerence of others who have forced us reluctantly into “making the world safe for democracy.” The beginning of our provision of armaments, intelligence and training to Ukraine dates back to soon after the fall of the Berlin Wall and the “breakup” of the Soviet Union. The current U.S. commitment of over 50 billion dollars is only a fraction of our huge military and economic support for Ukraine over many years. Russia has often taken note.
George Soros, the Hungarian born American billionaire, stated on May 24, 2022 that the Russia-Ukraine war may be the start of World War III and result in the end of human civilization. Such doomsday statements are not a new phenomenon. Ever since the days of The Flood people have warned that human behavior, usually by someone other than the Jeremiad of the moment, was going to lead to the end of the world. They mean the end of homo sapiens’ short 200,000-year reign on our 4.5-billion-year-old planet. Earth will survive, but without us.
I have no estimate how many predictions of mankind’s demise have been made from the time of our common really great-grandmother, Lucy, in Africa until 1945. Until America came up with and used the atom bomb, the philosophers who had previously cried wolf were doing just that. However, now with numerous countries possessing nuclear weapons and itching to use them, we may have finally made honest men out of Noah and all the other survivalists. I am not going to address climate change and pollution as doomsday machines as I only have about three pages of print available. I will stick with nuclear war in this column.
With nuclear powers, such as Russia, North Korea, China, America and Israel all claiming they fear for their survival, I am reminded of my onetime acquaintance who told me in 1973 that if Egypt were about to destroy Israel that Israel would be justified in destroying the whole world to avenge itself. Fortunately, he was not an Israeli and Egypt stood down. I do wonder if Putin might feel so threatened he would believe Russia would be justified in starting the nuclear daisy chain.
These thoughts of World War III came scrambling into my brain when I thought about June 06, 1944 and D-Day. Americans and many others thought the World War of 1914-1918 with its inane carnage, over no one knew what, was going to end world-wide war. Then the courage and sacrifice of 150,000 American soldiers on D-Day was touted as the beginning of the end of totalitarian regimes. Later we thought we had learned something from Korea, Viet Nam, Iraq and Afghanistan. Now, George Soros, hardly a war monger, fears we may be at the beginning of WWIII raging in Ukraine.
As for me, I will place my confidence in that part of human nature that has pulled us back from self-immolation many times. History leads me to have faith we will not self-fulfill such a dire prophecy. Of course, if I am right everyone will be around to say so, and if I am wrong, what difference will it make?
Memorial Day
My earliest memories of Memorial Day involved hot cemeteries where all the adult women spent a great deal of time loudly hushing all the children and the few men in attendance furtively smoked cigarettes while shifting from foot to foot. Any attempt by me or my brother, Philip, to chase butterflies or engage in horseplay was met with stern stares and an occasional knock on the head or a swat on the tail.
Mother had three brothers and one sister who had served in the Army in WWII and Mom observed the service of all veterans solemnly and reverently; she demanded her children properly learn the ritual. Our role was to honor the dead soldiers and show gratitude to those veterans who were still with us.
Memorial Day has slowly metamorphosized from a national day of honoring veterans to a general recognition of all who have passed on. And Mother and her mother and their mainly female friends and relatives saw their duty to include the graves of deceased loved ones in various cemeteries in divergent locales. Mom would load all four of us kids and bunches of freshly cut ferns and flowers into a black Ford without air conditioning and without a thought on her part of a cold pop or an ice cream cone for us. She would say that was scant penance on our part to repay the sacrifice of our service people and their families.
I do not know how many veterans’ gravesites Mom dragged me to before I joined the Air Force myself during the Viet Nam War. I did not get sent to Viet Nam but several of my childhood friends did. One of them, twenty-two-year-old Gary Malone, went twice but he only came back once. That changed my understanding of Mom’s dedication to Decoration Day. I may be generally obtuse but I no longer needed a pointed stare, a tap on the head or a kick in the behind to appreciate Memorial Day. I sure wish Gary were here so I could tell him but his veteran’s memorial marker is close to my Mom and Dad in the local cemetery so I can, at least, salute Gary as I visit the folks on Decoration Day. I now get it; as always, Mother knew best.
Changes
They tore down my grade school and built a church. It is a nice church that regularly fills up with nice people, some of whom I do not know and some I do. In fact, some of the church members whom I do know I first met in the first grade in our old sandstone elementary school that is now their church. I expect almost every time one of those old classmates pulls up to their new church, they get a nostalgic image of our old school. I know that every time Peg and I happen to drive by the fine new brick church with its lovely green lawn and flowering shrubs, images of a sward of almost non-existent short grass interspersed with small pebbles and an occasional anthill fiercely guarded by large biting red ants come wafting through my contemporary thoughts.
The large two-story sandstone building with a bell tower on top and a basement below was one of the first truly substantial buildings in my hometown and had once, or so I was told by my Osage Indian Sunday School teacher, Violet Willis, served as a school for other Osage girls. Miss Violet and my family attended another church that has now been abandoned with some of its congregation now joining with that of the new one that replaced both my old school and my old church. The new church thoughtfully preserved the large stain glass window from my old church that was the sanctuary’s focal point. The stain glass scene was of a beautiful stream that gave worshipers an impression the water was flowing right into the baptismal vault where I and my sister and two brothers were baptized. That old sanctuary was also where we four siblings all sang in the choir and where our Father and Mother both served as elders and were honored during both of their funerals.
The new church that replaced my old school and my old church also replaced that congregation’s original church building that had been located about one block from my old church. That old church served its congregation well for many years and also served me and other Explorer Scouts as our meeting place because the civic minded father of one of my best friends from our old elementary school both formed and financially supported our Explorer Troop and, as a member of that congregation, got permission for us to meet there. My old friend and his family still attend that church in its new location. I bet he thinks about both our old school and his family’s old church building frequently when he goes to his new church.
Gentle Reader, you may get a sense from these reflections that somehow I am casting some sort of shadow over those who have seen fit to make the changes in my old school or the two old churches or my old beloved community at large to whom and what I owe so much. You would be far from the mark. I was blessed to learn many treasured lessons from my old school and several old churches, only one of which was mine, and countless friends, teachers and wise elders. How could I rue the decisions they made that helped make me so gratified today?
Changes must happen and hopefully they will be positive. One lesson I learned from those halcyon days of now bygone buildings was that the generosity and wisdom of those who populated those structures and that of those who now frequent the new ones are what matters most.
To paraphrase Martin Luther King, Jr., it is not the structures that are most important but the character nurtured by those who dwell therein. Old schools, changing old churches and changing communities are inevitable. However, it is not inevitable that change is good; good people must make them so. I was fortunate to grow up where the people did.