Will Bourgois Law and Electoral Politics Really Save Us from (the) Fascist Creep?

Come Down From the "Rocky Moutnain High"

CounterPunch, 12.22,2024

So many liberal, progressive, and generally decent people want so badly to believe in the US Constitution as a great democratic charter, and in the capacity of the US constitutional order to protect the US from the clear menace of a fascist[1] Trump dictatorship.

They are wrong on both counts. The US Constitution is a richly anti-democratic Minority Rule structure fundamentally opposed to one-person, one vote and majority rule.  And that is more than just accidentally consistent with the world view of the nation’s excessively venerated and militantly propertarian aristo-republican18th Century Founders, for whom democracy was the ultimate nightmare, an existential threat to their wealth in land, capital, ships, and slaves.

The Electoral College, required to appease southern slaveowners, was just one of the many ways in which the Founders’ holy parchment was designed to check the power of the people. Under its openly absurd reign, Americans still don’t elect their president through a national popular vote and presidential elections come down to winner-take-all Elector slate contests in a small number of contested states. The democracy-flunking Electoral College renders millions of poplar presidential votes superfluous while overrepresenting voters in the nation’s most right-wing states. It effectively requires the Democratic Party candidate to beat their Republican opponent by 4 to 5% in the overall popular vote to attain or retain the White House.

And guess what? “Genocide Joe” Biden, a president whose unpopularity traces in part to his corporatism – intimately related to openly plutocratic campaign finance practices authorized by the US constitutional order’s God-like Supreme Court (see below) – is well behind Trump in the six contested states that absurdly determine presidential election outcomes under the democracy-flunking Electoral College.

A New York Times video on “How U.S. Elections Look Abroad” three years ago showed people from other nations reacting to various pathetic aspects of the United States’ bizarre and byzantine voting system. “From gerrymandering to voter roll purges,” the Times reported, “we showed people around the world how the American system works. It didn’t go well.” The foreign interview subjects shook their heads and rolled their eyes in disbelief over numerous voting rules and practices that plague elections in the nation that calls itself the homeland and headquarters of democracy: partisan gerrymandering, replete with bizarre “Jackson Pollack” voting districts; absurd voter registration deadlines; absurdly low voter registration; rampant non-voting; voter purging; absurdly long lines at minority polling places; the failure to make elections a national holiday and to otherwise make voting convenient; discriminatory and unnecessary voter ID laws; felony disenfranchisement laws and more. The judgement of a New Zealander: the American voting regime “is just not acceptable in a democratic country.” A woman from India said, “it’s like you want to stop people from voting.” Imagine that.

The Times video and editorial said nothing about the Electoral College, the systematic disablement of third and fourth parties, and the United States’ openly oligarchic “wealth primary” campaign finance laws and rulings (see below). Even if voting itself was made more suitable, practical, and efficient in the U.S, these authoritarian characteristics of America’s supposedly grand “system of governance” would continue to badly dilute the supposedly sacred power of the US-American ballot.

Another anti-democratic legacy of the Founders’ supposedly glorious and egalitarian system of governance is the assignment of two U.S. Senators to every state regardless of state population size. California has nearly 40 million people. Wyoming is home to less than 600,000 citizens. Both have 2 U.S. Senators – a brazen violation of the elementary democratic principle of one-person one vote. As the Atlantic noted four years ago, “Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing.” The nation’s 22 least populous states are home to roughly 37 million people and 44 U.S. Senators. On top of this grotesque absurdity (from a democratic, one person, one vote perspective), neither the U.S. taxpaying province of Puerto Rico (more populous than 20 U.S. states!) nor the U.S.-taxpaying District of Columbia (home to a total population greater than that of 2 U.S. states – Wyoming and Vermont) has a single representative with voting power in the powerful upper chamber of the US Congress. .

The nation’s small-population states are very disproportionately white, rural, and Republifascist. This abjectly authoritarian set-up grossly overrepresents the nation’s most backwards and racist, right-wing regions.

Thanks to this open violation of democracy’s most elementary principle – one person, one vote – the Senate stands far to the right of the U.S. populace. And the 2024 Senate election line up looks good for Republi-fascist takeover of the Senate gavel in 2025.

To make things yet more reactionary, the right-tilted Senate holds confirmation power over the undemocratically elected US president’s appointments to the federal judiciary, including the all-powerful appointed-for-life Supreme Court, which has (under the 1976 Buckley Valeo and 2010 Citizens United decisions) granted giant corporations and the wealthy Few essentially unlimited financial influence on the nation’s candidate selection and election processes. The 6-3 right wing Supreme Court created by the sadistic sexist Trump and the starboard-slanted Senate brazenly defied majority US opinion by ending women’s constitutional right to an abortion last year. It has made a number of other revanchist decisions (one ending affirmative action in college admissions and another essentially legalizing neo-Jim Crow discrimination in the provision of commercial services) opposed by the US popular majority.

Meanwhile, the American constitutional principle of states’ rights leaves 20-plus “red” states free to make reactionary policies on numerous key policy matters (including abortion rights and the right of children and young adults to receive proper schooling about racism and sexism in American history and society past and present) in abject defiance of majority national opinion.

The great American constitutional “rule of law” order is working to keep the now openly fascist[1] and putschist Trump from returning to power? Really? Know any other good jokes? The Senate could and should have kept hm off the 2024 ballot by voting to convict him after the US House impeached him for inciting the January 6 Capitol Riot. But the upper legislative body devised by the Founders to check potential democracy failed to do the obviously right bourgeois-democratic thing thanks to its right-wing slant, its Republican members’ fear (both electoral and physical) of the fascist Trump base, and the holy Constitution’s requirement of a 2/3 majority to convict. Donald “Take Down the Metal Detectors Cuz the Guys with AR-15s Don’t Want to Hurt Me” Trump – the malevolent wannabe fascist strongman who tried to subvert and cancel the 2020 presidential election – is realistically favored to defeat the hapless imperialist cretin Biden next November. Ain’t that some shit?

None of the charges that Trump is facing from state prosecutors and federal special prosecutor Jack Smith would invalidate his 2024 presidential bid. Smith failed to indict the insurrectionist Trump for insurrection, a charge that would in theory cancel his candidacy under the Constitution’s 14th Amendment[2] if it brough a conviction before the election.

The charges against Trump so far in New York (campaign finance violations), Georgia (a racketeering trial on the Trump campaign’s attempted 2020-21 election manipulation in that state), federal court in Florida (criminal theft and retention of classified documents and obstruction of justice), federal court in Washington DC (election subversion, election interference and more) have (along with fraud and rape lawsuits against him in New York City) if anything been a boon to Herr Donald’s campaign. They are fundraising gold for him and help feed his core narrative claiming that he is being selectively prosecuted and persecuted by a “radical Left” “deep state” trying to de-rail “democracy” – this even as he promises to install an authoritarian regime that cancels the American republic[1].

The classified documents verdict and perhaps trial is being effectively delayed until after the 2024 election by a demented, Trump-appointed federal judge (Aileen Cannon). The big Georgia case will not yield a verdict until after the election and the same likely goes for the New York campaign finance case. The Trump-created Christian fascist US Supreme Court may well soon seriously cripple Jack Smith’s Washington DC-based election interference (“January 6^th”) prosecution of Trump. If and when Trump regains power and he and his neofascist party quickly proceed to turn the United States into a new Hungary or possibly something worse, the federal cases against him will vanish into the air. He will as president have no problem nullifying any and all state cases against him.

History should record that the war criminal Biden’s gutless Attorney General Merrick Garland waited far too long to appoint a prosecutor to punish Trump for trying to overthrow what was left of US bourgeois electoral and rule of law democracy in 2020-21. The basic facts of Trump’s attempted rolling coup, which culminated in an actual physical and fascistic assault on the US Congress, were well known at the time. They were impressively exposed and detailed in US House of Representative hearings in the summer of 2022 and in a sweeping US House report issued at the end of that year.

The latest liberal constitutional cargo cult to spark ill-placed hope from decent Americans desperate to believe that bourgeois law will save them from Amerikaner Trumpism-fascism has been advanced by the famed Harvard-emeritus liberal-imperialist law professor Laurence Tribe and his friend the retired Republican jurist J Michael Luttig. It involves states’ attorney generals ordering Trump off their states’ presidential ballots on 14th Amendment grounds[2].

Liberals and progressives I know have been doing cartwheels because the Colorado Supreme Court has just upheld such a ban in the presidentially blue state of Colorado. They should sit back down. The decision is going to the right-wing US Supreme Court, which will almost certainly refuse to enforce Trump ballot bans in Colorado or any other state. The stunningly illegitimate and corrupt high court will likely support the Trump campaign’s coming appeal on “due process” and/or other grounds. The fact that the Christian Republi-fascist SCOTUS refused to back Trump’s transparently absurd after-the-fact claims that the 2020 election was stolen does not at all mean that it will be fine with keeping Trump off 2024 ballots. It will sell its ordering of Trump’s presence on all fifty state ballots as consistent with its refusal to back his “stolen election” charade in 2020-21, saying that the consistent shared principle is “honoring voters’ democratic choices.” Even if the Colorado ban stands and is in place for the general election (the state ruling currently applies only to the Republican primary), its practical relevance under the Electoral College is nil since Colorado is not a contested state. Bans would have to be passed in enough of the contested/“swing” states to make a difference, something that is also quite unlikely.

Meanwhile, the Colorado ban is yet more grist for Trump’s “deep state persecution” propaganda mill. As my fellow onetime Ann Arbor Pioneer High School attendee (I started at Pioneer and finished at “hippy radical” Community High) and former liberal Chicago Tribune columnist Eric Zorn writes on Substack:

“There seem to be two broad schools of thought about the impact of Tuesday’s surprise 4-3 vote by the Colorado Supreme Court knocking former President Donald Trump off the state’s ballot because he ‘engaged in insurrection’ against the United States: (1) That the ruling will be a huge problem for Trump. That it will cost him support among moderate and swing voters and open the door for the Republican establishment — aided by a U.S. Supreme Court ruling validating the Colorado ruling — to dump the polarizing, erratic, manifestly unfit would-be dictator and instead nominate a more mainstream Republican for president; (2) That the conservative U.S. Supreme Court will almost certainly overturn the Colorado ruling, thus fueling Trump’s piteous claims that he’s being politically persecuted and causing his poll numbers to rise. His entire campaign is fueled by grievances of one sort or another, after all, and his support will be inflamed by the idea that the courts want to deny people the right to vote for Dear Leader. I’m in the second camp. Trump’s manifest perfidy seems to be a feature for his backers, not a bug. The more flagrant his transgressions — the recent Führeresque remarks about immigrants ‘poisoning the blood of our country’ come to mind — and the more criminal and civil charges against him pile up, the more staunch his support becomes. Colorado is a Democratic state anyway — President Joe Biden won 55% of the vote there in 2020 — so even if Trump isn’t on the presidential ballot there, it won’t hurt his chances for an Electoral College victory” (emphasis added).

It’s hard to let go of what we are used to in our lives even when what we are accustomed to and conditioned to see as natural and normal is killing us. But decent and nonfascist Americans must drop their extreme attachment to the authoritarian US capitalist-imperialist constitutional order, a remarkably durable legacy of slaveowners and merchant capitalists who loathed the very notion of popular sovereignty – a political and legal order that has been showing its inability to withstand fascisation for at least the last seven years. It all feels very Weimar.

Endnotes

1. “Outside the MAGA bubble,” Talking Points Memo writer Hunter Walker observes, “fears of a Trump dictatorship are fueled by his own campaign platform, including the potentially criminal efforts to overturn and question the last election, his vows to crush political enemies, or as he has called them ‘vermin,’ promises to use the military to quash protest, and vows to suppress the press.” Walker might also have mentioned Trump’s call for the extra-judicial execution of suspected shoplifters, the Trump campaign’s pledge to build giant concentration camps for “illegal” migrants and asylum-seekers, Trump’s promise to invade Mexico, Trump’s claim that he wants to be a “dictator for one day” (whatever the F that means) because “I want to build the wall and drill, drill, drill,” the Trumps campaign’s recruitment of an impressive network of think tanks and policy wonks who have worked up detailed and comprehensive plans for the capitalist white nationalist makeover of the federal government, and Trump’s recently repeated white supremacist, blood and soil claims that non-white immigrants are spoiling white American pedigree and stock – “poisoning our blood.” Here is Trump’s latest statement in the pure racist Nazi spirit, at a recent rally in Durham, New Hampshire: “They are poisoning the blood of our country. That’s what they have done. They poisoned mental institutions and prisons all over the world. Not just in South America, not just the three or four countries that we think about, but all over the world they’re coming into our country from Africa, from Asia, all over the world. They’re pouring into our country.” That’s straight out of Adolph Hitler’s Mein Kampf. Someone taking Noam Chomsky’s $10 a month “Master Class” on independent thinking should ask their professor if he is ready now to call Trump a fascist.

2. That amendment’s third section states: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Paul Street’s latest book is This Happened Here: Amerikaners, Neoliberals, and the Trumping of America (London: Routledge, 2022).