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Thursday, July 3, 2025

Repost - "Supreme confusion"

Why Ketanji Brown Jackson is no better than Amy Coney Barrett
by Daniel Lazare
Jul 02, 2025
(Daniel's Substack)

Ketanji Brown Jackson: judicial supremacy will save the day!

America is the sort of dysfunctional place in which liberals are sometimes more conservative than conservatives. There’s no better example of this than last week’s Supreme Court decision in Trump v. Casa in which the court’s 6-3 rightwing majority tossed out one of the federal judiciary’s most powerful tools for keeping the executive branch in line.

The instrument is known as a nationwide injunction, or universal injunction as the court seems to prefer. Basically, it allows federal judges to stop the executive branch in its tracks whenever they think it’s going constitutionally astray. This may seem right and proper given what we all learned in high-school civics, which is that we’re all under the law, presidents included, and that we must all pay the price when we violate it. And since the Constitution is the supreme law of the land, the principle goes double as far as America’s foundational legal document is concerned. And who is better suited to checking a runaway presidency than the federal judiciary?

So liberals cheered when Justice Ketanji Brown Jackson offered a ringing defense of such measures on the grounds that the Trump’s attempt “to vanquish so-called ‘universal injunctions’ is, at bottom, a request for this Court’s permission to engage in unlawful behavior.” And it’s why they hung their head when Amy Coney Barrett, speaking for the majority, accused judges of going too far. How can judges go too far when something as sacred as the Constitution is at stake? Who does Barrett think she is?

So it’s all quite simple: rule of law good, judges good, runaway executive bad.

Except that it’s not simple at all. In reality, Brown was advancing a doctrine of judicial supremacy best described as High Tory while Barrett was defending, at least formally, the elementary democratic proposition that the elected branches should not be endlessly at the mercy of lifetime appointees. Barrett, of course, was playing games since she was really providing cover for an administration that is verging on outright dictatorship, if it hasn’t crossed the line already. But it’s impossible to describe Brown’s position as democratic either since the judicial supremacy she espouses goes against any meaningful concept of popular self-government. It’s a case of both wings of mainstream political opinion flapping their way simultaneously toward authoritarianism.

Let’s start with the injunctions. Once all but unheard of, they’ve grown more and more frequent in recent decades. Courts issued an average of one universal injunction every eight months against specific actions by the Reagan, Bush I, and Clinton administrations in the 1980s and 90s. But then they issued 12 against Bush II, 19 against Obama, and 64 against Trump during his first term alone. By the end of the Biden administration, things had reached the point “where almost every major presidential act is immediately frozen by a federal district court,” according to the Harvard Law Review. For anyone interested in popular democracy, this raises an important question. What’s the point of electing presidents if an unelected judiciary can stop them in their tracks, not once or twice but repeatedly? Who rules – “we the people” or some 677 federal district court judges?

Brown’s answer is the latter. As she declared it in her dissent:

“Stated simply, what it means to have a system of government that is bounded by law is that everyone is constrained by the law, no exceptions. And for that to actually happen, courts must have the power to order everyone (including the Executive) to follow the law – full stop.”

She then went on to quote Felix Frankfurter, the FDR-appointee who famously declared in a 1958 case called Aaron v. Cooper that the US system is “a government of laws and not of men.” So the answer to an out-of-control executive is apparently unchallenged authority on the part of judges answerable to no one but themselves. Tyranny, to paraphrase James Madison, must be made to counteract tyranny. Or as Barrett noted: “Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.”

Rule of law, the operative principle here, is one of the great clichés of the age, a phrase that rolls off every lip even though people rarely pause to consider what it means.

The reason they don’t is simple. The phrase is utterly vacuous. It means nothing. In a democracy, law is what happens when “we the people” issue an edict to the effect that individuals who engage in certain proscribed activities will incur certain penalties. If you rob, steal, or kill, you’ll go to jail - or so the people declare. Law is an instrument, in other words, a tool of popular rule.

But there’s a problem: tools can’t rule. Rule of law is no more coherent that rule of any other tool, i.e. shovels, hammers, or kitchen implements. None of them can rule because they’re inanimate. Who can rule are those who wield such instruments, which is to say the people as a whole. Democracy is not government of, by, and for the law. Rather, it’s government of, by, and for the people.

Brown dug herself in deeper the more she went on:

“It is axiomatic that the Constitution of the United States and the statutes that the People’s representatives have enacted govern in our system of government. Thus, everyone, from the President on down, is bound by law. By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law.”

There are at least three things wrong with this statement. One is far it is from axiomatic that the Constitution and the people’s representatives govern the system because no one governs it – the system is falling apart. Another is that the federal courts may claim to say what the law is, but no one really knows since the Constitution has suffered from what might be called a coherency deficit from the moment it was promulgated - which, in a nutshell, is why confusion grows the more schools of constitutional interpretation the legal academy creates.

A third problem is that it’s unclear why should “those who are subject to the law” – which is to say the people, should “conform their behavior to what the law requires” if the law goes increasingly against their interests and there’s nothing they can do about it. The Constitution is a product not of the age of democracy, but of the period preceding it. It is rife with features that we today regard as radically inequitable and unjust. These include:

  • A Senate based on equal state representation despite population differentials of as much as 70 to one.

  • A gerrymandered House that makes a mockery of one person-one vote.

  • An Electoral College that triples the clout of lily-white rural states like Wyoming and Vermont.

  • And a lifetime Supreme Court with zero public accountability.

A lop-sided Senate is why Republicans now enjoy a 53-seat majority despite receiving 1.4 percent fewer votes. A lop-sided Electoral College is why Dubya captured the presidency in 2000 despite losing by an estimated 450,000 popular votes and why Trump did the same in 2016 despite losing by 2.9 million. As for “the Supremes,” lifetime appointments, as stipulated in Article II, section one, are why the current 6-3 ultra-conservative lineup will likely persist well into the 2030s, if not longer.

Rather than a government the people want, need, and deserve, the Constitution gives them the opposite. But the absolutely worst feature is the one that Americans think about least, i.e. the amending clause in Article V. As Americans may also remember from their high-school days, this is a 140-word run-on sentence that essentially declares that two-thirds of each house plus three-fourths of the states must consent before changing so much as a comma. Thirteen states representing as little as 4.4 percent of the population thus have unqualified veto power not for a year or decade but for ever and ever. Since no one will have any trouble drawing up a list of 13 mini-states guaranteed to just say no to any effort to deprive them of their constitutional privileges, it means that structure change is effectively impossible. Mussolini’s reign lasted 21 years. Hitler’s lasted 12. Yet America’s constitutional dictatorship has gone on for centuries and may well persist for centuries more – if, that is, it doesn’t self-destruct beforehand.

So when Brown calls for the Constitution über alles, what’s she’s really calling for is for “we the people” to sink lower and lower in the political firmament. Given that institutions like the Senate and Electoral College are growing more inequitable as state population differentials continue to widen, it’s an example of how it’s not just Trump who is propelling society to the ultra-right, but the country’s very political structure.

Notes:

The Harvard Law Review article on universal injunctions can be found at https://harvardlawreview.org/print/vol-137/proper-parties-proper-relief/.

Thursday, April 10, 2025

Repost - "Terminal Stupidity"

By Daniel Lazare
04.09.2025
(Permanent Revolution: Terminal Stupidity)

“It was worse than a crime; it was a blunder.”  If ever Talleyrand’s famous aphorism applied to anyone, it’s to Hamas. 



Aftermath of an Israeli strike on the Al-Ahli hospital in Gaza City on April 13, 2025. Omar al-Qattaa/AFP/Getty Images.


The so-called Islamic Resistance’s misdeeds are legion.  Crushing “We want to live” labor demonstrations against poverty and unemployment that erupted in Gaza in March 2019 was one of them, and responding with equal brutality to similar protests that broke out in July-August 2023 was another.  Slaughtering 1,200 people on Oct. 7, 2023, most of them innocent civilians, was a third, while executing six Palestinians for taking part in anti-Hamas protests that began on Mar. 25 is a fourth. 

Vicious as such acts are, they are exceeded by the sheer blind stupidity behind them.  Hamas blunders would take even a Talleyrand aback.  Members were reportedly surprised by the Zionist response to “Al Aqsa Flood” even though a child could have told them that it would be furious and overwhelming.  The group expected Oct. 7 to ignite a region-wide holy war even though it was obvious that the Arab masses were too exhausted and demoralized after decades of war, poverty, and corruption to engage in any such misadventure. 

Then there was Hamas leader Ghazi Hamad, who, in an Oct. 24, 2023, interview on Beirut TV, taunted Zionists by declaring that “Al-Aqsa Flood is just the first time, and there will be a second, a third, a fourth because we have the determination, the resolve, and the capabilities to fight.”  What was the purpose of such language other than to goad Israel into ramping up the onslaught even more?  “We have the Israelis right where we want them,” Yahya Sinwar added in June 2024, which was equally perplexing since it was in fact the Israelis who had him cornered.  (Sinwar would die three months later in an IDF firefight.) 

Finally, there was Hamas’s belief that some 250 hostages would serve as an insurance policy against Israeli retaliation.  But with fewer than 25 hostages left alive after a year and a half of captivity, the strategy has backfired.  If Hamas gives the remaining hostages up, Israel will have less reason than ever to hold back.  If it doesn’t release them, it will follow up with an even greater offensive culminating in mass ethnic cleansing.  Either way, Hamas will be destroyed, and more than two million Palestinians could wind up in exile. 

Hamas has thus painted itself into a corner thanks to absurd policies that are without parallel in modern politics.  But it’s not only the “resistance” that has blundered – vast sections of the international left have too.  There’s the Socialist Workers Party, the largest self-proclaimed Marxist organization in the UK, whose newspaper welcomed Al Aqsa Flood with the words, “Rejoice as Palestinian resistance humiliates racist Israel.”  There’s Cosmonaut.org, the pseudo-Marxist website, which, a week after Al Aqsa Flood, responded with a ludicrous chest-thumping editorial “affirm[ing] our unconditional support of the movement for Palestinian liberation, no matter the form their struggle may take.  We’ll keep the red flag flying here.”  

There are also individuals such as Norman Finkelstein, perhaps Hamas’s best-known western apologist, who wrote on Oct. 7 that the offensive “warms every fiber of my soul”; Columbia professor Joseph Massad who, a day later, hailed “the stunning victory of the Palestinian resistance” and predicted that the flight of Israeli kibbutz residents “may prove to be a permanent exodus”; and Jodi Dean, who teaches politics at Hobart and William Smith Colleges in upstate New York and who wrote on a New Left Review website that “images from October 7 of paragliders evading Israeli air defenses were for many of us exhilarating.”  

Dean, a self-described Stalinist, went on: 

The struggle for Palestinian liberation today is led by the Islamic Resistance Movement – Hamas.  Hamas is supported by the entirety of the organized Palestinian left.  One might have expected that the left in the imperial core would follow the leadership of the Palestinian left in supporting Hamas.  More often than not, though, left intellectuals echo the condemnations that imperialist states make the condition for speaking about Palestine.  In so doing, they take a side against the Palestinian revolution, giving a progressive face to the repression of the Palestinian political project, and betraying the anti-imperialist aspirations of a previous generation. 

We must support Hamas or else the good professor will denounce us as counter-revolutionaries.  But what is Dean’s message for the starving and brutalized people of Gaza who are at last rising up against Hamas – that they’re counter-revolutionaries too?  

Finally, there’s the World Socialist Web Site, which hailed the Oct. 7 offensive within hours as “an uprising of the Palestinian people,” comparing it to the 1943 Warsaw ghetto uprising and suggesting that murderous gunmen should be “hailed as heroes.”  As if that wasn’t bad enough, the site recently followed up with an article disparaging recent anti-Hamas protests as “small [and] politically heterogeneous” and blasting Jacobin magazine for not only reporting them but for describing the Zionist assault on Gaza as “Israel’s vengeance for October 7.”  

Why is this bad?  Because, the WSWS hotly replies, it means that

had there been no armed resistance to the illegal Israeli occupation on October 7, there would be no Israeli war in Gaza.  In making this statement, Jacobin is echoing the official position of the Netanyahu government, the Biden administration and the Trump administration, all of whom have claimed that Israel’s current war is a ‘response’ to October 7. 

What is the WSWS suggesting – that Israel would have sent thousands of troops to level Gaza even if there had been no Oct. 7 massacre?  This is like saying that FDR would have declared war on Japan even if there had been no Pearl Harbor, a proposition that no serious historian would entertain for a minute.  The sole purpose of such nonsense is to get Hamas off the hook by declaring that its actions on Oct. 7 are irrelevant because Israel was intent on war regardless – and to get the WSWS off the hook for supporting an outfit as rancid as Hamas. 

More than a blunder, the result is a debacle that has spelled disaster for the Palestinians while shattering what little remains of middle-class radicalism.  So why did Hamas foul up so badly and why did broad sectors of the left insist on following it over a cliff? 

Hamas’s failure 

The first question is easy.  While one can argue over whether or not Hamas fits the definition of fascist, there is no doubt as to its profoundly reactionary politics.  The slogan of the Muslim Brotherhood, Hamas’s parent organization, says it all:

Allah is our objective, the prophet is our leader, the Qur’an is our law, jihad is our way, dying in the way of Allah is our highest hope. 

Political science thus stopped in the seventh century, warfare is the answer to all problems, and martyrdom is ennobling.  As a top Hamas leader named Ismail Haniyeh told a mass rally in Gaza in 2014: “We are a people who value death, just like our enemies value life.”[1]  Or as Ghazi Hamad insisted in his notorious Beirut interview: “We are called a nation of martyrs, and we are proud to sacrifice martyrs.”  Added Yahya Sinwar six months later: Palestinian deaths “infuse life into the veins of this nation, prompting it to rise to its glory and honor.” 

Life is death, and defeat is victory.  According to such upside-down logic, Gaza should be brimming with vitality thanks to the bloodshed Hamas helped unleash.  But it’s not.  Rather, it’s a dead zone filled with misery and destruction. 

Tareq Baconi, the Palestinian-American author of Hamas Contained (2018), an essential guide to what such logic leads to, notes that “success was thought to be predestined” by Hamas because it believes that God is on its side.  The upshot was decades of faith-based arguments in which every new military setback had to be hailed as proof that jihad was working.  When Israel called off military intervention in southern Lebanon in May 2000 in the face of unexpected Hezbollah resistance, Hamas seized on the “‘Lebanese model’ as proof that resistance was the only way to liberate Palestine,” according to Baconi, and that suicide bombings were therefore the way to go.  When Israel responded to Hamas rocket barrages with weaponry that was far deadlier and more sophisticated, the organization concluded that jihad was more effective than ever because Hamas was “achieving liberation step by step ... through the accumulation of accomplishments and the draining of the enemy’s security, economy, and morale.”[2]  

And when sending suicide bombers onto crowded buses triggered worldwide horror and revulsion, Hamas concluded that it must be on the right track because Israel was trapped between the “jaws of resistance.”[3]  All it would take was a few more mangled bodies for the Jewish state to crack. 

But it was Gaza that started to crack instead as the economy sank under the impact of a deepening Israeli blockade and complaints about Hamas corruption began to multiply.  Baconi notes that Hamas’s religious fundamentalism “restricted any ideological maneuverability for the movement’s leaders” by making “concessions appear blasphemous.”  Hamas was trapped by its own jihadist rhetoric.  Baconi added: 

Hamas’s reliance on jihad has had devastating implications for the Palestinian people.  Aside from the moral bankruptcy and the corrosive effect of targeting and killing civilians, dedication to armed resistance against a superb foe like Israel has led to the disintegration of the Palestinian struggle.  Strategically, this approach has not only failed; it has also threatened to erode the very social fabric of the Palestinian community under occupation.[4] 

But jihad is good because the Muslim Brotherhood says so, and that’s all Hamas needed to know.  Al Aqsa Flood can be seen as the culmination of years of mindless escalation in which fighters concluded that a failed policy would finally succeed if members believed in its strongly enough and implemented it on a grand enough scale.  Yet the only result was failure of unprecedented proportions. 

A general who allows his army to be destroyed through sheer incompetence should be court-martialed.  A government that allows its people to be destroyed for the same reason should be turned out of office.  This is what protesters in Gaza are demanding as they chant “barra, barra” (“out, out”).  The silence from the ranks of supposedly pro-Palestinian protesters means that they effectively side with the Palestinians’ oppressors. 


Protest against Hamas in Northern Gaza

A hollowed-out left 

Which leads to the second question: why have vast sectors of the international left gone along with such madness? 

The answer has to do with deep decay caused by decades of isolation, confusion, and retreat.  Not only have leftwing numbers collapsed in terms of union members or votes racked up by social democrats, communists, and other working-class parties, but ideology has collapsed too.  Class politics have disintegrated as middle-class radicalism has risen to take their place.  Everyone knows the horrors that ensued as bourgeois liberalism drifted to the right: identity politics, cancel culture, “lean-in” corporate feminism, etc.  It’s a sickening brew, but the results are especially unfortunate when it comes to the Middle East.  Legitimately outraged by the war that the Jewish state is waging against the Palestinian people, protesters followed a seemingly simple chain of logic.  Since Israel is bad, Hamas must be good, or at least less bad than Zionist propaganda maintains.  Civilian deaths on Oct. 7 therefore had to be written off as collateral damage, the result of a Zionist false-flag operation, or perhaps legitimate payback for the crime of living in an oppressor state.  “A propaganda deluge has inundated the mainstream US media sphere with pornographic descriptions of horrendous actions allegedly carried out by Hamas, the leading organization of Gazan armed resistance,” complained Cosmonaut on Oct. 15, 2023.  Allegedly?  Rather than “pornographic,” the violence carried out on Oct. 7 was as real as the violence carried out on 9/11, which Al Aqsa Flood all too closely resembles. 

This is how petty-bourgeois radicalism works.  Flighty, unstable, a middle force forever vacillating between left and right, the working class and the bourgeoisie, it is incapable of confronting reality head on and must instead tailor the facts to fit its own needs.  Protesters turned a blind eye to Hamas’s reactionary politics – its sectarianism, know-nothing fundamentalism, jihadism, and deep anti-Semitism – because they don't fit their blinkered worldview.  Since Hamas is a “resistance” organization, the atrocities of Oct. 7 must be Israeli propaganda or an outright lie.  The problem of Hamas’s pre-modern politics was thus wished away. 

None of which is to say that pro-Palestinian protests were wrong.  To the contrary, they performed a vital service by demonstrating that a growing portion of the public is finally saying no to Zionist brutality.  But the failure to say no to Hamas brutality was a crippling flaw.  Even if Trump had not launched his crackdown, protesters would still have found themselves isolated due to their inability to acknowledge the massacre that set the latest violence off in the first place.  Professional activists tried to cover up such crimes in order to promote a stereotypical view of Palestinians as helpless victims of Zionist terror.  But the effort strikes others as evasive and dishonest.  As we have seen, it does nothing to benefit Palestinians themselves. 

Self-induced amnesia 

When WSWS describes Oct. 7 as “an uprising of the Palestinian people,” it advances the dangerous proposition that Hamas and the Palestinian masses are one and the same, which is precisely the rationale that Israel uses to justify its mass bombings in the face of 50,000-plus civilian deaths.  When it compares Al Aqsa Flood to the Warsaw ghetto uprising, it slanders World War II partisans who did not have the slightest intention of engaging in mass reprisals and instead hoped that Polish civilians would join in the anti-Nazi revolt.  Headlines expressing glee over Israel’s humiliation were a betrayal because they failed to warn Palestinians of mass reprisals that were already on the way.  

What makes the International Committee for the Fourth International and the Socialist Equality Party, the parent organizations that puts out the WSWS, even more bizarre is that it was not long ago that they were saying the opposite.  In July 2002, while Hamas was sending out suicide bombers to target buses and discos, a top WSWS writer named Jean Shaoul published a three-part series describing the attacks as 

...desperate and horrific acts by young people influenced by political tendencies that have no progressive perspective upon which to base their opposition to Israeli oppression.  Designed to slaughter innocent civilians, they do not advance the interests and aspirations of the Palestinian people one iota.

“Nothing illustrates more clearly its utterly repugnant and ultimately bankrupt perspective,” she said of Hamas, “than the dispatch of its youth cadre, with bombs strapped to their bodies, to blow up their targets and themselves as martyrs for their cause.  With reputed payments to their families of $US30,000 for their martyrdom, these young men were worth more dead than alive.” Shaoul added that Hamas “…blended nationalism with religion and naked anti-Semitism” and that its founding charter, published in 1988, 

...called for an exclusively Islamic Palestinian state, repudiating the PLO’s formulation of a democratic secular state as anti-Islamic, and made territorial nationalism, previously a form of idolatry, into a religious mission or jihad.  It called for the destruction of the state of Israel and falsely equated political Zionism with the Jewish people, both within Israel and beyond.  The Jews were denounced as the secret architects of both the French Revolution and the Communist revolution, of two World Wars, of creating the League of Nations and the United Nations as secret organs of world domination and, above all, of being the destroyers of the Islamic Caliphate. 

All of which is entirely accurate, as anyone who has perused Hamas’s 1988 covenant will agree.  The only thing Shaoul got wrong, in fact, was her prediction that Hamas would not “advance the interests and aspirations of the Palestinian people one iota.”  Today, the organization’s misbegotten policies are sending them sharply into reverse.

So why say one thing in 2002 and another in 2025?  Even though the ICFI has been politically disoriented for decades it was still capable of writing about Hamas in a way that was honest and smart.  Two decades later, any such capacity is gone – vanished, kaput.  Instead, the heirs of Healy’s legacy are indistinguishable from thousands of other mixed-up radicals eager to whitewash Hamas’ crimes in the belief that it will somehow bring about Palestinian liberation.  But it won’t. 

A socialist response 

In addition to mass destruction, Palestinians now face the horrifying prospect of mass expulsion.  Israeli Defense Minister Israel Katz is warning that the next phase of warfare will be “significantly worse” and that the goal will be to “seize large areas” of Gaza and annex them to the Jewish state.  “We will implement the Trump Plan, the voluntary migration plan,” Netanyahu informed his cabinet on Mar. 30. 


If so, the effect will be to raise the Palestinian nightmare to near-impossible levels.  If Israel drives millions of people into the Sinai, who will feed them – the United States?  Rather than overthrowing the Hamas dictatorship, herding millions of Palestinians into miserable desert refugee camps will provide it with an effective monopoly.  The Egyptian military regime will impose a cordon sanitaire to prevent Muslim Brotherhood influence from spreading to the nation at large while Israel will send in F-16s to periodically bomb and strafe Hamas strongholds.  But it will only strengthen it vis-à-vis the captive Palestinian masses.


And what about the West Bank, which is also under siege?  Will Israel expel millions there too?  If so, what will it mean for the Jordanian monarchy?  Amman is so unstable that King Hussein has placed his own son under arrest because he represents a threat to the throne.  Yet an influx of three million refugees will destabilize it all the more.


If Israel succeeds in stamping out the flames in the Occupied Territories, it will thus be at the cost of spreading them abroad.  The Jewish state will be surrounded by a no-man’s-land of hopelessness and destruction.  This is good news for Netanyahu and Trump since both are forever on the lookout for new ways of grinding the Muslim masses into dust.  But it is bad news for the Israeli working class, Jewish or Arab, which will find itself increasingly a prisoner of a fascist garrison state.


On Mar. 25, the same day that anti-Hamas protests broke out in Gaza, Israel saw an intensification of mass protests against plans for a crackdown on the Israeli judiciary.  The protests are entirely justified since the prospects of Trump-style authoritarianism inside Israel itself are quite real.  As Netanyahu tweeted on Elon Musk’s X: 


In America and in Israel, when a strong rightwing leader wins an election, the leftist Deep State weaponizes the justice system to thwart the people's will.  They won't win in either place!  We stand strong together.


Not that the Israeli protests are beyond criticism – they’re not, and neither, for that matter, are anti-Hamas protests in Gaza.  But the symmetry is striking.  While nationalists on both sides tell us that the differences between Israeli and Palestinian workers are irreconcilable, the demonstrations suggest something different – that not only are Palestinians and Israelis “interpenetrated peoples” grappling for the same slice of territory, but that their politics are interpenetrated too.  While one group battles authoritarianism that is already in place, another battles dictatorship that is just beginning to crystallize.  Both are locked in combat with theocratic oppression – with Hamas on one hand and with followers of the American-Israeli rabbi Meir Kahane whose goals and ideology are virtually identical to those of Hamas and whose influence is spreading throughout Israeli politics.


For all their enmity, Hamas and Netanyahu stand for essentially the same thing – intercommunal slaughter, ethnic cleansing, and a growing lurch toward fascism.  Israel-Palestine is ground zero for Mideast socialist revolution because it is where national conflict is most incendiary and where workers must battle most fiercely in order to overcome ethno-religious hatred and division.  This – not slaughtering neighbors in their bed – is the only way forward.

 



[1] Tareq Baconi, Hamas Contained: The Rise and Pacification of Palestinian Resistance (Stanford: Stanford Univ. Press, 2018), xix.

[2] Ibid., 28, 35. 51.

[3] Ibid., 117.

[4] Ibid., 228, 243.

Tuesday, February 4, 2025

Repost - "Defend democracy, not the Constitution"

Daniel Lazare
02.03.25

The World Socialist Web Site has posted an article accusing Donald Trump of seeking to “overturn the Constitution and establish a dictatorship.”[1] The second part of the statement is correct. The first is not.

The reason is simple: you can’t overturn something that is already in a state of collapse. Rather than an enemy of the Constitution, Trump is the very constitutional product of an increasingly undemocratic structure rife with contradictions that are growing more explosive by the day.


Protest against Musk/DOGE

Not that the constitutional breakdown is the sole reason for Trump’s rise. After all, capitalism is a multi-dimensional system whose crisis is multi-dimensional as well. While the falling rate of profit is the ultimate driver, the global meltdown is taking on a multitude of forms involving imperialism, war, climate, disease, and so forth. But this doesn’t make the constitutional aspect any less critical. In fact, it makes it more so since the crisis is erupting in the heart of the global hegemon.

Behind the battle over the Constitution lurks a fundamental split over strategy within the American bourgeoisie. This is the background behind the contentious struggle over the Constitution.

It’s basically a faction fight within the American bourgeoisie over how best to insure the global dominance of American capitalism that takes on the appearance, in a highly distorted form, of a struggle over the Constitution.

We must analyze America’s ancient Constitution in order to understand why it is self-destructing so rapidly and what it means for international capitalism in general.

So how bad is it? Plenty. The US Constitution barely had a shred of democracy left before Trump entered the scene and now has even less. Well into its mid-third century, the document dates from the age of silk knee britches and slavery, yet has never been subject to a comprehensive democratic overhaul. Its most outstanding features include:

  • A senate based on equal state representation that allows the 54 percent of the country that lives in just 10 states to be outvoted four-to-one by the minority in the other 40;
  • An Electoral College that more than triples the clout of states like Wyoming and Vermont who have a tiny, mostly rural population, whose demographics in no way reflect that of the country as a whole.
  • A gerrymandered House;
  • And a rightwing Supreme Court that is wholly unaccountable to the general public.

What’s more, such features are growing worse. Not only is the Senate more unequal than at any point since the early 19th century, it will grow even more so by the year 2050 according to population projections, when a majority of the population will be concentrated in just nine states instead of ten.[2] The Electoral College is also growing more unequal over the same period while the portion of the population capable of blocking a constitutional amendment under Article V will continue shrinking below even today’s minuscule levels.[3]

This is the system’s Catch-22. Something must be done to reform an aging political structure that is long past its sell-by date. Yet nothing can be done because a broken amending process blocks all efforts at constitutional reform before they can even get off the ground.

Thus the older and more undemocratic the structure grows, the more change-averse it becomes. Given such an immovable structure, is it any surprise that frustrated voters are turning to a strong man who promises to break the Washington logjam using force and intimidation?

Hardly. Yet the Socialist Equality Party, publisher of WSWS, consistently plays down the problem of constitutional decline. Instead of zeroing in on the document itself, it prefers to dwell on a Republican Party that has emerged as “the instrument of the most ruthless and anti-democratic sections of the ruling class,” as a recent article put it.[4] It disparages the struggle for a democratic constitution in Chile on the grounds that the capitalist state cannot “be reformed, refounded, or ‘democratized,’ but “must be overthrown by the working class in the fight to establish a new state based on workers’ control” – as if workers in either Latin America or the US must not fight for democratic reforms while at the same time fighting for power.[5]

In yet another article, it speaks glibly of “constitutional rule, legality and democratic rights” as if they were one and the same; attacks the Supreme Court for undermining “the democratic rule-of-law traditions of American constitutionalism” as if the court were not the product of those same traditions, and blames “four administrations since 2000 ... [for] the disassembling of the Constitutional framework of government” as if the framework was not crumbling under its own weight. It assails Democrats for “not fight[ing] to defend constitutional rule against fascist attacks” without asking how Dems can shore up constitutionalism at all when they are part and parcel of the same process of constitutional degeneration.[6]

For those who have eyes to see, the constitutional breakdown has been central to the growth of authoritarianism at least since the 1990s when infighting on Capitol Hill turned increasingly bitter. But 2016 marked a turning point. This is when the Constitution spat out a split decision, the second since 2000, with Trump winning the Electoral College and Hillary Clinton winning the popular vote. Since the EC was growing more and more dangerous, the logical solution would have been to fix the Constitution so as to remove an increasingly dangerous provision. But since America’s holy of holies is all but set in stone, Democrats didn’t bother. Instead, they opted for what they thought was next best, an anti-Trump destabilization campaign based on the theme of Russian interference. According to one campaign account:

“That strategy had been set within 24 hours of her [Hillary Clinton’s] concession speech. [Campaign manager Robby] Mook and [campaign chairman John] Podesta assembled her communications team at the Brooklyn headquarters to engineer the case that the election wasn’t entirely on the up-and-up. For a couple of hours, with Shake Shack containers littering the room, they went over the script they would pitch to the press and the public. Already, Russian hacking was the centerpiece of the argument.”[7]

Six months later, Deputy Attorney General Rod Rosenstein and acting FBI Director Andrew McCabe would secretly discuss wearing a wire when meeting with now-President Trump and using the 25th Amendment to force him out of office.[8] For the next two years, Russia, Russia, Russia would be virtually all Americans would hear about as the as the campaign intensified.

The result was akin to a constitutional cage fight in which the two sides wailed away at one another amid deteriorating conditions overall. When Russiagate didn’t work – the conspiracy theory was as flimsy as any other – Democrats tried impeachment. When that didn’t work, Trump struck back with a coup attempt on January 6, 2021. Democrats countered with a second impeachment trial and then a “lawfare” campaign aimed at putting him behind bars. One Democratic prosecutor charged him with fraud because he had hyped the dimensions of an apartment he was selling, while another charged him with federal election-law violations because he had paid hush money to a porn star. But they backfired by making Trump seem like the victim of a weaponized criminal-justice system. After a plurality voted him in, he paid Democrats back by pardoning some 1,500 “J6” defendants – thereby legalizing the original coup – and issuing a blitzkrieg of executive orders aimed at eliminating immigrant rights, abolishing birthright citizenship, pulling the plug on climate measures, withdrawing from the World Health Organization and wiping out DEI.

Trump was less a winning political candidate than a military leader bent on revenge. His strategy was to “flood the zone,” as ultra-rightist Steve Bannon put it in 2018, by firing officials, dismantling entire offices, freezing trillions in federal grants and loans, starting trade wars, and sending in Elon Musk to virtually take over the government.

He embarked on such a strategy because he thought he could get away with it – and so far he’s been right. As far as congressional Republicans are concerned, the man can walk on water since, with the exception of Bush II in 2004, he is the first GOP presidential candidate to win the popular vote in more than 30 years. The courts lean in his favor thanks to the 234 federal judges he appointed during his first four years in office, twice as many as Barack Obama appointed in eight. With its unbreakable 6-3 conservative majority, the Supreme Court leans in his favor as well. As a New York Times piece notes, the Trump administration is counting on “the Supremes” to back his drive for a “unitary executive” in which all congressional restraints are removed.[9] If they do, it will be a giant step toward rule by fiat.

But is all this unconstitutional as the SEP maintains? Only if you believe in liberal fairy tales about a constitutionally-enforced “delicate balance” that keeps the three branches in perfect equipoise. In reality, Congress is exhausted after three decades of gridlock and public opinion polls showing a disapproval rating of better than 2.5 to one.[10] The legislative branch is filled with empty-headed show-offs preening for the TV cameras as the recent Tulsi Gabbard or Robert F. Kennedy Jr. confirmation hearings make clear. The upshot is a power vacuum that Trump can’t help but fill.

Besides, if the Supreme Court backs Trump’s power grab, it means it’s constitutional after all. This is the standard law-school view, so Congress will likely go along with it, as will the bourgeois press. If so, Trump will have the field to himself. By filling the federal bureaucracy with militant conservatives and placing rightwing loyalists like Pam Bondi, Pete Hegseth, Kash Patel, and John Ratcliffe in key positions as heads of the Justice Department, Pentagon, FBI, and CIA respectively, he’ll be able to turn the entire executive into an ultra-right steamroller.

The system is hurtling toward dictatorship as a consequence. But it will not be despite the Constitution. The sclerotic Constitution provides no brakes to the drives towards dictatorship which is being pushed by the realignment of class forces. In fact the Constitution encourages it as it is itself a fundamentally anti-democratic document. The only way to defend freedom is by overthrowing an 18th-century government that is degenerating into one of the most obscene oligarchies in modern history and replacing it with a workers’ democracy. But democracy is not something workers can put off until after the revolution, but something they must struggle for in the here-and-now in the process of seizing power.





[1] “Trump’s first 7 days: The framework for presidential dictatorship,” Jan. 27, 2025, https://www.wsws.org/en/articles/2025/01/28/rlxj-j28.html.

[2] Frances E. Lee and Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation (Chicago: Univ. of Chicago Press, 1999), 11; Demographics Research Group, Weldon Cooper Center for Public Service, University of Virginia, https://www.coopercenter.org/national-population-projections.

[3] Demographics Research Group, Weldon Cooper Center for Public Service, University of Virginia, https://www.coopercenter.org/national-population-projections.

[4] Patrick Martin, “As Trump assembles dictatorial regime, Biden offers ‘smoothest’ transition,” Nov. 14, 2024, https://www.wsws.org/en/articles/2024/11/14/hciq-n14.html.

[5] Mauricio Saavedra, Chile’s ruling right wing suffers crushing defeat in election of Constitutional Convention,” May 21, 2021, https://www.wsws.org/en/articles/2021/05/22/chil-m22.html.

[6] Richard Hoffman, “Trump putsch was the outcome of a two-decade attack on constitutional rule and legality,” Oct. 14, 2021, https://www.wsws.org/en/articles/2021/10/15/2fea-o15.html.

[7] Jonathan Allen and Amie Parnes, Shattered: Inside Hillary Clinton’s Doomed Campaign (New York: Crown, 2017), 395.

[8] Pamela Brown and Jeremy Herb, “The frantic scramble before Mueller got the job,” CNN, Dec. 7, 2017, https://www.cnn.com/2018/12/06/politics/rosenstein-comey-firing-obstruction-probe/index.html.

[9] Charlie Savage, “Defying Legal Limits, trump Firings Set Up Tests That Could Expand His Power,” New York Times, Jan. 29, 2025, https://www.nytimes.com/2025/01/29/us/politics/trump-firings-officials-legal-test.html?searchResultPosition=1.


[10] “Latest Polls,” Jan. 31, 2025, https://projects.fivethirtyeight.com/polls/approval/congress/.