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Harvie Wilkinson Tries To Salvage Trump v. US

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Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.

In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.

When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.

Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:

“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.

And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.

For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.

The reference to Federalist No. 70 is a polite call-back to Trump v. US:

The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.

Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.

Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:

Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.

Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting  allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.

Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.

 

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Democracy Against Capitalism: Liberalism

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In Chapter 7 of Democracy against Capitalism Ellen Meiksins Wood sets out an historical analysis of the politics of the transition from Feudalism to Capitalism, starting with England. In Wood’s telling, two of the major steps along the way were Magna Carta and the Glorious Revolution of 1688. Both events temporarily settled the relations between the nobility and centralizing state in the person of the monarch. Neither event had anything to do with the establishment of democracy in the sense of rule by the people. The settlements assume the continued servility of the masses, and continued domination by the aristocracy. The power of the nobility was based on their economic domination through non-economic means, military, juridical, and ideological, and on control over the power of the nascent state.

As feudalism morphed into capitalism, domination was split between two forces, the centralizing state and increasing economic power, mostly held by the aristocracy and by the rising merchant class. The latter were threatened by growing centralized power, and reacted to it by working to increase the power of the Parliament which they controlled. Capitalism helped make this possible because the economically dominant class was able to extract surplus from the productive sector through economic power, only somewhat aided by the power of the state.

Liberalism became the dominant ideology among the dominant economic class. This use of the term “liberal” has a specific meaning: it refers to a set of values including limited government, constitutionalism, individual rights and civil liberties. Kindle Loc. 4499. The pre-condition for this kind of liberalism is the existence of a centralized state, one that has to be limited by these ideological constructs. Kindle Loc. 4502.

The dominant classes were willing to extend civil protections from the central state to the multitudes. What they were not willing to do was to allow any intrusion on their rights of property. That led to a search for legal and constitutional protections of their property rights. Capitalism provided the economic framework for this project. Citizenship relates to the State, and a growing right to select representatives to govern. Citizenship is irrelevant to the economy, where the economically dominant class controls everything. Legal and ideological structures protect that division.

Wood looks at US history, and sees a somewhat similar process. In the US, a limited form of democracy existed in the States at the time the Constitution was written, and the Founding Fathers could not displace it. Still, the same solution emerged. The Constitution protects property interests. Theoretically, all citizens share in that protection of property, but the emphasis is on political freedoms, the liberal freedoms of individual rights and civil liberties, and limited government. The principle limit on government was to prevent it from imposing restrictions on the free use of property. The dominant class, first merchants, then industrialists, and then financiers, controls the economy.

The idea was that all citizens would be represented by their elected officials. Wood says that the representatives are removed from the people at large, both spatially in the sense that the central government was isolated; and in the sense that the representatives are few in number compared to the number of citizens.

In ‘representative democracy’ rule by the people remained the principal criterion of democracy, even if rule was filtered through representation tinged with oligarchy, and the peoplel was evacuated of its social content. Kindle Loc. 4436; ital. in orig.

The term “social content” means the natural social context in which people live, relations of home, work, church, community. This idea of representation is natural according to Alexander Hamilton in Federalist No. 35, quoted by Wood

The idea of actual representation of all classes of the people, by people of each class, is altogether visionary…. Mechanics and manufacturers will always be inclined, with few exceptions, to give their votes to merchants in preference to persons of their own professions or trades…. they are aware, that however great the confidence they may justly feel in their own good sense, their interests can be more effectually promoted by merchants than by themselves. They are sensible that their habits in life have not been such as to give them those acquired endowments without which, in a deliberative assembly, the greatest natural abilities are for the most part useless…. We must therefore consider merchants as the natural representatives of all these classes of the community. Kindle Loc. 4240.

These words could have come from Plato, substituting a different elite for merchants, or from any other elitist theorist. This obviously is not rule by the people, as in the original meaning of democracy. As I type this, we can see our elitists in action, busily confirming a known liar and a sexual creep to join four other conservative hacks on SCOTUS, where they will decide just how much majority rule we are allowed.

The political sphere is the home of limited government, the home of civil liberties, the home of individual rights. That sphere is separate from the economic sphere, which is put into the hands of the oligarchs, the rich, and their minions. The economic sphere is the area that provides us with the means to live, mostly by selling our labor. The idea is that the political sphere is not supposed to interfere with the economic sphere, insuring that every part of our productive lives are at the disposal of the rich, including our ability to provide our families and ourselves with food and shelter.

Wood sees liberalism as “democracy tinged with oligarchy”. As I explain in this 2013 post at Naked Capitalism, we live in an oligarchy inside a democracy. This and similar posts at FDL are based on Oligarchy in the United States? by Benjamin Page and Jeffrey Winters and on Winters’ book Oligarchy. They argue that Oligarchs share three interests:

1. Protecting and preserving wealth
2. Insuring the unrestricted use of wealth
3. Acquiring more wealth.

Oligarchs differ on what we call social issues (the carceral state, abortion, gay rights, guns and so on), which in Wood’s telling are the domain of the political sphere. Consequently some legislation on those issues is possible. Their views on economic issues are almost identical. A threat to one rich person is a threat to all. Therefore they unite on economic issues and generally prevail when legislation or regulation threatens any of them. Or when they really want a SCOTUS nominee to be confirmed.

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