freedom map
Fareed Zacharia describes two distinct qualities, constitutional liberalism (“the rule of law and basic human rights”), and democracy (“selection of government through free and fair, competitive, multiparty elections”) as the cornerstones of a healthy, peaceful and sustainable state. He laments the rise of “illiberal democracies”, where democratic governments have deemed their ballot victory to put them above the law, eroding basic constitutional freedoms and corrupting the democratic process.

As the result of an horrendous double blow yesterday, the U.S. has lost its credibility as either a democracy or a constitutionally liberal state. First, the arch-conservative and deeply partisan U.S. Supreme Court ruled, by its now standard 5-4 margin, that gerrymandering is not unconstitutional. Ruling on the outrageous redistricting plan in Pennsylvania, which essentially guarantees incumbent Republicans two thirds of the state’s seats in Congress although they have a minority of the registered voters, the Chief Justice threw it back to the executive and legislative branches, saying, incredibly,

“Our legislators have reached the point of declaring that, when it comes to apportionment, ‘We are in the business of rigging elections.'”

The Court made it clear that there is not really any point in anyone in the U.S. bothering to vote in future Congressional elections because gerrymandering has already determined the results in all but a handful of districts. But in abrogating its responsibility in a baldly partisan manner, the Court also said that it is up to the ‘legislators’ to fix the system, and that even though, under Zacharia’s definition above, the U.S. can no longer call itself a democracy, they will not declare this completely fraudulent practice unconstitutional. The NYT calls on both parties to introduce “nonpartisan redistricting”, as is done in Iowa, Canada, and just about every true Western democracy, a process that the thoroughly corrupt judge Scalia denied, in his argument for the majority supporting the continuation of gerrymandering, was reasonably possible. But asking the legislators to regulate themselves is like asking the fox to run the hen-house. The judiciary, not the legislature, is responsible for protecting the country against laws that are undemocratic and unconstitutional, and it has utterly and disgracefully failed to do so in this ruling.

The second blow came in an announcement from the ACLU that its constitutional challenge of the Patriot Act cannot be publicized because the Justice Department has put a ‘gag order’ on the challenge while the Presnit campaigns around the country for renewal and expansion of this outrageous law. So, first, we have a law that allows the arbitrary arrest, indefinite detention, denial of constitutional rights and freedoms, and unlimited rights of search and seizure of anyone by the paramilitary FBI/Homeland Security brownshirts, with no need for demonstration of reasonable cause, just the issuance of a vaguely worded “national security letter”. And the perpetrators can hide behind “national security” to deprive the victims of this law, their families and their lawyers, of any information about why they have been victimized, and who authorized it. And now, to muffle any criticism of the law, the Justice Department is prohibiting opponents of the law from even talking to the public about challenges to it.

So, again, under Zacharia’s definition, the U.S. is now no longer a constitutionally liberal state — the rule of law, and basic human rights and freedoms, are both abrogated, and in no small way, by the Patriot Act. There is no longer freedom of speech, freedom of dissent, freedom of assembly, right to a speedy and fair trial, or right to information about government actions. Rule of law has been subverted to the absolute authority of the FBI and Department of Homeland Security to do whatever, in its discretion, limited only by the whim of the government of the day, it wants to do.

To someone living in a democracy and a constitutional liberal country, as I do, where gerrymandering and laws like the Patriot Act are unthinkable, the fact that these two rulings occurred in one day, in an election year, with hardly a peep from the mainstream press or the candidates, is absolutely terrifying. Although, to be sure, these outrages have not yet been used in the U.S. to the extent that similarly undemocratic and constitutionally illiberal processes and laws have been used in Cuba, China, Iraq, North Korea and others of the most “unfree” states in the world, there is no reason to believe, after yesterday’s double blow, that they couldn’t be, and won’t be in the future. Especially when (not if) the next terrorist attack on U.S. soil occurs.

History is replete with examples showing that the decline from liberal democracy to ruthless and tyrannical dictatorship can occur quickly, and begins with a single step. Yesterday, the U.S. took two giant leaps along that path. The rest of the world can only watch, and shudder, at how easily and quietly the fall of a once-great country is beginning.

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  1. David says:

    A thoroughly excellent post.It would also be nice to have a fundamentally just (in a Rawlsian sense) society. For example, a just tax structure and a commitment to employment.On the tax structure, see David Cay Johnston.On employment, see today’s Center For American Progress report comparing Canada and the US on employment.

  2. Ken Hirsch says:

    I don’t see why you want the courts involved in districting. The current system of defining districts in Canada was devised by the Canadian legislature, not its courts. Some states in the U.S. have similar independent commissions.This decision reversed one from 1986, so the law has been set back to the dark days of 1985, where–according to you, evidently–there was no multi-party democracy in the U.S.

  3. Dave Pollard says:

    Ken: I don’t want the courts ‘involved’, I want them to strike down gerrymandering as unconstitutional, and mandate the appointment of independent electoral commissions in each state (my understanding is that only Iowa has such a commission now). The legislators won’t act until they have no constitutional alternative — it’s against their self-interest. And I don’t think you can compare the recent computer-assisted redistricting exercises with the much less sophisticated gerrymandering that went on in the ’80s and before.

  4. Chris says:

    Unfortunately, the Rawlsian system of justice is predicated on a practice of reflection that alienates one from reality. I would prefer a system of government along the lines of Nozick’s minimalism (IMHO, “just tax structure” is an oxymoron, since a tax is always an injustice). Unfortunately, there is nothing minimalist about the Bush administration. Tax less but spend more, become more socially invasive, mess with crap oversees, renew a failing war on drugs – sheesh, is this guy the anti-libertarian, or what?

  5. Stentor says:

    The fact that Kennedy would decry gerrymandering in such strong language, yet still join the majority decision, suggests the problem is in the Constitution. Just because fair districting is fundamental to the proper functioning of district-based representation doesn’t mean the Founders thought to put it explicitly in the Constitution. Which means that we need to stop wasting time with anti-gay-marriage and anti-flag-burning amendments and work on an anti-gerrymandering one.(psst … Maybe we should all move to Alaska — in your graphic it’s still free.)

  6. Conor says:

    It’s profound to think that the civic mechanisms that are in place to make the U.S. a liberal democracy and a “land of the free” can be so corrupted and perverted to this extent. It’s very depressing to think about it. Yup, pretty spooky. Makes me think of Margaret Atwood’s ‘Handmaid’s Tale’.

  7. agnes says:

    On the point… I hope you don’t mind if I share your post on Ryze (network SANS FRONTIERE)Agnes

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