Features > November 14, 2005 > Web Only

Why The Law Is In Shambles (cont’d)

It’s so misguided I don’t even know where to begin. It’s misguided because we don’t have a political democracy. If we had one-person one-vote majoritarian democracy, then maybe I’d be more sympathetic, but we’re not a democracy. The country wasn’t set up as a democracy, and it’s an iron cage we can’t get out of.

All sorts of things can’t get resolved through the political process—for example, race. The only way you can break through that is the courts. It’s also true that if you don’t have majoritarian democracy it becomes less and less majoritarian over time. We never had one-person one-vote in any perfect form to begin with, but over the last 200 years we’ve deviated more and more to something that is just bizarre in two ways.

One is the United States Senate, which, thanks to the filibuster, first prevented the New Deal from getting put into place and then dismantled it. It’s the Senate that caused the Civil War. It’s the Senate that kept Jim Crow in effect. It’s the Senate that has stopped any kind of labor law reform. And that was all because of the Senate’s enormous deviation from one-person one-vote. All the essential problems of the United States come down to the fact that we’re not a democracy, and we’re not a democracy because of the way the Senate is set up and the way the Senate works. You go around and talk to liberals who say “Ohhh, the Senate is so wonderful because it protects my individual rights against so-and-so who is going to spy on me.” It’s like having reached other disfunctionalities, a truly dysfunctional political culture then turns to these dysfunctional things to say, “Oh well, we’ll use these other things to keep it from getting worse.” In fact they are contributing to the problem.

And then there’s the Electoral College, which, because of the deadlock in the country, inadvertently ended up pacifying nine-tenths of the country. Everybody’s dropping out because there’s no point in voting except in three states. It’s so destructive.

So the only way to make the system more democratic is through the courts. And you might say, “Well, that’s elitist,” but there’s no other way. When a majority has become pacified and listless and dull, the only way the system is going to change is through [the actions of] some sort of, call it an “elite” or a “minority” or “a group of people getting together and trying to do something.” It sounds odd, but we need the courts to help us restore majority rule.

You suggest in the book that the reason we don’t have majority rule is because of Three Big Facts that are all part of this “dropping-out” of the system. Talk a little about those.

The collapse of unions, which creates a sense of rightlessness, is the big fact for me, and even for most people who weren’t in unions. And it wasn’t just wages. It gave people a stake in their working lives. In multiple ways, the collapse of the labor movement has led to withdrawal from civic life even for non-union people.

The second big fact is the withdrawal from civic life. The voting rate in the 19th century was 80 percent. Then it fluctuated for various reasons, because women got the vote in the ’20s, but it was high again in the ’60s. Since then it’s just gone south, even as you’ve had this enormous enfranchisement of minorities. The drop is really astonishing when you think of all the people that got pushed into the political system. This extends not just to voting, but to having opinions and reading the newspapers and everything else. These things all play on each other, one pushes the other.

So you lose social rights—that’s the labor movement. You lose political rights—people drop out of citizenship. You lose all rights—that’s the prison system, which is total rightlessness, and illegal immigrants. So you’ve got a nation of people in prison and illegal immigrants who are in one way or another, under no rule of law, and we become used to treating them arbitrarily with no accountability.

If I had to classify your politics, I’d say you are a social democrat. In a pretty robust sense.

Yeah, social democrat, you’re right.

You spent some time in Germany and had an affinity or admiration for certain structural features of European social democracies.

I like the SPD, I like the Greens and I even like many of the Christian Democrats.

There’s been some interesting writing lately in conservative circles, where some have argued the future of American conservatism is actually to become more like the Christian Democrats. That in order to have a long-term conservative movement with popular appeal, you need to get rid of this obsession with cutting the state. I’ve also read recently that the era of big government being over is over.

On the other hand, there’s this conventional wisdom in elite circles that we are moving toward this neoliberal light at the end of the tunnel. The unions are dinosaurs, we need to scrap ‘em. All of the machinery of social democracy is going to be consigned to the same dustbin of history that Maoism was consigned to, and that’ll be that. What do you think of the future of social democracy?

I think social democracy is the future, if only for one reason. If you take the existence of the earth as one year, humans showed up 15 seconds to midnight, and our own time has been an nth of that. We’ve already got 6 billion people and we have the greenhouse effect and global warming. I think that if social democracy doesn’t survive as a model for treating each other [well], for regulating economic growth, for not having these huge, horrendous side effects, the planet is not going to survive. So I can predict that either social democracy is the future or we aren’t going to be around to know.

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• Reader Comments

  Boy, talk about a timely article. Our new mayor is urging us to vote for Home Rule. Here is a portion of my letter to him dated 11-12-05.

  Friday night I asked you to convince me that Home Rule is a good thing. I also mentioned that I (and I suppose others) feel only at the local level is my voice heard.

  For years I have written letters to our representatives only to receive token responses. This is not necessarily due to their lack of interest, but a fact of life in a day when even the ordinary office worker receives up to one hundred daily contacts by mail, email, fax, phone and personal contact. I wonder if it is even possible to govern at a time when speed and volume of communication seem to continually increase.

  While “special interest groups” are demeaned by the media, it often seems to be the only way to be effective or at least recognized. (I recently heard 47% of the lobbyists for foreign companies and countries are OUR former elected representatives. Most of us have less representation.)

  Posted by whattheheck on Nov 14, 2005 at 8:34 AM

  Dear whattheheck:

  In what city does the mayor encourage home rule--DC?

  Posted by studyholic on Nov 14, 2005 at 10:17 AM

  Hold the cheese - There is no cure for the Spoiled.  If people don’t vote, don’t blame the system, blame the real culprits - everyone who does not vote - shake your finger, throw your purse - get in their face. 

  Now there is a lot of tossing the hot crumpets around here.

  I think if social democracy was really the author’s cure, he’d have a nice link to his book on this Internet and I would be reading it right now instead of making some useless wiseguy remarks.  I believe the web could handle one extra page - he could even Blog it - but, alas, that is no way to get anything accomplished.  But what do I know?  I would publish a book, too, if I were smart enough.. on Social Democracy about uneducated people who don’t vote & getting the educated vote to buy it and read it - hmmm… where is that water trough.. or park.. the dog can’t use the street & keep it on the leash.

  Final remark - and then I must get on with my nonsense elsewhere - “We’ve already got 6 billion people and we have the greenhouse effect and global warming. I think that if social democracy doesn’t survive as a model for treating each other [well], for regulating economic growth, for not having these huge, horrendous side effects, the planet is not going to survive.” Let me see - there is something sandwiched in there - oh, I see, regulating economic growth.  That is such a small topic, such an easy idea to grasp and offer solutions for, I guess I am in the dark - everyone must just read that and think it is like eating a cheese sandwich, why not? 

  However, in my view of systems, regulating economic growth is a tremendous subject.  Huge! And it is all contained in three words… now, I won’t leave without putting my slice of cake on the table to be shoved back into my face when someone else reads this, but… to regulate economic growth, how about this:  the tax code is where all magic happens:  give slight-to-medium tax breaks which make it financially advantageous to be married instead of the penalizing and fix that home mortgage interest deduction - the federal government is subsidizing homeowners & the poorest of us rent.. these real solutions solve of all this jibbly-goosh talk in this interview.  And you got it free.

  All right, I’m out.  Pie me.

  Posted by mattdon on Nov 14, 2005 at 8:15 PM

  Does elitist judicial rule correspond to enlightened despotism?  I hope so.

  Posted by rocco on Nov 15, 2005 at 6:24 AM

  I think we have an even more fundamental problem than what Tom Geoghegan is outlining in “Why the law is a shambles”, but they are close relatives.

  We live with a set of myths — There is: “We are a nation of laws and all are equal in the eyes of the law.” But even more basic: “We have a representative form of government — every vote counts.” BUT, there may be no paper trail.
  
  I look around and see people far worse off than I am (solidly middle class). The 30% in New Orleans who were living below the poverty line are a extreme example.  But we do have something very basic in common. We in the fact do not have political representation.

  We are increasingly becoming a society divided by economic class. The broad middle class, which has been the backbone of the U.S. economy, is slipping down. As it does, those who have been below middle are falling even further. As the author stated they, “...see themselves not as citizens, but as victims, so there’s less civic trust, more people dropping out of the system.”

  As “...one of (those who) is still trying to participate in the political process, holding on to these old civic values...” I am continually disappointed in the choices we have as candidates. There has been so little difference on economic issues that only the (D) or (R) next to the name on TV distinguishes the players.

  Spending is up and we get tax breaks for the wealthy and benefit cuts for the rest.

  The Washington crowd is closely aligned with the interests of the largest business managers. Corporations and politicians say, “Globalization is inevitable and will be good for consumers.” But, The American Jobs Creation Act of 2004 is primarily a way to give business a tax break on foreign earnings. There are no jobs guaranteed in the U.S. (We can retrain.) Corporations and politicians control their own salaries and benefits - by serving on the committees which decide for themselves and each other.

  There is an old joke about the guy who says, “I used to be a liberal, but now I’m much more conservative.” Reply, “Oh, you got mugged.”

  Perhaps a parallel is, I used to be conservative, but now I’m more liberal“ Oh, your pension got stolen.”

  Just as Congress has spent Social Security and Medicare, so have companies spent our pensions. Government “oversight” has consisted of a recently ordered investigation by the SEC into the $31 billion pension deficit at GM.

  Proposed solutions: Cut Soc. Sec & Medicare benefits. Reimburse defunct pensions at about 66%. “Special Guest” status at a sub-minimum wage. (What is less than lowest?)

  How can a union gain clout against a labor pool working at pennies per hour?

  Posted by whattheheck on Nov 15, 2005 at 3:11 PM

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