by Virginia Del. Mark Levine, a constitutional lawyer, a talk radio host, and a member of the Virginia House of Delegates.
“Governments deriv[e] their just powers from the consent of the governed [and] whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…” – The Declaration of Independence
The Constitution gives us checks and balances to allow each of the three co-equal branches of Government to counteract the others. The President can veto legislation, but Congress can impeach the President and override vetoes. The Supreme Court can declare legislation unconstitutional, but the President, with the advice and consent of the Senate, chooses members of the Supreme Court. And both President and Senate are normally chosen by We the People.
By breaking the last link in that chain, we are now, for the first time in American history, at the mercy of three branches of Government headed by people solidly rejected by the majority of the American People in the latest elections. And that makes our entire Government illegitimate. We are no longer a democracy. We are not even a republic. We are a government of the minority, by the minority, and for the minority.
The current President of the United States, of course, was solidly rejected by the American People. And while the anachronistic Electoral College did put him in office, no one can claim that Trump was the choice of the We the People. He was solidly our Second Choice.
The Congress is equally undemocratic. The House of Representatives, the more democratic branch, has been wildly gerrymandered by state legislatures to make sure that it does not reflect the will of the People. Nationwide in 2016, the Republicans did receive 49% of the vote to Democrats’ 48%. So I concede they should have a 220-215 majority. But not the 241-194 majority they currently have. In 2012, the Democrats actually won the majority of the House by greater numbers than the Republicans won in 2016. But Democrats were still a 234-201 minority in the House at that time.
The Senate is even more undemocratic. Like the anachronistic Electoral College, this is the fault of the Founders. In 2016, Democratic Senatorial candidates received an astonishing 54% of the vote to Republicans’ 42%. But Republicans took 22 of the 34, or 65% of the seats at stake. That’s right. 42% of America got almost 2/3 of the Senators. While the vast majority (58%) of us had to settle for about 1/3.
No wonder Americans have such little respect for the Government. A majority of us didn’t choose it.
And now we have the Supreme Court. According to the Constitution, nominees of the Supreme Court are chosen by the President and confirmed by the Senate. And that’s why from 1789 to 2016, unless a President withdrew his nominee, every single nominee was given a vote in the Senate. But President Obama, elected by the majority of the American People in 2012, became the first President in American history to be denied his constitutional right to appoint a Justice.
If a Supreme Court Justice is unelected and going to serve for a lifetime, it should at least have the support of a majority of the American People. Trump’s two justices do not.
This is also a first for American history. Because every other President rejected by the popular vote due to our electoral-college quirk at least had his Supreme Court justices approved by 80+% of the Senate. This was true of John Quincy Adams, Rutherford Hayes, and Benjamin Harrison. George W. Bush, although he lost the popular vote to Al Gore in 2000, was elected by a majority of the American public in 2004, and both his justices were nominated and confirmed in his second term.
The 200-year-plus filibuster tradition for Supreme Court nominees – until it was ended by Senate Republicans in 2017 – also went a long way in ensuring the legitimacy of the Supreme Court. The 60-vote requirement assured Americans that any nominee who received advice and consent was not way out of the mainstream of American legal thought.
But the Republicans’ refusal to consider Obama’s nominee, coupled with the end of the 60-vote minimum and the 53-47 choice of Gorsuch and 51-49 choice of Kavanaugh, takes us into an entirely new age. Even the 53% of Senators who chose Gorsuch represent less than 45% of the American public. For Kavanaugh, it’s an even smaller minority of We the People that approved. This makes our Supreme Court illegitimate.
Gorsuch and Kavanaugh are the first Supreme Court Justices in American history to be determined by a President and by Senators who both represent a minority of the American People. Unelected justices chosen by unselected politicians.
Therefore, any future 5-4 Supreme Court case where Gorsuch and Kavanaugh make up the majority vote must be considered wrongly decided. In a real democracy or republic, only the seven judges chosen by elected officials that represent a majority of We the People should have their votes counted.
Jefferson was right. Governments derive their just powers solely from the consent of the governed. And when that consent is lacking, the People must alter or abolish such Governments.
At a time when none of the three branches of Government represent We the People, it is incumbent upon We the People to take our country back. We will have to vote in super-majorities to do this in 2018 and 2020. But doing so is not impossible.
A new Democratic President and Democratic Congress in 2020 should then impose an 18-year term limit on members of the Supreme Court. The new ones should be chosen each summer of an odd-numbered year so that the choice is made fresh after a President is elected. Article III of the Constitution does not require lifetime appointments, and this change would do much to restore democratic legitimacy and fairness to our judicial branch of government.
We must also work to abolish the Electoral College and gerrymandering as well. I’m trying to do both in Virginia.
I would like to get rid of the undemocratic Senate as well. Unfortunately, Article V of the Constitution expressly prohibits that. But reinstituting a 60-vote majority for confirmation of Supreme Court justices would go a long way toward depoliticizing the Supreme Court and making sure that its justices are more concerned with ruling according to law than according to their personal political whims.
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