One of the great things about being a small-town country lawyer is you get to meet so many “ordinary” Americans going about their business, raising their kids, volunteering in their communities and working day after day to make a better tomorrow.
One of the troublesome things about being a country lawyer is you encounter the contrast between those ordinary people and their so-called “leaders” and “law enforcers.” Though many of the latter reflect the good qualities of “ordinary” Americans, many, if not most, as taught by experiments in psychology, abandon their moral codes and embrace the psychopathology of those granted governmental power.
Power is dangerous. Unless constrained by law, there is no difference between the power of a police officer to shoot an unarmed person and that of a mafia enforcer. The sole difference is the police officer is only empowered to kill in accordance with the law. If he kills, like a mafia hit man, outside the law, then he is, too, an “outlaw.” So too, the FBI, the CIA, the U.S. Army and every other governmental agent authorized to kill. Either it is done in accord with the law or it is illegal, possibly criminal.
“Law enforcers” voluntarily swear an oath to the Constitution not to deprive persons of life, liberty or property without due process of law. Those who live up to it may rightly be considered heroes. Those who do not may rightly be considered Mafioso. I don’t make the law, but I have been trained to understand and interpret it.
In that training, I have learned American law has a principled foundation. It is known as the Declaration of Independence (DOI) passed by Congress July 4, 1776, it is the law that established America, and it remains in force to this day. Because America was going to “secede” from the British Empire, possibly to engage in “revolution” and war against the “mother country,” the American revolutionaries thought they had a duty to state the principles of law that justified such otherwise “treasonous” action.
The main justification was declared to be the fact that the English government was not based on the “consent” of the American people and was therefore “illegitimate” (which means unlawful). Not legal. How could the Americans claim that?
Simple. Americans’ did not have the right to vote for representatives in Parliament. Thus, the Americans argued, laws passed by Parliament were not lawful in America because they did not “have the Consent of the Governed.” The DOI declared government “derives its just powers from the consent of the governed.” Without such consent government powers cannot be exercised “justly.” It that event the DOI continued, “it is the Right of the People to alter or abolish it” (government).
The foundation of America is the idea that true representation of the people, meaningful consent to the laws its government passes, must be obtained by the government or it risks being “illegitimate” or a government of “outlaws.” This consent, in a republic such as the American, is derived from periodic votes of the people electing “representatives” or agents of the people representing the peoples’ input to lawmaking — since having direct votes was not technologically possible at the time — election of representatives (not “rulers”) was deemed prudent. But, should voting not be representative, consent would not exist, and government would be of questionable legitimacy.
Sadly, voting is apparently becoming less and less reflective of the consent of the people.
Keith Sellars, one of the 12 Alamance County, N.C. residents prosecuted for voting in 2016, tellingly wrote at Counterpunch:
For me it’s important that we call this what it is: voter suppression. Other policies — including a proposed voter ID constitutional amendment, polling site closures and early voting restrictions, and partisan and racial gerrymandering — hope to do the same.
One in three black men in the United States has been charged with a felony. In North Carolina, black men are incarcerated at four times the rate of white men. And here, as in most states, that can mean harsh restrictions on your right to vote. So even if we think these laws are unfair, the opportunity to influence them is taken from our hands.
As reported in the Guardian:
The two most recent Republican presidents have entered office despite receiving fewer votes than their opponent in a national election, thanks to the electoral college, which systematically over-represents small states. (California gets one electoral vote per 712,000 people; Wyoming gets one per 195,000.) With the presidency in hand in the run-up to the 2020 Census, minority rule will be further entrenched by adding a citizenship question to the census. This will result in systematic undercounting of the population in heavily Democratic areas, which will in turn further reduce their influence as legislatures draw maps based on the data.
Then there’s the Senate. Because of its bias toward smaller, rural states, a resident of Wyoming has 66 times the voting power in Senate elections as one in California. Thus, in 2016, the Democratic party got 51.4 million votes for its Senate candidates. The Republicans got 40 million. And despite losing by more than 11 million votes, the Republicans won a supermajority (22 of 36) of the seats up for election, holding their majority in the chamber.
The hideously malapportioned Senate and electoral college permit the last piece of the minority rule puzzle to snap into place: the Supreme Court. In 2016, after losing the contest for the presidency and the Senate by millions of votes, the Republicans were able to install two Supreme Court justices. There may be more.
In fact, when the Senate confirmed Trump’s first nominee, Neil Gorsuch, it was a watershed moment in American history. For the first time, a president who lost the popular vote had a Supreme Court nominee confirmed by senators who received fewer votes — nearly 22 million fewer — than the senators that voted against him. And by now, it will not surprise you to discover that the senators who voted for the confirmation of Brett Kavanaugh represent 38 million fewer people than the ones who voted no.
I am just a small-town country lawyer. But I am also an American. I have been honored to work with many ordinary Americans to build their communities, support the education of their children, raise money for charity, and I have learned they have a wisdom and a decency far beyond that of those who claim to be their “rulers.” I have witnessed their capacity for judgment as they sat on juries, small township boards, and in private organizations doing good in their communities. The record of their success at self-governance is manifest all around us every day. I thank them for their service!
I have also witnessed the creeping suppression of their right to vote, and to have their vote counted and respected. It may not be my place to warn those who think they rule, who think they are above the law, and who believe they have power to disregard the “consent of the governed,” and so I do not. The Declaration of Independence does that. The dust bin of history is replete with the bones of failed governments that tried to rule without the consent of the people. “With a firm reliance on the Protection of Divine Providence” the Declaration launched a government based on the consent of the people. Those who would undermine it, by imperiling the right to vote, do the work of another power that shall not be named.
Kary Love is a Michigan attorney who has defended nuclear resisters, including some desperado nuns, in court for decades and will on occasion use blunt force satire or actual legal arguments to make a point.