The Day Democracy Died

Listening to Washington and McLean
Nicholas Johnson
The Gazette, June 22, 2022, p. A6

George Washington warned his “Friends and Fellow-Citizens” there could be days like this in his farewell address of September 19, 1796. Political parties could become “potent engines by which cunning, ambitious, and unprincipled men will be enabled . . . to usurp for themselves the reins of government.” [Photo credit: wikimedia commons; Gilbert Stuart painting.]

Individuals may then “seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction . . . turns this disposition to the purposes of his own elevation on the ruins of public liberty.”

“[L]et there be no change by usurpation; . . . it is the customary weapon by which free governments are destroyed.”

Are you old enough to remember the lyrics to Don McLean’s song, “American Pie,” about “the day the music died”?

It will be nothing to sing about, but we’re headed toward “the day democracy died.” Some say it’s already dead. “The day democracy died” was January 6, 2021.

It’s more complicated than that.

Like preparing your garden soil in the spring, a democracy can only grow in a nation with, one, a civil society of non-governmental and non-business organizations – from Rotary Clubs to garden clubs, trade unions to Wordle groups. And, two, people who understand and reject authoritarian rule, and affirmatively seek democracy (as we discovered after 20 unsuccessful years in Afghanistan).

The first was found in America by de Tocqueville and published in 1835 in his “Democracy in America.”

The second was made clear by Thomas Jefferson in the 1776 Declaration of Independence, listing and charging the “King of Great Britain [with] a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny.“

Many components, properly assembled and maintained, can become a car. Similarly, a democracy only emerges with the assembly and maintenance of components. A non-political, respected judiciary. A trusted electoral system, expanding participants and easing voting.

Thomas Jefferson considered independent media so essential to democracy that choosing “government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

George Washington thought education a component. “In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”

How to destroy a democracy? As the Nazi Hermann Goering explained, “it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship . . .. It works the same in any country.”

The authoritarian’s playbook isn’t complicated. You destroy the public’s trust in its democratic institutions. Promote divisiveness, fear and anger. Repeat “the big lie” until it’s believed by the faithful. Convince the public the media is “the enemy of the people.”

Or, as in Iowa currently, you attack the public education system, prescribe the books and subjects that can and can’t be taught, reduce the appropriations, demonize the teachers.

It works the same in any country. Including ours. Just like George Washington warned us.
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Nicholas Johnson is the author of Columns of Democracy. Website: nicholasjohnson.org Contact: mailbox@nicholasjohnson.org
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SOURCES
Washington’s Farewell Address. “Washington’s Farewell Address to the People of the United States,” Sept. 19, 1796, U.S. Senate, https://www.senate.gov/artandhistory/history/resources/pdf/Washingtons_Farewell_Address.pdf

“[A]void the necessity of those overgrown military establishments which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty.” p. 8

“However combinations or associations . . . may now and then answer popular ends, they are likely . . . to become potent engines by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.” p. 12

“I have already intimated to you the danger of parties in the state . . .. Let me now . . . warn you . . . against the baneful effects of the spirit of party, generally. This spirit . . . exists under different shapes in all governments, . . . but, in those of the popular form, it is seen in its greatest rankness and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension [and] the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and formal and permanent despotism. The disorders and miseries . . . gradually incline . . . men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation on the ruins of public liberty.” pp. 13-14

“[L]et there be no change by usurpation; . . . it is the customary weapon by which free governments are destroyed.” p. 16

“But if I may even flatter myself that they [these words] may be productive of some partial benefit, some occasional good, that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign intrigue, to guard against the impostures of pretended patriotism -- this hope will be a full recompense for the solicitude for your welfare, by which they have been dictated.” (italics added) p. 24

Other:

“Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”
. . .
“avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear.” p. 17

The day the music died. Lyrics to Don McLean’s song, “American Pie.” Don McLean, “American Pie (Full Length Version),” Lyrics, https://www.lyrics.com/lyric/14026136/American+Pie+%28Full+Length+Version%29

January 6, 2021. Nicholas Fandos and Emily Cochrane, “After Pro-Trump Mob Storms Capitol, Congress Confirms Biden’s Win; A normally ceremonial ritual in Congress exploded into chaos as protesters, egged on by President Trump, forced their way into the Capitol to stop the counting of electoral votes to confirm President-elect Joseph R. Biden Jr.’s victory,” New York Times, January 7, 2021, p. A1, https://www.nytimes.com/2021/01/06/us/politics/congress-gop-subvert-election.html

Peter Baker, “A Mob and the Breach of Democracy: The Violent End of the Trump Era; Those who warned of worst-case scenarios under President Trump — only to be dismissed as alarmists — found some of their darkest fears realized in the storming of the Capitol on Wednesday,” New York Times, January 7, 2021, p. A1, https://www.nytimes.com/2021/01/06/us/politics/trump-congress.html

Democracy in America. Alexis de Tocqueville, Democracy in America, vol. II, Sec. 2 (See headings, “Of the Uses which the Americans Make of Public Associations; Of the Relation of Public Associations and the Newspapers; Relation of Civil to Political Associations”), 1835, https://xroads.virginia.edu/~Hyper/DETOC/toc_indx.html.

Declaration of Independence. “Declaration of Independence: A Transcription,” America’s Founding Documents, National Archives, July 4, 1776, https://www.archives.gov/founding-docs/declaration-transcript

Newspapers without government. Extract from Thomas Jefferson to Edward Carrington, Paris Jan. 16. 1787 (“the basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. but I should mean that every man should receive those papers & be capable of reading them.”) “Jefferson Quotes & Family Letters,” Monticello, https://tjrs.monticello.org/letter/1289

Washington on education (public enlightenment). “Promote then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.” Washington Farewell Address, supra, p. 17

Hermann Goering, “the same in every country.” "Naturally the common people don't want war; neither in Russia, nor in England, nor in America, nor in Germany. That is understood. But after all, it is the leaders of the country who determine policy, and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country." Nazi Germany’s Hermann Goering in 1946. [Accuracy confirmed, and source identified at: David Mikkelson, “Did a Nazi Leader Say Convincing People to Support War is ‘Simple’? Nazi Luftwaffe commander Hermann Goering was one of the highest-ranking Nazis who survived to be captured and put on trial for war crimes,” Snopes, Oct. 4, 2002, http://www.snopes.com/quotes/goering.htm; or https://www.snopes.com/fact-check/war-games/

Trump, media “the enemy of the people.” Brett Samuels, “Trump ramps up rhetoric on media, calls press ‘the enemy of the people,’” The Hill, April 5, 2019, https://thehill.com/homenews/administration/437610-trump-calls-press-the-enemy-of-the-people/ (“The press is doing everything within their power to fight the magnificence of the phrase, MAKE AMERICA GREAT AGAIN! They can’t stand the fact that this Administration has done more than virtually any other Administration in its first 2yrs. They are truly the ENEMY OF THE PEOPLE! — Donald J. Trump (@realDonaldTrump) April 5, 2019”

The Big Lie. “the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie, since they themselves often tell small lies in little matters but would be ashamed to resort to large-scale falsehoods. It would never come into their heads to fabricate colossal untruths, and they would not believe that others could have the impudence to distort the truth so infamously. Even though the facts which prove this to be so may be brought clearly to their minds, they will still doubt and waver and will continue to think that there may be some other explanation.” Adolf Hitler, Mein Kampf, vol. I, ch. X, “Joseph Goebbels: On the ‘Big Lie,’” Jewish Virtual Library, https://www.jewishvirtuallibrary.org/joseph-goebbels-on-the-quot-big-lie-quot; see also, Ralph Manheim translation, Sentry Edition, Houghton Mifflin, 1943, pp. 231-232.

Attacks on public education. Todd Dorman, “Iowa Lawmakers should try transparency before they impose it on teachers,” The Gazette, March 20, 2022, https://www.thegazette.com/staff-columnists/iowa-lawmakers-should-try-transparency-before-they-impose-it-on-teachers/ (“Among the most stringent concepts being considered are provisions that would require teachers to post all of their course materials online, from book titles and articles to videos and online links to materials, twice during the school year, in August and January. School districts that violate the rules could have their state funding docked for each day of non-compliance. Wanted: Clairvoyant social studies teachers capable of predicting how world and national events might affect their curriculum.”)

Ty Rushing, “Fed Up: How Educators in Kim Reynolds’ Iowa Feel After Nonstop GOP Attacks,” Iowa Starting Line, March 4, 2022, https://iowastartingline.com/2022/03/04/fed-up-how-educators-in-kim-reynolds-iowa-feel-after-nonstop-gop-attacks/ (“There were more than 50 education bills introduced during this year’s Iowa legislative session, including proposals to place surveillance cameras in public school classrooms, ban books, jail teachers, and take funding away from public schools to support private institutions.

Republican lawmakers, who have introduced the bulk of these policies, have done so under the guises of “transparency” and “parental choice” to prohibit teachers from enacting a “sinister agenda,” as Senate President Jake Chapman phrased it on the opening day of the legislative session. Gov. Kim Reynolds has devoted much of her attention and agenda on school-related bills in recent months.

The rhetoric and policies have weighed heavily on Iowa educators this year.

‘The attacks on teachers and discussions of jail time and cameras is absolute insanity. Teachers are being singled out and disrespected. We are simply trying our best to care for kids and help them learn,’ said Salley Wieland, a Des Moines special education teacher.

‘We are educated professionals who have the ability to put our skills to use outside the classroom; many teachers have said they are leaving. I will not be returning.’”)

Bruce Lear, “A Storm’s Coming. It’s Time to Act,” Bleeding Heartland, Feb. 4, 2022, https://www.bleedingheartland.com/2022/02/04/a-storms-coming-its-time-to-act/ (“Here’s just some of the intensity of this storm.

First, Iowa Senate President Jake Chapman vowed to pass a law to jail educators who make books, he considers pornographic available to students. He opened the 2022 legislative session by accusing Iowa teachers of having a “sinister agenda” to harm children.

Now, he’s made good on his bullying by introducing Senate File 2198, which makes it a serious misdemeanor to knowingly distribute obscene material in school. The bill also allows a parent or guardian to sue the school for civil damages.

Chapman isn’t the only bully. In her Condition of the State address, Governor Kim Reynolds suggested Iowa public school libraries were full of dirty books that would be X-rated if they were movies. Later she proposed that all classroom syllabuses and library books be published online for parents to review.

. . .

To one up Reynolds and Chapman, Republican State Representative Norlin Mommsen introduced House File 2177. His bill would require a live feed in every Iowa public school classroom, so parents can see in real time whether teachers are corrupting the youth. Another unfunded mandate. But what about most parents, who don’t want their children on camera?”)

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The Supreme Court, Constitution and Democracy

High Court Mystique is Shattered
Nicholas Johnson
The Gazette, February 16, 2022, p. A7
Who finally decides what is “the law”? The Supreme Court.

Justice Robert Jackson once conceded, “We are not final because we are infallible, but we are infallible because we are final.”

Politicizing an impartial Court weakens our democracy.

Imagine as many as 30,000 parts, precisely engineered, manufactured, and delivered. If properly installed and maintained, they can become what you call “my car.”

Our democracy is also a creation of many parts.

At its base are what Alexis de Tocqueville [Democracy in America, 1835] called “associations.” We are volunteers in over a million non-profits and informal gatherings, from union locals and church congregations to clubs for gardening or playing bridge.

Next are the institutions I’ve called the Columns of Democracy, such as public schools and libraries to educate us; independent investigative journalism to inform us; networks from highways to broadband to promote our e pluribus unum; culminating in an expanding electorate and ever easier voting.

Of course, as Columbo might say, “There’s just one more thing.” The judiciary.

Most of our behavior is moderated not by laws but by norms, such as “Iowa nice.” There are norms for resolving most disputes. But occasionally, whether in business or in marriage, we just can’t “work it out.”

One approach used to be the challenge to a duel or some other form of homicide. Or maybe a war.

Another is like fighting siblings going to one or both parents to settle a dispute. We realize we need a resolution and agree to accept the decision of an arbitrator or judge.

And if 94 federal district and 13 appellate courts don’t agree about “the law”? We ask our “parents,” the Supreme Court, to hear our case.

Unlike the politicized executive and legislative branches, the Constitution gives justices life tenure, in part, to create a politically nonpartisan, impartial Court. In selecting which cases to hear, it may reject those turning on a “political question.”

With no access to military force, the Court needs more than finality and impartiality for public acceptance of its infallibility. It needs some mystique.

Like the building.

I served as Justice Hugo Black’s law clerk. My first day my wife needed the car and drove me to work. When she pulled up in front of the Supreme Court, our wide-eyed, disbelieving daughter, Julie, asked incredulously, “Daddy, you work in there?!” (Not incidentally, as I recall, there were no “partisan” conversations among clerks or justices during my year.) [Photo credit: U.S. Supreme Court.]

It’s not just the building’s exterior. There’s also the marble, high ceilings, hallway gates, black robes, the curtain dramatizing justices entrance into an imposing courtroom, the bench well above lawyers and audience, the secret justices-only “conference.”

Now politicians, journalists, public – and even justices’ behavior – are treating the Court’s justices as a third political branch (“liberal,” “conservative”). It’s as if they were throwing rocks, shattering the mystique and grand vision of the Constitution’s drafters.

Who’s left to be infallible? Only authoritarians?
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Nicholas Johnson clerked for Justice Hugo Black and is the author of Columns of Democracy. Contact mailbox@nicholasjohnson.org
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SOURCES Infallible because we are final. Deborah Rhode, “Ethics in Practice: Lawyers’ Roles, Responsibilities, and Regulation,” Oxford University Press, https://epdf.pub/ethics-in-practice-lawyers-roles-responsibilities-and-regulation.html (“An observation by Justice Robert Jackson applies to judges generally: ‘We are not final because we are infallible, but we are infallible because we are final.’” Brown v. Allen, 344 U.S. 443, 532, 540 (1953) (Mr. Justice Jackson, concurring). 10. See, e.g., 28 U.S.C. Sec. 455; and American Bar Association, Model Code of Judicial Ethics.”)

30,000 car parts. Nicole Wakelin, “How Many Parts Are In A Car?” NAPA Know How Blog, July 2, 2021, https://knowhow.napaonline.com/how-many-parts-are-in-a-car/ (“The exact number of parts in a car varies widely from car to car, but what’s the average? Typically, you can expect that there are about 30,000 parts in your car, from the tiniest nuts and bolts to the engine block.”)

Civic Society. Alexis de Tocqueville, Democracy in America (1835)

Steve Hoenisch, “The Relation Between Civic Society and Newspapers in the Writings of Alexis de Tocqueville and Robert Putnam,” criticism.com, https://www.criticism.com/md/putnam1.html

“Associations Matter,” The Center for Association Leadership, 2012, http://www.thepowerofa.org/wp-content/uploads/2012/03/Associations-Matter-FINAL.pdf

Columbo. Columbo, Wikipedia, https://en.wikipedia.org/wiki/Columbo (“Columbo is an American crime drama television series starring Peter Falk as Columbo, a homicide detective with the Los Angeles Police Department. … He often leaves a room only to return with the catchphrase "Just one more thing" to ask a critical question.”)

Number of federal district and circuit courts. Offices of the United States Attorneys, “Introduction To The Federal Court System,” https://www.justice.gov/usao/justice-101/federal-courts (“There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.”)

“Political Question” Doctrine. “Political Question Doctrine,” Legal Information Institute, Cornell Law School, https://www.law.cornell.edu/wex/political_question_doctrine (“Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue.”)

Court as Third Political Branch. Jeffrey Rosen, “The Court Loses Its Chief Pragmatist; With the upcoming retirement of Justice Stephen Breyer, the country moves into a more ideologically divided future,” The Atlantic, January 26, 2022, https://www.theatlantic.com/ideas/archive/2022/01/stephen-breyer-retirement-supreme-court-biden/619331/

“Public’s Views of Supreme Court Turned More Negative Before News of Breyer’s Retirement; 84% say justices should not bring their political views into decisions,” Pew Research Center, Feb. 2, 2022, https://www.pewresearch.org/politics/2022/02/02/publics-views-of-supreme-court-turned-more-negative-before-news-of-breyers-retirement/ (from August 2020 to January 2022, approval of Court dropped from 70% favorable to 54%; lowest in 40 years)

# # #   Additional Related Material Not Used Directly

Today’s court justices: name, BDY, year appointed, home, law school: https://ballotpedia.org/Supreme_Court_of_the_United_States

Google search: "Supreme Court" AND (political OR politics)

Federalist No. 78 discusses the power of judicial review. It argues that the federal courts have the job of determining whether acts of Congress are constitutional and what must be done if government is faced with the things that are done on the contrary of the Constitution.

Why is Federalist 51 important? Government Must Furnish the Proper Checks and Balances Between the Different Departments.” Madison wrote Federalist 51 to explain how separation of powers with checks and balances protects liberty. Madison borrowed the concept of separation of powers from Montesquieu, a French political philosopher.Sep 6, 2011

Federalist No 81 - The Avalon Projecthttps://avalon.law.yale.edu › fed81 The Federalist Papers : No. 81 ... But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.

Supreme Court of the United Stateshttps://www.supremecourt.gov › DocketPDFPDF Jan 31, 2019 — to the United States Court of Appeals for the Federal Circuit ... Madison James, Federalist 47, THE FEDERALIST. PAPERS. 25 pages

ABA’s “landmark cases” - https://www.americanbar.org/groups/public_education/programs/constitution_day/landmark-cases/

Lifetime appointments related to non-political decisions - Hamilton's main point in Federalist #78 is that a lifetime appointment will give Federal Justices the ability to work objectively on behalf of the people. If they were to seek reelection, they might act in bad faith in an effort to retain the office. May 1, 2020 Lifetime Appointments for the Court - Federalist #78 - Founder ...

Google search - "Constitutional Convention" 1787 (judges OR "judicial branch" OR judiciary OR "supreme court")

Debate from the Constitutional Convention regarding the function of the judiciary (July 21, 1787) - https://www.thirteen.org/wnet/supremecourt/democracy/sources_document5.html

See also: https://www.thirteen.org/wnet/supremecourt/democracy/sources.html

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