If you remember 1968 at all, you will remember that it was a time of political turbulence. Consider only these four: Martin Luther King Jr. and Robert F. Kennedy were both assassinated; there were riots of a distinctly racial character in Washington D. C. and the widespread protest against the war in Vietnam began to turn really nasty.

In the middle of that, I was out in the streets of Canton, Ohio one night. I think I was in the vicinity of an anti-war protest, but I don’t remember for sure. The conversation that calls that night back to my mind was with a black man. He was saying that not only the society, but also the Constitution were thoroughly racist. Without working on a definitions of terms, I was OK with that. Then he began to substantiate his point by citing the Supreme Court’s comfort with all that racism and he cited cases that did not say what he thought they said.

So I contradicted him. I had no idea at that point what kind of conversation it was. “They didn’t do that,” I said. “The Supreme Court said that was a violation of the Constitution.”

“YOUR Supreme Court,” he said. That’s all I remember. I might have said that it was his Supreme Court too. He might have said that it didn’t look like it from where he was standing. I’m not really sure. My best hearing stopped at YOUR.

The Constitution and the Will of the People

Being a constitutional democracy has always been a little bit of a stretch. If a “democracy” [1] is a form of government in which “the people” (voters) always have the last word, how is it that there is an authoritative document that tells them what they can and cannot do? Arguments have been made that the two are really compatible—the people “consent” to having such a final document—but that only works when the people are close enough to being satisfied with the system that they don’t feel that they have to choose.

If they do feel that they have to choose, choosing the political, in which they have a role, may very well seem more attractive than the judicial, in which they know they do not have a role. In “identity politics,” which appears to be where we are headed, “one us us” is good and “one of them” is bad. You can imagine what that orientation does in a courtroom where a judge or a jury is supposed by be persuaded (or not) by evidence. Everyone in attendance knows who is telling the truth (our guys) and who is lying (their guys). Or, more concretely, US or THEM.

Politics can survive US and THEM for quite long periods. The interaction of politics and constitutionalism cannot survive it at all.

Ross Douthat

Douthat is a columnist for the New York Times. He is the semi-unofficial house conservative and, in my judgment, plays that role really well. On August 18, his column contained this argument.

“If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.”

The courts must claim to stand outside of democratic realities—not to be judged by the same standards that apply inside. The courts must claim to be above—superior to, more fundamental than—democratic realities. And when, as Douthat says, there are extraordinary judicial proceedings (as in the multiple charges against Trump), the judiciary is politicized. It is no longer consensually outside nor is it consensually above.

As nightmarish as that sounds, I think Douthat is right. Americans must be spared the crisis of having to choose one or the other, or, if that cannot be done, Americans must choose judicial impartiality. Even the illusion of judicial impartiality would serve for a time.

This is hard to see in politics sometimes because politics is so contentious. Other kinds of illustrations make it clearer. People could decide that when then use the subjunctive mood, it does not necessarily refer to a hypothetical situation. Sometimes it does and sometimes it doesn’t; it can refer to an actual situation and I know when that is. If I enforce that because I have the power to do so, the subjunctive mood is no longer reliably available, even to me, and it is not available to you at all. All I wanted to do was to control the argument, and I wound up destroying one of the three grammatical moods.

In basketball, when two players collide, the refs may make no call; they may call the offensive player for charging; they may call the defensive player for blocking. If I watch the game in an US v. THEM mode, then I know that when one of your guys runs into one of my guys, it is charging. I don’t need to see the tape.

The famous phone call to Georgia’s Secretary of State saying “I need 11,780 votes,” followed by “Find me 11,780 votes” does not raise the question of how many votes were actually cast and for whom. It is the perfect analog to who ran into whom and how hard. It is determined entirely not by what was done, but by who did it. It is “identity politics” or “the politics of belonging.” It is not democracy. It is not compatible with democracy.

It was Douthat’s argument that brought back my conversation with the black guy in Canton. It seemed back then to be about race. In the present context, it just seems to be an early form of US v. THEM.

Are we nervous yet?

[1] We need to remember how the Framers hated that word. In their time, rule (-cratos) by the people (demos) simply meant “mob rule.” They were quite explicit that they had not designed a democracy, but a republic.