Depending on your point of view, the last few weeks have sounded either a very loud wake-up call or the death knell of democracy in the United States, at least for the foreseeable future.
For the first time in generations, American citizens have been betrayed, and indeed, attacked, not merely by one over-reaching branch of government, but by all three. The actions of President Obama and the Congress as revealed in the the Snowden Affair, and the revelations of the NSA's activities it has brought to light, and now the Supreme Court's decision effectively to overturn the Voting Rights Act, show conclusively that Americans today can no longer trust their government to protect their most fundamental rights, either in principle or against the abuse by one or more arms of the state.
Every American child learns about the unique set of "checks and balances" laid out in the US Constitution, which established a tripartite division of power between the Executive, Legislative and Judicial branches of government. This balance of power, whose history returns (in a much simpler form) to ancient Greece and Rome, was established precisely because the "Founding Fathers" held a deep distrust of the ability of those with political power to use it fairly and according to law, and not arrogate it or otherwise abuse it for their own individual or corporate benefit.
The separation of power and the checks and balances between the three branches of government it established ensured that the functions of making, executing and interpreting the law remained the provenance of the Legislative, Executive and Judicial branches respectively. Each branch have always had, as a core responsibility, checking any over-reach by one or both of the other two. At the same time, by placing supreme power at the Federal level, the Constitution (as laid out in Article VI), ensured that individual states could not act to ignore, undermine or violate Federal laws by enacting their own laws that either superseded or contravened them.
The Civil War was fought in good measure over whether the Supremacy Clause, as laid out in Article VI of the Constitution, or the 10th Amendment, which declared that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," was the ultimate authority in the land.
The US experienced a strong and activist Federal government in the middle two thirds of the 20th century, roughly from FDR's New Deal till the Reagan Presidency. In the last two generations, and particularly under the Bush II presidencies, Republicans have acted both to restrict the power of Congress and the Courts in favour of a reinvigorated "states' rights," and to assert an unprecedented power of a "unitary executive." The focus on states rights was ostensibly intended to "return power to the people" by reining in the "morally zealous and apparently unconstitutional" actions of the Federal government (as Reagan Administration Assistant Attorney General William Bradford Reynolds put it in a 1987 New York Times OpEd).
In practice, however, states rights has meant the weakening of rights and protections of citizens in favour of religiously conservative social and economically corporate-dominated agendas. Ironically, back in the 1980s, when the great rightward shift in American politics was first solidified, it was the judiciary that was considered by Republicans the most overly zealous branch of government. Today, after nearly two dozen years of broad Republican control over the appointment of Federal and Supreme Court judges (through their broad control over the Congress), the Judicial Branch is no longer the main problem.
The theory of the unitary executive, pushed by Bush administration officials and their neoconservative allies in the midst of the War on Terror, argued that the President has authority not merely to execute laws passed by Congress, but also to interpret the law, particularly when it comes to actions taken by the Executive Branch. As far back as 1803, Supreme Court Chief Justice John Marshall argued that only the Judicial Branch has the authority to interpret and declare "what the law is."
Now that the Supreme Court is, on crucial issues, firmly in conservative hands, the Executive Branch is in the hands of a Democrat who on crucial issues related to the most fundamental power of government is following the path laid by his Republican predecessors, and the Republicans have a veto on all congressional legislation, the issues of the competition for power between the three branches of government and the need to weaken any one or two of them to restore "balance" is no longer so so important.
'Perfect storm of disempowerment'
Indeed, what exists now in the US is a perfect storm of disempowerment of Americans by all three branches of their government when it comes to the most basic rights citizens can possess. For three presidential terms the Executive Branch has been firmly the hands of presidents and officials who believe that the government can contravene the most basic rights of any person – citizen or foreigners – as long as they can justify such actions in the guise of "protecting the American people" and other raisons d'Etat.
Congress, in theory should have checked such untrammeled Executive Power, most recently revealed by Edward Snowden's leaking of NSA and other Executive Branch surveillance and spying policies. But what the Snowden affair reaffirms instead is the reality that Congress has little will to oppose such policies and indeed by and large supports the military-industrial-intelligence behemoth that so threatens the rights of all. Given the corporate control of the Congress and the political process more broadly, there is little incentive for legislators to draft and/or support any kind of legislation that would protect and enhance the rights of individual citizens at the expense of state power or its corporate sponsors.
And finally there is the Supreme Court. Here three cases in particular have enabled unprecedented constriction of the power of ordinary people vis-a-vis the political and economic elites who govern–better, rule–over them. The first is the Citizens United decision of 2010, which declared any restrictions on independent corporate campaign spending unconstitutional, thereby giving corporations equal rights and far more power than ordinary citizens. Next was the Clapper v. Amnesty decision this past February, in which the Court ruled in a case involving the surveillance programs revealed by Edward Snowden that human rights activists and journalists do not have the right to challenge secret FISA wiretaps that might collect their data, since they couldn't prove they were a target (an impossible standard since by definition the authorisations to collect data are secret). This ruling "jettisoned the bedrock requirement of the Fourth Amendment," in the words of Georgetown University Constitutional Law professor David Cole, by allowing the surveillance of individuals without any indication they were involved in wrongdoing. Finally, there is the effective overturning of the Voting Rights Act in Shelby v. Holder, decided last week, which will by most accounts ensure that Republican-controlled states pass legislation whose only result – whatever the putative intent – will be to make it much more difficult if not impossible for millions of citizens to carry out their most important democratic obligation. Some may argue that the Court's ruling that bans on same sex marriage are unconstitutional reveals a high degree of ambivalence in the Court's position on fundamental rights. But as important is the victory on marriage equality it is of a fundamentally different order than the stakes involved in the voting rights, which impacts a far broader spectrum of citizens and constitutional principles–namely the ability of government actively to subvert the enfranchisement of its poor and minority citizens. It is far more closely tied to the most basic historical structures of inequality in the United States than were the dynamics behind the uconstitutional prohibition against gay mariage.
The question remains as to what Americans will do in response to this tripartite aggression against them by their government. Almost 36 months ago the tactics and bravery of the early Arab uprisings helped inspire the Occupy movement globally, and particularly in the US. But however powerful the initial outburst, the movement has lost much if not most of its political and cultural momentum. Today protests sweeping across countries as diverse as Turkey and Brazil serve as another reminder of the power, and at times, obligation, of "the people" to take to the streets in order to force their governments take their core needs and concerns into consideration as part of the normal practice of governance.
With no where to turn politically, and an economic system that despite all the scandals and damage of the last half decade still remains firmly in the grips of the hyper-corporate forces that led the country into the "Great Recession," Americans have no one but themselves to rely on to reassert control over a political system that was designed precisely to ensure this kind of stacking of the deck against citizens by their government wouldn't happen. Occupying public or virtual spaces will not solve their problems unless it is done on a far greater scale and level of intensity and perseverance than were exhibited by the first incarnation of the Occupy movement. Even the civil rights revolution offers too narrow a model of protest and strategy for the present situation.
It's hard to know how Americans can actually "take back their government," as Republicans and Democrats routinely urge them without a hint of irony, utilising any of the political and cultural tools presently available to them. But at least with the events of the last few weeks they can no longer say they didn't understand the full spectrum of forces arrayed against them. If that doesn't generate enough urgency to produce the kind of conversations and grass roots practices that can lead to new political models emerging, then the death knell of democracy as most Americans have for generations understood it has most definitely sounded.
Mark LeVine is professor of Middle Eastern history at UC Irvine and distinguished visiting professor at the Centre for Middle Eastern Studies at Lund University in Sweden and the author of the forthcoming book about the revolutions in the Arab world, The Five Year Old Who Toppled a Pharaoh. His book, Heavy Metal Islam, which focused on 'rock and resistance and the struggle for soul' in the evolving music scene of the Middle East and North Africa, was published in 2008.