Philosophical Reflections for Election Day, 2018
The U.S. Constitutional Convention adjourned on September 17, 1787, which was the occasion for Benjamin Franklin to say that you, the people, now have “a Republic, if you can keep it.” Nine states had ratified the Constitution by June 21, 1788, allowing plans for the first Presidential election to proceed. The last of the thirteen ratifying states did so by May 29, 1790, when a dubious Rhode Island finally voted in favor of ratification.
Suffrage in the United States of America advanced in several steps towards the goal of universal political participation. Property requirements were attacked early on, even attracting Benjamin Franklin’s satirical denunciation. The Fifteenth Amendment (1870) to the U.S. Constitution prohibits denial of voting rights based on race. The Nineteenth Amendment (1920) prohibits denial of voting rights based on sex. The Voting Rights Act of 1965 enforces previous suffrage amendments.
A judge on the Fifth U.S. Circuit Court of Appeals has recently written that “popular sovereignty isn’t just a theory; it is a duty.” In other words, the Constitutional system presupposes an enlightened citizenry exercising its rights of suffrage. However, recent surveys show that 71% of Americans cannot identify the Constitution as the supreme law of the land, and that 10% of U.S. college graduates think that the television personality “Judge Judy” is on the Supreme Court.
Public ignorance of history and economics ensures that political debate degenerates into an uninhibited quest for unsustainable economic subsidies and social preferences. It is assumed that this ignorance cannot be remedied by civic-competency tests of any kind, because of past, unhappy experience. Other remedies for uninformed voting not springing readily to mind, a sudden, widespread outbreak of enlightened voting seems unlikely.
Voters in many states will soon be selecting Senators. Among other issues for voters’ consideration are, surprisingly, Senatorial candidates’ positions on the right of an accused person to a presumption of innocence absent any corroborating evidence. Some sitting Senators think that this right, seemingly implied by the due process provisions of the U.S. Constitution, ought to be suspended during confirmation hearings for appointments to the Supreme Court. Suppressing such a fundamental right would dramatically alter the long-standing legal landscape. In contrast, as the senior Senator from Maine said in a speech on the Senate floor on October 5, 2018, “certain fundamental legal principles about due process, the presumption of innocence and fairness do bear on my thinking, and I cannot abandon them. In evaluating any given claim of misconduct, we will be ill served in the long run if we abandon innocence and fairness, tempting though it may be. We must always remember that it is when passions are most inflamed that fairness is most in jeopardy.”
Among the philosophical questions raised by current attempts to eviscerate due process provisions of the U.S. Constitution are “Who could make such a change?” and, ultimately, “Who is sovereign?” According to its text, “we the People” ordained and established the U.S. Constitution and its method of amendment. But what happens if 10% of “us the People” place Judge Judy on the Supreme Court, while 71% of “us the People” cannot identify the Constitution as the nation’s highest law? Hypothetically speaking, if “we the People” become functionally illiterate or incapacitated, then what serves as the analog of the 25th Amendment (dealing with executive incapacities) for “us the People” as a whole? Does sovereignty reside in the faction that can most loudly declare an emergency in sovereignty? On the hypothesis of popular incapacity, it would appear that a Hobbesian state of nature must ensue, with a sovereign emerging from a primordial political soup.
Election day will soon be upon us. One can only vote in the hope that the results will once again stave off the advent of a political order in which life is ever more “solitary, poor, nasty, brutish, and short.”