Plucking Chickens: Democracy or Fascism?

As I think about recent decisions of the United States Supreme Court, and ponder the future, I must register alarm.  And when I think of a case to come before the Supreme Court next session, I must admit fear.  First, high ranking elected official such as the President, congressional leaders and senators question the authority of the scientific and medical communities impugning their veracity and then the free press is attacked for disseminating “fake news.”  Next the courts are flooded with like-minded sycophants whose loyalty is to the cause more than justice, and one by one, rights begin to fall.  Then, the authority of the EPA is gutted limiting their ability to regulate pollution.  All of this reminds me of of a story Madeleine Albright recounts in her book on fascism.  She draws our attention to Hitler’s Italian counterpart, Mussolini, and his account of how a demagogue comes to power.  It is, Mussolini muses, like plucking a chicken, one feather at a time so that the chicken’s squawks of protest are isolated and less alarming.  When one feather is plucked and the squawk is allowed to grow silent before another feather is plucked, no one seems to notice and while they may feel sorry for the chicken, dismiss the squawk as something unique and nothing to cause alarm.  As the picking steadily proceeds, and when people finally realize what is going on, it is too late.  The chicken has been plucked. 

Plucking the chicken of democracy, she worries, is exactly what has been taking place in the United States.  As Mussolini noted, fascism loves to hide in the trappings of free government, steadily planning and making moves that are akin to plucking a feather from the chicken.  No one gets too alarmed, and the process continues until one day, it is too late.  The fascists are in power.  Albright continues by noting that the chicken is very nearly plucked.  She writes:

“When we awaken each morning, we see around the globe what appear to be Fascism’s early stirrings: the discrediting of mainstream politicians, the emergence of leaders who seek to divide rather than to unite, the pursuit of political victory at all costs, and the invocation of national greatness by people who seem to possess only a warped concept of what greatness means. Most often, the signposts that should alert us are disguised: the altered constitution that passes for reform, the attacks on a free press justified by security, the dehumanization of others masked as a defense of virtue, or the hollowing out of a democratic system so that all is erased but the label” (Albright, Madeleine. Fascism: A Warning  p. 118).

Albright knows firsthand what she is talking about.  Her family fled Czechoslovakia when Hitler laid siege.  Her book is not about Hitler; however.  It is a response to Donald Trump’s fascist rule as President of the United States.  Now, Trump’s feather-plucking process has been stopped and Joe Biden is President, but the feathers Trump plucked have not grown back.  Instead, members of the Republican Party continue to pluck them by skewing the courts and especially the Supreme Court so that the checks and balances designed by the Framers of the Constitution (i.e., the separation of powers) grow flaccid and impotent.  Instead of a strong judiciary that can keep the legislative powers of government in check when they violate constitutional law, we now have sycophants dedicated to do the bidding of those who put them there.  Where’s the justice in that?

John Rawls, one of the more important political philosophers of the last century, argued persuasively that justice means fairness.  While this sounds rather straightforward, working it out in a complex and cosmopolitan social order is difficult and fraught with intense emotions.  Rawls defines basic liberties that are akin to those guaranteed to citizens by the United States Constitution.  All people are entitled to these rights without exception, he argues, and a just society is the one that tries to treat its citizens fairly though social structures and law.  So, if a court is to be fair, he believes, it will rule guided by the impartiality justice demands.  The Framers of our Constitution tried assuring this by making the office of a supreme court justice a lifetime appointed position rather than an elected one. Theoretically, in doing so, a justice would not be swayed by the political pressure, but would be able to rule fairly and impartially, ignoring unnecessary circumstance and focusing only on the evidence at hand, the precedence established by past rulings and, of course, the Constitution itself.  The guiding principle of this impartiality was to be a rational examination of law, not politics.

For years, I thought that the US Supreme Court did a pretty good job of at least striving to meet the standard of justice as fairness.  Sure, there were some rulings I did not like, but there were others I felt were ingenious.  Yes, there have been justices I I thought were bad justices, and there were justices I could fully support, but my opinion was that through the debate of the nine justices, justice was often served in the long run.  Gore v. Bush called my optimism into question, and now I am convinced of the Court’s partiality by rulings made following Trump’s appointment of Gorsuch, Kavanaugh and Barrett.  The feather of impartiality has been plucked.  Their rulings seem to put the power of government more squarely in the hands of the legislative branch while robbing the executive branch of equal power and shaping the judicial branch into one that does the bidding of one party while ensuring that party’s hold on power.  An issue on the docket for the Court’s next session may be a case in point.  

If it goes the way North Carolina hopes, the case to go before the Supreme Court in the next session may pluck the last feather that stands between democracy and fascism in the United States.  On my reading, this case addresses the way states gerrymander electoral maps and gives an almost absolute authority to state legislatures (The ‘Independent State Legislature Theory,’ Explained | Brennan Center for Justice).  This means that if a state gerrymanders an election map to favor one party in a federal election, the map may not be reviewed by state agencies including the state courts.  This is alarming.  As I stated above, the Constitution assures a tripartite form of government, each branch exercising independence from the others to assure a check and balance so that one branch cannot exercise unconstitutional power.  State governments follow this form.  If, however, “the independent state legislature theory”—as this point of view is called–holds and North Carolina prevails, the legislative branch is endowed with nearly dictatorial power that is unchecked by the other branches.  State agencies and the courts cannot review the maps except that such rulings are taken to a federal court but to what affect?  The highest court in the land has already sided with these legislative ploys.  The resulting cycle of power is dictatorial. 

If that were not bad enough, critics argue that the tenacles of such a ruling also extend to the privacy of citizens’ voting records.  How people voted and who they voted for can be given to state legislators and who knows what will be done with that information.  Most likely it will be used to further hone election maps to favor the party in power.  But the terror deepens.  Even if the voting maps are drawn by an independent commission, if state legislators don’t like it, they don’t have to accept it and can forward one of their own.  Who can stop them?  Not the state courts.  This threatens to rob state commissions and even duly elected Secretaries of State of oversight authority.  Calling this a “nightmare scenario,” the Brennan Center for Justice concludes:

“If] a legislature is] displeased with how an election official on the ground has interpreted her state’s election laws, it] would invoke the [independent state legislature] theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors. Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to former federal judge J. Michael Luttig—a distinguished conservative jurist— the theory is a part of the “Republican blue­print” to steal the 2024 election.”

If federal elections are allowed to be altered by state legislatures so that their supported candidates are placed in office, even if they lose, the last feather of the chicken has been plucked and we will no longer live in a democracy.  In this scenario, the voice of a few legislators will be able to erase legitimately cast votes and install whomever they want.  The voice of the people will have been silenced.

Let me close with the person I began this essay with: Madeline Albright.  Fascism, she holds, is a top-down form of government where dissent is not tolerated.  Conformity to the will of the government is demanded.  She writes:

“[Fascism] also turns the traditional social contract upside down. Instead of citizens giving power to the state in exchange for the protection of their rights, power begins with the leader, and the people have no rights. Under Fascism, the mission of citizens is to serve; the government’s job is to rule (p. 11).”

I think the Supreme Court is in the position to insist that the feathers remain on the chicken and guarantee democracy or pluck the last feathers from it and replace our democracy with a fascist regime.  If that happens, we will all be in a world of hurt, especially if we are the ones who dissent, a right that is guaranteed by the United States Constitution.  We’ll see.