Written by: Terry Link
Primary Source : Possibilitator, November 11, 2018
I still have two chapters to go before I finish Philippe Sands penetrating 2005 book, Lawless World: America and the Making and Breaking of Global Rules, so what follows might have been improved if I had finished before sharing these thoughts. I can’t be sure if what follows is inspired by that engaging book, or the recent storm over the Supreme Court, or recent decisions by the current administration to withdraw from and ignore legal agreements, or the fight to end gerrymandering or the corruption of democracy generally. Probably all of the above and more are responsible.
What all of these things point me towards is the use of power. The old saying that “power corrupts and absolute power corrupts absolutely” seems truer with each passing day. The framers of our constitution were certainly concerned with the abuse of power and shaped that constitution with some purpose to create a “balance of powers”. But even that was contextualized in the moment. Women and blacks and indigenous people were not presumed to have any power, and the constitution certainly isolated them from it. The supposedly strict constitutionalists amongst us who try and interpret everything in the constitution literally, fail to appreciate how flawed the Constitution was from the start. That’s why it has been continually amended.
No one seeks to be on the bottom of the power ladder. Neither is this is a partisan issue. Neither major party prefers to be in the minority. When it finds itself in that position the minority party hopes that there are rules that prevent the majority party from annihilating the minority. If we believe in equity, we must have protections for all from the concentration and the abuse of power by some. Constraining the accumulation of dominant power and moving towards governance that is designed to share power is precisely what our founders sought with the original constitution, despite its shortcomings more obvious to us since. It is also what Franklin Roosevelt and Winston Churchill were hoping to establish globally with the drafting of the Atlantic Charter and later the creation of the United Nations.
The Universal Declaration of Human Rights is a fundamental statement of individual freedom from the abuse of power. UDHR passed overwhelmingly 70 years ago and remains the bedrock of individual rights, which have been expanded with subsequent conventions like the International Covenant on Civil and Political Rights (1977) and the International Covenant on Economic, Social, and Cultural Rights (1977).
Let me try and put some flesh on the bones of these thoughts using the examples from which I opened this blog.
Philippe Sands is a noted British legal scholar, teacher and practicing attorney who has specialized in international law and been involved in numerous important cases of international legal arenas. InLawless World, published in 2005, Sands walks us through a number of cases that demonstrate how the U.S. (and sometimes with British support) has frequently confounded other nations by undercutting global agreements in their development stage, refusing to support many, and ignoring when it’s inconvenient, its own international agreements since WWII. In great detail and with clear prose and argument he addresses many moments in recent history including the Nuclear NonProliferation Treaty, Geneva Conventions, UN Charter, International Court of Justice and more. Of course there is voluminous amount of material since the Bush Administration came to office, although the book ends as Bush is starting his second term.
The U.S. of course wants to promote an image as the true democracy and law abiding nation, but Sands demolishes that image with a plethora of cases. He looks carefully at the legal gymnastics used to try and justify the U.S. illegal invasion of Iraq, the illegal detention of non-combatants, the prisoner abuse at Abu Ghraib and other detention centers, the undermining of the Kyoto Protocol and on and on.
Sands makes the plea for establishing rules that we can agree to and then following them, even if we don’t like them. Can you imagine a baseball game where one team decided you needed four strikes for a strikeout to give their hitters a better chance? The recent decisions to withdraw from the Paris Climate Agreement and the Nuclear agreement with Iran and other nations are just more of the same. It is interesting to note that even fifteen years ago Sands identified John Bolton, current National Security Advisor, as a detestor of international agreements. No surprise that he has helped engineer the recent U.S. abandonment of global agreements.
Prof. Michael Schwalbe wrote an unfortunately under-read book, Rigging the Game: How Inequality is Reproduced in Everyday Life, that depicts with crystal clarity how the rules are rigged against the poor. It is a clear example of the abuse of power. An abusive power I might add that has been consolidated with recent additional tax cuts for the wealthiest amongst us.
But the inequality we face is not simply an economic one. As noted political scientists Kay Schlozman,Sydney Verba, and Henry Brady have documented in several recent books, paralleling income inequality is political inequality. Unheavenly Chorus: Unequal Political Voice and the Failed Promise of Demoracy(2012) offers 693 pages of evidence In this hefty, multiple award winning tome, Schlozman and colleagues review a huge number of studies and discern, what a reasonable person might easily infer, that the growing economic inequality parallels a growing political inequality.
They followed that up this year with Unequal and Unrepresented: Political Inequality and the People’s Voice in the New Gilded Age (2018).Their evidence is compelling, but If that wouldn’t provide sufficient research evidence try this.
“According to a new study from Princeton University, American democracy no longer exists. Using data from over 1,800 policy initiatives from 1981 to 2002, researchers Martin Gilens and Benjamin Page concluded that rich, well-connected individuals on the political scene now steer the direction of the country, regardless of – or even against – the will of the majority of voters. America’s political system has transformed from a democracy into an oligarchy, where power is wielded by wealthy elites.” So reports Ellen Brown, founder of the Public Banking Institute in “How America Became an Oligarchy”
See also Senator Sheldon Whitehouse’s Captured: The Corporate Capture of AmericanDemocracy to see how the abuse of power often tied to wealth and privilege has infiltrated and ‘captured’ the executive agencies and the courts. It’s the reason that so many books are coming out that focus on the death or dying of democracy.
The recent Supreme Court brou-ha-ha is a clear example of using power to squash the minority. It started when the Senate majority refused to hold a hearing and vote on President Obama’s nomination of Merick Garland in 2016. The abuse of power has grown with the Republican erasure of the filibuster rule and then consummated in the rush job to get Mr. Kavanagh on the bench without the full review of documents of his past record, or a thorough investigation of allegations regarding sexual assault and drinking.
Moving to a world where we look at power as not one of “power over” but rather as “power with” is a major step. Perhaps nowhere is this most visible than with the global concerns over climate change. Just last month we saw the release of the International Panel on Climate Change’s recent report that sees catastrophe less than a generation away if we don’t dramatically reverse direction in our consumption and release of carbon. This is not something one community or one nation can adequately confront. It should unite us as one human family on a single planet with a shared future. Does one nation believe it can or should try to survive the potential catastrophe alone? Especially if that nation is more responsible per capita than any other nation for the coming catastrophe?
Economist Jared Bernstein made an interesting point years ago describing basic worldviews distinctions between YOYO’s and WITT’s. YOYO’s Bernstein says, are those that believe that You’re On Your Own, the pull-yourself-up-by-the- bootstraps approach and that hard work is all that is necessary for success. WITT’s, Bernstein argues, believe that We’re In This Together and believe more in fundamental democracy and giving a hand-up as captured in the New Deal.
Roosevelt expanded that idea from application within the U.S. to consideration for a global family. While the US was a main driver of this post-WWII effort, we reserved for ourselves and the other four permanent members of the UN Security Council, a power-over veto that has hampered the possibility of reaching the promise from which the UN was born. This perhaps was cornerstone of what has been the US belief in its own exceptionalism. Unfortunately it is an anathema of a truly global democracy that Roosevelt hope to evolve. In recent years as Philippe Sands so clearly depicts as does Professor Stephen Walt of Harvard in his new tome, The Hell of Good Intentions: America’s Foreign Policy Elite and the Decline of U.S. Primacy (2018), America has defied international agreements whenever they are inconvenient. It’s an abuse of power and the rest of the world recognizes the hypocrisy, even if we citizens are in denial.