Transitions in the Public Will

By SAM URETSKY

For a day there was reason for hope. On the morning before his inauguration, President Biden went to the Cathedral of St. Matthew the Apostle in Washington, D.C., along with the congressional leaders of both parties, although most of the attention was drawn to Senator Mitch McConnell, the Republican leader in the Senate. These were two men, who had grown old together, worked together as opponents, and were nearing, or perhaps at the end of their careers. The nation was faced with perilous times – global warming was threatening the planet and a viral pandemic threatened the human population. The country, once e pluribus unum, was bitterly divided politically. Perhaps these two old men could, in their last days of power, work together to salve the injuries that their enmity of decades had inflicted on us.

President Biden’s campaign had been based in large part on the claim that he could work with a divided Congress, that his many years in the Senate had enabled him to work with the opposition as well as his own party. It did, ultimately, lead to passage of the much needed infrastructure bill, but pretty much stopped there. On May 10, the Washington Post published an opinion piece by James Hohmann, headed, “Why one race in West Virginia proves Biden’s theory of the case has failed.” It began “Rep. David B. McKinley (R-W.Va.) lost his bid for a seventh term on Tuesday because he voted for the bipartisan infrastructure bill. His double-digit defeat in West Virginia’s GOP primary, which largely turned on infrastructure spending, best illustrates why President Biden’s governing theory has failed.”

West Virginia did well in the infrastructure bill: $6 billion for roads and bridges, $5 billion to upgrade the electric grid, $900 million to reclaim abandoned mines and plug abandoned wells, plus funds to repair water pipes and sewers.

Bringing money to the home state used to be key to re-election, but Rep. McKinley failed to understand modern partisan party politics. It’s no shame. Alexander Hamilton got it wrong, too. In Federalist #78 he wrote “ The judiciary ..., has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

He was wrong. Sen. McConnell stumbled on a truth that had previously been revealed only to Sir William S. Gilbert who explained it in “Iolanthe”:

The Law is the true embodiment
Of everything that’s excellent
It has no kind of fault or flaw
And I, my Lords, embody the Law

The 9th Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” which McConnell interpreted to mean “the law is whatever we say it is – whenever we say it is.”

Also, Hamilton wrote “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to to faithful performance of so arduous a duty.” By this he meant that if a judge isn’t worried about being re-elected, it will keep them honest, while politicians will succumb to current fashions. It sort of puts the lie to some of Hamilton’s writing about the will of the people being the bedrock of democracy, and completely leaves out the fact that to get a job as a judge, you had to please a bunch of politicians.

In 2018, Sen. McConnell said to the Federalist Society that his party’s goal is “to do everything we can, for as long as we can, to transform the federal judiciary, because everything else we do is transitory.” How well he understood.

Sam Uretsky is a writer and pharmacist living in Louisville, Ky. Email sdu01@outlook.com.

From The Progressive Populist, June 15, 2022

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