Tuesday, February 07, 2012

Power, legitimacy, and Orly Taitz

So Orly Taitz is throwing a conniption fit after the ruling against her. The problem is, there simply won't be a ruling in her favor, *ever*, because a judicial coup of that magnitude would utterly destroy the legitimacy of the court system in the eyes of the majority of Americans -- and that aura of legitimacy is the only thing that allows courts to have power, since they possess neither armies nor police forces, the only other possible source of power (i.e., *guns*). Without legitimacy, courts can issue rulings, but who will enforce their ruling? They would be in the position of Gorbachev after the coup against him, rattling around in their vacant halls issuing proclamations and orders to the waitstaff, proclamations and orders utterly ignored as the Soviet Union crumbled around him.

To understand what I am talking about, you must understand the fundamental nature of power. There are two sources of power: The will of the majority, or the will of a significant armed minority with guns. Laws -- whether we are talking about the Constitution or laws in general -- have power only because either the majority agree that they should have power, or because a minority with guns force the majority to accept them at gunpoint.

This reality has been responsible for a number of unpleasant incidents over the years where extremely popular actions that pretty much violated the Constitution were papered over by the courts because if they'd issued rulings, the rulings would have been ignored and thus destroyed the aura of invincibility that motivates many people to comply with laws that they don't agree with. Plessy V. Ferguson, the "Separate but Equal" ruling that justified Jim Crow, *had* to be ruled the way it was. The only other alternative would have been to force desegregation upon the majority of Americans at gunpoint, and courts don't have the guns to do so, the President does. And the President is going to deploy those guns only if the majority of voters support him doing so, because otherwise he's going to get impeached or at the very least not re-elected. The majority of Americans supported and demanded Jim Crow in 1896, and the President would never have deployed the Army to enforce the overturn of Jim Crow laws. So if the Supreme Court had ruled any other way in 1896, they would have destroyed their legitimacy. It was not until attitudes changed after WW2 and the majority of Americans realized that legally-mandated racial segregation was an atrocity that the courts could overturn that ruling.

And that is why, even if the election of President Obama did violate the Constitution as the birthers claim (BTW the birthers' claims are nonsense, but just pretend for a moment), there will be no judicial coup done by our courts. The majority of voters elected Obama. Attempting to overturn the election of a sitting President via judicial decree after it's already a done deal would result in a Constitutional crisis that likely would end the authority of any Supreme Court that tried to do so -- they would issue their order, but who would enforce it? The FBI under the command of the President? The Secret Service under the command of the President? The U.S. Army under the command of the President?

It's not happening. Period. Anybody who ever lived under a dictatorship, like Orly Taitz did, should understand that much about power -- a judicial coup without majority support and without guns is about as likely to happen as flying pigs. Well, other than flying pigs at a Pink Floyd concert. If Pink Floyd held concerts anymore, now that they're all 90 years old or something. So it goes.

-- Badtux the Power Penguin


  1. Interesting, considering the narrow ruling of the 9th Circuit Court of Appeals in the Prop 8 case.

  2. I generally agree with everything you say. I think it is possible for the courts to remove a sitting president though, however unlikely that would be. But you are correct that they couldn't do it unless a strong majority wanted them to do it and that would take something pretty major. Maybe a forged birth certificate combined with a provable intent to defraud?

    I am sure that the birthers are thinking along those lines here and they kind of go it right in the sense that if they actually had real evidence that Obama was not born in the USA *and* that he knew he wasn't, people might find that unforgivable. What they forget is that they not only have to convince the courts, they need evidence that is so strong that they can convince pretty much everyone and not just the stupid people who watch Fox News and think The Onion is real.

    That isn't going to happen obviously. They can't even get enough evidence to convince the lower courts. And frankly, this little "Obama and Malihi are corrupt and illegally in cahoots" tantrum really pisses me off. It does to people who are legitimately trying to deal with corrupt officials what false rape charges do to real rape victims. It makes it that much harder to get justice because fake accusations make people more likely to think real accusations are fake.

  3. Im a little disappointed that you would mention Orly Taitz and Pink Floyd in the same paragraph.

  4. Hey, I'm a music blogger as well as a political blogger, so when I said the words "flying pigs", of *course* the words "Pink Floyd" immediately came to mind. Doh!

    Lynne: Richard Nixon resigned because he'd lost so much support from the American people that even Republican Congressmen came to him and said they were going to vote to impeach him. So yes, there is a precedent for a sitting President leaving office early due to high crimes and misdemeanors. The process however starts in the House of Representatives, not in a state house in Atlanta, and is undertaken only if there is a huge majority that wants it, to the point where even sitting Congressmen and Senators are afraid of what will happen to them if they do not remove the President.

    In other words, Congress, not the courts, was granted the power to remove a sitting President, and Congress will do so only if they have the power of the majority of the American people behind them to enforce it. The courts are going to sit out any such thing that happens in the future, because they're well aware that attempting a judicial coup against a sitting President is not only unconstitutional, but it's just plain institutional suicide.


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