The verdict concerning Egyptian President Mohammed Morsi's government is almost unanimous. The pundits, talking heads and the political class, by and large, agree that Morsi's administration, because it failed to be inclusive, and increasingly pandered to the Islamist agenda of the Muslim Brotherhood, had lost its legitimacy.
The conventional wisdom, exemplified by David Brooks of The New York Times in his July 5th column, argues the coup d'etat was necessary because the trappings of a democratic government - the process by which Morsi was elected - should not be confused with the substance of a democracy. As Youssef Fahr put it in a letter to The Times on July 6th, "Egyptians do not accept that the outer trappings of democracy (the vote count) are a substitute for the essence of democracy: consensus, inclusion, compromise and respect."
Although the chattering class may now insist that President
Morsi's administration lacked the substance of democracy, few can deny
that he was legitimately elected by a majority of the Egyptians who
voted. The Egyptian election commission reportedthat Morsi won the
run-off election in June of 2012 with 51.7 percent of the vote versus
48.3 for Shafiq with a voting turnout of 51 percent. Foreign observers
described the election process for fair and open and saw no evidence of
widespread voter intimidation or suppression.
Compare that result with the current voting system of the United States. In the recent Supreme Court decision, Shelby County v. Holder,
570 U.S. ___ (2013), Chief Justice Roberts, writing on behalf of his
one vote majority, struck down § 5 of the Voting Rights Act that the
Congress of the United States had repeatedly re-authorized since 1965,
most recently in 2006 by an overwhelming majority of elected
representatives and senators. To do so, he conjured up a heretofore
undiscovered and non-existent legal fiction that he called "equal
sovereignty."
The effect of that remarkable fiction is to
deny that voting is a fundamental right and that the substantive
provisions of Article VI of the Constitution (the Supremacy Clause), the
unenumerated rights provision of the Ninth Amendment, the due process
and equal protection provisions of Fourteenth Amendment, and the
guarantees contained in the Fifteenth Amendment against voting
abridgement because of race do not preempt the rights of the individual
states to regulate the machinery of election and to determine the
qualifications of voters.
As Robert's solemnly intoned, without a shred of supporting historic evidence, "the Framers of the Constitutions intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections," quoting Gregory v. Ashcroft, 501 U.S. 452, 461-462 (1991) and Sugarman v. Dougall, 413 U.S. 634, 647 (1974). Since none of this jurisprudence predates the Berger Court and the Nixon administration, one must assume that Roberts and his four colleagues decided to abandon the doctrine of "original intent" in order to reach their pre-determined conclusion.
Roberts' assault upon "the trappings of democracy" must be viewed in the context of Bush v. Gore,
531 U.S. 98 (2000). In that infamous case,Justices Kennedy, Scalia,
O'Connor, Thomas and Rehnquist, in a per curiam decision, voted to steal
the 2000 presidential election and award it to George Bush. At the same
time, the five justices denied equal protection of the laws to the
citizens of the state of Florida and trammeled upon their rights to have
every vote counted and to count.
In North Carolina, the lead sponsor of a proposed voter ID law in North Carolina said he would move ahead with the measure as a result of the ruling. At the same time, State Senator Tom Apodaca said he would move quickly to pass a voter ID law that he argued would bolster the integrity of the balloting process. Other state legislators in North Carolina also began talking about legislation to end to the state's early voting, Sunday voting, and same-day registration provisions.
Nate Reeves, the Lieutenant Governor of Mississippi, claimed that
pre-clearance requirements of § 5 of the Voting Rights Act "unfairly
applied to certain states and should be eliminated in recognition of the
progress Mississippi has made over the past 48 years" while Secretary
of State Delbert Hosemann said he is moving forward immediately to
implement Mississippi's voter ID law for primaries in June 2014.
Before the substance of a democracy can realized, the rights of all
citizens to express their will through the ballot box, free from
coercion and intimidation, the ability to determine the will of the
voters, and obligation of the elected government to be responsive to the
wishes of its citizens as expressed through the ballot box are
essential prerequisites. But unless open and fair elections are the
norm, in which all citizens are encouraged to vote and the right of
every citizen to vote is ensured - unless the "trappings of democracy"
exist in which voting is viewed as a fundamental right - these three
essential prerequisites can never be satisfied.
The
existing evidence suggests that the democratic process - "the trappings
of democracy" - do not exist in the United States because the
prerequisites have yet to be satisfied. But what about the "substance of
democracy?" To rephrase Youssef Fahr's statement as a question, "If
Americans show little concern about 'the trappings of democracy,' do
they not still insist upon the essence of democracy: consensus,
inclusion, compromise and respect?" The answer to that question also
appears to be an emphatic "No," or at very least, an indifferent yawn.
In the United States, a constitutional system of checks and balances, divided government, a gerrymandered House of Representatives, a profoundly dysfunctional, mal-apportioned and unrepresentative Senate, the presence of 14,826 registered lobbyists as of 2007, and the dispersal of political power among more than 87,525 units of local government across the United States guarantee unresponsive, unaccountable and opaque government.
The existence of so many competing and overlapping spheres of political power creates a kind of modern-day feudalism which ensures that the influence of a few powerful and connected interests, usually monied, will be carefully considered and acknowledged while the ability of ordinary citizens to influence those political entities is negligible.
The diffusion and distribution of power within the political system of the United States - which reflected the fears that the Founders shared with the English philosopher, John Locke, about the dangers of concentrated power - has today resulted in something profoundly different than what they anticipated.
Historically, the liberal consensus emerged in England as a democratic force to challenge feudal privilege and the tyranny of kings. But in the United States, where all who have been born are held to be equal before the law and where the Constitution expressly prohibits the granting of any titles of nobility, our politics has created its own antithesis: rule by oligarchs and corporate plutocrats in which the rights of the some individuals are accorded greater protection than the rights of others.
If Mohammed Morsi's government was illegitimate because it did not commit itself to the substance of democracy, how much the worse are we with a system of government that denies to its citizens both the process of democracy - the trappings - as well as the substance?
