COUP WATCH: "In Order To Preserve The Facade of Democracy, It Was Necessary To Destroy It" COUP WATCH: "In Order To Preserve The Facade of Democracy, It Was Necessary To Destroy It"

By Paul Rosenberg

America is not a democracy. That much was made "perfectly clear" by the Supreme Court when it first vacated the Florida Supreme Court's ruling that allowed hand recounts to go forward. There is no right to vote in the US Constitution, and the Supreme Court vacated the Florida decision on the grounds that it might depend on the right to vote in the Florida Constitution. Thus, the conservative Court majority officially ruled that democracy is unconstitutional.

The Supreme Court made a similar point in the Dred Scott decision, when it officially ruled that African-Americans were not citizens: there are no rights in America except those recognized by the Supreme Court. This is a nation of MEN, not laws. Forget high school civics, forget the Declaration of Independence, forget the Constitution, this is raw POWER we're talking about, and whatever five schoolyard bullies say, goes.

But of course, the American people won't stand for that. Jack Nicholson had it right: We can't stand the truth. We need our dictatorship cloaked in the cast of rags of democracy. We need a g-string at the very least. And that's precisely what Antonin Scalia offers us.

Usually, when activist conservative judges take a meat-cleaver to the law, they go no further than destroying the American Constitution, based on a mere few decades of settled law. In Employment Division vs. Smith, in 1990, for example, Scalia hacked away the Free Exercise clause of the First Amendment freedom of religion, overturning 47 years of rulings based on Board of Education v. Barnette (which recognized Jehovah's Witnesses's' right to not salute the flag). Scalia pegged his ruling to Minersville School District v. Gobitis, an earlier decision that denied that right, which Barnett overturned in horror once the Court saw the outpouring of religious violence against Jehovah's Witnesses that followed from it. In a forthcoming book on the case, To An Unknown God: Religious Freedom on Trial, Oregon law professor Garret Epps compares Scalia's use of Gobitis as precedent to basing a ruling on Dred Scott or Plessy v. Ferguson.

But that's nothing compared to what's just be done.

In this case, the black-robed schoolyard bullies of the Court have overturned so many centuries of Anglo-American common law and so many precedents it's impossible to keep track. The purpose of a judicial stay is to prevent irreparable harm. The classic example is a stay of execution in order to hear new evidence or arguments that may exonerate a prisoner condemned to death. The present case stands all those centuries of common law on their heads--it issues a stay in order to CAUSE irreparable harm.

Justice Stevens made precisely this point in his written dissent (joined by SOUTER, GINSBURG, and BREYER):

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