Repairing the Faults in this Nation’s Foundation

In observance of the Fourth of July holiday, I’ve written a handful of essays for this site over the past five years. One year I wrote two posts, on and before the holiday.

2022: A Republic, If You Can Keep It

2020: Still Dreaming of the American Dream

2020: The Fourth Ahead and the Forgotten

2019: In Order to Form a More Perfect Union

2018: Happy Fourth of July: Remembering the Why

Looking back I realize now writing about the Fourth became imperative because of anti-democratic efforts by Trump and the GOP who enabled his autocratic behaviors.

By exercising our democracy, Trump was removed from office. This is what the nation’s founders envisioned, a leader who could be removed either by election or by impeachment and conviction, when voters revoked and bestowed consent to be governed.

Last year and this year, however, critical faults in the founders’ efforts to create a more perfect union have been revealed, and in a particularly ugly way.

With the Dobbs v. Jackson Women’s Health Organization decision in June 2022, a majority of Supreme Court jurists told more than half the nation they did not have bodily autonomy depending on the state they lived in. Equal protection for their fundamental human rights was voided.

This year with the 303 Creative LLC v. Elenis decision, a majority of the Supreme Court felt empowered to use a hypothetical case – not an actual case in which any citizens’ rights were violated, and a case which may have relied upon false statements – to sharply turn back the clock on civil rights and weaponize the First Amendment to allow open discrimination.

These unelected arbiters chose to ignore stare decisis, making lies of their sworn statements during nomination hearings before the Senate Judiciary Committee.

GOP-appointed Supreme Court jurists have abrogated their role defined in the Constitution, and have now set about making law in a star chamber created by partisan appointments, in turn enabled by bad faith through gerrymandering, voter suppression, and an Electoral College created to protect a white land-owning minority class in order to assure their white patriarchal power continues.

The only good thing any one of these revanchists has done in the course of seizing Americans’ rights is a warning — surprisingly, by the most corrupt of the lot, Clarence Thomas:

Thomas warned us in Dobbs the extremist revanchist faction of SCOTUS was coming for our right to privacy on which the people of this country have relied to make personal, intimate decisions about their loves and their bodily autonomy.

And lo — this June the revanchists came for LGBTQ+ rights, though not in the way we might have expected. They took a made-up threat to establish a right to exercise in commerce a way to deny LGBTQ+ persons the same access to goods and services. They did so in a way which may allow this country to return to Jim Crow — this time not only seating Blacks at the back of the corporate-owned bus but denying any protected class the equal rights they should have as human beings.

Again, equal protection under the law has been discarded by unelected federal employees with lifetime appointments.

This cannot stand; the problem is bigger than Thomas’s targets, Griswold, Lawrence, and Obergefell.

They are going after our unenumerated rights, using enumerated rights to do so.

~ ~ ~

Political historian Eli Merritt has an op-ed in today’s Los Angeles Times: The Fourth of July is all about America’s first principle — the right of revolution.

After the seditious conspiracy and insurrection of January 6, 2021, one might reasonably be put off by the title of this essay. It’s this premise Trump’s seditionists relied upon when they stormed the U.S. Capitol in order to obstruct the certification of the 2020 election, summoning the spirit of 1776 as they did so.

We can’t argue that this country wasn’t born of revolution — it’s fact.

But we can remember as Merritt points out that revolution wasn’t necessarily intended to be violent:

For the founders, the right of revolution did not imply violent overthrow of government. Rather, it was an idea that encompassed the right to resist unconstitutional acts through nonviolent civil disobedience — and, only when this failed after long sufferance, by formal withdrawal from unjust government in the defense of freedom, equality and the right of the people to govern themselves.

The revolution which created this country wasn’t the work of armed rebellion alone beginning 1765 and ending in 1783 with the Treaty of Paris. Our fellow contributor Ed Walker has been examining the second founding, which continued the revolution and evolution of this country from a colonial outpost of monarchical empire to an independent, sovereign democratic republic in which equality for all might be realized through amendments to the Constitution.

We’re now confronted with unconstitutional acts by constitutional officers attempting to undo the second founding — specifically, the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The right to control our bodies belongs to no state, no nation. No judicial decision should encroach upon that fundamental right.

And yet the Roberts’ SCOTUS conservatives found otherwise with its Dobbs decision, in spite of precedent acknowledging the right to privacy about our bodily autonomy.

The same court puts itself at odds with the Constitution regarding regulating commerce in Creative 303 — if a theoretical business relies on religion to limit its client base, is it really a business or is it a church?

(It’s a wholly dishonest exercise when the business doesn’t even exist; the same Christianist business would be unlikely in reality to win LGBTQ+ business because in reality, clients don’t want hire service providers for work which undermines their lives.)

We are further insulted not only by unconstitutional decisions but by the corruption which shaped them. These are not just works, they are not legitimate; they were generated for corrupt purposes and thwart the evolution toward a more perfect union.

How now are we to respond?

~ ~ ~

We must remember once again this Fourth of July that this country has not always ensured all of its people have equality, in spite of its founding manifesto:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The work of the first and second founding are not yet done; we are still and always becoming what we set out to be. Frederick Douglass saw an arc to the path ahead:

…my spirit is also cheered by the obvious tendencies of the age. Nations do not now stand in the same relation to each other that they did ages ago. No nation can now shut itself up from the surrounding world and trot round in the same old path of its fathers without interference. …

We reject that same old path to which the extremist revanchists wish us to return.

We reject their divisive, exclusionary ideology which will not yield a more perfect union.

We may engage in nonviolent civil disobedience to this end; Martin Luther King, Jr. held our feet to the fire in his 1963 Letter from a Birmingham Jail:

YOU express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”

MLK told us we have “a moral responsibility to disobey unjust laws.”

But we should — we must — take every available measure in our democratic framework to revoke our consent and remedy the unconstitutional faults before they fester into worse. This means active engagement in all levels of the democratic political process, from our local school boards to the White House. We can’t take any political office for granted; they are held only with our consent, and our consent is assumed when we are not engaged.

Help new voters obtain ID and register to vote. Ensure they can get to the polls in spite of voter suppression. Educate yourself about the candidates; make sure no seat goes uncontested where a revanchist GOP holds office or runs without opposition. Vote in the primary. Vote up and down the entire ticket — in doing so, you express your consent to be governed.

Do not let them assume you have given consent to an imperfect union, that you consent to their corruption as they take our innate human rights.

I ask once more this holiday as I have before:

wrote four years ago during the Trump administration, after posting a copy of the Declaration of Independence:

The signatories to this document knew they also signed their death warrant. They debated this document thoroughly, understanding their lives, fortunes, and possibly the same of friends and family were staked on the success of the undertaking launched by this declaration (“corruption of blood” in family’s case, which so concerned the founders it was cited later in the Constitution’s Article III).

They staked blood and treasure for their thoughts and beliefs that the colonies must be free. The least we can do is remember this bravery and consider our own willingness to fight for this American democracy.

When asked in 1787 at the end of the Constitution Convention what form of government had been created, Ben Franklin answered, “A Republic, if you can keep it.”

What will we do to keep it?

What will we do to keep this democratic republic’s foundation from faulting even further?

62 replies
  1. EricMariposa says:

    The revolution must include repudiation of the disastrous practice of bipartisan in which Democrat leaders behave as those the current Republican leadership negotiates in good faith. Biden’s latest example of the foolish and dangerous worship of centrism has Biden nominating the convicted war criminal Elliot Abrams to a commission on diplomacy.

    “President Joe Biden on Monday quietly nominated Elliott Abrams to serve on a bipartisan diplomacy commission, a move that human rights advocates condemned as outrageous given the longtime Republican official’s past as a defender of Latin American death squads and cheerleader for murderous U.S. foreign policy interventions.”

    [Moderator’s note: You’ve changed your name a while back — sockpuppeting — after your comments left as “Eric” and “EricofBosch.” Then you tried “EricofMariposa.” We have the cut of your jib, dude. You’re on notice — you’ve been on notice. /~Rayne]

    • Rayne says:

      What are you going to do about it? You, personally? How are you going to respond to this specific problem?

      You’re already suspect because of your use of the term “Democrat leaders.” Members of the Democratic Party know what I mean. Gunning for “Democrat leaders” in the first comment of this post in which I specifically exhort citizens to take personal action is pure bullshit.

      I’ll ask again: what are YOU going to do?

    • RipNoLonger says:

      This sounds a bit stilted and contrived. Are you using the latest version of ChatGPT? Or does your model need some tweaking?

      • Rayne says:

        This is his last warning, whether some AI or LLM-based tool is used or not. He’s already sockpuppeted which is enough reason to boot him, let alone his bullshit propaganda back in January.

  2. Rayne says:

    I was gritting my teeth as I wrote this. I am so goddamned annoyed at the January 6 perps who stormed the Capitol. I will lay good money down that 95% or more of them did not engage in the political process to help Trump win the election. Insurrection was their immediate response to not getting their way in spite of the fact the system was built for them, a system which they failed to use to its fullest.

    If they had taken a fraction of their resources and energy expended after the 2020 election and worked toward Trump’s campaign, he would have had a much stronger chance of winning. But nope.

    • RipNoLonger says:

      I’m exceeding my limit on commenting, but I just wanted to say that I think many of the participants of the J6 insurrection/riot were there just to have a good brawl – a spectacle. I don’t know anything about the martial “arts” but it seems that a lot of people are into physical violence just because. Ideology is secondary/tertiary.

      • Rayne says:

        Could be. It’s also part of their group psychopathy not only to relish the promise of violence but to belong with others in an authoritarian structure. Their enjoyment of cruelty and violence was blessed by their recognized authority figure when they were encouraged to march on to the Capitol.

      • Kenster42 says:

        I think this is true also, and I also think it’s what Trump supporters use to bury the lede, which is that Trump was trying in 5 other significant ways to overturn the election.

  3. Ed Walker says:

    Elena Kagan calls out the abuse of power characteristic of the illegitimate Roberts majority in Biden v. Nebraska, the student loan forgiveness case. (Quotes are from Dissent at 1 and 28-9.)

    From the first page to the last, today’s opinion departsfrom the demands of judicial restraint. At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent…

    The majority’s opinion begins by distorting standing doctrine to create a case fit for judicial resolution. But there is no such case here, by any ordinary measure. The Secretary’s plan has not injured the plaintiff-States, however much they oppose it. And in that respect, Missouri is no different from any of the others. Missouri does not suffer any harm from a revenue loss to MOHELA, because the twoentities are legally and financially independent. And MOHELA has chosen not to sue—which of course it could have. So no proper party is before the Court. A court actinglike a court would have said as much and stopped. The opinion ends by applying the Court’s made-up major questions doctrine to jettison the Secretary’s loan forgiveness plan. Small wonder the majority invokes the doctrine. The majority’s “normal” statutory interpretation cannot sustain its decision.

    To make sure no one misses the point, she twice refers to her first sentence:

    In every respect, the Court today exceeds its proper, limited role in our Nation’s governance.

    Kagan says, and Sotomayor and Jackson agree: this is an unconstitutional decision.

    • Rayne says:

      A-yup. How are we to respond to such unconstitutional decisions?

      The longer response is engagement in the civic process.

      The shorter one is through the White House. I’ve wondered if POTUS can establish a targeted economic stimulus — call it inflationary relief aimed at those who have student loans — offering a tax credit or some offset. Funding has already been appropriated to universities through the federal budget; what can Treasury do to create such a stimulus which doesnt’ affect the existing federal budget?

      • paulka123 says:

        Well, since the Republican’s apparent response to the Biden v Nebraska decision is to, ummm, send more notices to borrowers that they have to repay their loans, I would not expect much assistance in this regard from the House.

      • NkcEd says:

        Does the moral obligation to not comply with an unjust law extend to a state? The unelected officials of the Leo court cannot be held accountable. It is time for the 50 states to act in according with the majority of their residents.

        [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

        • Rayne says:

          Arizona’s attorney general Kris Mayes has already said the state will continue to enforce its public accommodation law because SCOTUS’ decision on 303 Creative was “misguided.”

          If SCOTUS is going to argue for states’ rights when it comes to abortion, why not states’ rights when it comes to privacy about personal life decisions and about protecting minority groups’ human rights. If SCOTUS will ignore the 14th Amendment’s equal protection clause and Congress’s constitutional right to regulate commerce, then the states should exercise all rights the feds forfeit through SCOTUS’s unjust lawmaking from the bench, at least as long as it takes to remedy SCOTUS’s failure to see all persons within the US as possessing the same rights.

        • Nkc2023 says:

          I was able to keep up with you up until “feds forefeit”. Are you meaning to highlight DoJ complying with unjust laws and therefore in turn becoming unjust and immoral as well?

        • Rayne says:

          By feds I meant the federal government since SCOTUS has decided it is the ultimate arbiter of what federal government is and what it does.

  4. Attygmgm says:

    In contrast to the 1776 “protest” element that J6ers claim motivated them to violence, note that those who crafted the Declaration plainly signed their names. To a document stating their claim. No hoods, masks, camo gear, riot helmets, baseball bats, flag poles as clubs, or bear spray needed. The country’s “revolution” began with paper, pen and ink, with “revolutionaries” plainly identifying themselves.

    • Rayne says:

      Yup. And before the Declaration, the 1770 protest in Boston resulted in five dead and six injured colonists, all because of snowballs. The original 1773 Boston Tea Party participants were fairly unprotected, less prepared than children in a contemporary classroom save for the hatchets they carried to break open crates of tea before dumping them in the harbor.

      • Molly Pitcher says:

        You might be interested to know that five signers of the Declaration of Independence were captured by the British as traitors, and tortured before they died. Twelve had their homes ransacked and burned. Two lost their sons in the revolutionary army, another had two sons captured. Nine of the 56 fought and died from wounds or hardships of the revolutionary war.

        Also, many of the founding fathers—Washington, Jefferson, Franklin, Madison and Monroe—practiced a faith called Deism; a philosophical belief in human reason as a reliable means of solving social and political problems.

        Deists believe in a supreme being who created the universe to operate solely by natural laws—and after creation, is absent from the world. This belief in reason over dogma helped guide the founders toward a system of government that respected faiths like Christianity, while purposely isolating both from encroaching on one another so as not to dilute the overall purpose and objectives of either.

        If the founders were dogmatic about anything, it was the belief that a person’s faith should not be intruded upon by government and that religious doctrine should not be written into governance.

        • DoctorDoom says:

          Excellent points! Furthermore, in addition to belief in democracy, our founding documents celebrate pluralism. This is most explicit in the 9th amendment, but also apparent in the Federalist Papers and other writings. Respect for alternative choices is in short supply these days. Intolerance and anti-democracy both contribute to the present sour mood.

  5. vigetnovus says:

    Beautiful essay, Rayne. I really appreciate your writing. Thank you for reminding us today about what is worth fighting for.

    • Rayne says:

      Shared without comment:

      Hall Monitor @[email protected]

      In Hawaii, July 4 is not a joyous occasion for some residents. This is because July 4 is also the day a group of businessmen self-declared the Islands to be the Republic of Hawaii in 1894, before imprisoning Queen Liliuokalani. Later, July 4, 1960, was chosen as the day the 50th star was added to the U.S. flag.

      “July 4th is a painful reminder of the aloha aina warriors who are no longer with us”

      While US celebrates independence, Hawaiians still wait for theirs

      Jul 04, 2023, 18:41

        • earlofhuntingdon says:

          You could Spreckels a little sugar on that thought. As you know, Claus Spreckels manipulated Hawaiian politics and American trade laws, to favor his Hawaiian-produced sugar, which had a part in moving production from PR to Hawaii.

          A contemporary of California’s Big Four railroad barons, Claus was as Robber Barony as they come. But he’s not discussed as much as his East Coast contemporaries, just as California oil baron Ed Doheny isn’t discussed as much as John D. Rockefeller.

          Spreckels and his family dominated Hawaiian sugar production the way Dole dominated pineapple. He made a vast fortune for his San Francisco-based sugar empire from his punitive management of his Hawaii and California-based employees.

  6. Attygmgm says:

    Lately I have been wondering how many, if any, of those who signed the Declaration, and of those who created the Constitution, realized the theoretical long-term implications of their aspirational language for upsetting the Truths of their day? As Frederick Douglass put it in his July 5, 1852 speech about what the Fourth means to a slave, “Oppression makes a wise man mad.“ As he might have put it, “Oppression makes a wise person mad.” By 1852, even Douglass could see only partway down the road towards what is still not Equal Protection. Not a criticism of Douglass. We deal with the problems we can see and persuade others to see.

    To actually get to Equal Protection, elections must produce a few consecutive cycles of lopsided political slaughter for the party opposed to the concept, and opposed to Democracy itself. The durability and tenacity of White (male) Supremacy is stunning.

    • Rayne says:

      Seeing indigenous people as equals under the law as well as women certainly was a stretch from the 17th through the 20th centuries.

      And now, into the 21st, Dobbs and Oklahoma v. Castro-Huerta tell us that women and indigenous persons are still not equals under the law.

  7. drhester says:

    Thank you for this beautiful and timely essay.

    Ianal. I wonder how / why scotus even took the 303 Creative LLC v. Elenis case. No one was harmed. The website didn’t exist. I suppose they took it b/c they could.

    • Rayne says:

      I would love to know the backstory behind this case because you just know there was a conspiracy to ensure this would come before this iteration of the court now rather than wait for an actual case and damages to happen first.

      • paulka123 says:

        Just a reminder that Justice Gorsuch out and out lied in his Kennedy v Bremerton School District last year. All of these little things will act as precedents in the future. 3 of the Republican appointed justices are in their 50’s, Thomas and Alito probably around 10 more years on the bench so we can look to 10-30 years of legislating from the bench.

    • LaMissy! says:

      I’m certain it’s just coincidental that it was Josh Hawley’s wife, Erin Hawley, who litigated this fabricated case before SCOTUS. Her husband certainly has no reverence for facts; perhaps it’s a trait they share, along with Neil Gorsuch.

      Erin Hawley heads up ADF, Alliance Defending Freedom, and in that capacity she testified before Congress that ending a pregnancy in case of a fatal fetal defect is not an abortion.

      https: //

  8. 0bansgirl says:

    In 7 decades on earth I can not remember a time where I felt less free or independent.

    [Welcome back to emptywheel. THIRD REQUEST: Please use the same username each time you comment so that community members get to know you. “0bansgirl” is your fourth username. You have commented before as “Jacqueline oconnor,” “0biesgirl,” and most often as “Obansgirl.” Please pick a name and stick with it because changing your name this often looks like sockpuppeting. / ~Rayne]

    • Obansgirl says:

      Very sorry. Auto fill and memory eludes me. I’ll comment no more but appreciate the fine information imparted here. Best wishes.

      [Please do comment, but save your username and email where you can find it each time you comment. It’s not the same security risk to do so as it is to save a password, after all. Save it on a sticky note, password book, password manager, text file — whatever tool works for you. /~Rayne]

  9. rattlemullet says:

    Great post thank you for this, the ballot box is the only way out of this mess and that will take an immense amount of organizing to over come all the gerrymandering, active voter suppression and massive disinformation campaign being conducted by our media overlords.

    The words “the merciless Indian Savages” contained in the 27th listing of injuries and usurpations demonstrates that the highly educated elites of that time did not have the ability to see others as there equals even though they penned the words “All men are created equal”. That inability included blacks, women, and those without property and the fight for that equality continues to this day. Those 4 words portended the genocide to come by the consent of the governed that the Declaration of Independence ultimately created. That same government enslaved blacks for 8 decades then allowed the freeman program to fail, Jim Crow to exist, structural racism to continue in all aspects of governance even to the present. Women have been subjugated forever and now have had bodily autonomy ripped back from them. America has a lot of truths to face and with almost half the adult populace denying the reality that freedoms have been stolen, reparations are owed and property that was stolen must be compensated for somehow before achieving that equality.

    The 24 election will determine the path America will pursue. The GOP leading candidate shows the structural failure of the way the independence and the constitution can and has been manipulated.

  10. MsJennyMD says:

    What is right for you, may not be right for me.
    What is right for me, may not be right for you.
    But what is NOT right for either of us is being stripped of the freedom to choose what is right for ourselves.
    Anna Cala

  11. GSSH-FullyReduced says:

    I read with interest Maria J. Stephan’s cogent article about how to resist networking authoritarians gaining more power;

    She ends with, “And it means creating opportunities for organizers and bridgebuilders to learn from each other about effective strategies and tactics to resist autocracy while building inclusive democracies.”

    I believe EW is also focused on the bigger picture of creating these opportunities.

    Thank you Rayne for your thoughtfulness on our 2023 Independence Day and more thanks to every scholar-moderator-commenter here for contributing to EW.

  12. JanAnderson says:

    We can count on our hands those who’ve walked this planet in an enlightened state. MLK is one of them. An American. Thanks Rayne.

  13. Willis Warren says:

    Fantastic essay. America slept while a quarter of the country rigged the system with SCOTUS appointments they didn’t deserve.

  14. Greg Hunter says:

    There is a narrative that can describe the erosion of our system of government, but we have not identified the inflection points where power makes crucial changes without discussion. Here are some observations that define where we are today.

    Loss of definition of the 9th amendment occurs post Roe V Wade when progressives did not fight the decision. It seems clear that fighting for the right to privacy should have extended through the 9th month and not just 3. No one has a right to decide whether I bring a new citizen into the Republic. Democrats have not used the Constitution for the basis of their arguments for the last 50 years.

    Impeachment = Purchasing the US Government was figured out in the so-called Progressive Era. Robber barons worked out that buying the Senate was easier and less revealing through the popular vote instead of buying the State Legislators, which resulted in the 17th Amendment. This purchase of our Republic occurred in 1913….

    Americans would be receptive to a Constitutional education, but the current crop of Democrats are unable to base their arguments based on the Constitution. Sheldon Whitehouse is the closest…..

    American Capitalists used to buy our government, now foreign entities are….

    • Rayne says:

      It seems clear that fighting for the right to privacy should have extended through the 9th month and not just 3.

      I don’t think this has support specifically with regard to abortion on either side of the aisle. A 20-week-old fetus may be viable outside the womb.

      No one has a right to decide whether I bring a new citizen into the Republic.

      You will never face that question.

      the current crop of Democrats are unable to base their arguments based on the Constitution.

      Bullshit. If you want a Democrat who fights aggressively against corporate occupation of government, you could start with Elizabeth Warren. But I have a feeling you don’t look to women first on a whole host of issues.

      • Greg Hunter says:

        Plenty of support for this idea in the amicus briefs filed when Roe was decided. I just never hear anyone make the argument on the Dem side using this information or those ideas from the Constitution.

        I look at the content of their character and I have found men and women operate very similarly when they achieve money and power.

        • Rayne says:

          Plenty of support for this idea in the amicus briefs filed when Roe was decided.

          Roe was decided in 1973, when people regularly died of heart attacks and cancer we can now treat as chronic illness, when infants born at 22 weeks had no fucking chance of survival. Medical technology and health care has moved on considerably, changing the definition of viability by 6 weeks, shortening the non-viability period by ~20%. You are clearly out of touch and uninformed on this point; your demand that Democrats defend abortion rights through a full-term pregnancy would validate right-wing ideologues who claim Democrats are murdering infants.

          The worst part is you think you have skin in the game while young women like my daughter are already facing both discriminatory pressures and fears about the care they need and may not get while you undermine pro-choice politics with uninformed blather.

  15. CovariantTensor says:

    The SCOTUS ruling on a hypothetical case, in particular, strikes me as an example of what conservatives used to call “legislating from the bench”.

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