March 18, 2011- What follows is clearly not a thoroughly articulated perspective, but a call to others to present their own understanding of the situation we face.
Those of us who have wondered how fascism would come, if and when it came, did not sufficiently credit the possibility that it would arrive through the process of law and "freely chosen" representatives of the people. We were too much given to dramatic, filmic versions of the occasion, influenced perhaps by images of "body snatchers" from another galaxy, or aliens as they were depicted in "Independence Day." There is often the exogamous tendency to imagine that catastrophe must come from beyond our shores, whether defined geographically, culturally or psychologically. It is always "them," not "us," that is the source of our disaster. Even when the foreign intrusion took a mortal form, we were more likely to view our antagonists in ways that denied their actual humanity.
We have now come face-to-face with the fact that the agents of contemporary totalitarianism are people who, in many respects, are remarkably like ourselves and who – while they differ in their political perspectives – do, in the course of routine, daily life, rise up and lie down very much as we do, engaging the rounds of normalcy very much as we might ourselves. And yet, these are the same people who would, quite casually it seems, terminate democracy as we understand it, all the while insisting that they are actually fulfilling the requirement of a democratic system as it has been defined by law. In Wisconsin, for example, the Republican Party maintains that it was fairly elected by the citizenry and is now carrying out the mandate that has been imposed on to care for the general welfare as it understands that concept. And is this not a valid account of the events that have brought it to its place of power?
Everything depends on what we mean by the term "valid." In its pure form, much of what has been happening in America has followed the principles that the founders of the Constitution regarded as "valid," including the right of the legislature and the courts to interpret, and then reinterpret, the original meaning as they deemed it appropriate. The decisions rendered in the cases of Bush v. Gore or Citizens United were made by nine justices and determined by a vote of five. This process was mandated by the framers and duly executed. But in accepting the formal validity of these decisions, I do not intend for a moment to deny that these procedures were, by any understanding of the intended purpose of the Constitution and the arc of its historical additions, what we may rightfully refer to as a corruption of the "the spirit of democracy." As a sociopolitical development, the Constitution was the embodiment of what was most progressive in 18th-century understanding of the function of government. The original formation of constitutional law was never understood as a document meant to stand in utter isolation from the culture and society that gave it birth. It was not produced de novo, but arose from a general understanding of the larger purpose of social life and its obligations and virtues.