SecretMoblin said:
With respect, I think your definition of "counterrevolutionary" is overbroad. If "creat[ing] a sphere of government activity and power independent from and without regard to the consent of the governed" is all it takes to justify being called "counterrevolutionary", then literally every single member of the Supreme Court - and most landmark cases in the Court's history - are counterrevolutionary. Hell, Marbury v. Madison gave a massive amount of power to a group of unelected, unaccountable judges who don't care (and don't have to care) about the consent of the governed. And the decision was authored by revolutionaries.
Marbury v. Madison does no such thing. The judiciary applies the Constitution, i.e., it applies the foundational document creating the government. When it strikes down a law as unconstitutional, it is not disregarding the will of the people but applying it at a deeper foundational level. There is nothing about judicial review that is doctrinally inconsistent with popular sovereignty, and indeed it was advocated for in the Federalist papers. The Supreme Court's appointed nature was consented to by the people.
SecretMoblin said:
Or what about Griswold v. Connecticut, which created a sphere of power "independent from and without regard to consent of the governed."
Griswold v. Connecticut does not implicate popular sovereignty at all. It recognized that an
individual citizen--which is not a specie of government--has a constitutional right to use contraceptives. In other words, it said that an individual citizen has a constitutional right to do X, which means the people cannot prevent the individual citizen from doing X. That does indeed create a sphere of power independent from and without regard to consent of the governed, but it creates it for the
individual to act, not for the
government to act. Thus, no "sphere of
government power independent from and without regard to the consent of the governed" has been created. In your formulation, you omitted the only important word vis-a-vis popular sovereignty. Popular sovereignty describes the (one-way) direction in which power flows: from people to the government. It does not make the power of an
individual depend upon the consent of the people. It makes the power of a
government depend on that consent. Once empowered, that government may control individual power, but it is never the source of it.
SecretMoblin said:
Or Baker v. Carr, which allowed the court system to wrest control of reapportionment away from the democratic branches of government. Or Furman v. Georgia, which effectively outlawed the death penalty over the objections of several states and overwhelming popular opinion. The Court sees fit to take, reassign, or create power all the time. It's hardly exclusive to John Roberts (or Scalia, or Thomas, or Rehnquist, or Kennedy, or O'Connor, or...)
What government power as it relates to a specie of government's own power is being carved out from popular control? Your points all seem to reduce to a contention that the judicial branch itself is a violation of popular sovereignty, but that cannot be the case. See Article III. It's right in there. None of these decisions are analogous to endorsing a proposition that there is a specie of
government that has rights against
the people. Merely saying the government lacks power to do X is not a violation of popular sovereignty. Saying the government lacks the power to regulate its own creations, however, does. It would be like ruling that the EPA has certain powers that cannot be controlled by Congress.
SecretMoblin said:
Look. I didn't support CU v. FEC. I thought it was wrong! But to posit a world in which this Supreme Court has bent back hundreds of years of rights and replaced it with some form of corporatist authoritarian oligarchy is just not accurate.
Yes, it is, actually. And to be fair to the court, this process had already been started. The Roberts Court is just hammering in the nails at this point. But they are all too willing to do it.
SecretMoblin said:
And please: "that the Roberts Court is counterrevolutionary and anti-democratic is an elementary and observable fact about the world." I certainly don't know everything there is to know, and won't ever claim that I do. But saying that the current Supreme Court is "counterrevolutionary" and "anti-democratic" both ignores the history of the Court and the reality (and impact) of its modern-day decisions.
Not at all. It is matter-of-factly true whatever your emotional reaction to it might be. The world should be described accurately without regard to how it makes us feel. The Citizens United decision was both antithetical to the principles of the American revolution (i.e., counterrevolutionary) and anti-democratic (in opposition to popular sovereignty).
Again, you are free to believe in forms of autocracy or dictatorship or whatever you want, for all I care. I'm not trying to persuade you to support popular sovereignty just because it was a fundamental principle of the American revolution. But what you can't do is have your own facts.