Weimar America

Sandy Levinson

In today's New York Times, Paul Krugman writes of the ever-increasing slide toward what he views as a Latin America "banana republic." There is much to his analysis, but let me suggest that we are better advised to look at Weimar Germany during the 1920s (rather than, say, contemporary Mexico or Argentina) to understand our present political situation.

Begin with the fact that more and more people, regardless of political party identification, have altogether justified contempt for Congress as an institution. When I last checked, the Gallup poll showed that a grand total of 19% of the America public "approved" of Congress, while a full 75% disapproved. Even if one believes, plausibly enough, that Democrats are more approving than Republicans, it's still impossible that many Democrats aren't in the "strongly disapproving" camp. I began touting Carl Schmitt's incisive (and altogether depressing) analysis of the Wemar Parliament several years ago; if anything, he's even more on the mark now than then.

One of his central points was that no one could possibly take seriously the notion of the Parliament as a genuinely "deliberative" body as described by liberal democratic theory. Among other things, such a model required that members (who in 19th century England included John Stuart Mill, among other notables) actually listen to one another and, at least on occasion, be persuaded by the better arguments made even by those considered political opponents. (This, of course, is part of what Madison meant by "republican virtue," which he argued, in Federalist 10, was absolutely necessary to maintain a "Republican Form of Government.") No one, of course, can seriously have this view of Congress. The Senate, which prides itself on being a "deliberative body" is a dreadful parody of any such conception. Almost all of its bloviating members speak exclusively to their outside "base" (or financial contributors, to whom they are ever more beholden), not to their fellow senators, just as Schmitt described the Weimar Parliament.

Furthermore, as we all know too well, the rules and practces of the Senate allow sometimes stunningly small minorities to prevent the body from doing its business. (One objection, for example, can prevent the Senate from holding necessary hearings while the Senate is in session.) The newest Senate thug is Democratic Senator Mary Landrieu, who has put a hold on the nomination of Jack Lew to head the Office of Management and Budget unless President Obama lifts the moratorium on deep oil drilling in the Gulf of Mexico. And, of course, the fighting majority leader of the Senate, in a desperate fight for political survival in Nevada, has basically announced that the Senate will do nothing whatsoever until the lame-duck session after the November elections.

But, of course, the increasing irrelevance of Congress isn't the only reality, and in any complex system, what occurs in one realm can produce counter-reactions in another. Thus Bruce Ackerman has a powerful column in yesterday's Wall Street Journal condemning the process by which Elizabeth Warren has been named to preside over the creation of the new consumer protection agency. As readers well know, I am an avid supporter of Prof. Warren; I think it is a disgrace that it took Obama so long to name her. But, like Ackerman, I am disturbed that she wasn't formally nominated, even given the likelihood of a confirmation battle (i.e., a filibuster, since there is clearly a majority of the Senate eager to confirm her). Instead, as Ackerman argues, we see "another milestone down the path toward an imperial presidency," as Obama, with the support of many liberals, does an end run around the advice-and-consent clause, by naming her a presidential assistant in an ever-more-bloated shadow government that is fundametnally unaccountable to Congress. (I may hate the present Senate, but that does not lead me, nor should it lead anyone else, to believe that simply expanding presidential power is the solution.) But, of course, one can readily understand why Obama did what he did, just as one can readily understand the support he is receiving. The Weimar equivalent was the constant invocation of the (in)famous Article 48, the "emergency powers clause," which was used over 250 times during the 1920s to respond to the economic crises that certainly were facing Germany at the time when it became obvious that the Parliament was entirely inefficacious. If the Senate makes it impossible even to consider legilsation (or appointments), then the plausible altgernative is to use whatever power clever lawyers in the OLC and elsewhere can justify for unilateral presidential action. (This is the brunt of Elena Kagan's brilliant article in the Harvard Law Revivew on presidential administration.)

So how far does one extend this unhappy analogy? Is there a Nazi Party on the horizon? Fortunately, I don't think so, but, that being said, we shouldn't discount the importance of the Islamophobia that is sweeping the country with the encouragement of the cynical "leadership" of the GOP, including, most prominently, Newt Gingrich (who just as clearly relishes the possiblity of running for the White House in 2012). Indeed, the New Right is so far from being classically anti-Semitic that it embraces the worst aspects of religious Zionism and thus makes far harder the achievement of any plausible solutions to the Jewish Israeli-Palestinian problem (I put it this way because one should never forget that Israel already is a "binational state" inasmuch as not all of its citizens are Jews). Instead, they can organize around the "Moslem Menace," which involves, obviously, tarring all Moslems with the acts of a few. (And, after all, many of the Bolsheviks were Jewish, just as was the case with the Rothschilds...)

I've also mentioned in an earlier posting Colonel Charles Dunlap's speculations, written some years ago, about a military coup in 2012. (He was not advocating it, simply describing the circumstances that made it a plausible scenario.) I don't think we are facing a classical coup. But I wouldn't be surprised if there are increasing calls, within the Republican Party, to "draft" the closest thing we have today to Gen. von Hindenburg, who is, of course, Gen. David Petraeus. (First time tragedy, second time farce, as Karl Marx noted.) Andrew Bacevich has recently published Washington Rules, a remarkable book that deserves a very wide readership. Among other things, Bacevich, who served 30 years in the United States Army and retired with the rank of colonel, excoriates the now-bipartisan faith that is being placed in this remarkably ambitious general who seems genuinely to believe that he knows the secrets of "nation building." As Dunlap argued, it would be precisely the increasing use of the military for such efforts, with the concomitant beliefs on the part of generals that they were equal to the task, that would lead to the coup. After all, one looks around the United States--and, even more, many of our "leading" states, beginning with California and New York--and sees increasing signs of "failure." There is a very good reason that most Americans believe the country is going in the wrong direction. Who, indeed, could make a plausible claim for the opposite? The best the Obama Administration can do is to say that their economic policies prevented a catastrophic depression, which I think is true and deserves our thanks. But we're mired in an economy that is destroying the hopes of millions and millions of our fellow countrymen and -women, and the Administration seems to have all too little to say about that. So why wouldn't Petraeus be the answer to Republican prayers, since at the present moment there is no presumptive candidate and each of the possibilities seems to have fatal flaws?

But, of course, a central explanation for our situtation and the national "malaise" is our dreadful Constitution. (I'll bet you knew that I'd return to this sooner or later.) Obama may have quasi-dictatorial powers with regard to Afghanistan or finding Elizabeth Warren a place in his administration, but he apparently can't even control the thuggish Mary Landrieu, let alone the collective band of thugs known as the Senate Republican caucus. It's not his fault, nor, for that matter, should one really blame the Republicans for acting as they are. (Sen. Landrieu is another matter, since she's a nominal Democrat.) It is a thoroughly dreadful feature of our political system that any organized political party wishing to win a presidential election should do nothing to provide an incumbent President who will be running for re-election with anything that can be labeled a "victory." Teddy Kennedy didn't realize this, and he thus helped, almost as much as Osama bin Laden, to elect George W. Bush in 2004, since Bush could tout No Child Left Behind and the prescription drug bill, neither of which would have passed without Kennedy's endorsements. The Republicans are smarter.

Thus, as always for me, it boils down to our Constitution and its monumental defects for our 21st century reality. We have a system crafted by James Madison and his friends that depended on 18th century notions of "Republican virtue" and the lack of decidedly non-virtuous factions called political parties, and we expect this system to function effectively in a decidedly partisan world of political parties. (Of course, Madison's vision had utterly collapsed by 1800, but that is another story.) If we had a parliamentary system, then no one would really care that the Republicans behave like made dogs; that is the function, and sometimes it is indeed a valuable function, of "opposition parties." But we don't have a parliamentary system. Instead, we have a system that depends on some kind of meaningful cooperation and dialogue between and among the branches, and that is, of course, what is basically disappearing.

What happened in Germany was overdetermined, no doubt. But almost everyone agrees that the Weimar Constitution made its own contributions to the tragedy. It is that connection that seems almost completely absent in contemporary American discussion, at least if one looks at so-called "leaders" and "leading pundits." David Brooks prattles about culture, Tom Friedman about incivility and lack of seriousness, and so on. The only people who are making some serious arguments about the relationship between constitutional structures and outcomes are some members of the Tea Party. Thus a number of them (including the Idaho Republican Party) have called for the repeal of the Seventeenth Amendment, which provides for direct election of the Senate. Advocates of repeal altogether plausibly argue that the Amendment removed a protection of "federalism," inasmuch as election of senators by state legislatures provided a mechanism by which senators could be held accountable if they supported programs that trenched too severely on state autonomy. I'm not very sympathetic with repeal arguments, in part because I'm not a particular devotee of federalism, but I applaud the Tea Partiers for a certain amount of intellectual acuity. The American left seems almost altogether brain-dead in this regard. Indeed, rather than genuinely respond to the advocates and repeal and offering a substantive defense of the 17th Amendment, they denounce advocates as simple kooks or whackos (for apparently believing there are any imperfections at all in the U.S. Constitution).

These are not happy times.
Posted 10:09 AM by Sandy Levinson [link]