Returning to an old theme: Life in a Constitutional Dictatorship

Sandy Levinson

During the presidency of George W. Bush, I regularly blogged on "life in a constitutional dictatorship."  This was provoked in part by his insistence on his being "the decider" and the issuance of many "signing statements" indicating a willingness to violate statutory (and international law).  Unfortunately, it is all too necessary to reinstate the series, and one must recognize that the sociopathic President is in fact far more of a danger than the incurious and impressionable (especially in his first term) George W. Bush.  Whatever the latter's failings, no one could believe that he was either a sociopath or simply out to build his brand and line his own pockets.  He was raised in a family devoted to public service.  The contrasts with the sociopathic incumbent are glaring.

There are two ways of approaching our present reality.  One is to dwell on what potentially illegal conduct the sociopath is engaging in.  That is obviously important.  But, as the saying goes, the real scandal is often what is legal, and that may well be the case in our present situation.  What the Trump Administration reveals, as Jack Balkin and I argued some years ago, is the extent to which the American Constitution, especially as it has developed after World War II--see especially the fine book by Steve Griffin, as well as his postings on Balkinization--is the extent to which we have the Constitution has served to create the equivalent of a constitutional dictator.  What has saved us in the past is a combination of the functioning of the complex web of American institutions plus, importantly, the character, what Publius would have called the "virtue," of those we have elected presidents.  Over the last eight years, though, other national political institutions have become steadily more weak.  Congress is justifiably treated with contempt by most Americans, and the Republican Party is wholly without anything that can be called a moral center, allowing itself to be taken over by a sociopathic demagogue who in no serious sense is a conventional Republican.  We might well refer to Trump's takeover as a putcsch, completely legal but thoroughly ominous.  There is, presumably, nothing remotely "illegal" about his complete disruption of the assumptions that have undergirded American foreign policy for the past 70 years or his threatening war with China.  Does he have to get Congress's permission before he can in fact go to war with China or Iran (or Mexico)?  Who knows, given the conduct of American presidents, including Obama, over the past three decades.  Presumably these three countries don't come under the "small country" exceptions to Article I that allowed Ronald Reagan to invade Grenada or George H. W. Bush to invade Panama, both without the slightest trace of congressional approval.  Given the exuberant readings of the AUMF by both the Bush and Obama administrations, might that be extended to Iran?  (I presume not China or Mexico.)  Obama, to his credit, pulled back from invading Syria by seeking congressional approval, but Libya was something else, presumably because American lives were not threatned if the bombing was carried out from way above ground.  But the one thing we can be confident of is that the sociopath has no regard at all for any constitutional constraints, especially as he is egged on by the repulsive Steve Bannon and Mike Flynn. 

Both Bannon and Flynn, incidentally, reveal the costs of accepting without serious national discussion the building up of an alternative government located in the White House itself, staffed by people wholly free of any kind of acocuntaibility to the U.S. Congress, either through the process of confirmation or compelled testimony before committees.  There is a reason, which doesn't speak well for us, that we regularly refer to "czars"appointed by presidents (or both parties) to handle problems outside of the "regular" bureaucracy.  One gathers that would-be Justice Gorsuch has his doubts about the administrative state (though see the symposium on Adrian Vermeule's fascinating book).  Would he be equally skeptical of the alternative state that takes a very different form via the National Security Council, for example?   

And, of course, I see the current situation as revealing ever more obviously the truly dangerous features of our 18th century Constitution and the degree to which it truly constitutes a clear and present danger to all of us.  The reason is simple:  Article II establishes a fixed four-year term unless we can find reasons (which, as a matter of fact, should not turn out to be all that difficult) to believe that the sociopath is also a criminal.  The alternative, of course, is to invoke the 25th Amendment,  which would require Pence and other Trump acolytes to agree that he is in fact unfit to be president, which seems even more quixotic than revving up the impeachment machinery (which would quickly generate shouting arguments among lawyers as to what exactly constitutes "high crimes and misdemeanors).  If, on the other hand, Congress could vote no confidence in the President, who would be replaced by someone selected by the caucus of his own party (so that only an election could change the party occupying the White House), then one might well believe that it would be quite thinkable that, say, two-thirds of Congress would express their collective rear of the sociopath by firing him.  Or, if we followed the constitutional possibilities in California and Wisconsin, we could initiate a petition to recall the sociopath.  But the Framers of 1787, who were extraordinarily fearful of "democracy," created a presidency, tailored for the noble Roman George Washington, that contained within it, as Max Weber argued a century ago, the seeds of caesarism.  That is reality we are now living under. 

As in ancient Rome, we must count on the Plebians, such as the 3 million people who marched two weeks go and the many thousands who have demonstrated at airports, to indicate to the spineless consuls in Congress that something must be done.  I will also suggest in accompanying posts, under a different title, that we should take the possibility of national dissolution very seriously, given that one highly unattractive alternative is actual civil strife or warfare.  As I've suggested earlier, it's not clear that the "mystic chords of memory" count all that much in a country that has long since given up on any serious civic education and lives under a national culture of an Economics 101 (or, if one wishes, a Federalist 10) notion of naked self-interest, manifested most clearly in our sociopathic President.

Adherence to the Constitution may be at least as much the problem as the solution to our present awful situation.  Since, though, it may well be the case that the Constitution itself makes it impossible to respond effectively, then we are simply at the mercy of the sociopath, armed with all of the considerable powers enjoyed by the modern American President.
Posted 5:10 PM by Sandy Levinson [link]