E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Eugene
Davidson’s, The Trial of the Germans was
one of the most memorable books I read as a teenager.I was particularly troubled by the chapter on
Hjalmar Schacht.Schacht played a vital
role helping the Nazi party revive the German economy during the 1930s. Although not a member of the Nazi Party, he served as Hitler’s Minister of
Economics and main economic advisor during the years before World War II. His behavior was typical of many German industrialists, who saw the Nazi Party as a vehicle for their desired economic policies that they could control before the worst of Nazi rhetoric was realized. Schacht was acquitted at Nuremburg because he
played no official role in the German government after 1939 and wound up in a
concentration camp during the last year of the war.
Schacht
came to mind during Aziz Huq’s terrific presentation at the annual meeting of
the Law and Society Association.Huq’s
focus, which is in part the focus of his important new book with Tom Ginsburg, How to Save a Constitutional Democracy, was on constitutional near misses.His argument is that at crucial points the conservative and center-right
politicians who initially allied with a political leader who exhibits limited
respect for the constitutional rules of the game realize that they cannot
control that leader. They then seek an alliance with the center and center-left in
order to preserve the constitutional order.When major industrialists and their political supporters realize relatively
early that they cannot control the demagogue and compromise with their
political rivals, the slide towards authoritarian reverses.When they follow Hjalmar Schacht's example because they and their donors are profiting from some of the demagogue's policies, constitutional
democracies collapse.
The
contemporary American analogues to Hjalmar Schacht are, of course, Mitch McConnell, Paul
Ryan, their political allies and donors.McConnell and Ryan are no more Nazis or fascists than Schacht.Like Schacht, they are willing to empower an
authoritarian figure because they believe they will get desired economic
policies (and pro-life judges) in the short run and be able to control the demagogue
in the long run.As was the case long before Schacht fell from power, the evidence is now clear that McConnell is failing in his attempt to be the real power behind the throne.Every month brings more evidence that
Republicans when faced with the choice will side with the authoritarian
demagogue whose bigotry is increasingly unrestrained than with the conservative businessman who needs a tax cut because annual incomes in the millions of dollars are insufficient. The question is whether the United States is
in 1934, when conservatives jumping ship might have prevented untold human
misery (at the costs of some profits) or 1939, when Schacht could be pushed
out of the Nazi regime without any political consequences.