Donald Trump's Constitution

Gerard N. Magliocca

I think Khizr Khan was unfair to Donald Trump in his convention speech. Of course Trump has made sacrifices for our country. He's endured many helicopter delays flying from New York to Atlantic City and had to spend lots of time with Dennis Rodman on "Celebrity Apprentice." And Trump has read the Constitution.  It's just that he's read the abridged version that says only: "The President shall be Commander in Chief" and "the right of the people to keep and bear arms, shall not be infringed." So stop crucifying the guy. Do the Khans have no sense of decency in criticizing a helpless billionaire?

 
Posted 1:22 PM by Gerard N. Magliocca [link] (24) comments

A Weberian take on the 2016 Republican nominee (Or, James Madison is dead and has left the building)

Sandy Levinson

Folks, this is where we are in our contemporary political situation.  But, as Weber suggested almost a century, Trumpism may be a dangerous virus located in the DNA of the American constitutional order and its ever-greater valorization of presidents as maximum leaders with grandiose visions they have "mandates" to implement, whatever it takes.  No serious political system should have to contemplate the possibility of being “governed” by a narcissistic sociopath.  Paul Ryan and his ilk are simply useful idiots who deserve the utter contempt of anyone who takes the project of a "republican form of government" seriously (unless that means to be governed by whoever manages to steal the "Republican" label). There are honorable Republicans, beginning with John Kasich and, dare I say it, Ted Cruz, and including many--though not yet enough--others.  

Indeed, I am tempted to suggest that just as Yad Vashem in Jerusalem has a walkway devoted to "righteous Gentiles" who saved Jews during World War II, we should start listing "righteous Republicans" who in fact have demonstrated that they have moral backbone in our country's hour of need.  I am more than willing to honor people I usually disagree with, for standing up to a true menace.  I have become an obsessive about Hamilton, which I consider a work of true genius.  Aaron Burr sings at the end of the play his realization, too late, of course, that the world is big enough for "both Hamilton and me."  Or, in terms of the great American mythos, Hamilton and Jefferson, both of whom were genuine patriots who had conflicting visions of what was best for the country.  We have benefitted from having both as part of our heritage.  Trump, however, is another matter.  He has not a semblance of what both Hamilton and Jefferson would have described as "virtue."  He has, as was noted by the father of the slain soldier last week, never engaged in an iota of personal sacrifice; indeed, the whole notion is beyond him, as it is for any Holmesian bad man.   

Hillary is right:  This is not a traditional election.  My own hope is that Republicans will join Michael Bloomberg and others in voting for Hillary, who I do think is superbly qualified to be President.  But Gary Johnson and Bill Weld offer a completely acceptable alternative for persons for whom Hillary is a bridge too far (however troubled the waters).  And it would be good for the country if enough Republicans started manifesting their support for Johnson that he could join the debates.  

Perhaps the most profoundly sad spectacle of the season is John McCain, who so lusts after another term in the Senate--one can only wonder why--that he has foregone any sense of republican (or Republican) honor.  A man who heroically endured torture and refused early release because that would betray his comrades is willing to betray the country (and his Party) by supporting a narcissistic sociopath.  These are truly dark times, though for reasons very different from those suggested by the sociopathic narcissist.  My obsessive fear is that, when Hillary is elected, we will collectively congratulate ourselves for dodging a potentially fatal bullet and return to our blithe confidence, in Gerald Ford's reassuring words, that "the long nightmare is over" because "the system worked."  I wish it were that easy.   

I heartily commend an article in today's Washington Post by Marc Fisher on the powers available to a modern president.  Eric Posner and Adrian Vermeule published a few years ago an important book, The Executive Unbound:  After the Madisonian Republic, notable, among other things, for its almost exuberant embrace of much of the jurisprudential approach of Carl Schmitt, in his own analysis of developments in Germany during the Weimar era and the rise of the modern administrative state.  The central point--which is true as well of a forthcoming book on the administrative state by Vermeule--is that the central characteristic of the modern state is the amount of discretion it lodges in the executive branch in general.  And, to the extent one accepts some of the more extravagant theories of the "unitary executive," it is the President who ultimately enjoys a sufficient degree of discretionary authority, based either on readings of the Constitution or on broad statutes passed by Congress delegating power to the Executive, to justify the assertion that we in the U.S. have our own form of "constitutional dictatorship." especially if we elect a person who is without a genuine internal compass.   And, of course, the President gets to pick his own lawyers, the most important of whom are in the White House or the Office of Legal Counsel.  George W. Bush was able to find John Yoo and now-judge Jay Bybee.  I have no doubt that a President Trump, empowered by the Constitution to nominate judges (who would be confirmed by a morally-bankrupt Republican Party who would prattle about their duty to follow the wishes off the public that elected Trump, which is how they have justified their spinelessness in endorsing Trump as their candidate), would be able to find his share of ambitious lawyers, some educated, no doubt, at Harvard or Yale (think of the egregious Kris Kobach, the architect of the anti-immigrant laws that plague our country), who would happily construe the extant legal materials to allow Trump to do just about whatever he wanted.  (Remember, incidentally, the pardon power, the great wildcard in the American constitutional system that allows a president to offer a get-out-of-jail free card to whomever he or she wishes.)  All of this is simply to suggest that those who place their faith in the Madisonian system of checks and balances to save us from the ravages of a sociopathic narcissist are deluding themselves., at the empirical level, even if one shares their belief in Madisonianism.  But James Madison has truly, and irrevocably, left the building.   The only serious argument is exactly when that occurred, and I personally think the answer is no later than 1796, when the development of contentious political parties put the lie to his vision of republican government by virtuous elites "above" mere factional interests.  

Whatever one thinks of Berlusconi, who was, by any account, dreadful, I'm not aware that he could claim to control the world's most powerful military and to wreck the world political system by virtue of his idiosyncratic decisions.  Whether or not we are the "indispensable nation," to quote Madeline Albright, we are surely (at least) the 800-pound gorilla, and the decisions made by the U.S. president are simply more important than the decisions made by almost any other given person in the world.  (I leave it to others to debate whether the head  of the Chinese government is a 600- or 700-pound gorilla; ditto Putin.  Does it really matter exactly what the weight is?)  
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Posted 4:27 PM by Sandy Levinson [link] (170) comments

Re Connecting the dots: Why I continue to despair

Sandy Levinson

The new issue of The Nation, a magazine to which I've subscribed for at least 35 years (and have published in over many of those years) has a "special convention issue" with the overall title, on the cover, "We Still Need a Future to Believe in:  How to Build the Political Revolution," which involves relatively short pieces by 24 "activists and leaders."  Today's New York Times Magazine has a very interesting article about what sounds like an altogether admirable group pushing a left-wing agenda on Hillary Clinton.  The key document of the group, the Roosevelt Institute, is a document "Rewriting the Rules of the American Economy," one of shoe major authors is the completely commendable Nobel Prize-winning economist Joseph Stieglitz.  So far so good.

But, as anyone familiar with my screeds over the past years could now readily predict, I am left in near despair by the fact that none of the twenty-four gurus brought to us by The Nation or the plan for "Rewriting the Rules..." seems even to consider the fact that among the rules very much in need of writing--or at least of what Alexander Hamilton called "reflection," perhaps on our way to "choice" regarding changing them--are those of the Constitution itself.  Instead, The Nation devotes the margin of the very first page of the response to Norman Lear's "We liberals are the true conservatives.  Don't mess with our Constitution, our Bill of Rights, those words that guarantee to all equal opportunity and equal justice under the law."  Norman Lear is also a commendable person, but this kind of mindless veneration of the Constitution is precisely what sends me into paroxysms of despair.  The right, for all of its professions of constitutional devotion, is actually willing to suggest that constitutional amendments might be desirable.  Jeb Bush has recently made this argument in the Washington Post.  All the left can do, apparently, is profess absolute horror that anyone might even think of "mess[ing] with our [perfect] Constitution."  Certainly the original 1787 Constitution said nothing at all about "equal opportunity and equal justice under law" even for all American citizens, let alone all American residents.  The former included women who were not allowed to vote (and the Constitution didn't care), and the latter included slaves whom the Constitution noticed only to give unjust benefits to their "owners."  Obviously, things got better, in part because of a war that killed 750,000 people, but one has to be optimistic indeed to believe that the Reconstruction Amendments are enough to "guarantee to all equal opportunity and equal justice under law."  One obvious problem is that realizing this wonderful visions requires the passage of a great deal of legislation, and the Constitution was rigged in 1787, and remains rigged now, to prevent any such radical developments from taking place save in those astrological years when all planets align for a brief period.  As I've been writing recently, it simply doesn't matter, with regard to achieving the sorely needed progressive agenda, if Hillary Clinton is elected and the Democrats take the Senate if, at the same time, the egregious Paul Ryan continues to remain the Speaker of the House because of illegitimate gerrymandering and a pernicious system of single-member districts sorely in need ion change.  All of the programs for "rewriting the rules" will be of nought.  This is one reason that honorable Republicans are rapidly deserting their sociopathic candidate for President and placing their energies on maintaining even one house of Congress, because they realize that Hillary simply can't do that much without having working majorities in both the House and the Senate.  It's as simple as that.

Will Berne Sanders take his time tomorrow night, when I think he speaks to the Convention, talking about what a truly serious non-violent "political revolution" would require, i.e., rethinking our Constitution?  Don't hold your breath.  Instead, we will hear lots of commendable people saying lots of commendable things in terms of wish lists for the future, even as they say nothing whatsoever about an egregious constitutional system that makes their realization difficult to the point of near impossibility.  That is why I continue to despair, even if I am relatively confident that the sociopathic Mr. Trump will not in fact become our next President.
Posted 10:48 PM by Sandy Levinson [link] (200) comments

Rendering unto God and Caesar: Reflections on the Republican Platform

Sandy Levinson

From the Republican Party Platform:

We are the party of the Declaration of Independence and the Constitution. The Declaration sets forth the fundamental precepts of American government: That God bestows certain inalienable rights on every individual, thus producing human equality; that government exists first and foremost to protect those inalienable rights; that man-made law must be consistent with God-given, natural rights; and that if God-given, natural, inalienable rights come in conflict with government, court, or human-granted rights, God-given, natural, inalienable rights always prevail; that there is a moral law recognized as “the Laws of Nature and of Nature’s God”; and that American government is to operate with the consent of the governed. We are also the party of the Constitution, the greatest political document ever written. It is the solemn compact built upon principles of the Declaration that enshrines our God-given individual rights and ensures that all Americans stand equal before the law, defines the purposes and limits of government, and is the blueprint for ordered liberty that makes the United States the world’s freest and most prosperous nation   

I assume that Michael Pence, or for that matter Ted Cruz, has no trouble embracing this part of the Republican Party platform, which clearly subordinates any laws passed by legislatures or any other governmental institution to "the Laws of Nature and of Nature's God."  We could, of course, get into long debates about the difference between the "laws of nature," which could be Aristotelian, and non-dependent on any belief in God, in contrast to subordination to "Nature's God," which sound more in Revelation and divine sovereignty than in Reason.  In any event, we have a clear hierarchy of norms, with Divine commands at the top and everything else beneath.


We might compare the Republican platform, in this respect, to the Constitution of the Islamic Republic of Iran:

Article 2The Islamic Republic is a system based on belief in:

•    1.the One God (as stated in the phrase "There is no god except Allah"), His exclusive sovereignty and the right to legislate, and the necessity of submission to His commands;
•    2.Divine revelation and its fundamental role in setting forth the laws;...

Posted 7:04 PM by Sandy Levinson [link] (40) comments