an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A tale of two inaugurals: on populism and democracy
K. Sabeel Rahman
Donald Trump has been sworn in, and is now the President of the United States. His inauguration speech was notably and stridently populist. While we have come to view populism as a newly-revived force of recent years, listening to Trump speech, I am reminded of the ways in which Obama himself also evoked the value of populism in his own first inaugural eight years ago, albeit in a radically different form. As we look ahead to the politics of a Trump administration, it is worth remembering the power--and limits--of Obama's version of this same vision of restoring power to "the people".
Trump framed his inauguration as a return of sovereignty back to “the people”. Rather than give a detailed list of policy agenda items, Trump gestured to a variety of issues from trade to infrastructure to foreign policy, all framed around this central assertion: not only that the people would once again rule, but that they would do so by breaking the chokehold of “Washington elites” who had enriched and served themselves at the expense of the public. “The time for talk is over,” Trump declared, calling for a government of “action”.
These notes are telling and they indicate the core of Trumpism’s political appeal. On the one hand, there is a very real and powerful assertion of political agency: reasserting the capacity of the public to be self-governing, to reclaim agency against various forces and elites who have usurped the people’s sovereign power. Those usurpers can take various forms: “Washington elites”, foreign countries and treaties, globalization, “the establishment”, and the like.
What is troubling of course about Trumpian populism is that it represents what we might call an exclusionary form of populism. The not-so-subtle subtext of Trump’s populism is a restricted understanding of who counts as a full member of the “people”; the concerns of communities of color, of immigrants, of women, and others are precisely that Trumpism does not recognize us as full members of “the people” who are, and ought to be, sovereign. Just as the populist appeal to “the people” can be quite exclusive, so to can its appeal to popular sovereignty be relatively anti-democratic: a plebiscitary ruler can fulfill these populist appeals to popular sovereignty and action as much as a participatory or deeply democratic regime. As Jan Werner-Muller argues:
Populists don’t just criticize elites or play on the prejudices of people using emotionally charged rhetoric. They posit that there is one true, unified people and that they alone are its legitimate representatives. In a pluralist democracy comprised of diverse interests and identities, this claim opens the path to excluding entire groups—and in the worst cases, to authoritarianism. … Populists are not inherently anti-elitist… What matters is their promise that they will not betray the people’s trust, that they will faithfully execute the people’s mandate.”
This exclusionary populism has its own deep tradition in American politics, arguably going back not only to George Wallace, but even further back to Andrew Jackson, if not to the founding itself. And the plebiscitary notion of the President has been well-documented, playing a growing role in the political imaginary of both left and right.
But Trump-ian populism is not the only possible version. In fact, Obama’s own ascendancy to the White House evokes but fundamentally alters many of these populist notes.
While we often frame Obama’s appeal in those early years as an optimistic (bordering on naïve) appeal to bipartisanship and post-racial harmony, if we go back to those early speeches, I would argue that the core of Obama’s own political force was actually a parallel but starkly different image of democracy, political agency, and popular sovereignty. Obama too emphasized the sense of disempowerment felt by so many Americans in the face of a cratering economy, global threats, and a corrupt, unresponsive political system. He too cast his political rise as a vehicle for the collective re-empowerment of “the people”. But for Obama, it was through inclusion, diversity, and collaboration that “the people” would successfully overcome these challenges.
Consider Obama’s first inaugural, worth recalling today.He opened noting the challenges the country faced, and casting these challenges as part of a deeper sense of disempowerment, a loss of agency:
That we are in the midst of crisis is now well understood. Our nation is at war against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost, jobs shed, businesses shuttered. Our health care is too costly, our schools fail too many -- and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet. These are the indicators of crisis, subject to data and statistics. Less measurable, but no less profound, is a sapping of confidence across our land; a nagging fear that America's decline is inevitable, that the next generation must lower its sights.
“Today,” Obama declared, eight years ago, “we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.”
The task of renewal, on this view, required a restoration of political agency, of popular sovereignty. But it was a popular sovereignty expressed not by the power of a singular leader authorized by a distant public, but rather expressed in the collective and bottom-up action of communities:
Our journey has never been one of short-cuts or settling for less. ... Rather, it has been the risk-takers, the doers, the makers of things -- some celebrated, but more often men and women obscure in their labor -- who have carried us up the long rugged path towards prosperity and freedom. For us, they packed up their few worldly possessions and traveled across oceans in search of a new life. For us, they toiled in sweatshops, and settled the West, endured the lash of the whip, and plowed the hard earth. For us, they fought and died in places like Concord and Gettysburg, Normandy and Khe Sahn. Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions, greater than all the differences of birth or wealth or faction.
Furthermore, on this view of agency, it was precisely in the diversity and collobaration in an inclusion notion of the “people” that Obama saw the latent capacities and talents necessary to overcome those substantive challenges:
… For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus, and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.
On Obama's evocation of political agency, then, it is only through participation and civic engagement—and through an embrace of diversity and inclusion—that “the people” would restore its ability to act, and in so doing overcome the challenges of an ailing economy, an unsafe world, and a sclerotic and unaccountable government. This is not an exclusionary or plebiscitary view of populism; it is rather a deeply democratic and inclusive one. These themes can be read all they way back through the major touchstones of Obama’s rise, from his Victoria in the Iowa caucus (“I know you didn’t’ do this for me. You did this because you believed so deeply in the most American of ideas—that in the face of impossible odds, people who love this country can change it”) to his campaign slogan of “Yes We Can”.
At his best, Obama’s appeal has always been about a tapping into a very real sense of alienation, disempowerment, and anxiety, and offering a vision of collective action, of political agency, of shared efforts at progress through inclusive and democratic politics.
Of course, one of the most remarkable and problematic characteristics of Obama’s administration was the degree to which it fell short of precisely this vision of democratic empowerment and inclusion. As I’ve arguedelsewhere, the financial crisis led to a highly flawed, overly technocratic approach to policy that not only demobilized the political movement that brought Obama into office, but also undercut many aspirations for a more inclusive and equitable economic order arising from the ashes of the crisis itself.
There is much more to be said about the politics of Trump, but for now it’s worth recalling that at its best, a “progressive populism” taps into this very real critique of concentrated power and aspiration to popular sovereignty, using it as a vehicle for both genuine inclusion and equitable economic transformation.