Wednesday, October 24, 2018
A Marker of a Disjunctive President
Gerard N. Magliocca
We have a long-running debate on the blog about whether Donald Trump is a disjunctive president. In other words, does he represent the end of a particular party system (the Reagan coalition)? This label comes from the influential work of Stephen Skowronek, who analyzed the presidency in relation to the prevailing party system of the day.
After voters during the past four election cycles fired over 1,000 of them, Democrats hold the fewest elected seats since Calvin Coolidge was POTUS. Barack Obama is arguably the Democrats Herbert Hoover.
The Donkeys have a LONG way to go before we can legitimately start questioning the viability of the Reagan Elephant herd.
This will not be that election.
"Barack Obama is arguably the Democrats Herbert Hoover."
Of course, Obama won re-election while Hoover lost by almost twenty percentage points, so there's that complication...
Can we stop trying to do history while living through it?
Even if these terms describe any reality at all (which is doubtful, because they are based on tiny biased samples), you will find out in 30 years, OK?
I've noted on several previous occasions that I'm pretty skeptical of the whole Skowronek concept. I'll just note here that it's weird to see Pierce included as "disjunctive". I mean, he was in a sense, but his fellow Dem Buchanan succeeded him, unlike the other 3 examples given.
And that's putting aside the futility of any attempt to make predictions about a given president without some perspective given by succeeding events.
I agree with him, too. The truth is, there haven't been enough Presidents to establish a taxonomy like this. They're all different.
OT: While I've enjoyed all of the posts about Gienapp's book, I thought John Mikhail's was particularly good. He should post more often. And he should open up comments so I can tell him that his posts are good.
I took the book out of the library today and will see how I like it.
John Mikhael is on Twitter & one can also drop him a line at his school email.
I referenced but removed Sean Wilentz's new book, "No Property in Man: Slavery and Antislavery at the Nation’s Founding." The premise is interesting and overlaps some of my own feelings [somewhat contra to the "they are just a bunch of slave rapists" philosophy of others] but thought the follow thru was a bit lacking.
It does have some good stuff including a meeting of the son and nephew of two Founders on a ship a few years before the Civil War. Now that I see Alexander Hamilton's son wrote a memoir (e.g., he was an advisor to Andrew Jackson!), I want to check it out.
I too enjoyed the review posts on Glenapp's book and eagerly await his responses. There were many variations in the review posts. Both Sandy and John Mikhail delved into pertinent areas that Glenapp apparently did not. Perhaps over at the Originalism Blog the posters might review Glenapp's book from their perspectives. Will Bause's review post seemed to have been cut short as he has to study the book in more detail. Jack Balkin in the first review post made references to the views of several originalists, including Will Baude's expressed with a co-author; Baude's review post did not address Jack's comment. I liked Mark Graber's comment on ongoing excavations by originalists in attempts to justify their theories. And Allison LeCroix made the point for serious consideration of Mary Sarah Bilder's book Madison's Hand in connection with reliance upon Madison's Notes as the "Father of the Constitution" in interpreting/construing the Constitution And Sandy repeated some of his earlier critiques of giving too much credence to The Federalist Papers.
Perhaps like the Framers with the Constitution, the review posters are not in lockstep on Glenapp's book. If the Originalism Blog posters were to review the book, they might not be in lockstep because of the diverse forms of originalism.
If there is one thing we should have learned from the 2016 election, it is that results can turn on some pretty random events. So I agree with Mark and Dilan that basing some grand historical theory on how a handful of Senate races turn out is rather problematic.
(Actually, if there is one thing we should have learned from the 2016 election, it is that outsourcing our civic responsibilities to the FBI is a bad idea. But since we seem incapable of learning that one, lets go with the other thing.)
Permit me to go off topic and point out that Sandy's review post went into moderation before there was a full resolution of Brett's claim, supported by SPAM,, that the 8th A's "cruel and unusual" punishment provision was aimed at the judiciary. Until the 14th A's ratification the 8th A and the rest of the Bill of Rights applied only to the central government and not the states. As a result, any aim of the 8th A against the judiciary did not target the states' judiciaries. Were there federal common law crimes where federal judges determined what the punishment would be or were punishments spelled out in federal criminal statutes? In any event, it would seem that the federal judiciary per Article III would determine if a punishment imposed by a federal judge was "cruel and unusual." So what was aimed at the federal judiciary would be subject to judicial review.
One might argue that the 8th A should have applied to the states for common law and statutory crimes punishments. But Barron v. Baltimore in 1833 held that the Bill of Rights did not apply to the States. Sometimes the aim misses the target.
United States v. Hudson (1812): "The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense."
The courts were held to have limited inherent powers ("But they have the power to fine for contempts, to imprison for contumacy, and to enforce the observance of their orders.") but not some general power over federal common law crimes. There was a lot less federal criminal law in the early 19th Century, but there was some.
The 8A does clearly limit judges and they regularly would have to apply it such as whenever they had to set bail or whatnot. But, when Congress passed laws and the executive carried them out (such as in a prison out of view of the courts), the provision also applied.
For instance, in his Commentaries, Justice Joseph Story noted: "It was adopted, as an admonition to all departments of the national government."
Joe, as usual, fills in gaps quite aptly with his comments on Sandy's thread and here on the 8th A. Thanks.Post a Comment
Back on topic, overnight I have been thinking about the parenthetical portion of mls' 7:42 PM comment. The FBI is part of the Executive Branch. Exactly what is this referring to"
" ... outsourcing our civic responsibilities to the FBI is a bad idea."
Hillary's emails on her personal server? The role of Russia in interfering in 2016 elections? Who did the "outsourcing"? What were "our civic responsibilities" that were "outsourced"? Was the FBI acting ultra vires?
As to the political theory of Gerard's post, it might be said that history, while informative, does not repeat itself.