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
As all of us that
have been deeply troubled by what President Trump has done to the country bask
in the voters’ response this week, I want to think about what is to come.I will no doubt have some of my usual
technical procedural posts once the dust settles and we get a clearer sense of
how the new Congress will shape up.
For now, however,
I want to focus on one particular problem that could be quite immediate.Numerous news reports that I take seriously
suggest that President Trump may be contemplating action in Iran that would be
a clear, and particularly severe, war crime.Some of these accounts suggest that he might use nuclear weapons,
possibly against Iran’s suspected nuclear research facility.
Not only would any
further war crimes in this deeply misguided, pointless war be tragic in their own
right, but they also could erode international norms against similar actions.That could embolden Russia to take similar
actions against Ukraine, China to do so against Taiwan, or India and Pakistan
to do so against one another.
Whether this
actually happens or not, the fact that it could – the fact that our nation has
amassed such staggering destructive power and then twice put that power in the
unconstrained hands of someone like Donald Trump – poses a fundamental moral challenge
for all Americans, not just those that supported President Trump.We are the only ones that can prevent
American power from being applied against vulnerable people around the globe
and to destroy norms that have protected the world for decades.That unique power, I believe, gives us a
unique obligation to prioritize preventing anyone like him from ever holding
that power again.
I fear that the
concepts of core national responsibility, and of personal responsibility to ensure
that one’s country fulfills is elementary national responsibilities, have
fallen dangerously out of fashion.Of
course, progressive opponents of President Trump did not and would not vote for
him, but I do not think that voting alone comes close to discharging our
responsibilities where the stakes are so enormous.Our fundamental imperative should be, before
all else, to do whatever we can to prevent anyone like Donald Trump from wielding
this country’s awesome power ever again, even if that means postponing important
domestic priorities.
I spent much of
September teaching at Ukrainian Catholic University in Lviv.The experience affected me profoundly in many
ways.Perhaps the most important was
learning how Ukrainians think about individuals’ role in responding to the
on-going tragedy that is Russia’s full-scale invasion.The invasion and everything that goes with
it – the kidnapping and brain-washing of Ukrainian children, the indiscriminate
drone and missile attacks on civilians, the massacres in occupied areas, the
torture, mutilation, and killing of POWs – is obviously far more than any
individual, or discrete group of individuals, could possibly defeat.Unless they all work together, they are surely
lost.
But they do work
together.Each person looks deep inside themselves
to see what they have to contribute.Many go to the front lines.Others design and make armaments to replace those that our country has
cut off.Or seek to communicate
Ukrainians’ situation to the broader world.Or care for those that come back from the front lines battered in body
or mind.Except in the most egregious
cases, people are not assessing how much others are contributing:they are focused on what they themselves can
do.This focus on personal
responsibility rather than criticism was so refreshing and no doubt contributes
greatly to their impressive national unity.
A great many Americans
who agree with us about very little voted for Democrats this year, possibly for
the first times in their lives.A great
many other people who agree with us about little stayed home despite wild,
panicky calls to vote by the President and his allies, knowing that their abstentions
would likely allow Democrats to prevail.Others put aside years of skepticism about the political process to come
out to vote; they may or may not have progressive views.All these people gave Democrats a chance to
prove that their trust was well-placed.Few will immediately become regular Democratic voters, and likely no
election in the immediate future will match this week’s blue wage.But if we can make those anti-Trump voters feel
that their experiments in voting for Democrats did not lead to something they
find awful, we may be able to win their support again next time someone as
dangerous as Donald Trump runs for president.
If, on the other
hand, progressives treat these votes as endorsements of the entire progressive
agenda, or if establishment Democrats continue to prioritize accommodating the
traditional entrenched interests over responding to these voters’ very real
concerns, they may never be willing to vote for Democrats again – and any Trump-like
figure that can win the Republican nomination will have a good chance of
becoming commander-in-chief again.
The initial
indications I have seen are not promising.Progressives have been absurdly over-reading these results while
established party leaders still seem to think that they can just wish the
progressives away and return to business-as-usual.Many mock President Obama’s very wise calls
for unity, for consolidating the anti-Trump coalition even while that coalition
remains divided on many other issues.
I hope more of us will
adopt the Ukrainian approach of thinking about what each of us personally can
do to stabilize and strengthen this fragile coalition of people who feel
responsible for keeping this country’s vast power out of unrestrained,
irresponsible hands.We can and should
debate issues among ourselves, but can each of us resolve to do so in a less
caustic way than we often have?Humor is
important in difficult times, but can we find ways to laugh that do not depend
on the dehumanization of others – even President Trump – that does not reflect
well on us and that surely will alienate some of our potential allies.This country has many dire domestic needs
that the progressive agenda can address, but can the components of the
progressive community enter into respectful conversations with one another to
put forward a coherent, staged program rather than all stampeding forward to “issue-max”
our own specific agendas?Attempting too much change too fast will have many
swing voters regretting their votes this year.
Above all, can we
finally, absolutely put to rest the spectacularly irresponsible taunt of “TACO”
(Trump Always Chickens Out).Given how
bad his plans tend to be, we should be delighted whenever he fails to carry
them out.We have ample evidence that he
is extraordinarily thin-skinned and takes highly consequential actions in
response to perceived slights.How
horrible would it be if he devastated the lives of innocent people in countries
far less powerful than ours merely to “own the libs” that call him a TACO.Of course, he is responsible for his own bad
actions.But those of us enjoying all
the privileges of living in this country should never want to contribute in any
way to the suffering of those overseas who have no means of influencing what is
done to them.