So let’s think about it this way.
In a democratic society (which we increasingly are not), should an electorate be allowed to choose a sleazy, corrupt, volatile, sexually abusive, contemptuous-of-duty, lying, incompetent scumbag if the candidate embraces all of that about himself/herself, if there is nothing in any of that which is a surprise, if it’s all there in plain sight before the election? If in fact the candidate is preferred by some for those attributes, because they are expressing their feelings of contempt for the institution or government that is staging the election?
This not a novel problem in democracies, classical or modern. There are Congressional districts in the United States where voters have routinely re-elected Representatives who had most or all of these characteristics, knowing full well that this is what they were choosing. There are Presidents that came pretty close too. (With Warren Harding, voters didn’t know about his sex life or his financial sleaziness in advance.) Berlusconi in Italy fits the bill, and there are other examples all around.
The important thing is not: can people select such a person to lead, with their eyes wide open about what they are doing? Yes, they can, and we shouldn’t be able to simply re-stage the election in a non-elective manner in order to thwart them. That’s the logic of a coup d’etat.
So what makes us a government of laws and principles, then, if it’s possible to elect a person knowing them to be grossly unprincipled and approving of that? In the end, it is this: that there could be or should be some security that the enforcement of the law runs on a separate track from the choice of representatives or leaders.
If there is some reason to think that there is an independent system for holding the elected leadership accountable for actually breaking the law or for violating clearly stated rules, then there is no problem with an electorate voting for someone who has a propensity towards such violations. They’re essentially taking a risk that they will lose their preferred choice at a later date. Yes, the laws being violated or the rules broken may be exceptionally consequential (that’s why there are laws and rules!) but so be it.
The heart of our present dilemma is that there is presently no one who will hold the current elected leader accountable, or there will be no one soon. This is what I’m not sure folks are fully thinking through: there remains a kind of remnant expectation of procedural and cultural norms that functioned reasonably well in Watergate still functioning, but almost every single one of them is gone, most of them deliberately sabotaged. There are no more Barry Goldwaters who, when presented with smoking guns, will recognize an honorable obligation.
The current House of Representatives will under no circumstances of any kind initiate an impeachment proceeding, let alone actually impeach the President. He could murder a baby live on television and they would not. The majority in the House no longer respects the institution they serve or the government they represent. The Senate is unlikely to bring meaningful pressure for accountability of any kind. The Supreme Court might still have a whisper-thin majority that would make a ruling against Trump, but that ends with the next retirement or death. The Justice Department will not only be inactive, it will actively sabotage any inquiry. The Cabinet have been leashed. The press is unaccustomed to being outside the circuit of power and scarcely knows how to use what is left of its fading dominion over the public sphere.
There is no one to send a demand to. We are now alone. We, More than Half the People. The institutions, it turns out, are no better than the human beings who inhabit them, and the sun is setting on the day of people who might have upheld the institutions against their own naked self-interest or their party’s hold on political power. In a way, the only people left to send a demand to are Them, Less than Half the People, and they’re not in a mood to receive it.
That’s an amazing amount of absolute/categorical statements for a humanities professor (who should know better …?) to be making about almost any topic. Perhaps you’re one of the “folks who should be thinking through” if congressional Republicans would not, in fact, happily impeach Trump in order to put Pence or any other conventional Republican in power, rather than Trump, who many of them dislike? Also I’m pretty sure that Republicans are not literally history’s greatest monsters and would likely, I’m guessing, take some sort of legal action if the president murdered a baby on live television.
I will be delighted if you are correct. I see no signs of it in the House in particular: there is little to no willingness to challenge the President on any of his behavior to date. I think the party has largely settled on a zero-sum vision of political power that allows little room for belief that there are institutions and norms that we all share as Americans, that there are constraints that anyone in power should respect, and so on. I think you can see that in the large number of things that many Republicans, especially in the House, professed to find distressing as little as nine to ten months ago that they now readily forgive. For example, many seemed deeply worried about whether classified information was inappropriately circulating on Secretary Clinton’s email server, but they seem completely unperturbed by the question of whether another country actively breached the security of the American electoral system. That list goes on and on and on of things that were worrisome but are now perfectly ok.
So let me try this bridge:
Under what circumstances is it appropriate, indeed necessary, to have a special prosecutor? Can we agree that the basic idea is a sound one: that a person who is regarded as rigorously fair, impartial and non-partisan may be needed in some cases to investigate a sitting official who otherwise has executive authority over criminal justice?
If so, can we agree that not all special prosecutors have performed this role well, in part because they were not non-partisan or rigorously fair? E.g., that the selection of such a person needs to be done by something like a 2/3 vote of an appropriate legislative committee, to ensure that there is bipartisan consensus about the qualifications of the investigator?
If so, can we agree that the possible links between the Trump campaign and Russian officials and activities need attention from a special prosecutor?
This seems so undeniable to me that anyone who doesn’t come along with three “yes” answers seems to me to be fundamentally disinterested in the survival of American political institutions. And yet, how many Republican legislators have called for such an investigation? 3. That’s it.
To all of which They would say, gee, what’s that like? And while I wouldn’t necessarily follow them in finding the analogy comparable, I would expect that the appeal we might make would only matter insofar as there is a shared expectation that we should listen to each other’s appeals across the We/Them divide. And since the left-of-center has explicitly rejected that idea in recent years, well….
Well, to be fair, much of the dedicated or committed right has rejected that proposition too.
One of the commitments I tried to pursue in starting this blog was to be open to conversation from a lot of different directions. I value some of the conservative readers who engaged with me here, especially early on. I tried to come halfway, sometimes more than halfway, towards the perspective of almost any responsive reader for at least part of a dialogue. But I have to say that after some of those engagements, the sense I got was that there was rarely a similar mindset on the other side of the dialogue. We weren’t in the end looking for places where there might be common assumptions or foundational touchstones: instead, it was largely a kind of tendentious cat-and-mouse game of pulling me off of whatever foundations I came in with and leaving me behind. Much as I dislike Lakoff’s understanding of “framing”, that was a good deal of what was going on: an attempt to establish the location of what a “reasonable person” might think as being far off to the right, and without ever having to expose the foundational premises of that location for scrutiny or review.
What I think the left could do first, before building bridges, is examine its own basis for believing what it believes. To me, this is the major issue that we have to tackle before we begin any kind of coherent project of reconnecting with people with whom we presently have weak-to-nonexistent ties. We won’t know what the basis of stronger ties might be unless we understand better why we stand where we stand. I think most of our vocal commitments are to top-level, already-policy, already-enacted positions where we know where we’re “supposed” to come down.
If we take for example this bridge question of a special prosecutor, underneath that is a proposition that it is possible for government to have or want some form of ethical detachment. Well, is it? I think so, but I could stand to think of why, or whether it’s actually ever happened. If I think it’s possible, why do I think it’s good to want that? How broadly do I expect it of leaders or administrators or bureaucrats? What are the necessary ingredients for that sort of “virtuous republicanism”? Is it a matter of culture and training, is it a matter of emotional temperament, is it a matter of know-how and experience? Is it about membership in “virtuous cultures” (church, professional associations, civic institutions)?
If I dug deep in those directions, I might find that some people I’m ostensibly allied with are actually digging in a different direction, towards a conception of power that is more openly instrumental or outcomes-driven (e.g., virtue be damned, it’s what power produces). So suddenly maybe I’d not be building a bridge between right and left but instead trying to see who is or could dig in my direction. If there are instrumental views of civic and political power on the right and the left, they can’t build a bridge between them based on that commonality alone, because the ends they’re seeking are radically incommensurable. But if there are folks who imagine that civic and political power could still be (or maybe for the first time be) more classically Weberian, more virtuous, then we might find that “right” and “left” are not terribly meaningful to us. We might also find that we’re essentially outvoted everywhere at the moment, on all sides–that we are the fading representatives of a sensibility that has never really held sway much and that is easily compromised by an attraction to technocratic authority and oligarchy. I dunno. But that’s really the kind of thinking that real We/Them connections require, from both “us” and “them”.
The answer to your first question about allowing the electorate to choose someone like Donald Trump, is “No!” You are on the right track.
In your next paragraph you immediately make a fundamental error. We are not a democracy. We are a republic. There is no doubt about it now, and there was no doubt about it in James Madison’s mind. Democracies do not hold elections so there would be no possibility of Donald Trump being elected President. Democracies do not have presidents. So, your comment that the Trump problem is not “novel” in democracies is just flat wrong, and it is so wrong that it is shocks me to think that you might actually believe it. None of the examples you cite are democracies. Not a single, solitary one.
The next paragraph, about the coup d’état, is not appropriate to a democracy, so I will ignore it.
In the next paragraph you recognize that there is something wrong with the system and you propose a solution. Now, you are cooking. Governments are systems and when we identify faults, or bugs, as us old-timers called them, we can fix them. Nothing to it. Well, almost nothing. The problem does not lie in designing new system features that will solve the problems, it lies in human nature—which James Madison knew.
In the next paragraph you reveal a little more about your idea, your solution. I don’t like it. It strikes me as too elitist. Plato, Mao, Castro and others would have loved it.
In the next paragraph, without even trying, you put your finger on the problem with republics. Remember, Nero and Caligula ruled republics not democracies. An inability to hold the rulers to account is a dominant feature of republics. Most people seem to think that our government was based on the Greek democracies, but it was based on the Roman Republic, right? Even the eagle and our architecture come from Rome. I am one of those who have thought this through. I have been thinking about it since 1956. By the way, Barry Goldwater is no figure to be admired. He led the way for the states’ rights, racist Democrats of the racist south to switch to the Republican Party. The bad men from the south felt right at home with Goldwater, especially when LBJ deserted them. Donald Trump is a direct descendant of Barry Goldwater.
The next paragraph is just a further definition of the many facets of the problem. If you want a government that works for the common good, then you want a democracy. Republics work against the common good. And they do it in exactly the way you describe.
In the next paragraph you have described our present predicament. In order to right the ship there is a lot of work to be done. I’m already working on it. Are you ready to join me?
The next few exchanges between you and one of your commenters is typical. A lot of energy, and time, especially time, is wasted on such exchanges. It is time to fix the problem.
Please forgive me for this long comment, but I want to explain my position that our government is a republic and not a democracy. This distinction is important because the solution to our woes lies in replacing the republic with a democracy.
In my working life, I designed large-scale systems for large enterprises. Whenever I was invited into an enterprise to gather data about their predicament I would begin by asking as many people as possible this question: “What is wrong with the current system?” The post you made here is typical of the kind of answers I would hear. The next step was to look at the system to see if I could discover the causes of the problems. In our case, our problems are caused by two things: human nature and a bad governing system. We can’t change human nature, but we can, technically, change our system. I don’t know if we will do it, because human nature is against it. The Republicans don’t want to change the system and neither do the democrats. Everybody is unhappy, but nobody wants to do anything about it.
In any case, I have a 19,000 word essay about the Madisonian Republic which discusses the predicament you have identified. What follows is a 2,200 word summary of a key part of that essay which tries to show that we are not a democracy, but we are a republic.
In Federalist 10, Madison said that the most important task of government was to deal with factions. He defined it thusly:
“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
He then said this: “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”
He goes on for a bit, explaining that neither of these approaches will work. And he says that factions are always present:
“The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society.”
Human nature is the cause of factions. This is not a novel view for Madison. In a memorandum he wrote in preparation for the constitutional convention he said that those who run for office have one of the following motives: “ambition, personal interest, or the public good.” He said that the first two have been “proved by experience to be most prevalent.” He then said:
“Hence the candidates who feel them [ambition and personal interest], particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest, and views, of their Constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence?” He was describing our present system. He continued:
“How frequently too will the honest but unenlightened representative be the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophistical arguments with the glowing colours of popular eloquence?”
Returning to Federalist 10, Madison then goes on for a while busily setting up his arguments for rejecting a democracy and embracing a republic. He says this about democracies:
“A pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.” He goes on to conclude (erroneously): “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”
He never softens his position: democracies will not work. So, I suppose that this may be the reason that that our population clings to the idea that our government, the one that Madison designed, is a democracy. And there is more. He then introduces his republic:
“A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.”
“The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.”
His concept is simple. His republic depends on elected representatives and democracies don’t. And, a republic can handle a larger population and a greater geographic expanse than a democracy.
The he blows a lot of smoke our way:
“The effect of the first difference [delegating power to elected representatives] is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.”
This proposition is many things. It is highly desirable, highly contingent, and highly unlikely. It seems natural at this point to expect, to hope, that Madison would launch into an explanation of how his system would put the right people into office. But he didn’t have such an explanation. Instead, in the very next sentence, he said, “On the other hand…”
“On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.”
So the nature of our government depends entirely on the nature of the men who control it. This is starkly clear, but Madison’s statement is virtually unknown. I will wager that almost no Americans are now, or have ever been, acquainted with this important warning—I will double the bet by saying that no American at all can recall any national politician ever making reference to this essential point in any campaign speech. Madison’s system did not provide protection against factions gaining power—he said so himself. Let me repeat—the nature of our government depends entirely on the nature of the men who control it, and there is no way to keep tyrants out of office.
Of course Madison was right in theory. If we elect men who are wise, who can together seek and find the true best interests of the nation, who are patriotic and just, and who will rise above temptation, we will have a government that works for the people. But “if” is not good enough. By Madison’s own admission, the new government had to control the effects of faction—if it failed to do so, it would perish. His scheme of representation would work if, and only if, we put the right kind of people in office. But he had no way to make that happen. Our nation was built on “theoretic” thinking.
Madison’s description of the right kind of people (wise, patriotic, just, discerning, and above temptation) sounds familiar doesn’t it? He said that this “chosen body of citizens” might reach decisions that are “more consonant to the public good than if pronounced by the people themselves, convened for the purpose.” This is “pure” elitism. Madison was talking about himself and the other Framers. They were a “chosen body of citizens” who viewed themselves as wise, patriotic, just, discerning, and above temptation. To his way of thinking, this wealthy elite body, and future such bodies, would serve the nation better than a body chosen from the people themselves. He was attempting to justify the exclusion of the people from their own government. To Madison, Alexander Hamilton, and John Jay, only the wealthy elites, only the plutocrats, knew what was best for the people. In fact, according to many sources, John Jay was fond of saying, “those who own the country ought to govern it.”
The authors of the Federalist essays repeatedly, and unfairly, disparaged the Greek democracies. In Federalist 10 Madison told us that in his theoretic, “pure” democracy representatives were not used. Instead, he claimed, all the citizens made all the decisions themselves which would lead to destruction of the government by factions. Therefore, according to Madison, our nation had no choice but to implement his Madisonian Republic, the one with the theoretic “scheme of representation.” A few representatives, Madison said, were better than many or no representatives—a few representatives were better than letting the people make important choices. But during the debates about whether to ratify the Constitution someone challenged Madison’s sales pitch. This challenger rightly pointed out that in the ancient democracies representatives were used. So, if those ancient democracies were vulnerable to factions, as Madison claimed, and if those democracies used representatives, wouldn’t Madison’s representative republic be vulnerable to factions as well? This was a challenge that had to be answered, so Madison responded. In Federalist 63 he made it clear that even though the ancient democracies and the Madisonian Republic both relied on representatives, there was one critical difference. Here is what he wrote:
“From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments lies in the total exclusion of the people in their collective capacity, from any share in the latter, and not in the total exclusion of the representatives of the people from the administration of the former. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States.”
I have said elsewhere that the Federalist essays were written in haste and therefore some of the arguments they presented do not make sense. The paragraph just quoted at first seems to be a good example of that point, but it is not. I think that Madison said what he meant to say, but he did not want his readers to fully understand the consequences of what he said, so he brilliantly constructed it to make his readers shrug their shoulders and move on. The author of this confusing language actually was saying this:
“Yes, representatives were used in the ancient democracies, and they are used in our American state governments, and they will be used in our new republic. But the use of representatives did not cause the ancient democracies to fail, the use of representatives has not caused our American state governments to fail, and it will not cause our new republic to fail. The failure of the ancient democracies was caused by the people having too much transformative power. The people of the ancient democracies could decide among themselves what they wanted their democracy to do and then order their representatives to do it. In effect, the citizens of these ancient democracies retained and exercised all transformative power, and their representatives were delegated administrative power only. In effect, the people ruled. This resulted in all of the failures cataloged in Federalist 10. But we do not have to worry about this in our new republic.”
“Under our new Constitution, the American people cannot decide for themselves what they want the government to do and then order the government to do it. The people can only delegate their transformative power to a small group of elected representatives. The American people can only decide which representatives they want to give their transformative power, and in turn, these few representatives will meet in person to decide what they want the government to do—only they will have—only they will exercise—the transformative power of the people. Under the new Constitution, the people will never be permitted to act in their collective capacity. In this way the governing elites will hold all transformative power and thereby be assured that they can keep the factious masses under control. America will be safe in the hands of the elites.”
So, in Federalist 63 Madison wanted to show that there was an important difference between the proposed new government and the ancient ones, and that difference was to exclude the people from acting in any way except through their chosen representatives. This “true distinction,” as he called it, emphatically confirms that the new constitutional system, with its scheme of representation, was intended to mute the voice of the people and steal from them their transformative power. His system has worked as designed. Our system of government is a republic, it is not a democracy.
If we want to solve our problems, economic and governmental, we must replace our republic with a democracy.
To answer your first question, I’d say, yes, maybe with a “and it’s unfortunate.” But I’d add that many of the people who voted for Mr. Trump didn’t necessarily do so–or didn’t do so purely–because they preferred his “sleazy, corrupt, volatile, etc.” attributes or because they wished to express “their feelings of contempt for the institution or government that is staging the election.”
I’ve just used some weasel words. I said “many” without indicating how many. I said “necessarily” and “purely,” both terms reflecting a certain hedge on my part. But here’s what I mean. It’s one thing for a person in a voting booth to cast his or her vote, all the while knowing that that vote won’t make a difference. Even in a “close” state that could go either way, that one vote will be one of hundreds or one of thousands. The reason that person casts their vote the way they did may not necessarily be an endorsement of Mr. Trump’s sleaziness, etc., but a reflection of that person valuing one or two policy interests (e.g., abortion, gun rights, distress about having to pay so much on the exchanges, a belief that trade needs to be restricted). Or–what I personally think is more likely but still more complicated than an out and out endorsement of all the bad things you’re mentioning–that person has some mix of policy interests and also wants to give a big “F-you” to the system and also kind of admires Mr. Trump’s practice of not being bound by a slick script (a point you’ve made on this blog not too long ago).
In practice, I guess it amounts to the same thing. But I suspect that if one person were given a choice, and he or she knew that his or her choice would be the deciding factor in who became president–and that person would be personally responsible in a way that someone casting one vote out of millions doesn’t feel themselves to be–that person would choose more carefully. I believe that’s the case for “more than half of the people” not because “the people” are inherently good, but because most people are a combination of good, bad, visceral, well-reasoned, willing to take responsibility, and hoping to evade responsibility–and that in the end, they’ll probably choose the responsible choice.
You then ask what I take to be the implicit question of whether “there could be or should be some security that the enforcement of the law runs on a separate track from the choice of representatives or leaders.” I certainly respect that position now more than I did before. But very recently, I respected, at least in practice, decisions to go against that principle. I supported, in some measure and sometimes with reservations, the decision not to prosecute legal marijuana, the decision not to appeal favorable gay marriage rulings, DACA. Those measures weren’t out and out violations of the law. Most of them could be justified by legal principles or the executive’s discretion in deciding what laws to enforce. But now that we’re faced with someone who might go very far beyond that, I’m a bit chastened at my prior positions.
I do think the idea of an independent–and preferably a non-partisan and reasonable–prosecutor to be a good one. I accept the legitimacy of having one. I don’t, however, think it’s such a slam dunk case that there should be special prosecutors. A special prosecutor acts in some ways independent of the executive when the founding charter charges the executive with faithfully executing the laws. That’s an extra-something (I was going to say “extra-legal” or “extra-constitutional,” but those terms don’t seem right). But it seems on its face to challenge the need for “some security that the enforcement of the law runs on a separate track from the choice of representatives or leaders” because the special prosecutor is not particularly called for in that system of enforcing the laws. I’m not saying special prosecutors can’t be justified–as I said, I agree we need them in general and we need them in the case of this president. I’m only saying that the argument for the special prosecutor, while strong, can be conscientiously contested.