Law, Politics

Trump/Caesar

Free Photo: Investigating the KKK

From Christian Meier’s Caesar: A Biography:

Caesar was insensitive to political institutions and the complex ways in which they operate. . . . Since his year as consul, if not before, Caesar had been unable to see Rome’s institutions as autonomous entities. . . . He could see them only as instruments in the interplay of forces. His cold gaze passed through everything that Roman society still believed in, lived by, valued and defended. He had no feeling for the power of institutions to guarantee law and security, but only for what he found useful or troublesome about them. . . . Thus what struck him most about the Senate was the fact that it was controlled by his opponents. It hardly seems to have occurred to him that it was responsible for the commonwealth. . . . In Caesar’s eyes no one existed but himself and his opponents. It was all an interpersonal game. He classified people as supporters, opponents, or neutrals. The scene was cleared of any suprapersonal elements. Or if any were left, they were merely props behind which one could take cover or with which one could fight. Politics amounted to no more than a fight for his rights.

Quoted in Jeremy Waldron’s Political Political Theory (2016), a defense of the importance of political institutions to political theory. Waldron concludes: “And by ‘his rights’ Meier meant not Caesar’s interests or his wealth but due recognition for his greatness.”

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Economics, Law, Philosophy, Politics, Religion, Science

Max Weber and Political Ethics

Free Photo: Constructing the Manhattan Bridge

I hadn’t read anything by Max Weber until very recently, but finally made my way through “Politics as a Vocation,” his late lecture delivered shortly after the end of the First World War and the start of the German Revolution.

Weber seems to be primarily known today for several largely logically independent ideas scattered across the social sciences and humanities — especially: the idea that a Protestant work ethic played a role in the rise of capitalism, the importance of charisma to politics, the centrality of bureaucracy in the modern state, and the definition of the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory” (where “legitimate” only means “accepted as legitimate,” to the apparent consternation of many normative political theorists).

I had heard that “Politics as a Vocation,” where this definition of the state appears, was one of the places where Weber approached political theorizing, and I was predisposed to sympathize with the lecture by some positive remarks that the legal scholar Duncan Kennedy had made about Weber and the “ethic of responsibility.” I’ve also always believed that political theorists tend to pay too little attention to empirical knowledge from history and political science, so I was hopeful that a broadly historically and empirically informed social scientist like Weber might offer a valuable perspective.

To my surprise, however, the lecture as a whole turns out to be remarkably parochial, and in parts, dangerously misguided.

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Economics, Politics, Religion

Constitutional Rot: A Thought Experiment

Free Photo: Dead Casualties, Russo-Japanese War

As more than three in four Republicans continue to support our dangerously unfit president, despite the daily accumulation of evidence that his unprecedented mental and emotional unwellness and incompetence threaten the security of our country, I find myself wondering: how much further can our democracy decline before it collapses? How much more steady constitutional rot can we sustain before there is a true constitutional crisis?

The greatest threat to the future of American democracy, I continue to believe, is the risk that there will be an attack on the United States or other mass-casualty catastrophe, such as an epidemic or cyberattack on critical infrastructure, during the Trump presidency. Whether or not Trump bears responsibility for the catastrophe, through his unfathomable incompetence or otherwise, it seems virtually inevitable that he will respond, as he characteristically does, by blaming his usual enemies—the press, the courts, immigrants, Muslims, and opposition political forces that may now include not only Democrats, women, and scientists, but apparently the FBI and the American intelligence community.

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Economics, Literature, Politics

Freedom

Free Photo: Path Through Debris, Galveston Hurricane

(Translated from the German.)

In the waiting room of the hospital sits a gatekeeper. To this gatekeeper comes a man from the country who is in pain and seeks to gain entry to the hospital.

“Anyone may enter the hospital,” the gatekeeper tells the man. “All you need do is enter through the emergency door.” She gestures toward a wide, swinging door at the far end of the waiting room.

The man approaches the emergency door, then turns back. “How much will it cost to enter through this door?” he asks. The gatekeeper says that there is no way of knowing the cost before the man enters. She encourages him to enter for the sake of his health. “We can settle the cost afterward,” she smiles. “We are not barbarians, after all.”

The man returns to the gatekeeper’s desk and asks her if there is another way to enter the hospital. Continue reading

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Law, Politics

Negotiation Theory Argues for Constitutional Hardball Against Trump

Free Photo: Home Being Moved

In a 2004 article, the constitutional law scholar Mark Tushnet described the rise of what he called “constitutional hardball.” The article draws attention to a phenomenon that has become even more prominent in the United States over the ensuing thirteen years: the use of “political claims and practices … that are … within the bounds of existing constitutional doctrine” but that nevertheless conflict with prior assumptions about how things are supposed to work–the assumptions that “go without saying” in a working system of constitutional government.

A historical example would be Roosevelt’s court-packing plan. Already in 2004, Tushnet described a number of more recent examples of constitutional hardball by both Democrats and Republicans, but primarily by the latter–the Democratic filibuster against Bush’s judicial nominees in 2002-2003 and the Republican response, moves in Colorado and Texas to revisit districting decisions after the 2000 census, and the impeachment of President Clinton.

Many Republicans would argue that President Obama engaged in constitutional hardball by circumventing Congress through executive actions. Even if this is granted for the sake of argument, it would be hard to deny that the radicalized Republican Party of recent years has engaged in an escalation of constitutional hardball with no modern precedent. These hardball tactics include the transformation of the Senate filibuster into a hurdle for routine legislation, the Republican decision to hold hostage the nation’s credit by threatening to default on the debt, the unprecedented refusal to hold a vote on Merrick Garland’s nomination to the Supreme Court, and the North Carolina legislature’s recent attempt to rewrite the powers of their Governor after a Democrat won the office. The list could go on.

The most important example, I would argue, was the general Republican refusal to engage in ordinary legislative negotiation with Obama throughout the course of his presidency. As Mitch McConnell famously stated in 2010: “The single most important thing we want to achieve is for President Obama to be a one-term president.” Republicans carried out this strategy for the next six years by vocally opposing virtually every initiative supported by the President, even those policies that Republicans had supported before Obama and now support again under President Trump, such as infrastructure investments.

McConnell understood a central fact of contemporary American politics, one backed by social science studies and now confirmed by the success of McConnell’s strategy. This fact is arguably the central fact of contemporary American politics, along with the phenomenon of partisan polarization grounded in antipathy for the opponent’s party. As Jonathan Chait has repeatedly, persuasively reminded us:

The truth is that voters pay little attention to legislative details, or even to Congress at all. They make decisions on the basis of how they feel about the president, not how they feel about Congress. And a major factor in their evaluation of the president is the presence or absence of partisan conflict. If a president has support from the opposition party, it tells voters he’s doing well, and they then choose to reward the president’s party down-ballot.

In fact, voters “are so single-minded in their focus on the president that voters actually base their vote for state legislature on their assessment of the president.”

Welcome or not, this is a fact of contemporary American political life. Voters will reward Democrats in 2018 and 2020 for opposing everything that Trump and the Republican Party attempt to do between now and then–and punish Democrats for any perceived Republican legislative or executive victories. Despite what voters sometimes say in surveys, they will not reward Democrats for cooperating to get things done. No one is actually paying attention to that.

In addition, there are only so many seats in the Senate and the House: a win for Republicans is a loss for Democrats and vice versa. Partisan representation is a zero-sum game, with no possibilities for mutual advantage through negotiation.

As a result, Democrats have an obvious self-interest in opposing congressional Republicans and Trump on every possible front, including the forms of constitutional hardball that Republicans used throughout the Obama presidency. The most obvious and important example is Democratic refusal to vote for Republican legislation, including legislation that Democrats might support based on its substance alone.

Another example would be Trump’s nominee to fill the vacant seat on the Supreme Court. Democrats have an interest in obstructing the nominating process through every means possible, using whatever flimsy justification comes to mind. The justification would certainly be no less flimsy than the one used by Republicans to obstruct Garland’s nomination.

But sensitive, fair-minded, principled Democrats may hesitate to embrace such a flatly oppositional approach–as Senator Schumer and no doubt many other moderate Democrats appear, very much, to be hesitating. If Democrats begin to play routine constitutional hardball just like the radicalized contemporary GOP, descending to their low game rather than rising above the fray, what will become of our constitutional system?

Once the unwritten norms of fair play and settled tradition are routinely, unapologetically violated, will the Constitution not cease to “make politics possible,” leading to a serious constitutional crisis?

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Economics, Law, Politics, Religion

This Has Never Happened Before

Free Photo: Arica After 1868 Earthquake

Soon, a corrupt, emotionally unstable demagogue and white nationalist fellow-traveler will be inaugurated as President of the United States. He will be supported by a Republican majority in both houses of Congress, and, soon, the return of a Republican majority on the Supreme Court. He will also have the passionate, unwavering loyalty of a mass following that believes even his most outlandish lies.

Donald Trump’s assumption of the presidency poses the greatest threat to our country of any event in my lifetime. In a future post, I hope to collect in one place what seem to me the best proposals for protecting the United States by opposing and resisting the Trump presidency on every front.

In this post, I would like to consider the stakes of the coming months and years.

The dangers of this presidency have no precedent in modern American history. Since the United States became a global military power, not to mention a nuclear power, no President has been remotely as emotionally unstable, unqualified, hostile to democracy, or allied with enemies of the United States as Donald Trump.

I will offer only one example, focusing on the last point. Our incoming President has openly taken the side, against citizens of the United States, of a hostile foreign power that attacked them. Donald Trump has openly and unapologetically sided with an enemy of the United States against the American victims of the enemy’s attack.

Nothing like this has ever happened before, to my knowledge, in American history.

It is now known that Russian President Vladimir Putin directed attacks on American computer servers and released emails stolen from Americans in an attempt to increase Trump’s chances of being elected. The incoming President has long been pro-Putin—most likely a result of his longstanding, repeatedly announced admiration for authoritarian tyrants, his many business dealings with Russian oligarchs, his susceptibility to cheap flattery, his sympathy for Putin’s anti-Islamic ethnic nationalism, and his unwitting reliance on Russian-funded news media and advisers in the pay of the Kremlin.

Instead of condemning Russia’s violations of the rights of fellow Americans, the incoming President defends Putin. Trump is openly and unapologetically on the side of a foreign enemy that attacked Americans.

Day after day, month after month, year after year, Trump continues to defend this petty tyrant and butcher who promotes ethnic hatred around the world, who has had journalists and political opponents jailed and killed, who has stolen billions of dollars from his people, who is responsible for mass atrocities in Syria and elsewhere, and who recently invaded and occupied a sovereign European state. Putin is not only an enemy of the United States. He is an enemy of the human race.

This is the man that Donald Trump, our incoming President, has praised and continues to praise. An attacker on the United States. A foreign enemy.

Our incoming President supports the butcher Putin, praises him, and defends his illegal interference in our elections and his crimes against our fellow citizens. Our incoming President’s party remains largely silent in response to this unprecedented betrayal of the United States.

This has never happened before. What will happen next?

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