Comfort in History

Greetings from Virgin Gorda—which, by the way, means corpulent incel. 

Maybe it’s all the rum drinks, but I find myself a bit more relaxed about the drama in Washington than you might expect. Part of it is my personality, I think. I’m one of those people who tends to calm down when people around me start to freak out. But I’m also trying to follow my American Enterprise Institute colleague Yuval Levin’s lead these days. I’ve mentioned it a couple times, but he was recently on the Ezra Klein Show and was, as is typical, unflappable and even-keeled about the spectacle in D.C. 

This seemed to perturb Klein a bit. “As they’re trying to really change the system of government here, what would really frighten you?” he asked. “Make you think this is not just the normal surrealism of an early administration but actually the emergence of something we’ve seen in other countries?”

Yuval replied:

It’s a very important question. My biggest fear is the administration deciding not to abide by court orders. What they’re doing so far is legitimate. Whether you agree with it or not, it’s operating within the system.

A court said no, and they pulled it back. And they’re going to try again, and they’ll push and pull. That’s how our system works. It’s fine that it makes people uneasy. And a lot of what they’re pushing makes people uneasy for substantive ideological reasons. That’s how politics works.

But when the boundaries of the system itself are under threat, it’s important to think in constitutional terms. It’s not about the politics, but it’s about the constitutional structure that keeps things in order.

Yes, Yuval recently came out with a great book called American Covenant: How the Constitution Unified Our Nation—and Could Again, but I don’t think he’s just trying to move product. I mean, if he’d come out with a book on the Kama Sutra, I don’t think he would have told Klein, “I think in moments of political crisis, it’s important to consult an ancient Indian sex manual.”

Regardless, I agree with Yuval’s answer. The Constitution anticipates political actors pressing their advantage as far as they can, just as it anticipates other political actors pushing back. If they don’t push back, then politicians will exceed their authority as much as they can. The good news is that the Constitution is set up to make the pushback easier than the assault. But that doesn’t mean the pushback always succeeds. And, sometimes, the correction comes much later than we’d like.

The Supreme Court slapped down Harry Truman for exceeding his legal authority in seizing the nation’s steel mills pretty quickly, but it took longer to overrule the Roosevelt administration’s internment of Japanese Americans. The Supreme Court didn’t fully reject the policy as unconstitutional until 2018 in, ironically, Trump vs. Hawaii. Chief Justice Roberts declared, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”

A lot of people have goldfish-like memories these days, but I find comfort in looking at history. Among the many problems with historical ignorance is that it can foster panic and hysteria because people are constantly surprised by things that are not nearly as new or as unprecedented as they think. This gives people permission to overreact. I know it’s uncool to talk about norms, but the cycle of norm-violations is often fueled by ignorance. If you think everything you don’t like is unprecedented—if you greet every outrage with “This has never happened before!”—then you will be open to unprecedented responses.

I think Yuval is right to be worried about the White House refusing to abide by court decisions. I do not think we’re there yet, but I also think there’s good reason to believe that the Trump administration is laying the rhetorical and political groundwork for just such a crisis. Or at least it’s testing the waters to see how the public, and the president’s own party will respond. 

Elon Musk is prattling about a “judicial coup” and demanding a judge be impeached over a ruling he doesn’t like. Russell Vought, just confirmed as OMB director, has an exceedingly robust view of executive authority. And then there’s J.D. Vance. “If a judge tried to tell a general how to conduct a military operation, that would be illegal,” he tweeted over the weekend. “If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”

Now, it’s important to note this is mostly what legal experts would call “wrong.” Judges tell the military what they can and can’t do all the time. The Supreme Court issued all sorts of rulings during the Iraq War limiting the powers of the military. (Remember all that stuff about enemy combatants, Guantánamo, etc? You’d think Vance, both a lawyer and veteran, would.) Judges also rule on the limits of prosecutorial discretion all the time. They have balancing tests, constitutional standards, tiers of scrutiny, and all sorts of stuff like that to determine where the lines of deference should be drawn. I mean, if you took a drink every time Sarah or David mentioned “tiers of scrutiny” on their nifty little podcast, you’d need to go to rehab. 

Vance is right insofar as the courts cannot control the executive’s legitimate power, but they do get to decide what is legitimate. This isn’t just semantics. If the Trump administration started rounding up American citizens and putting them in camps without proper cause, the Supreme Court would—and certainly should—say “You can’t do that!” Hopefully, Congress would agree and refuse to fund the effort. 

The crisis comes when the president says, “You’re not the boss of me,” and does it anyway.

Why that would be a real crisis is pretty simple. The Supreme Court doesn’t have an army or an (adequate) police force to stop him—and neither does anybody else. The only thing that gives the Constitution any binding power is the consent of the American people in general, and the government itself, to be bound by it.

A lot of people don’t like hearing this, because it’s scary to think that all that stands between us and a lawless, personalist autocracy is the civic self-restraint of Donald Trump and his political allies. But as Sarah Isgur noted on Advisory Opinions, “The rule of law does not have its own force. It is a thing we’ve all agreed to do. So if you elect someone who then decides that we don’t have the rule of law, it cannot police itself. It cannot create itself. It cannot enforce itself. But we’re not there.”

Yet.

So, what should people do if Trump does refuse to defer to the Supreme Court? Obviously, I think he should be impeached and removed from office. And if Vance went along with a blatantly unconstitutional scheme, a scheme declared unconstitutional by a court brimming with six Republican appointees, half of whom were appointed by Trump, he should be thrown out, too. That’s what the impeachment clause is for. 

I can think of scenarios where even many Republicans would join Democrats in an impeachment effort. But I can also think of scenarios where they wouldn’t. Anyone with a lot of confidence in the civic mindedness of Congress, on either side of the aisle, hasn’t been paying much attention.

And this is where I think being history-minded has real value. If the worst-case scenarios come to pass, I’m all for massive, outraged-fueled, non-violent “resistance.” But the resistance must have at its core a mission to restore and refurbish the guardrails established in the Constitution. It should be a constructive learning exercise, not an opportunity to respond to lawlessness with more lawlessness. If you’re outraged by norm-breaking, the price for your righteous indignation must be a willingness to restore the norms, not use them as permission for ever-greater violations. 

Among the many reasons I was so appalled by Joe Biden’s myriad norm violations is that they gave Republicans permission to commit even greater ones in the future, just as Trump’s myriad norm violations in his first term made it easier for Biden to do what he did. This “you did X so we can do 2X” dynamic is exhausting. The cycle of two wrongs making a right needs to end. Biden’s preemptive pardons of his friends and family, for example, were outrageous on the merits. “But what about Trump’s pardons!?!” is not a refutation of that, it’s a declaration of hypocrisy. 

Recognizing that any abuse of power by your team will, inevitably, make it easier for the other team to abuse power is how democracies fix themselves.

In 1973, amid all the Watergate drama, Sen. Alan Cranston of California made an interesting admission: “Those who tried to warn us back at the beginning of the New Deal of the dangers of one-man rule that lay ahead on the path we were taking toward strong, centralized government may not have been so wrong.” 

It’s really annoying that such revelations dawn on people only when it’s the other team going too far. 

America has slipped the bounds of constitutionality many times in the past. Andrew Jackson may or may not have actually said “The chief justice has made his ruling. Now let him enforce it.” But that basically captures his attitude. The Republic survived. Woodrow Wilson was an affront to the Constitution on numerous fronts. The Supreme Court pushed back against Wilson on some fronts while he was in office and on others after he left office. But it also let many of his transgressions stand. The Republic survived.

Then there’s FDR. I’m one of those cranks who thinks FDR—a Wilson administration retread—ruled like an anti-constitutional autocrat. It didn’t seem like it to many at the time—though he did not lack for critics who shared my opinion—because he had so much political capital. He won in back-to-back landslides that delivered massive majorities in Congress. When Congress is a rubber stamp, voters are desperate, and the press is fawning, it’s really easy to act like an autocrat. 

In other words, when autocracy is popular no one wants to hear that autocracy is bad. Because people have a really annoying tendency to think anything they like must also be good and constitutional. 

I won’t go down a lengthy rabbit hole on this, but I do keep thinking of something FDR’s commerce secretary, Harry Hopkins, told New Deal activists in New York. “I want to assure you,” he said, “that we are not afraid of exploring anything within the law, and we have a lawyer who will declare anything you want to do legal.” That pretty closely tracks the Trump administration’s approach these days. 

More importantly, it’s worth recalling that FDR was more aggressive in declaring war on the Supreme Court than any president since, Trump and Biden included. His court-packing scheme threatened to turn the Supreme Court into a rubber stamp, just like Congress, but it failed and dealt a serious blow to FDR’s power and reputation at the time. His standing in the polls suffered, and that emboldened members of Congress to rediscover their backbones a bit. As H.W. Brands writes in Traitor to His Class:

Heretofore Roosevelt had been able to count on popular support when Congress hesitated, and that popular support had typically caused Congress to fall in line. Now the dynamic worked in reverse: the popular disaffection with Roosevelt’s court plan gave courage to those senators and representatives who opposed it. They stood firm and refused to reconsider.

But FDR’s brazen effort was not a total failure. FDR—norm-breaker he was—still managed to get reelected twice more, violating the tradition established by Washington of serving only two terms, and ultimately requiring Congress to amend the Constitution to restore the norm. Moreover, the court-packing threat almost certainly caused Justice Owen Roberts to switch his position on the constitutionality of the minimum wage, hence the famous phrase, “The switch in time that saved nine.” 

For generations, conservatives who complained about the excesses of Wilson or FDR were treated like reactionaries, antediluvian cranks, and acolytes of the “Constitution in Exile.” I want to grab those critics by the lapel and ask, “Now do you get it?”

Indeed, I can all too easily dispel my laid-back attitude by dwelling on the hypocrisy and cynicism of Trump enablers—who have spent decades talking about how much they love the Constitution and who decried the tyranny or lawlessness of Democratic presidents when they exceeded their authority—who are now falling over themselves to celebrate Trump’s embrace of arbitrary power. I can also harsh my mellow by contemplating all of the progressives who cheered Obama and Biden’s pen-and-phone unilateralism, and decried constitutional restraints as undemocratic relics, suddenly fretting over the threat to constitutional checks and balances. 

The point of all this is that the fight for the rule of law is never permanently lost, so long as people are willing to learn from their mistakes, get up off the floor, and fight for its restoration. 

Again, I don’t want to get ahead of things. We are not there yet, and we may never get there. Trump could conclude that a constitutional squeeze wouldn’t be worth the juice. A brazen defiance of the Supreme Court could, and I think would, have profound political costs for him. Markets would not like it, and neither would many Republican officials, who I suspect would balk at the potential blowback from even Republican voters who didn’t think they were voting for this.

But on the other hand, I do want to get ahead of things. If the worst does come to pass, it wouldn’t be the “end of democracy” or “end of the rule of law.” After all, there’s always a lot of ruin in a nation.  It would be another opportunity for America to exercise its capacity for self-correction.

Defeatism is the opposite side of the coin of triumphalism. As T.S. Eliot said, “There is no such thing as a Lost Cause because there is no such thing as a Gained Cause.” When it comes to freedom, democracy, republicanism, the rule of law, and all such things, all victories are temporary, as are all defeats. What is permanent is the necessary struggle to make the victories last as long as possible, and to make the defeats as small and as short-lived as you can.