The Trump Impeachment Has Revealed Three “Deep Flaws” in the Constitutional System

22c0d-united-states-constitution

Michael Gerhardt, a constitutional law professor at the University of North Carolina, writes at The Atlantic:

…few think that the acquittal of President Trump is a triumph for the Constitution. Instead, it reveals a different, disturbing lesson, about how the American political system—and the Constitution itself—might be fundamentally flawed.

Since the writing of the Constitution, three developments have substantially altered the effectiveness of impeachment as a check on presidential misconduct.

They are:

  1. Extreme partisanship
  2. The internet and social media
  3. The direct election of Senators

See how he develops these points here.

When Political Loyalty Trumps Moral Clarity

Impeachment Image

We are in the third day of the Donald Trump Senate impeachment trial.  Kentucky Senator Rand Paul has already gone on record saying that the entire trial is a “partisan charade.”

Other GOP Senators have also weighed-in:

Whether you call the Senators “jurors” or “judges,” something is not right about a Senator writing tweets like this during such an important trial.  This impeachment trial is not a hoax.  The Constitution says that the House of Representatives has the authority to impeach the president.  This has happened.  Some Senators may not like that this has happened, but it did.  Senators now have a responsibility to sit quietly, listen to evidence, and make a decision about whether or not to remove the president.

This impeachment trial is just the latest example of how political partisanship distorts critical thinking and basic morality.

I don’t see how any Senator can be confronted with the evidence we have heard over the last two days and not think that Donald Trump has done something immoral. We can debate whether or not what Trump did was an impeachable offense, but can we truly say that he acted in a morally upright way in this whole Ukraine mess?  Was this really a “perfect call?”

Why won’t these GOP Senators speak-up?  Why won’t they publicly admonish Trump for his blatant immoral behavior?  Why have they remained silent or commented on Trump’s immorality with phrases like “Well, that’s just his style” or “if it was me, I wouldn’t have used those words.”  Why do they take media opportunities to defend Trump?  I hope people like Mitt Romney, Ben Sasse, Cory Gardner, Tom Cotton, Marco Rubio, roy Blunt, Richard Burr, Rick Scott, Rob Portman, James Lankford, Pat Toomey, Tim Scott, John Thune, Bill Cassidy, and Lamar Alexander will answer these questions for me.  Mitt Romney is a Mormon.  Sasse, Rubio, Blunt, Lankford,, Tim Scott, Rick Scott, and Thune are evangelical Christians.

Most of these Senators can think critically and make decisions based on evidence.  Many of them have a sense of right and wrong.  But their critical faculties and moral capacities are held captive by political partisanship.  Party loyalty weakens independent thinking.  Party loyalty undermines moral clarity.

Mitt, I’ve Always Liked You. Please Break With Your Party Again

40a3c-romney

Over at The Washington Post, Katherine Rampell writes about how Mitt Romney broke with many of his GOP colleagues in his decision to support an expansion of the child tax credit.

Now it is time for Romney to break with his party again and vote to remove the President of the United States from office.  At the very least, Romney should make it difficult for Mitch McConnell to prevent the calling of Trump staff members as witnesses in the Senate impeachment trial.

It is time for Trump’s vocal GOP critics–Romney, Rubio, Sasse, Collins, and Murkowski–to step-up to the plate.  Don’t let us down Mitt!

Blame Gingrich

554d3-gingrich-arms-wide

According to McKay Coppins, Newt Gingrich “turned partisan politics into bloodsport, wrecked Congress, and paved the way for Trump’s rise.”  Here is a taste of his piece at The Atlantic, “The Man Who Broke Politics”:

There’s something about Newt Gingrich that seems to capture the spirit of America circa 2018. With his immense head and white mop of hair; his cold, boyish grin; and his high, raspy voice, he has the air of a late-empire Roman senator—a walking bundle of appetites and excesses and hubris and wit. In conversation, he toggles unnervingly between grandiose pronouncements about “Western civilization” and partisan cheap shots that seem tailored for cable news. It’s a combination of self-righteousness and smallness, of pomposity and pettiness, that personifies the decadence of this era.

In the clamorous story of Donald Trump’s Washington, it would be easy to mistake Gingrich for a minor character. A loyal Trump ally in 2016, Gingrich forwent a high-powered post in the administration and has instead spent the years since the election cashing in on his access—churning out books (three Trump hagiographies, one spy thriller), working the speaking circuit (where he commands as much as $75,000 per talk for his insights on the president), and popping up on Fox News as a paid contributor. He spends much of his time in Rome, where his wife, Callista, serves as Trump’s ambassador to the Vatican and where, he likes to boast, “We have yet to find a bad restaurant.”

But few figures in modern history have done more than Gingrich to lay the groundwork for Trump’s rise. During his two decades in Congress, he pioneered a style of partisan combat—replete with name-calling, conspiracy theories, and strategic obstructionism—that poisoned America’s political culture and plunged Washington into permanent dysfunction. Gingrich’s career can perhaps be best understood as a grand exercise in devolution—an effort to strip American politics of the civilizing traits it had developed over time and return it to its most primal essence.

Read the entire piece here.

Coppins is probably right about Gingrich, but let’s be careful making too many grandiose claims about Newt as the originator of political bloodsport. As I read Coppins’s piece I was reminded of Yale historian Joanne Freeman’s new book The Field of Blood: Violence in Congress and the Road to the Civil War.

The Constitution as a “cudgel with which to attack their enemies”

22c0d-united-states-constitution

In The Atlantic‘s ongoing series on the state of American democracy, Yale Law School professors Amy Chua and Jed Rubenfeld argue that partisanship has “turned Americans against one another–and against the principles enshrined in our founding document.”  They call for a “constitutional patriotism.”  Here is a taste:

America is not an ethnic nation. Its citizens don’t have to choose between a national identity and multiculturalism. Americans can have both. But the key is constitutional patriotism. We have to remain united by and through the Constitution, regardless of our ideological disagreements.

There are lessons here for both the left and the right. The right needs to recognize that making good on the Constitution’s promises requires much more than flag-waving. If millions of people believe that, because of their skin color or religion, they are not treated equally, how can they be expected to see the Constitution’s resounding principles as anything but hollow?

For its part, the left needs to rethink its scorched-earth approach to American history and ideals. Exposing injustice, past and present, is important, but there’s a world of difference between saying that America has repeatedly failed to live up to its constitutional principles and saying that those principles are lies or smoke screens for oppression. Washington and Jefferson were slave owners. They were also political visionaries who helped give birth to what would become the most inclusive form of governance in world history.

Read the entire piece here.

Should Conservatives Abandon the GOP and Vote for a “Straight Democratic Ticket?”

 

Republican U.S. presidential candidates Carson and Trump talk during a break at the second official Republican presidential candidates debate of the 2016 U.S. presidential campaign at the Ronald Reagan Presidential Library in Simi Valley

Jonathan Rauch and Benjamin Wittes think that they should.  Here is their recent piece in The Atlantic:

We have both spent our professional careers strenuously avoiding partisanship in our writing and thinking. We have both done work that is, in different ways, ideologically eclectic, and that has—over a long period of time—cast us as not merely nonpartisans but antipartisans. Temperamentally, we agree with the late Christopher Hitchens: Partisanship makes you stupid. We are the kind of voters who political scientists say barely exist—true independents who scour candidates’ records in order to base our votes on individual merit, not party brand.

This, then, is the article we thought we would never write: a frank statement that a certain form of partisanship is now a moral necessity. The Republican Party, as an institution, has become a danger to the rule of law and the integrity of our democracy. The problem is not just Donald Trump; it’s the larger political apparatus that made a conscious decision to enable him. In a two-party system, nonpartisanship works only if both parties are consistent democratic actors. If one of them is not predictably so, the space for nonpartisans evaporates. We’re thus driven to believe that the best hope of defending the country from Trump’s Republican enablers, and of saving the Republican Party from itself, is to do as Toren Beasley did: vote mindlessly and mechanically against Republicans at every opportunity, until the party either rights itself or implodes (very preferably the former).

Of course, lots of people vote a straight ticket. Some do so because they are partisan. Others do so because of a particular policy position: Many pro-lifers, for example, will not vote for Democrats, even pro-life Democrats, because they see the Democratic Party as institutionally committed to the slaughter of babies.

We’re proposing something different. We’re suggesting that in today’s situation, people should vote a straight Democratic ticket even if they are not partisan, and despite their policy views. They should vote against Republicans in a spirit that is, if you will, prepartisan and prepolitical. Their attitude should be: The rule of law is a threshold value in American politics, and a party that endangers this value disqualifies itself, period. In other words, under certain peculiar and deeply regrettable circumstances, sophisticated, independent-minded voters need to act as if they were dumb-ass partisans.

Read the rest here.

 

Is the United States a Tribal Society?

Parties

Yes, says Andrew Sullivan. And it is destroying our democracy.  Here is a taste of his recent piece at New York Magazine:

One of the great attractions of tribalism is that you don’t actually have to think very much. All you need to know on any given subject is which side you’re on. You pick up signals from everyone around you, you slowly winnow your acquaintances to those who will reinforce your worldview, a tribal leader calls the shots, and everything slips into place. After a while, your immersion in tribal loyalty makes the activities of another tribe not just alien but close to incomprehensible. It has been noticed, for example, that primitive tribes can sometimes call their members simply “people” while describing others as some kind of alien. So the word Inuit means people, but a rival indigenous people, the Ojibwe, call them Eskimos, which, according to lore, means “eaters of raw meat.”

When criticized by a member of a rival tribe, a tribalist will not reflect on his own actions or assumptions but instantly point to the same flaw in his enemy. The most powerful tribalist among us, Trump, does this constantly. When confronted with his own history of sexual assault, for example, he gave the tiniest of apologies and immediately accused his opponent’s husband of worse, inviting several of Bill Clinton’s accusers to a press conference. But in this, he was only reflecting the now near-ubiquitous trend of “whataboutism,” as any glance at a comments section or a cable slugfest will reveal. The Soviets perfected this in the Cold War, deflecting from their horrific Gulags by pointing, for example, to racial strife in the U.S. It tells you a lot about our time that a tactic once honed in a global power struggle between two nations now occurs within one. What the Soviets used against us we now use against one another.

In America, the intellectual elites, far from being a key rational bloc resisting this, have succumbed. The intellectual right and the academic left have long since dispensed with the idea of a mutual exchange of ideas. In a new study of the voting habits of professors, Democrats outnumber Republicans 12 to 1, and the imbalance is growing. Among professors under 36, the ratio is almost 23 to 1. It’s not a surprise, then, that once-esoteric neo-Marxist ideologies — such as critical race and gender theory and postmodernism, the bastard children of Herbert Marcuse and Michel Foucault — have become the premises of higher education, the orthodoxy of a new and mandatory religion. Their practical implications — such as “safe spaces,” speech regarded as violence, racially segregated graduation ceremonies, the policing of “micro-aggressions,” the checking of “white privilege” — are now embedded in the institutions themselves.

Conservative dissent therefore becomes tribal blasphemy. Free speech can quickly become “hate speech,” “hate speech” becomes indistinguishable from a “hate crime,” and a crime needs to be punished. Many members of the academic elite regard opposing views as threats to others’ existences, and conservative speakers often can only get a hearing on campus under lockdown. This seeps into the broader culture. It leads directly to a tech entrepreneur like Brendan Eich being hounded out of a company, Mozilla, he created because he once opposed marriage equality, or a brilliant coder, James Damore, being fired from Google for airing civil, empirical arguments against the left-feminist assumptions behind the company’s employment practices.

Read the entire piece here.

Can an Independent Counsel Be Truly Independent?

A4490-20

J. Edgar Hoover

I hope so.  But, as Yale historian Beverly Gage argues, history reminds us that partisanship is difficult to overcome.

Here is a taste of her New York Times piece “Can Anyone Be Truly ‘Independent’ in Today’s Polarized Politics“:

In colonial America, “independence” meant something relatively simple: freedom from economic dependence, or the ownership of land and wealth. By the 18th century, though, the word had acquired a more explicit political meaning: Men needed to be “independent” in order to think clearly about the common good and thus to rule themselves. For the founders, this came with many limitations of race, gender and class. As a political vision, though, it communicated a higher purpose: Officeholders would have to reject the temptations of partisanship and personal interest lest, as George Washington warned in his farewell speech, “cunning, ambitious and unprincipled men” use the white-hot animosities of party politics to “usurp for themselves the reins of government.”

This ideal of the selfless federal servant was always partly a noble fiction; as “Hamilton” fans know, the founding era’s hostilities were vicious enough that a vice president killed a former Treasury secretary. The aspiration to meet that ideal nonetheless held sway well into the 1820s, creating what became known as the “Era of Good Feelings.” It was as debates over slavery and territorial expansion heated up that party warfare returned. The Civil War itself erupted in the aftermath of a partisan event: the election of the country’s first Republican president.

Two decades later, the assassination of President James Garfield brought a new round of national soul-searching. The deranged assassin, Charles Guiteau, said he committed the deed in order to unify the Republican Party and because he felt he had deserved a patronage appointment as a European ambassador. A couple years later, in 1883, Congress passed the Pendleton Act, the nation’s first comprehensive Civil Service law, designed partly to calm the roiling political waters. Under these new rules, many federal jobs would be parceled out according to “merit” rather than party patronage, ensuring the independence and integrity of at least some of the people serving in government.

As the 20th century dawned, and Americans embraced the promise of apolitical government expertise, administrative agencies and bureaus proliferated — among them the tiny Bureau of Investigation. Founded in 1908, the bureau started out plagued by the very problems Civil Service law was designed to eliminate: incompetence, corruption and crony appointments. Then, in 1924, a bustling young director named J. Edgar Hoover set about whipping the bureau into shape. Hoover is often seen today as a tyrant and a violator of civil liberties, but when he came to office, he was considered a reformer and an enemy of “politics,” a man who could be relied upon to tell the truth when everyone else seemed to be lying for partisan ends.

He was no political naïf, however. Despite his fealty to the idea of nonpartisan professionalism, Hoover fought to keep his agents out of the Civil Service, sure that its rules and regulations would limit his autonomy as director. This sleight of hand gave Hoover’s F.B.I. its peculiar character, at once a respected investigative body and a personal fief. It also helped to insulate Hoover from the fate visited upon James Comey. As the Times journalist Tom Wicker noted two years before Hoover’s death in 1972, the F.B.I. director achieved “virtually unlimited power and independence.” No president, Republican or Democrat, ever dared to fire him.

This is one example of how bureaucratic independence can go awry. In the mid-1970s, alarmed by abuses of power during Hoover’s nearly 48-year directorship, Congress decided that future F.B.I. directors should be subject to a 10-year limit. The policy effectively split the difference between autonomy and accountability: The president still had the right to fire an F.B.I. director, but the law established a standard period of service longer than any president’s two terms. One of several things Trump’s showdown with Comey calls into question is whether this arrangement is still enough to ensure a reasonable level of F.B.I. independence — especially under a president disinclined to observe political norms.

Read the entire piece here.

Prothero on Jefferson

Stephen Prothero has a short column in today’s USA Today on Thomas Jefferson, David Barton, and American political and civil discourse.

He begins with David Barton and his attempt to turn Thomas Jefferson into an orthodox Christian and concludes with Jefferson’s efforts, in his first inaugural address, to move the country beyond the partisan divisions of the 1790s.  While many turn to Lincoln’s second inaugural address as a statement of reconciliation and national healing, Prothero reminds us that Jefferson had a similar vision when he became president in 1801.

Prothero argues that the way around the culture wars and “partisan creep” is what he calls “The American Bible.”  I will let him explain:

Americans have never agreed on a common creed of our public life, but we do share two things: a collection of core texts and the ritual of arguing about them. Just as Catholics come together to participate in the Mass, Americans come together to debate what these speeches, songs and stories tell us about “America” and “Americans.”

Two quick thoughts:

1.  I have not finished Barton’s The Jefferson Lies, but I do not think Barton ever tries, as Prothero describes it, to paint Jefferson as an “orthodox Christian.”  While Barton wants to show that Jefferson deeply valued Christianity and the contribution it could make to a republic, I think he is willing to admit that Jefferson was not orthodox or evangelical.  (Although I am sure that this is not a part of his public presentations to churches).

2.  Prothero says that he does not aim to criticize Barton, only to make sense of his many fans.  I wish his column would have developed his thoughts on this point a bit more.  There have been a lot of criticism on the content and methodology of Barton’s work, but very little written about why his approach to the American past is so attractive to so many people.  Perhaps I need to read Prothero’s The American Bible: How Our Words United, Divide, and Define a Nation to learn more.