On Monday, I argued that what the rule of law entails, especially for official actions, is part of a package of political morality and constitutional practice, and so it is quite right to link concerns about the rule of law with the sense that a constitutional crisis is afoot. A constitutional crisis, however, is not necessarily apocalyptic, even it feels that way from within the regime under attack—as the New Deal did to traditional business interests, libertarians, and their lawyers, who regarded it as American fascism and the end of constitutional liberty, or as the civil rights revolution did to segregationist elites in the 1950s and 1960s, who saw the end of the federalist compromises that had helped to sustain racial tyranny since the end of Reconstruction. Our evaluation of the crisis depends on the substantive values it advances, whether democratic publics are able to resolve the crisis, and whether the resulting regime deserves to be called a liberal democracy—that is, will it be open to further legitimate change in the name of, and with the support of, political majorities?
In this post, building on arguments I develop in a “A Democratic Rule of Law,” I want to say something about the political economy of the present crisis—how did we get here, what makes our situation distinctive, and how does all of that bear on the stakes of this moment and the prospects of resolving it?
Populist Presidentialism
In past constitutional crises, congress played an important part in casting the die against the established order. Although FDR’s four terms loom large in the memory of the New Deal, it was Democratic supermajorities (of a scale almost unique in American history) that passed the legislation redefining the relationship of government to economic order and of national power to that of the states. The same goes for transformative civil rights legislation in the 1960s, which as everyone now understands did much more for desegregation than storied cases like Brown v. Board of Education. So the challenge to the established order and its representatives came, in key ways, from an institution with the best claim to represent the country in its regional and other dimensions of diversity.
Today, the challenge comes in the form of a charismatic president whose claim to embody and voice legitimate American sovereignty is intensely personal. To have the insurgent claim on behalf of “the people” incarnated in one iconic person is a totally different kind of political representation from the more mediated and cumulative representation of congress. It is more idiosyncratic, turning constitutional agendas on questions of individual temperament and priorities in a way that is more familiar in monarchical than republican systems. It invites a more total identification of citizens with and against the president, of a para-social kind all too familiar in social media experience: is this your champion or your villain? (President Trump understands this better than any previous president of this era, and is skilled at playing both roles.) It centers questions of collective identity that have become reflexive in this political environment but, on reflection, may be too vague and fraught with passion to resolve by democratic means: “This is not who we are”—or is it? Is he or is he not America? Etc.
Trump, in this respect, is closer to the apotheosis of our current political culture than a departure from it. All politics tends to take on this shape in an era of dysfunctional legislatures, weak parties, and demobilized traditional civil society (such as unions and old-school membership-driven civic groups). At least since the first Obama campaign, competing versions of “the people” have coalesced around exemplary champions with whom supporters passionately identify, and whom opponents viscerally loathe. Even Joe Biden, man of a previous era, was drawn into the negative side of this (“Let’s Go, Brandon”), while no amount of “Dark Brandon” memes could conceal that the “positive” side of it was alien to him.
So the popular sovereignty that the Trump administration appeals to in challenging the present constitutional regime is personal, plebiscitary, and fiercely emotionally charged. It draws energy from 20th century celebrity culture as filtered through the new media environment of para-social identification and takes advantage of our withered institutions.
Business as a Mode of Rule
Donald Trump is the first President to have had no experience in public service—no time served in a political party, no elected office before the presidency, no military service (let alone leadership) in the style of Ulysses Grant or Dwight Eisenhower. Besides his celebrity, his claim to authority is that he is a rich businessman. This is a new picture of what legitimate government looks like, and at least in the early days of the second Trump administration, it looks to be a picture that has gathered the support of a large share of actual business elites, especially titans of the new tech industries. Elon Musk’s personal representation of Trump’s rule across the federal agencies makes it vivid: being the boss is now on the table as a mode of government.
This has a bunch of implications. For one, as Corey Robin has pointed out on social media, it brings the legal image of at-will employment into the government. The strategy of ignoring civil service protections and due process for termination is powered, inter alia, by the sense that the president is the boss and the boss fires people. (Isn’t what he’s famous for?) A more or less permanent and professional civil service, a basic feature of the 20th century state, is at odds with the at-will idea that all jobs are always up for grabs — an idea especially big in Silicon Valley mythos. For another thing, this disposition brings a transactional attitude toward all things into the core of the rule of law. Use the threat of prosecution, or the offer to withdraw, to get policy cooperation out of officials? Why not? Doing otherwise would leave money on the table.
This version of a business ethic is at odds with any attractive idea of the rule of law, because it understands the basic form of human organization as an enterprise with a boss who is in charge—“the rule of men” rather than “the rule of law.” There has long been a liberal hope that business needs and necessarily supports a modest version of rule of law: that a capitalist economy stably combines the pursuit of self-interest within rules with steadfast adherence to the rules themselves. This idea seemed to be realized in some ways in the civic-minded generation of CEO’s like Mitt Romney’s father, George Romney (president of the American Motors Corporation, governor of Michigan, and secretary of Housing and Urban Development). But it was always vulnerable to the impulse to seek rents by capturing the rules themselves. We are now in a more or less open transactional-cum-political contest over paths to profit-taking. Statutory limits, constitutional norms and institutions, and ethical restraints all look like tokens in a sucker’s game.
A lot of this is chickens coming home to roost. Democrats promoted inequality and a profit-first ethos in pushing globalization, financial deregulation, and a blank regulatory check for Silicon Valley, all while intermittently talking about running government “like a business”—without much thought about what that would really mean. Both parties have allowed plea bargaining to take over criminal justice, more or less enshrining a transactional approach to law for ordinary people who end up on its wrong side. Most people who have encountered the immigration system in recent decades have left more cynical about any American commitment to the rule of law. But if this makes the present crisis less exceptional than some imagine, seeing the longer logic of change is no reason for complacency now.
Friends and Enemies
I sometimes think it is significant that so much of our popular fantasy involves Manichean struggles against non-human evildoers from a different realm or plane of reality. Orcs, dementors, Sauron, Voldemort—villains who, although essentially alien and hostile, may have their tendrils into someone dear to you, or even somewhere in your own besieged mind. None of this is new, of course, but it is quite intense in our stories and spectacles. It mirrors not just the bizarre world of Q Anon, but the more ordinary experience of online or simply partisan media, in which everything is friend-enemy, not even in a cold, Machiavellian way, but in a hot way, in which the question is what the monsters are trying to do to our world, and what we (or, mostly our champions) will do to slay them.
Less conjecturally, it’s well understood that while political parties were once the great organizers of competing social interests into programs and coalitions, they now primarily serve to polarize the political class through their duopoly on primaries, which puts the choice of candidates in the hands of the most impassioned voters. So friend-enemy logic has an institutional expression. It has an expression, too, in the political economy of media. In his lastingly important 1995 book The Principles of Representative Government, Bernard Manin remarked that the only thing that kept what he called “media democracy” (basically the politics of celebrity) anchored in any kind of legitimating democratic representation was that the posturing of celebrity politicians was refracted through a relatively nonpartisan media. Now, as everyone understands, these two polarizing logics work together to amplify the perception that Americans live not just in competing parties, but in incompatible worlds.
I wouldn’t want to exaggerate. Our division remains in some ways less severe than that of societies divided by class, region, and party media in the early 20th century. But it may be that our division is less material, more symbolic, and in a weird way more self-sustaining and less amenable to compromise or stabilizing principle.
With this diagnosis of the present crisis in place, in my next and final post of in this series, I hope to turn to the hard question of what to do in the face of all this.
