Men, not Laws
The United States of America proudly hails no more cherished old saw of its historic political achievement than that it is a nation “of laws and not of men.” This learned wisdom of John Adams is echoed throughout the founding documents and founded in the origins of Western civilization: “[I]t is preferable,” said Aristotle in the Politics, “for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them.”
If the sad duty should ever befall that the leader who governs be removed, for placing himself beyond the law—see Richard Nixon—then the sadness will be leavened by prideful cheer that the mechanisms of liberty worked, and the law prevailed.
“We are all servants of the laws,” opined the paradoxical Cicero, “in order that we may be free.”
This beautiful intellectual construct, however, is a lie.
The tradition maintains that in such service to the law is institutionalized the government’s legitimacy, and that of its leader. Governmental legitimacy, institutionalized in the rule of law, is in turn the condition for the regulation of our political freedom: we remain free because the institutions of government, perceived to be lawful and legitimate, ensure that freedom.
Perceived to be. For it matters not should perfect justice reign, the interests of all viewed from behind the Rawlsian veil of ignorance, if the conviction forms that the “deep state” rules, with everything a sham.
Laws did not make the men. Men made the laws. They can unmake them. They can unmake them lawfully, to betray the law. Men can simply decline to enact and enforce the laws, or violate their spirit. That the United States, or any liberal democracy, is a nation of laws and not of men is the necessary, ideal fiction by which each seeks to establish its gifts in perpetuity.
For whatever the law may be, still the cops on the street must not pocket the cash or re-peddle the drugs. Their fellows must erect no blue wall of silence. Prosecutors must not choose cases based on enmity or favor—or judges be bribable or legislators paid to be played. Legislatures must accept the decisions of the courts, courts abide by the will of legislatures, executives agree to be bound in their power by both. US Marshals must serve the warrants and apprehend the fugitives. The law rules because in every instance, at every instant, innumerable times a day, a person agrees to act as the law’s instrument, by obeying it and serving it, and by so doing both enacting its rule and affirming its legitimacy.
In talk, then, of Donald Trump’s own legitimacy, as President of the United States, how confused the conversation has been almost from the start. And from the start, legitimacy has been the only real question about Trump.
The President of Illegitimacy
Later, we necessarily became concerned by that legal, formal question, about Russian “meddling,” and outside interference. We became focused on Trump’s own unseemly flirtation with the specters of such meddling, and with James Comey’s poor decisions. We have suffered the shock of the election outcome and its hair’s breadth determinants. In all these ways, public discussion has framed the question of legitimacy as only a procedural matter: despite all that happened, was the process fairly conducted and the outcome faithfully arrived at? Did the law, whatever the outcome—in a nation of laws, and not of men—prevail?
But this concern is to confuse that letter of the law with its spirit, the process with the product. The question of Trump’s legitimacy is something more essential, and, in Trump’s still earlier lie, about the American identity of Barack Obama, and thus the constitutionality—the legitimacy—of Obama’s presidency, Trump revealed it: the made-in-America candidate whose products are made not in America, the university that wasn’t a university, the reality television program that offered something other than reality. In 1993, appearing before congress over the Indian Rights Gaming Act, seeking to gain advantage for his own casino projects, Trump declared, “I think I might have more Indian blood than a lot of the so-called Indians that are trying to open up the reservations.” By the next decade, Trump had reached the apotheosis of his business career, not in the architectural character of his buildings or the greatness of his properties, but, instead—having left almost all actual development and creation behind—in the hollow halo of his name: the Trump-branded property, which, faced with any legal problem, like that of the Trump Ocean Club International Hotel and Tower in Panama City, he would be quick to declare not actually his.
The challenge to legitimacy, then, the essential genuineness and validity of a thing—the status in reality of anything as authentic—is the signifying center of Donald Trump’s sales spiel life. The life has been lived, in all its gold gaudy brilliance, as the ultimate, debased simulacrum of the real, the hollow pinnacle of which Trump has now reached at the zenith of world power.
“People will just believe you,” Billy Bush recalls Trump once saying to him. “You just tell them and they believe you.”
Trump’s apologists attempt to normalize this abnormality, tell us he is no worse than others, who are actually worse than he, to whom he is the corrective answer: no one, after all, ever corrupted a nation without claiming first that he himself offered it salvation from corruption. But delegitimizing the truth is the basis on which Trump has built even his political identity. Both as a candidate and continuing as President – the constitutional executive power of the United States, charged as head of state to be the embodied symbol of the government’s legitimacy – Trump has instead worked assiduously to undermine that legitimacy in almost every way.
During the campaign, he regularly declared the electoral process “rigged,” calling repeatedly for the imprisonment of his opponent, refusing to say during the final debate that he would even accept the election outcome. He attacked both the federal courts and their judges. He attacked, and diminishes still, the nation’s own intelligence agencies, and its military, whose generals he once declared “reduced to rubble” and “embarrassing to our country,” but whom, in office, in his personal, authoritarian fashion, he calls “my generals” and “my military.” He wages unremitting war against the nation’s Justice Department, including its chief officers and chief investigative agency, the FBI, and special investigative offices. He accuses former presidents of criminal activity against him, and he has challenged and destabilized the whole apparatus of federal government, by coloring even its civil servants as a “deep state” acting against him.
Even further, in timeless autocratic fashion, Trump has sought to undermine no pillar of democracy more than that of a free press. In so doing, for those under his sway, he has attempted to remove any competing source of presumed truth-telling other than his own voice.
It would be easy, and facile, to argue that the raising up of such a distinction as moral legitimacy, in order to balance a blinkered focus on the legal kind, is simply a sop to personal or ideological disfavor. That is, tactically, what Trumpists try to do—to reduce opposition to Trump to merely a more extreme iteration of the ever-increasing partisan divide. For Trumpists, in their cultivated hatred of liberals, “elites,” and multi-cultural transformation, the fire’s breath of all three together is sufficient to motivate allegiance to any dragon slayer who might pledge to doom them.
However, it is not any notion of “moral legitimacy” alone that challenges the Trump presidency. It is, further, the substance of legitimacy, not just its form, that calls into question Trump’s standing. It is, indeed, a modern political malady, across the ideological spectrum, to confuse, and abuse, the distinction between formal and substantive legitimacy.
The Faking of Democracy
On one hand, internationally, the far-left critique of Western liberal democracies in the post-World War II era has regularly performed this confusion of form with substance, reducing political principles and ethical standards to legalistic procedure, particularly as applied to perceived Western violations of internationally promulgated norms. But these codified human and civil rights are the evolutionary product of the West’s own intellectual and social history, of its own long and continuing struggle to emerge from a political state of nature. The United Nations, the Geneva Conventions, and the whole complex of evolving international law and bodies are direct products, intellectually and materially, of this history. The UN would not have been born without the political, moral, and financial force of the US behind it. This history and these institutions are part of the intellectual and moral achievement of the West, no less than imperialism, colonialism and institutionalized slavery are aspects of its degraded past. These achievements are not mere forms to be abstracted from the integral historical processes and living values that continue to develop and substantiate them. They are not simply procedural norms through which enemies of these achievements—fascists, Marxist-Leninists, autocrats and theocrats of every variety, or the whole anti-Enlightenment, intersectional, postcolonial nexus—may attempt to hoist by their own petard the nations that continue to build on these accomplishments.
On the authoritarian side, right and left, we see a complementary domestic expression of the same confusion: in contemporary developments, it has been on display for twenty years now, as democratically elected leaders abuse democratic processes to undo liberal democracy. And repeatedly, in the face of these slow-motion deconstructions of the liberal state, an institutional deer-in-the-headlights procedural paralysis fails to prevent it. In Europe, this is the unfolding story in Poland and Hungary, from the culturally revanchist right. In Venezuela, Hugo Chavez and Nicolás Maduro accomplished it from the socialist left. And from that bastard hybrid of illiberal unenlightenment we might call rhetorically-left Islamism, Recep Erdoğan, in Turkey, has gradually, then dramatically, in turns, undone Turkey’s secular democracy.
Often, as was so during the inter-war years of the 1920s and 30s, the process is enabled by a widespread sense of liberal democracy’s growing dysfunction. In 2006, Hungary’s Ferenc Gyurcsány gave his disastrous “Őszöd speech,” confessing, he thought privately, to the deceptions and ineptitude of the ruling socialists, and Viktor Orbán soon came to power. Between 2007 and 2013, Turkey’s Ergenekon and Sledgehammer cases—alleged plots to overthrow Erdoğan, in which much of the evidence was later revealed to be manufactured—provided Erdoğan with the opportunity to pursue the “deep state” he claimed was operating against him, and to consolidate and extend his power. In some ways most instructive, in Venezuela, in response to failed neoliberal economic reforms, Chavez led or inspired two attempted military coups in 1992, the first of which led to his imprisonment.
It requires little reflection to think it a reasonable rule in any democracy that those convicted of attempting to overthrow it be barred forever from holding public office. Less conclusively than with Chavez, Erdoğan, always suspected of theocratic ambitions, was jailed and removed as mayor of Istanbul in 1997 for his public reading of an Islamist poem in which were inserted verses considered to be an incitement to violence against the government. He served four months of a ten-month sentence and was banned from politics, though by 2003 he had been permitted to run for office and won election to the prime ministership.
The point here is that there has always been good basis upon which to know who are the illiberal autocrats in the making, and there remains the vulnerability of liberal democracies—in their principled procedural inability to prevent the autocrat’s rise to power.
With mixed results, certainly, the West attempted to learn a lesson of World War II, about the slowness of liberal democracies to react to international threats against them. Another lesson, mostly ignored, is how far from certain Second World War victory was. Bridging these international and national considerations, it was US diplomat Edward P. Djerejian, in his 1992 Meridian House Speech, who announced as policy that the US was “suspect of those who would use the democratic process to come to power, only to destroy that very process in order to retain power and political dominance. While we believe in the principle of ‘one person, one vote,’ we do not support ‘one person, one vote, one time.’” The United States would, as a guiding light, be disinclined to offer its support to those parties that seek to use democratic means toward illiberal and ultimately undemocratic ends.
How may we apply these thoughts domestically to Trump? While the legitimacy of the process leading to his winning the presidency of the US may remain an open question—that is to say, Trump’s formal legitimacy—his substantive illegitimacy is manifest. Completely distinct from matters of policy, Trump stands as a political force daily dedicated to one end—to his self-aggrandizement in power, and thereby, in his own service, to a destruction of American republican democratic institutions unseen since the Confederate states attempted to secede from the Union. Trump is an existential threat to the American republic in a manner unparalleled since Jefferson Davis and Robert E. Lee engaged in open rebellion.
The history of authoritarian populists teaches that they will always have supporters. There will always be people blinded by narrow self-interest, by fear and base prejudice, by civic ignorance and foolish judgment. There will always be collaborators in the political establishment, further led by ambition and cowardice. There will always be voices to make the case for the aspirant despot, who will be fashioned rather as a savior. But the communication of a reason is not the exercise of reason, and the mere existence of advocates does not argue for what is advocated, though many will be fooled to believe so. The past two years in the United States have demonstrated finally that the US is no exception to the structural and human weaknesses, and the democratic dysfunction, that have led other nations to ruin. It can fall like any of them—both prey to these endemic vulnerabilities and to a tyrant.
Still another lesson of the new breed of autocrat is that the dictator need not arise through civil war or by coup, like Franco or Pinochet: he may rather be enabled by the poor judgment of kings, presidents, legislatures, and parties, as with Italy and Germany in the 20s and 30s, who make the error of believing they could use the demagogue to their ends. In that light, perhaps the most significant way these contemporary demagogues have shaped the new model for emergent autocracy is in its gradual development over one or two decades, as institutions incrementally succumb. Almost invisibly, sloughing off its scales, the illiberal democracy emerges out of the liberal—and illiberal democracy is fake democracy, democracy legitimate in its form only.
Now, in the summer of 2018, America’s institutions under Trump are failing. One political party, the Republican, has fallen to the demagogue. Those of right mind currently pin their hopes on Democratic victory in the 2018 midterm elections, to enable impeachment, and on Robert Mueller’s special counsel investigation. But the midterms likely will not deliver the total Democratic victory in the House of Representatives and the Senate needed for impeachment, and Mueller, most agree, can do no more than deliver a report to the Justice Department that would then have to be delivered to the same Congress. If at least half of it is still Republican, and Trump’s approval ratings remain as they are, with Congressional districts gerrymandered by demography and political disposition, even those GOP officials who might turn with the prevailing wind may feel no need to. Imagine, then, the reign of a Trump who has escaped those dangers.
We need not imagine. We need only look back to Chavez after the failed 2004 recall election, or to Erdoğan after the disastrous 2016 coup attempt, which delivered to him just this June new executive authority to appoint judges, dissolve the parliament, and declare unlimited marital law. The periods before the failed efforts to stop the autocrats have been only prelude to what was to come.
This leaves, then, the foundation of all, the people and the press, the voices of democracy, which together now grapple in what may be a death spiral of ineffectuality. Since the 2016 election, Trump’s support base has fluctuated only a little. Instructively, Maduro, Erdoğan, and Orbán, against vociferous opposition, all maintain majority support.
The news media, for its part, remain too widely mired in a fatal ménage à trois of commercialism, fanboy passion for the political game, and a reductive professionalism.
The first tendency produced all the free, sensational campaign ads of Trump call-in and rally-video television appearances. The second conspires with Trump voters to normalize their support of him. It does this by accepting the vote-seeking politician’s ethical parameters of practice, that voter preferences are automatically validated by their voter value: inherently “of the people,” they warrant as voters a politician’s or party’s efforts to make appeal to them. Thus, ever since 2016, conventional journalism has tried “objectively” to affirm the discontents of Trump voters while declining to hold them accountable for their Trump vote. In this way, a segment of the economically distressed or culturally dispirited white working and middle class, newly fashioned as “marginalized,” are treated in the same manner as, on the left, the agrarian poor of the Third World—aggrieved and thereby justified.
But every nation that ever went astray, through fascism, militarism, or any other form of authoritarianism, has always had its list of international wrongs and domestic grievances to motivate the victimized feelings of its angry regression. In the past, these errors have not been immune from the progressive judgment of history. The United States, however, is still expecting its special dispensation. For too many, the discussion still proceeds as if America has not crossed a line.
This brings us to modern, highly professionalized journalism’s understanding of its role. In this understanding, too commonly, journalists confuse appropriate standards for gathering and reporting news with a fundamental prohibition against evaluating the reality that journalists in part construct through the news and information they report. At its worst, journalism that does not distinguish the truth from the lie is not journalism at all: it is stenography. It is a journalism that acts out of an intellectually timid form of positivism, in which reporters shy from the “truth,” which they diminish as subjective, in favor of facts only.
But the US Declaration of Independence does not declare that we hold these facts to be self-evident. The rights of free speech and of a free press are not facts. They are truths, beheld through reason. They have held sway in the United States for over two centuries because citizens, including journalists, committed to them, without neutrality between the true and the false, and what they thought right and wrong. It is often said of journalism that it is “the first rough draft of history,” but works of history are not collections of mere facts. They are attempts to reveal the truths buried within the facts, and this requires the intellectual courage to stake a claim to the truth.
In better times, newspapers and magazines can attempt, without apparently vital consequence, the sharp discrimination among news, analysis, and opinion. One consequence of this effort, however, is the developed misunderstanding among many that opinion is “mere” opinion, and truth—mistaken as a lesser subset of itself than the part of it called fact—nothing more than another name for your own opinion. But the Declaration of Independence itself is an opinion, an opinion grounded in fact and developed according to reason, and we used to dare to call its ideas truths. Many Americans even fought for them.
Most, though, did not.
Modern estimates are that up to 20% of the colonial population remained loyalist, with about half not daring to commit itself to action. There were, even then, those available to argue against the true idea and believe themselves right, including loyalist newspapers. But the Boston Gazette, which gave voice to the rebellion of Samuel Adams, the New York Journal, and other newspapers rallied Colonials to the cause of their freedom from tyranny. Historians, those of the second, third, and further drafts, tell us today how those of the first draft made their impact at a pivotal moment in the history of American democracy. Thomas Paine, who told Colonials in his American Crisis pamphlets that “[t]hese are the times that try men’s souls,” did so in the pages of the Pennsylvania Journal.
Almost precisely a century ago, Irish poet W.B. Yeats instructed us that passionate intensity is no guide to true conviction. It is reason-enlightened sense and humane sensibility that lead us there. But if it is to prevail, truth needs not only its conviction, but its own passionate intensity, too, in the commitment to act. Two generations before Yeats, American pragmatist philosopher William James proposed an illustration of critical choice in his “The Sentiment of Rationality,” later collected in The Will to Believe. He asked us to imagine an Alpine mountaineer trapped where only a daring leap across a chasm will save him. Fear and doubt may vie with hope and confidence. Hesitation may lead to a nerveless stumble into oblivion, conviction to the necessary vigor. The alternative outcomes might actually lie in the alternative attitudes:
“Refuse to believe, and you shall indeed be right, for you shall irretrievably perish. But believe, and again you shall be right, for you shall save yourself.”
As sure as the sun rises and sets, Donald Trump is an offense to decency and democracy, and those who support and defend him are wrong.
Standing against them is the vision of an egalitarian, democratic republic, first dreamed, in the minds of its imperfect founders, in opposition to authoritarian tyranny.
We hold these truths to be self-evident …