I think in recent years, Americans have forgotten where we come from. In a room in Philadelphia in the sweaty summer of 1787, 55 otherwise ordinary men decided to create the first constitutional republic of the modern world. They took the existing English Rule of Law, established by judges and policed by lawyers, and built upon it a government with separate powers for the President, the Congress, the Supreme Court, and the States, each acting as a check on the others’ power. The framers also added free and fair elections, a Free Press, a civilian led military, and, in 1791, a Bill of Rights, giving citizens specific powers to exclude government from their lives. This creation is our exceptional birthright as Americans, and I think we have lost sight of how powerful it is. Western liberalism has done pretty well by us for the last 226 years. The above institutions represent our core ideals as a people. They are the building blocks of our Republic, and we have used them to establish every other right and principle that matters to us.
I know, I know. That sounded like a less than Sorkin-worthy West Wing rant. Still it’s what I believe and it’s why I’m a lawyer. We all start out thinking we’re Atticus Finch before realizing we mainly push paper and argue with people. To Kill a Mockingbird did a lot to populate the membership of the Bar.
I decided to start this blog because I believe that the election of Donald Trump poses a real and present danger to our way of life. He showed in only two weeks that he has no respect for the Separation of Powers, the Press, or, as far as I can tell, any of our other institutions. I’m clearly not the only one who thinks so. We have seen an eruption of massive protests, a proliferation of lawsuits, and increasingly urgent expressions of concern in the press, on social media, and in government. However, a lot of these protests and concerns revolve around individual issues important to Trump’s opposition on the Left, such as reproductive rights, immigrant rights, and the civil rights of persons of color. I think these issues are important, but if, like me, you’re worried about the whole government collapsing, they are not as important as the institutions that help us keep those rights secure. For example, the left can keep Roe v. Wade in place by putting its Justice on the Supreme Court, or the right can overturn it by getting its pick, but that doesn’t matter if the President or the States have no respect for what judges say and refuse to enforce the Court’s decisions. And for anyone who thinks that scenario wouldn’t happen, I suggest you take a look at George Wallace in his schoolhouse door.
Over the last 50 years, the balance protecting our institutions has gradually been worn down, and a distrust of and disillusionment with government and its watchdogs, the Press and the Bar (lawyers), has developed. But we didn’t always feel like that. At the end of World War II, there was a consensus across all party and ideological lines that it was our institutions that make us exceptional, and that it is our job as citizens and elected officials to preserve them. Perhaps some of this was because of anti-communist propaganda, but I like to think most of it is because this generation witnessed their soldiers liberating Dachau and saw their President drop nuclear bombs on Japan. I don’t believe it’s an accident that our institutions began to unravel rapidly after the last President to serve in WWII, George H.W. Bush, left office. These men and women had (and have) a visceral understanding of the consequences of adhering rigidly – even fanatically – to an ideology, especially a nationalist one. Ideology is the enemy of democracy, and by digging into ideological trenches we are destroying ours.
And that brings us to the core weakness of our system: it was specifically designed to function without political parties, or ideological “teams” of any kind. As George Washington said in his farewell address, although “[political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”
I’m only in my 30s, and yet in my lifetime I have watched us begin to deliberately elect people who want to win for their “team” at any cost. By doing it we have caused snowballing dysfunction in all of the institutions that protect us, often with one branch intervening when another (almost always Congress or the States) ceased to function or failed to fulfill a vital constitutional duty. The truth is, the seeds of disillusionment were planted before I was born, but it is in the last 20 years our distrust in government and institutional dysfunction have reached a point where a man with a dictator’s instincts could destroy our carefully balanced system altogether. We must not help him. So Ted Cruz, I don’t care how much you hate abortion or contraception, shutting down the government is never an acceptable way to achieve your goal. And Chuck Schumer, the fact that the Republican Party indefensibly did damage to the Senate’s duty to advise and consent to judicial nominees does not mean you should deliver the death blow to that obligation. “They set the house on fire so I get to knock down a wall in retaliation” is not an argument. If the house is on fire, you go get a hose and put it out.
The good news is, we’re not powerless. There is one glimmer of hope in the election of Donald Trump. Many people on both ends of the political spectrum have been shouting about how billionaires and Wall Street and money in politics have rigged the system, and taken away the voice of the people. Donald Trump’s election proves them wrong. All the resources of the establishment in this country were spent to prevent that man’s election. And he won anyway. At least one of our institutions – free and fair elections – worked damned well. And before you tell me that it was the Russians or it was James Comey who got Trump elected, think about it this way: Vladimir Putin had any number of tools at his disposal to try to influence the election, and he chose to influence the people. That means even a cartoon villain knows that we actually have the power to elect whomever we choose. Even more heartening is the fact that Trump seems to have awoken our sleeping watchdogs. Together, hopefully, the Press and the Bar can hold him off until we develop a strategy to fix this mess. Because we can.
I think to preserve and restore our institutions, we need to find our way back to Philadelphia and do two things: First, we need to find a way to push our government back into the balance established by the framers of the Constitution in the City of Brotherly Love. Second, we need to find a little brotherly love ourselves, and emulate the members of the constitutional convention, who had profound disagreements, but were still able to work together. And there were some big egos in that room.
I will be commenting on political developments from the perspective of how they affect our institutions, including explanations of how they have been eroded by past political decisions and cultural shifts. Please check out my “Dictator’s Playbook,” so that you can compare delightful new developments in the Trump Administration to the sort of actions we really need to worry about. Thanks for reading and you’ll hear from me soon!