A common Progressive-era complaint advanced that the Constitution’s framers were overly suspicious of democracy. George Norris, a leading Progressive Senator, bluntly argued in the 1920s and 1930s that while the Constitution was an advance in democracy for its time, it created too many checks and balances on majority will, it created too many barriers to legislation in the modern era. (He thus advocated legislative unicameralism and opposed activist judicial review, among other things.)
There have been many Democrats and liberals arguing that Trump is not just wrong and foolish, but a danger to democracy. Tom Ginsburg and Aziz Huq put forward a more sophisticated version, arguing that while Trump poses no danger of a coup, American democracy may face incremental erosion. But their arguments are unpersuasive as a matter of sociology and law. Moreover, they ignore, as is all too typical, the burgeoning administrative state’s danger to democracy. And I say this as one who has substantial reservations about the President.
First, they analogize American democracy to that in Poland and Hungry, where they contend that populist authoritarian parties have degraded democracy. But United States citizens are far wealthier and that wealth provides greater stability. We are not just “fairly wealthy” but very wealthy. And these nations are still scarred by a recent totalitarian past, making their institutions less secure.
The authors also worry that the rule of law may be at risk here because of the deference that the judiciary shows the political branches. This is an odd claim, because there is an extensive literature, going under the rubric of “We the Court” that suggests that the modern courts show little deference.
A group of law professors, now more than a thousand in number, has written a collective letter opposing Jeff Sessions’ nomination as Attorney General. The letter’s list of particulars against him is long—from his position on environmental laws to civil rights laws—as well as allegations of racial insensitivity that figured in his failed nomination to be a federal district court judge thirty years ago.
Of course, these law professors have every right to oppose Jeff Sessions as citizens, but they are clearly here writing as legal scholars, noting their position as law professors at the start of the letter and signing with their institutional affiliations.
What is notable, however, is the lack of any scholarly argument in the letter. There is no analysis of why Sessions’ positions are wrong as matter of law or policy.
In an op-ed in the New York Times, two Harvard political scientist professors, Steven Levitsky and Daniel Ziblatt, have sounded the alarm about democracy in America. It is in danger they say mostly because democratic institutions are no longer backed up by the “guardrails of democracy”—deep norms of “partisan self-restraint and fair play.” Sadly, their analysis of the decline of these norms is itself both partisan and shallow. It is partisan because they note only Republican breaches of such norms, when Democrats have engaged in breaches as well. Its shallowness in turn comes from their partisanship. They blame a particular political party rather changes in the nature of our polity, like the growth in the power of government and decline of federalism.
The partisanship of Levitsky and Ziblatt is striking. They claim that one of the informal norms is that legislative votes about matters of “extraordinary importance,” like impeachments, be bipartisan and Clinton’s impeachment by Republicans was not. But the only previous impeachment of the President—that of Andrew Johnson—was also a party-line vote. The norm that creating new entitlements—also actions of extraordinary importance—should be bipartisan, however, is a much more established one: Social Security, Medicare and Medicaid all had bipartisan support. Yet President Obama enacted the Affordable Care Act without the support of even one moderate Republican such as Senator Susan Collins of Maine.
These Harvard professors decry the failure to vote on Merrick Garland, which they characterize in hyperbolic terms as “stealing” a Supreme Court seat.
It is a theme of fiction: when someone dies, people line up to steal from him or her—estranged relatives and strangers alike. The deceased cannot protect himself. This is a reason that we should expect that death may be a time for the state to work some injustice too.
Thus, we should begin with a healthy suspicion of a tax levied at death. Hillary Clinton’s recent call for a 65 percent federal tax on large estates signals to Bernie Sanders supporters her Leftwing bona fides, but it should signal to the rest of us her lack of a sense of justice. When one adds in taxation from states like New York, the government could then confiscate more than four-fifths of a decedent’s property.
To be sure, our basic intuitions about justice are often hard to justify, but there seems to be a large difference between taxing people’s income at a reasonable rate and taking a large portion of their assets. We think of income as a flow, into which the government may dip, whereas assets constitute a fixed bedrock that is wholly our own.
Our difference in intuition about assets and income might suggest that all estate taxes are unjust. But one plausible justification for sound estate taxes is that they can be a proxy for other uncollected income taxes.
My favorite novelist is also Barack Obama’s. That shouldn’t be a problem, you might say—two people of widely different political opinions can love the same beautiful things. As Paul Seaton has observed on this site, studying Marilynne Robinson’s nonfiction, marked as it is by her very conventional academic-liberal political opinions, is not very conducive to appreciating the exquisite subtlety of her fiction.
The New York Review of Books late last year published an extensive conversation between the President and the novelist (which Joe Knippenberg commented on here). Obama and the author of Housekeeping (1980), Gilead (2004), and Home (2008) come to an immediate meeting of minds, or rather hearts, on their faith in “democracy,” which, the ostensibly Calvinist Robinson posits, is based on “the willingness to assume well about other people.”
Asked by the President to explain the convergence between her Christianity and her “concerns about democracy,” Robinson offers the simplest possible explanation: she believes “people are images of God” and that “democracy is the logical, the inevitable consequence of this kind of religious humanism at its highest level.” To the President’s and the novelist’s joint chagrin, though, the “loudest voices” for Christianity in American politics don’t really take their Christianity seriously; supposedly they fail to follow Christ’s injunction to love one’s neighbor as oneself. Robinson has gone so far as to describe Christian America as “associating the precious Lord with ignorance, intolerance, and belligerent nationalism.”
Alexis de Tocqueville arrived in the United States in the late spring of 1831. His official business was an investigation of American prison reforms as a potential model for France, but his gaze was considerably broader and deeper. Tocqueville’s nine-month visit resulted in Democracy in America, a towering achievement that looms even larger in a time like ours, when political attention spans seem to last no longer than the latest trending topic.