Neither Trump nor Clinton Is the End of the Republic

Diagnosing the republic as dead, a writer at the Claremont Institute takes another step toward giving up on its core project.

Rick Wilking / Reuters

Abraham Lincoln concluded his first inaugural address with a hopeful message. “We are not enemies, but friends,” he declared. “We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of Union, when again touched, as surely they will be, by the better angels of our nature.”

Weeks later the Civil War began. Roughly 620,000 Americans died in that conflict. New York City burned for four days of draft riots and looting. General Sherman burned his way through Georgia to the sea. African Americans won emancipation, only to be terrorized, assaulted, and subjugated for another century. In spite of it all, the Union survived, the better angels of human nature reasserted themselves here and there, and bonds of civic friendship were repaired.

Last week, Angelo M. Codevilla, a professor emeritus of international relations at Boston University, declared in the digital pages of the Claremont Review of Books that regardless of who wins the upcoming election, “the republic established by America’s Founders is probably gone.”

It survived chattel slavery that made a mockery of founding principles, Shay’s Rebellion, the Whiskey Insurrection, the burning of its capital by the British, the Trail of Tears, The Dred Scott decision, the aforementioned civil war, the assassinations of presidents, Plessy vs. Ferguson, an imperialist foray into the Philippines, the Espionage and Sedition Acts, a flu pandemic that killed 20 million worldwide and an estimated 675,000 Americans, the Great Depression, the global rise of fascism, World War II, an expansionist Communist dictatorship with nuclear weapons that infiltrated the U.S. government, Jim Crow, Watergate, urban riots, the Sexual Revolution, and the September 11 attacks.

But now it’s all over:

...the 2016 election is sealing the United States’s transition from that republic to some kind of empire. Electing either Hillary Clinton or Donald Trump cannot change that trajectory. Because each candidate represents constituencies hostile to republicanism, each in its own way, these individuals are not what this election is about. This election is about whether the Democratic Party, the ruling class’s enforcer, will impose its tastes more strongly and arbitrarily than ever, or whether constituencies opposed to that rule will get some ill-defined chance to strike back.

“Regardless of the election’s outcome,” he adds, “the republic established by America’s Founders is probably gone.”

Beyond the blind spot that makes the author unable to see the ways in which the Republican Party has also acted as an enforcer for the ruling class, and both parties also reflect some policies favored by people beyond the ruling class, you may wonder, given all that our republic has survived, what warrants a terminal diagnosis now.

He is hardly alone.

Last month, the Claremont Institute published an essay by a different author positing that we’re amid a “Flight 93 Election,” where our fate is either certain death at the hands of terrorists (a Hillary Clinton victory) or very likely death as we rush the cockpit to stop them (a Donald Trump victory). It was hugely overwrought––but no more so than talk I’ve heard lately from numerous conservative Republicans.

Codevilla fleshes out the apocalyptic take on the allegedly dying republic at unusual length. “In today’s America,” he begins, “those in power basically do what they please. Executive orders, phone calls, and the right judge mean a lot more than laws. They even trump state referenda. Over the past half-century, presidents have ruled not by enforcing laws but increasingly through agencies that write their own rules, interpret them, and punish unaccountably—the administrative state.”

“As for the Supreme Court,” he continues, “it invents rights where there were none—e.g., abortion—while trammeling ones that had been the republic’s spine, such as the free exercise of religion and freedom of speech. The Court taught Americans that the word ‘public’ can mean ‘private’ (Kelo v. City of New London), that “penalty” can mean “tax” (King v. Burwell), and that holding an opinion contrary to its own can only be due to an ‘irrational animus’ (Obergefell v. Hodges).”

He is by no means finished, but let’s pause, because three characteristics of the entire essay––the hyperbole, defeatism, and a-historicism––are showing already. I very much share the author’s concern about the power of the executive branch, and his frustration at the way that some administrative agencies exceed their mandates.

But I know that the United States vs. Texas struck down President Obama’s executive order on immigration, that Michigan vs. EPA, overruled a Clean Air Act enforcement action, and that Hamdi vs. Rumsfeld asserted that the federal courts would review habeas claims in the War on Terror, so I refuse to accept the notion that agencies are presently unconstrained or that presidents are fully beyond laws. To demand more constraints is prudent. To declare the game lost is defeatist.

I regard Kelo vs. New London, a case that allowed an eminent domain seizure of property that was transferred to a private corporation, to be an abomination. I also know that after the ruling, one I hope to see overturned in my lifetime, 45 states enacted eminent domain reform laws, some excellent, many others insufficient. To demand more constraints is prudent. To declare the game lost is defeatist.

Agree or disagree with Obergefell v. Hodges, the gay marriage case, it is a strange fit in an essay ostensibly about usurpers ruling this country “contrary to its majority’s convictions”––60 percent of Americans now support same sex marriage. Given that younger Americans favor marriage equality for gays and lesbians by even more significant margins I will grant that defeatism here is warranted.

But more than hyperbole or the defeatism, I am struck by the essay’s a-historicism. What I mean is that if you declare the death of the republic, and support that declaration by citing various attacks on “the republic’s spine, such as the free exercise of religion and freedom of speech,” your thesis is severely undermined if the republic has survived far greater assaults on first amendment protections.

The colonies survived the Salem Witch Trials. Smithsonian sums up the situation just after 1776:

In newly independent America, there was a crazy quilt of state laws regarding religion. In Massachusetts, only Christians were allowed to hold public office, and Catholics were allowed to do so only after renouncing papal authority. In 1777, New York State’s constitution banned Catholics from public office (and would do so until 1806). In Maryland, Catholics had full civil rights, but Jews did not. Delaware required an oath affirming belief in the Trinity. Several states, including Massachusetts and South Carolina, had official, state-supported churches.

In 1798, President Adams attacked freedom of speech with his signature on the Alien and Sedition Acts, which prohibited Americans to "write, print, utter, or publish” about the government “any false, scandalous and malicious writing." Back to Smithsonian for a highly abridged survey of 19th century religious repression:

The belief widely held and preached by some of the most prominent ministers in America was that Catholics would, if permitted, turn America over to the pope. Anti-Catholic venom was part of the typical American school day, along with Bible readings. In Massachusetts, a convent—coincidentally near the site of the Bunker Hill Monument—was burned to the ground in 1834 by an anti-Catholic mob incited by reports that young women were being abused in the convent school. In Philadelphia, the City of Brotherly Love, anti-Catholic sentiment, combined with the country’s anti-immigrant mood, fueled the Bible Riots of 1844, in which houses were torched, two Catholic churches were destroyed and at least 20 people were killed.

At about the same time, Joseph Smith founded a new American religion—and soon met with the wrath of the mainstream Protestant majority. In 1832, a mob tarred and feathered him, marking the beginning of a long battle between Christian America and Smith’s Mormonism. In October 1838, after a series of conflicts over land and religious tension, Missouri Governor Lilburn Boggs ordered that all Mormons be expelled from his state. Three days later, rogue militiamen massacred 17 church members, including children, at the Mormon settlement of Haun’s Mill. In 1844, a mob murdered Joseph Smith and his brother Hyrum while they were jailed in Carthage, Illinois. No one was ever convicted of the crime.

During the Civil War, Ulysses S. Grant ordered the expulsion of Jews from three states. Woodrow Wilson perpetrated grave assaults on freedom of speech during World War I, signing his own Sedition Act that made it illegal to cast the government or the war effort in a negative light.

I am sympathetic to the majority ruling in Burwell vs. Hobby Lobby, the 2014 case where the Supreme Court ruled that closely held corporations could invoke the Religious Freedom Restoration Act. In this case, Hobby Lobby could avoid directly subsidizing birth control for employees because there are less restrictive means of guaranteeing contraceptive access. But had the ruling gone the other way, or if it is overturned, or if the Religious Freedom Restoration Act is repealed, the United States will not be anywhere close to a low point in the religious liberty that is enjoyed by its citizens.

If I have a French Catholic cousin somewhere who feels conscience-bound to refrain from baking a cake for a gay wedding, as wrongheaded as I find that, I do not want her fined. But our great-grandparents’ generation was harassed by the Klu Klux Klan. Generations before that they were being forcibly deported to France. As for freedom of speech, it has always been threatened and transgressed against. That holds today. But when has it ever been better protected?

Codevilla offered additional reasons that the republic is over:

What goes by the name “constitutional law” has been eclipsing the U.S. Constitution for a long time. But when the 1964 Civil Rights Act substituted a wholly open-ended mandate to oppose “discrimination” for any and all fundamental rights, it became the little law that ate the Constitution.

Now, because the Act pretended that the commerce clause trumps the freedom of persons to associate or not with whomever they wish, and is being taken to mean that it trumps the free exercise of religion as well, bakers and photographers are forced to take part in homosexual weddings.

A commission in the Commonwealth of Massachusetts reported that even a church may be forced to operate its bathrooms according to gender self-identification because it “could be seen as a place of public accommodation if it holds a secular event, such as a spaghetti supper, that is open to the general public.” California came very close to mandating that Catholic schools admit homosexual and transgender students or close down. The Justice Department is studying how to prosecute on-line transactions such as vacation home rental site Airbnb, Inc., that fall afoul of its evolving anti-discrimination standards.

This arbitrary power, whose rabid guard-dog growls and barks: “Racist! Sexist! Homophobic!” has transformed our lives by removing restraints on government. The American Bar Association’s new professional guidelines expose lawyers to penalties for insufficient political correctness.

Performing abortions or at least training to perform them may be imposed as a requirement for licensing doctors, nurses, and hospitals that offer services to the general public. Addressing what it would take to reestablish the primacy of fundamental rights would have required Republican candidates to reset the Civil Rights movement on sound constitutional roots. Surprised they didn’t do it? No one running for the GOP nomination discussed the greatest violation of popular government’s norms—never mind the Constitution—to have occurred in two hundred years, namely, the practice, agreed upon by mainstream Republicans and Democrats, of rolling all of the government’s expenditures into a single bill. This eliminates elected officials’ responsibility for any of the government’s actions, and reduces them either to approving all that the government does without reservation, or the allegedly revolutionary, disloyal act of “shutting down the government.”

So to review, “the greatest violation of popular government’s norms—never mind the Constitution—to have occurred in two hundred years,” bringing us back to 1816, was not, say, the denial of women’s suffrage, or the Fugitive Slave Act of 1850, but “rolling all of the government’s expenditures into a single bill,” just recently.

Like a good Claremont Institute writer, Codevilla embraces the Declaration, not just the Constitution:

The Declaration of Independence says that all men “are endowed by their Creator with certain unalienable rights” among which are “life, liberty, and the pursuit of happiness.” These rights—codified in the Constitution’s Bill of Rights—are not civil rights that governments may define. The free exercise of religion, freedom of speech and assembly, keeping and bearing arms, freedom from warrantless searches, protection against double jeopardy and self-incrimination, trial by jury of one’s peers, etc., are natural rights that pertain to human beings as such. Securing them for Americans is what the United States is all about.

Meanwhile, the Civil Rights Act of 1964, which prohibited racial segregation, banned voting requirements that denied the franchise to millions, and brought Jim Crow to his knees, is cast as “the little law that ate the Constitution,” not a vital instantiation of the Founding principles, because decades later, jurisprudence and norms have evolved in such a way that, like hotel owners, AirBnB hosts may be legally prohibited from racial discrimination when renting out their houses.

Agree or disagree with that application, the notion that it represents a reality that makes us less of a republic than the status quo circa 1960 is incoherent. In 1960, substantial parts of the republic faced the threat of lethal violence if they risked exercising mere freedom of movement, never mind other natural rights.

I appreciates the ways new expansions of nondiscrimination law could erode the first, fourth, and tenth amendments. There are many battles in this realm that are worth fighting, and the philosophy undergirding that project has, thankfully, been articulated by libertarians and classical liberals far better than the conservative movement has ever managed to do. Perhaps I am even underestimating the threat.

Still, if the republic survived until 1942, when the American Bar Association had yet to admit its first black member, surely there’s at least a chance that the republic can survive 2016, even if, as Codevilla writes, “the American Bar Association’s new professional guidelines expose lawyers to penalties for insufficient political correctness,” about which I concur with Eugene Volokh’s dissent.

About passages like this next one I hardly know what to say:

All ruling classes are what Shakespeare called the “makers of manners.” Plato, in The Republic, and Aristotle, in his Politics, teach that polities reflect the persons who rise to prominence within them, whose habits the people imitate, and who set the tone of life in them. Thus a polity can change as thoroughly as a chorus changes from comedy to tragedy depending on the lyrics and music. Obviously, the standards and tone of life that came from Abraham Lincoln’s Oval Office is quite opposite from what came from the same place when Bill Clinton used it.

The polity of the United States on Abraham Lincoln’s inauguration day encompassed multiple states that seceded from the Union to preserve their ability to enslave people. Many of the people who lost the war then formed a terrorist organization to continue subjugating blacks. Circa 1996, when Bill Clinton was reelected, what was it about the polity that ostensibly illustrates they were as inferior to the Americans of 1860 as Clinton was inferior to Lincoln? None of it makes any sense.

Codevilla writes,“Our imperial regime, already in force, works on a simple principle: the president and the cronies who populate these channels may do whatever they like so long as the bureaucracy obeys and one third plus one of the Senate protects him from impeachment.”

When in American history has it been otherwise? When  Warren G. Harding presided over a cabinet of criminals? When Woodrow Wilson got elected promising that he would not involve the U.S. in the Great War? When Franklin Roosevelt pushed through the New Deal by threatening to pack the Supreme Court? When the Nixon White House floated the idea of bombing the Brookings Institution? When the Reagan Administration engaged in the Iran Contra scandal?

He writes, “Who, a generation ago, could have guessed that careers and social standing could be ruined by stating the fact that the paramount influence on the earth’s climate is the sun, that its output of energy varies and with it the climate?” I’d wager it could be imagined by the people whose careers and social standing were ruined by being falsely accused of ritual Satanic abuse in the 1980s, or discriminated against for wearing their hair long in the 1970s, or wrongly blacklisted as Communists in the 1950s, or prosecuted for teaching evolution in the 1920s. It’s almost as if today’s conservatives are not the only group in American history to lose jobs or social status for transgressing against social norms.

He writes, “Ever since the middle of the 20th century our ruling class, pursuing hazy concepts of world order without declarations of war, has sacrificed American lives first in Korea, then in Vietnam, and now throughout the Muslim world. By denigrating Americans who call for peace, or for wars unto victory over America’s enemies; by excusing or glorifying those who take our enemies’ side or who disrespect the American flag; our rulers have drawn down the American regime’s credit and eroded the people’s patriotism.”

Again, there is much truth to these concerns––many times, I’ve railed myself about our failure to declare wars––but Codevilla still overstates his case.  The ruling class did not force the public to wage war in Afghanistan, the public wanted war, just as, to my chagrin, the public favors our drone strike campaign; things are much improved since Vietnam, a war that killed 58,220, many of whom were forced to fight against their will through a draft. Most glaringly, the American ruling class needlessly sacrificing American lives while pursuing hazy concepts of world order hardly began sometime in the 1950s.

I need no persuading that our foreign interventionism should be severely reined in. Would any liberty-minded American trade places with a draft age male of 1917?

Codevilla’s fear of immigrants at least mimics history. “Since the [Ted] Kennedy reform of 1965, and with greater speed since 2009, the ruling class’s immigration policy has changed the regime by introducing some 60 million people—roughly a fifth of our population—from countries and traditions different from, if not hostile, to ours,” Codevilla writes.

In this telling, the immigrants moving to America today from Mexico City, Mumbai, or Seoul are more “different from” the New Yorkers or Angelenos they are joining than were the Sicilian Catholics, Russian Jews, German Lutherans, or Irish Catholics of bygone immigration waves, even though native born Americans during those waves perceived those newcomers as far more alien and different than do most Americans today.

* * *

As you may have guessed, Codevilla eventually gets back to electoral politics. “Consider, for example, how republic-killing an event was the ruling class’s support of President Bill Clinton in the wake of his nationally televised perjury,” he writes of a president who was impeached by the ruling class, led by conservative intellectuals in Washington, D.C., as opinion polls showed just a third of Americans favored that course. “Subsequently, as constituencies of supporters have effectively condoned officials’ abusive, self-serving, and even outright illegal behavior, they have encouraged more and more of it while inuring themselves to it. That is,” he says, “how republics turn into empires from the roots up.”

I have a different view. I am more concerned that the republic will be weakened––though I do not think it will fall––by hysterical conservative intellectuals who persuade their audiences that, contrary to any reasonable reading of history, this is the moment of greatest peril for life, liberty, and the pursuit of happiness, and that Clinton threatens all that as much as Trump even given this understanding of Trump:

Electing Donald Trump would result in an administration far less predictable than any Democratic one. In fact, what Trump would or would not do, could or could not do, pales into insignificance next to the certainty of what any Democrat would do. That is what might elect Trump.

The character of an eventual Trump Administration is unpredictable because speculating about Trump’s mind is futile. It is equally futile to guess how he might react to the mixture of flattery and threats sure to be leveled against him. The entire ruling class—Democrats and Republicans, the bulk of the bureaucracy, the judiciary, and the press—would do everything possible to thwart him; and the constituencies that chose him as their candidate, and that might elect him, are surely not united and are by no means clear about the demands they would press. Moreover, it is anyone’s guess whom he would appoint and how he would balance his constituencies’ pressures against those of the ruling class.

Professor Codevilla concludes with a chilling diagnosis.

“We have stepped over the threshold of a revolution,” he writes. “It is difficult to imagine how we might step back, and futile to speculate where it will end. Our ruling class’s malfeasance, combined with insult, brought it about. Donald Trump did not cause it and is by no means its ultimate manifestation. Regardless of who wins in 2016, this revolution’s sentiments will grow in volume and intensity, and are sure to empower politicians likely to make Americans nostalgic for Donald Trump’s moderation.”

Such a revolution seems to be the only thing Codevilla anticipates with relative calm. Any conservative worth a damn would fight hard against that future, knowing it to be rash. The conservative movement we’ve got is too short on proportion and cool heads, though its Never Trump faction has distinguished itself this election cycle. It is too long on irresponsible mass entertainers stirring up populist passions. And after giving a series of those talk radio hosts its Statesmanship Award, the Claremont Institute has now taken to surpassing them in irresponsible anti-conservatism, publishing essays dripping with ahistorical hysteria. A couple weeks back, America was like Flight 93, its people likely doomed to imminent demise. Last week, the republic was diagnosed terminally ill.

An institution that justifiably valorizes Lincoln, who kept his faith in the republic at its darkest, bloodiest moment––and Churchill, who showed similar steel as the Nazis rained bombs on London––is going all to pieces. It’s like watching a cable news viewer who can no longer detect which scare-mongering is hyperbole as dementia sets in––and converts his savings into commemorative gold coins, believing them to be just as safe as leaving the money with those crooks at the big banks.

The country at this moment could use a formidable proponent of the values of the Founding in American life. To hell with this dereliction of duty, this indulgent defeatism, this elaborate refusal to face the reality that this time, hard as it is for some constitutional conservatives to accept, voting for Trump is easily the riskier choice.