"I had more people crying in my office the day after the election than honestly I've had since the day after 9/11," Dan Hartman, a Philadelphia-based psychiatrist, told Philly.com about his patients' reactions to Donald Trump becoming president. Four months in, the wounds are still fresh, and the Trump administration, with its trampling of rights, unending…
Lost in the media and scholarly attention to the sesquicentennial of the Civil War (1861-1865) was one of President Lincoln’s signature pieces of legislation, The Act to Encourage Immigration, July 4, 1864—the first, last, and only major law in American history to encourage immigration. As immigration is in the daily news on a global basis, this is a surprising omission of an act the he saw as the bright future of the United States.
Long before he spoke about the evils of slavery, Abraham Lincoln spoke about the need for free labor, and he consistently articulated an economic philosophy that relied heavily upon immigrant labor. In his earliest speeches, Lincoln saw immigrants as farmers, merchants, and builders who would contribute mightily to the nation's economic future. There seems to have been no significant pressure for a public role in immigration until, in his Annual Message to Congress on December 8, 1863, Lincoln called for government assistance:
"I again submit to your consideration the expediency of establishing a system for the encouragement of immigration. . . . While the demand for labor is thus increased here, tens of thousands of persons, destitute of remunerative occupation, are thronging our foreign consulates and offering to emigrate to the United States if essential, but very cheap assistance, can be afforded them. It is very easy to see that under the sharp discipline of the Civil War, the nation is beginning a new life. This noble effort demands the aid and ought to receive the attention of the Government."
This section prompted Congress into action. A bill to encourage and protect foreign immigrants and to make more effective the Homestead Act, which had become law on May 20, 1862, was presented in the Senate. Elihu Washburne (R-Ill.) chaired a House committee that took it up. Less than a month after Lincoln's message, a joint bill was introduced to establish a formal Bureau of Immigration.
A bill was passed on March 2, 1864, providing for a Commissioner of Immigration under the State Department, who was to encourage immigration by circulating information in Europe. An office was to be established under a Superintendent at New York, who would protect immigrants from frauds, make contracts with railroad companies for the tickets to be paid for by immigrants, and facilitate travel to their destination or the place where their labor would be most productive. He was also to see that the Passenger Act of 1855 was enforced for the well-being of travelers to America. The appropriation for all this was $50,000.
By April Washburne reported from a House special committee: “Never before in our history has there existed so unprecedented a demand for labor,” he asserted, “[D]emand for laborers on our railroads alone will give employment for the entire immigration of forced laborers in 1864."
The bill did not try to establish any independent bureau, just a Commissioner of Immigration to be under the direction of the Department of State. It further provided that emigrants would make contracts to pledge their wages to repay their transportation expenses. The Treasury was empowered to reduce tonnage duties on vessels bringing in immigrants.
Symbolically and appropriately, the bill became law with Lincoln's signature on July 4, 1864. The Act, in 8 sections, authorized the President, by and with the consent of the Senate, to appoint a Commissioner of Immigration for a term of 4 years at $2,500/year; and a subordinate Superintendent in New York at $2,000/year. Section 2 provided that emigrants pledge their wages for no more than 12 months to cover their transportation here, but barred "any contract contravening the Constitution of the United States, or creating in any way the relation of slavery or servitude."
Section 3 exempted all immigrants arriving after the passage of the act from compulsory military service unless the immigrant voluntarily renounced under oath his allegiances to the country of his birth, and declared his intention of becoming a citizen of the United States. Section 5 disqualified any person either directly or indirectly involved in any corporation having land for sale to immigrants.
This Act to Encourage Immigration undoubtedly had received backing from employers of labor because their interests dictated such support. President Lincoln's message on this subject seems to have begun a wave of support for federal action and other plans to encourage immigration lasting well into the next decades.
So strong was feeling on this matter that the 1864 platform of the Republican Party (running as the Union Party) noted, "That foreign immigration, which in the past has added so much to the wealth, development of resources, and increase of nations, should be fostered and encouraged by a liberal and just policy."
While the Act of 1864 did not establish an independent Bureau, the State Department under Secretary William Seward used its own discretion and created a Bureau of Immigration. The Bureau, among other things, worked to increase immigration, restricted certain contract-labor companies while cooperating with others, contracted with railroads to sell tickets, encouraged states to pass supportive laws, and published large numbers of pamphlets in English, German, and French.
The Bureau's difficulties in enforcing the passenger laws, the dissatisfaction with the private companies encountered over contract provisions and frauds upon immigrants resulted in strenuous efforts to amend the Act to Encourage Immigration. Lincoln himself, in his Annual Message to Congress on December 6, 1864, stated, "The act passed at the last session for the encouragement of immigration has, so far, as was possible, been put in operation. It seems to need Amendment, which will enable the officers of the government to prevent the practice of frauds against the immigrants while on their way and on their arrival in the port, so as to secure them here a free choice of vocations and places of settlement."
After his assassination, Lincoln's law met further obstacles. While the Senate on January 23, 1865, had amended the 1864 Act as well as the Passenger Act of 1855 as Lincoln hoped, no action was taken during that 38th Congress. But in the first session of the 39th Congress, after Lincoln's death, a shocker occurred. With hundreds of thousands of soldiers returning home in mid-1865, and with William Seward convalescing from his wounds from a would-be assassin, frustration and political pressure were apparent when a Senate committee surprised everyone by reporting "That the Act entitled An Act to Encourage Immigration, approved July 4, 1864, be and is hereby, repealed." This marked the death of the movement in Congress to amend the Act of 1864, the only act the federal government ever passed to encourage immigration.
Lincoln's plan for the country to welcome and embrace immigrants was technically repealed by a section of the Diplomatic and Consular Bill in 1868. Although two bills in 1868 purported to establish immigrant societies abroad, and several states later petitioned Congress to encourage immigration, no other action was ever taken by Congress to do so.
The repeal of Abraham Lincoln's Act to Encourage Immigration could not, however, remove the effect it had upon immigration. Its important influence and aid to the states, the circulation of its recruiting materials abroad, the publicizing of the attractiveness of America for the immigrant, and the stimulus it gave to private enterprise foretold the massive flow of immigration to the U.S. in the following decades. The secondary effects of the act, such as the popularization abroad of another of Lincoln's landmark laws, the Homestead Act, encouraged thousands of immigrants to settle as farmers in the Midwest and West.
Though he did not live to see the completion of his dream, Lincoln deserves credit for initiating a plan that personified Emma Lazarus's words long before they were memorialized on the Statue of Liberty. For in so doing, the Great Emancipator was also the Great Egalitarian, who believed that the Declaration of Independence and the Constitution applied to all, regardless of their ethnicity or country of origin. Lincoln's America would eventually become what he had envisioned: a kind of mosaic of all peoples who sought to find a new life within its bountiful borders.
Jason H. Silverman is the Ellison Capers Palmer, Jr. Professor of History at Winthrop University. His latest recent book is the recently published Lincoln and the Immigrant(2015).
This article was originally published at History News Network
As the scandals swirling around Pres. Donald Trump's White House, one voice has been conspicuously absent from the fray, that of former Republican New York City mayor and longtime Trump booster Rudy Giuliani.
Giuliani was one of Trump's most dependable surrogates during the 2016 presidential campaign, but has fallen silent in the weeks since Inauguration Day.
In early March, TMZ cornered the former mayor at Reagan National Airport in Washington, D.C. and asked him what he thinks of the chaos in the White House, but other than that interaction, Giuliani has been uncharacteristically close-mouthed about developments in Washington.
Perhaps Giuliani is suffering from lingering feelings of disappointment after neither receiving an appointment as Secretary of State or Attorney General or even for the position he was purportedly nominated for in early January.
Or maybe -- like Trump's longtime friend and associate Roger Ailes -- Giuliani looked at the chaos unfolding in Trump's world and decided it would be a "waste of time" to keep shoring up a president who seems to be constitutionally incapable of introspection, of admitting errors or of apologizing to anyone about anything.
Giuliani's son Andrew Giuliani joined the Trump administration in early March, taking a job in the Office of Public Liaison and Intergovernmental Affairs, but Giuliani has maintained radio silence with regards to the mushrooming scandal about the Trump campaign's ties to Russia and the calls for an independent investigation.
During the 2016 campaign, Giuliani raised eyebrows by seeming to predict key moves by Wikileaks before they occurred. The mayor has yet to clarify on the record how he knew in advance what the hacker collective was about to publish.
Monday’s hearing of the House Intelligence Committee was proof positive of the absolute need for both a special prosecutor and an independent, bipartisan commission with subpoena power to conduct a full investigation of the Trump campaign’s connections with Russian intelligence — as well as Russia’s multipronged attack on our elections and Trump’s business connections with that country’s oligarchs.
And it’s proof more than ever that even if we get that prosecutor and inquiry, a free and independent press may be the only real way to ever get to the bottom of what ranking committee member Adam Schiff said may represent “one of the most shocking betrayals of our democracy in history.”
Just as FBI Director James Comey officially revealed for the very first time (finally!) that indeed since late July the FBI has been investigating whether members of Trump’s campaign colluded with Russia’s interference with our elections, Republicans, led by committee chair and Trump enabler Devin Nunes did their best to blow smoke aimed at deflecting attention from what Trump and his team may or not have done. Instead, they asked question after question about the illegality of leaks of confidential material to the media — in particular, leaks about former Trump national security adviser Mike Flynn’s contacts with Russia.
(Note that there was agreement that leaks are illegal but no one mentioned that it’s the media’s complete and constitutionally guaranteed right to report on them. Nor was anyone asked how many times GOP members of the committee have done their own leaking.)
Trump did what he could to distract as well, firing a volley of five heated early-morning tweets just before testimony began, reiterating claims that disgruntled Democrats manufactured charges about Russia’s involvement in the election and contact with Trump aides. There were more during the hearing itself — from Trump or someone at the White House tweeting in his name — twisting the day’s testimony by Comey and National Security Agency chief Mike Rogers. Bizarrely, the two men then were placed in the position of having to rebut Trump’s allegations while they still were in the witness seats, correcting and putting the president in his place — virtually in real time.
Not only did Comey verify that the FBI was actively investigating Trump and his associates, he also flatly denied on behalf of his agency and the Justice Department that prior to January’s inauguration now-former President Obama had ordered eavesdropping on Trump Tower. Under normal circumstances this would seem to neutralize yet another of Trump’s wacky tweet storms, this one from two weeks ago, but as we’ve learned so well, the truth has never been a barrier to the social media madness of King Donald I.
And yet, as presidential historian Douglas Brinkley told The Washington Post, “There’s a smell of treason in the air. Imagine if J. Edgar Hoover or any other FBI director would have testified against a sitting president? It would have been a mindboggling event.”
But here we are, adrift in a Cloud Cuckoo Land of prevarication and incompetence in which little seems capable of boggling or driving our minds agog these days and where the truth shall not set you free but subject you to ridicule from the rabid trolls of the right.
And still there is hope. Even though neither Comey nor Rogers would reveal much of what they are discovering — continually citing the confidentiality they said was necessary to an ongoing investigation — the questions asked, despite the “no comment” answers, suggested ongoing areas of inquiry not only for investigating committees but also for the press.
For it is the free and independent media that continue to provide our clearest window into the extent of the investigation and the possible interface among the Trump campaign, Russia and the right. Late Monday, for example, McClatchy News reported:
“Federal investigators are examining whether far-right news sites played any role last year in a Russian cyber operation that dramatically widened the reach of news stories — some fictional — that favored Donald Trump’s presidential bid, two people familiar with the inquiry say.“Operatives for Russia appear to have strategically timed the computer commands, known as ‘bots,’ to blitz social media with links to the pro-Trump stories at times when the billionaire businessman was on the defensive in his race against Democrat Hillary Clinton, these sources said.”
McClatchy reports that most of the stories were linked from social media posts and many of them connected to stories at Breitbart and Alex Jones’ InfoWars, as well as Russia Today and Sputnik News:
“Investigators examining the bot attacks are exploring whether the far-right news operations took any actions to assist Russia’s operatives. Their participation, however, wasn’t necessary for the bots to amplify their news through Twitter and Facebook.”
The spin machines are twirling at cyclonic speeds as the White House and the Republican Party counterattack or try to act as if none of this is happening. Like the refugee couple in Casablanca, they pretend to hear very little and understand even less. At the end of Monday’s testimony, intelligence committee chair Nunes actually told David Corn of Mother Jones that he had never heard of Roger Stone or Carter Page, two of the Trump/Russia story’s most prominent and tawdry players. Ingenuous or ignorant? You be the judge.
“Is it possible that all of these events and reports are completely unrelated and nothing more than an entirely unhappy coincidence?” Adam Schiff asked at Monday’s hearing.
“Yes, it is possible. But it is also possible, maybe more than possible, that they are not coincidental, not disconnected and not unrelated, and that the Russians use the same techniques to corrupt US persons that they employed in Europe and elsewhere. We simply don’t know. Not yet. And we owe it to the country to find out.”
During Schiff’s questioning on Monday, Comey seemed to nod toward agreeing that Russia’s hacking of the Democratic National Committee was not unlike the 1972 physical break-in at the DNC. You know, the one that precipitated the revelations, resignations and prison convictions of Watergate. Drip, drip, drip…
The little town of Marks, Mississippi, had a moment in the spotlight when Martin Luther King Jr. launched the Poor People’s Campaign from there in 1968. The story of what happened next tells us a lot about the stubbornness of poverty in America—and how the federal government’s anti-poverty programs get results. It also shows why Americans must refuse to accept the Trump administration’s proposed budget, which eliminates many of these programs.
After the Poor People’s Campaign was over, poverty hung on for decades in Marks, where investment dollars are almost nonexistent. Life went on without things most Americans take for granted. For example, despite being surrounded by farmland, Marks residents had to drive 20 miles to the nearest Wal-Mart just to get fresh vegetables. But Shreveport Federal Credit Union changed all that by organizing local farmers into a worker-owned cooperative, renovating a building, and creating what became the Delta Muletrain Farmers Market. The place was off-season but still bustling when I visited in November 2015.
This work was done by a tiny credit union based in Shreveport, Louisiana, with crucial help from the federal government. Over the past 10 years, the credit union has received $4.5 million from a little-known program that supports Community Development Financial Institutions. The idea is to reward lenders who do the not-very-profitable work of investing in low-income America.
The Trump budget proposes not just cutting the Community Development Financial Institutions Fund, but eliminating it entirely.
Today, there are 1,075 CDFIs across the United States, concentrated in the places where Americans are struggling, places where a campaigning Trump made promises in exchange for votes. “The forgotten men and women of our country will be forgotten no longer,” he said in his inauguration speech.
But on Wednesday, the administration took a different one. “There’s a lot of programs that simply cannot justify their existence, and that’s where we zeroed in,” budget director Mick Mulvaney said.
Other agencies listed for elimination include the Appalachian Regional Commission, begun in 1960, and the Delta Regional Authority, in 1990. These organizations aren’t the Corporation for Public Broadcasting or the National Endowment for the Arts, so they aren’t part of the national outrage on news shows and social media.
But they are tested and proven winners when it comes to the challenging task of bringing wealth to neglected corners of the United States. The Appalachian Regional Commission estimates that its programs have created or retained almost 24,000 jobs in that troubled region, while the Delta Regional Authority’s corresponding figure is 17,000 jobs. To maximize the efficiency with which they spend taxpayer dollars, both agencies focus on seeding investment, rather than making grants, to help private businesses get started. They also support democratic decision-making, by involving local residents in the investments they make.
When you put it all together, these and other cuts in the proposed budget represent an abandonment of America’s hardest-hit areas. They would vaporize the government’s most successful work to date in supporting an economy that works for everybody.
Thomas Hanna, who researches economic development at the nonprofit Democracy Collaborative, is deeply concerned. He anticipates that the Trump administration, if it’s successful in cutting these agencies, will move to replace them with programs that benefit private developers. Those developers would then build infrastructure projects for profit, like new highways with expensive tolls. “For regions such as Appalachia and the Delta, which are already suffering economically, such an infrastructure plan is likely to significantly add to the people’s woes, rather than alleviate them.”
Some predict these cuts are unlikely to get past Congress. Something similar happened in 2013, when President Barack Obama tried to privatize the Tennessee Valley Authority, a federal agency that provides affordable electricity and other resources to a broad swath of the South. Republican legislators from the area fought the proposal tooth and nail, and saved the agency.
Today, the ball is back in representatives’ court again. If we’re lucky, elected officials whose constituents benefit from these programs will fight for them this time, too. The forgotten men and women of our country are depending on them.
Here are the 19 agencies that Trump wants to eliminate:
The African Development Foundation
The Appalachian Regional Commission
The Chemical Safety Board
The Corporation for National and Community Service
The Corporation for Public Broadcasting
The Delta Regional Authority
The Denali Commission
The Institute of Museum and Library Services
The Inter-American Foundation
The U.S. Trade and Development Agency
The Legal Services Corporation
The National Endowment for the Arts
The National Endowment for the Humanities
The Neighborhood Reinvestment Corporation
The Northern Border Regional Commission
The Overseas Private Investment Corporation
The United States Institute of Peace
The United States Interagency Council on Homelessness
The Woodrow Wilson International Center for Scholars
Comparisons between Trump(ism) and Fascism have become frequent, and with good reason. These comparisons are strongest between Trump and Mussolini — stronger than with Hitler and Nazi-ism. Detailed comparisons are difficult for at least two reasons: 1) the historical circumstances are quite different between the 20s and 30s and today, and 2) Fascism was never a coherent political theory or philosophy, but, instead, was a populist and nationalist development in Italy that Mussolini did not create, but did take over.
A comparison between Trump and Mussolini in terms of character and style, however, is frighteningly strong — and does give some guidance concerning future concerns. This comparison is based primarily on quotes from a book about Mussolini by R.J.B. Bosworth (2010). In general, the quotes speak for the themselves, though I will add some commentary along the way. It should be noted that this book was published years before similarities between Trump and Mussolini became politically relevant, and, thus, were not written with Trump in mind.
I begin with Trump’s arrogant ignorance and incoherence:
“Other more critical contemporaries noticed instead the fluctuations in Mussolini’s ideas and the way he preferred to avoid in-depth conversations, sometimes excusing himself by saying that the details should be left to the experts. Here, they discerned, was a leader more interested in imposing his will than in harmonising his attitudes or policies. Here was a politician more interested in seeming to know than in knowing.” pg 142
“He understood that a totalitarian dictator had to be, or to seem to be, expert in everything.” pg 177
“Cowing the press was only one part of building a totalitarian dictatorship.” pg 177
Bosworth points to a later developing ambition for Mussolini that is not yet overt with Trump — but it has already been hinted at by some in his inner circle:
“The real novelty of his ambition lay in his pretensions to enter the hearts and minds of his subjects, and so install Fascism as a political religion.” pg 177
Again, Trump’s ambition combined with a lack of coherence:
“and so readjusting his own history with his usual aplomb” pg 277
“ ‘Reactionary dictators are men of no philosophy, no burning humanitarian ideal, nor even an economic program of any value to their nation or the world. [George Seldes]’ They were ‘gangsters’ more than anything else.” pg 246
One striking detailed similarity:
Mussolini appointed his son-in-law as foreign minister. e.g., pg 254
Trump, of course, is infamous for his ultra-thin skin:
“… he would flick through the French press and grow enraged at any criticism of Italy and himself.” pg 272
“… there were few things which annoyed Mussolini more than overt criticism.” pg 276
“This emotion [anger] had always been a prominent part of the Duce’s reaction to life .…” pg 280
Trump and Mussolini share thin-skinned ignorance combined with arrogant contempt:
“The Duce’s version of permanent revolution, it was increasingly plain, was more a story of his own permanent sense that the rest of human kind was not made in this own image (an arrogance which only partially cloaked his own sense of inadequacy …).” pg 282
“… it was plain that he [Augusto Rosso] was another who feared that Ciano [son-in-law] was very young, and very inexperienced in the real world, and who knew that Mussolini did not take his professional diplomats seriously.” pg 292
“In his diary, Bottai depicted a war leader whose administration grew steadily more ‘approximate’, with the Duce, a ‘man of the banner headline’ at heart, now bored by detail or discussion and preferring to ‘let things run of their own accord’.” pg 302
“… the Duce’s reaction, Bottai complained, was, ‘if things go well, take the credit; and, if they go badly, to blame others’. This, Bottai concluded, had become the real meaning of the formula: ‘Mussolini is always right.’ ” pg 303
The following speaks for itself, and speaks volumes:
From A.J.P. Taylor, quoted in Bosworth: “Fascism never possessed the ruthless drive, let alone the material strength, of National Socialism. Morally it was just as corrupting — or perhaps more so from its very dishonesty. Everything about Fascism was a fraud. The social peril from which it saved Italy was a fraud; the revolution by which it seized power was a fraud; the ability and policy of Mussolini were fraudulent. Fascist rule was corrupt, incompetent, empty; Mussolini himself a vain, blundering boaster without either ideas or aims.” pg 344
Here from a different book, Mussolini and Italian Fascism (2008), by Giuseppe Finaldi:
“Thus Fascism, as it developed in 1920-2, was not a political party, with a programme and an internal structure headed by Mussolini who sent proselytizing disciples into the provinces, but a catch-all movement that, loosely speaking, would have met with the approval of many who saw themselves as belonging to the very widespread political and social environment of the Vitterio Veneters [a nationalist movement]. The ingredient that was (almost) unique to Fascism and which gave it an edge over traditional patriotic parties was its willingness to employ violence for political ends. Its ability to give a semblance of political coherence and a plausible set of symbolic reference points to what was essentially reactionary vigilantism allowed the process of law and the functioning of democracy … to be sidestepped with panache.” (pg 37)
Just as Mussolini took over the Fascist movement, Trump is exploiting and taking over the ultra-nationalism/alt-right movements. These are the power bases for two dictatorial personalities.
Two additional comparisons —one with with Hitler and one with Putin — are also relevant here. Hitler and Nazi-ism have both similarities and differences with Trump and Trumpism, but both include the style of creating multiple competing power centers, to be adjudicated by the ultimate authority. This not only creates chaos, it also encourages striving to produce the positions, actions, and proposals that will most powerfully capture what the Leader will bestow favor upon. It nurtures what came to be called “Working toward the Fuhrer.” It is a formula for extremism.
Violence is central to the history of all of these movements, and both Hitler and Mussolini came to their dictatorial powers via a relatively singular act of violence: the Reichstag fire for Hitler and the Fascist march on Rome for Mussolini.
Putin, however, demonstrates a different path. Violence, even Putin-directed lethal violence, has been a central part of Putin’s creation of his dictatorship, but there has not been any single violent event that generated his power. Instead, Putin’s history has been one of constant undermining and destruction of competing institutions and individuals, to the point that there are no longer any checks on his power. We have already seen major attacks by Trump on the judiciary, the press, and moves to undermine and take over the institutions of public safety. The seditious partisanship of the Republicans in Congress ensures that the legislative branch will not be a check — unless that blind support is somehow itself changed.
The attacks on central institutions of American democracy as “enemies of the people” has a horrible and horribly dangerous historical background. Trump may (or may not) be too ignorant to know of that background, but his inner circle most certainly knows of it, and intends it in full.
And, of course, all of this is in addition to the subversion of American democracy and of the Trump administration by Putin’s Russia.
We live in dangerous times.
Mark Bickhard is Henry R. Luce Professor in Cognitive Robotics and the Philosophy of Knowledge in the Department of Psychology at Lehigh University (Bethlehem, PA).
This article was originally published at History News Network
President Trump’s nomination of Neil Gorsuch to the Supreme Court likely ensures the continued significance of originalism for constitutional interpretation. Originalism is a complex legal theory. But boiling it down, it means that judges and lawmakers are bound by the meaning the words in the Constitution had when it was ratified. The original public meaning of those words cannot change. Pressing contemporary issues and compassionate wishful thinking cannot allow the words of the Constitution to justify actions that were not intended when the Constitution became the nation’s fundamental law.
Is the claim for an original intent historically defensible? Exploring the constitutional thought and actions of Alexander Hamilton, Thomas Jefferson, and James Madison shows that it is impossible to ascribe a single original intent to even so small a group of critically important founders. Instead, we find multiple original intents and competing meanings. With Hamilton and Madison, two of the most vocal members of the Constitutional Convention, we find, though in very different ways, endorsement of a living, expansive, and flexible Constitution, one that changes with the times and over time.
Testing originalism by investigating the first great constitutional conflict after ratification undermines the claim that the Constitution had one single and stable public meaning for the founding generation. In December 1790 Hamilton, the Secretary of the Treasury, issued a report calling for the national government to grant a corporate charter for a national bank. The bank would manage the large public debt and safely house federal tax revenue. Madison, a national congressman, and Jefferson, the Secretary of State, were appalled and insisted that the bank was unconstitutional because the Constitution did not grant the national government the authority to charter corporations.
Madison and Jefferson argued that the Constitution had an original meaning concerning the powers it granted the national government. Those powers were enumerated, and the government could only do things the Constitution expressly said it could do, except under very rare and limited circumstances. There were two clauses in the Constitution that could seem to expand the government’s power, the general welfare clause, which charged the government to promote the general welfare, and the necessary and proper clause, which granted the government the power “to make all laws necessary and proper for carrying into execution the enumerated powers.” Jefferson and Madison argued that the general welfare clause was not a freestanding grant of additional power. Rather, it was directly connected to the enumerated power to tax. It merely clarified that the Constitution granted the national government the power to tax so that it could provide for the general welfare. But what constituted that welfare was unambiguous; it was the specific enumerated powers.
Jefferson and Madison accepted that the necessary and proper clause did expand the government’s power beyond the enumerated powers, but only in a very limited way. Something was necessary, they argued, only if an enumerated power could not be carried out without it. Hamilton had argued in his initial report that the bank was useful because it would make tax collection easier. To meet the Jefferson/Madison standard for being necessary, Hamilton would have to show that the government would be unable to tax at all unless it had the bank, clearly a burden Hamilton could not meet.
In response, Hamilton argued that Jefferson and Madison did not understand the meaning of the Constitution; the general welfare clause was a freestanding grant of power. In addition, he insisted that they did not know what the word necessary meant. Hamilton explained that necessary “often means no more than needful, requisite, incidental, useful, or conducive to.” The meaning of necessary was expansive not restrictive. Clearly the Constitution’s original public meaning was to allow for vast implied powers that went far beyond the enumerated ones. To meet Hamilton’s standard of necessary, one merely had to show that the implied power—issuing a corporate charter for the bank—would be useful for carrying out the enumerated power to tax, and that the implied power was not forbidden by the Constitution. In effect, because of the disagreement over how to define the word necessary, Jefferson and Madison were saying that the government could not charter a bank because the Constitution did not expressly grant it the power to do so, while Hamilton was saying the government could charter a bank because the Constitution did not expressly deny it that power. Modern-day originalists seeking the stable, consensual meaning the founding generation ascribed to the words of the Constitution will find that even a seemingly simple word such as necessary could produce rival definitions that made for completely different constitutions.
Hamilton had a top-down and elitist conception of an open-ended and living Constitution. Statesmen and lawmakers would draw connections between desired policies and enumerated powers. Once a connection was plausibly established, they could take an action not expressly permitted by the Constitution if the Constitution did not expressly forbid it. Initially, Madison seemed to be arguing for a fixed and rarely changing Constitution. But in 1791 and 1792, as he continued to challenge Hamilton’s policies, his constitutional thinking evolved. He developed a bottom-up and democratic conception of an open-ended and living Constitution.
As Hamilton triumphed and the government created the bank, Madison took to the newspapers to mobilize opposition. In a series of essays, he argued that the people themselves perpetually possessed sovereign power, which was why they had been able to ratify the Constitution in the first place. The Constitution was the people’s instrument for continuing to express their sovereignty. What the Constitution meant, Madison had come to believe by 1792, depended on the fundamental values of the sovereign people and the meaning they attached to the instrument they had created. But sovereignty did not only reside with the people who happened to be alive in 1788 when the Constitution became the nation’s fundamental law. The people were perpetual, and so was their sovereignty. For Madison, the public opinion of the sovereign people was the final arbiter of the Constitution’s meaning, for “public opinion sets bounds to every government, and is the real sovereign in every free one.” Madison had come to believe that all “power has been traced to public opinion. The stability of all government and security of all rights may be traced to the same source.”
Madison did not believe that the majority could do whatever it wanted. In the essays that he wrote for the Philadelphia National Gazette, Madison stressed that public opinion emerged from a lengthy and thoughtful conversation stimulated by sober, judicious thinking. That conversation had to be guided by virtuous statesmen who educated citizens to better understand the public good. But in the end, the Constitution was the mere instrument of the people’s perpetual sovereignty. It had to reflect their public opinion, their popular sense of their most fundamental values and ideals. It was the “people who are the authors of this blessing,” and they “must also be its guardians,” wrote Madison. Majority public opinion was the final arbiter of constitutionality, and the people’s “eyes must be ever ready to mark, their voice to pronounce, and their arm to repel or repair aggressions on the authority of their constitutions; the highest authority next to their own because the immediate work of their own.”
Looking back at the founding, the first great constitutional conflict, and the interpretive frameworks of two of the most significant founders, can only make modern originalists uneasy. Words such as necessary, defined so dramatically differently, made for multiple meanings and mutually exclusive original intents. Hamilton’s original intent to have a top-down and expansive interpretive framework demanded that statesmen have the authority to define in perpetuity useful policies as necessary, as changing times demanded flexible responses. Madison’s bottom-up interpretive framework demanded that the perpetually sovereign people maintain their right through time to be the final arbiters of constitutional meaning through popular politics and the thoughtful expression of public opinion.
Going back to the founders, we find them telling us to focus on our twenty-first century problems and to stop using them as an excuse for our inaction. The stable original intent we can most likely take from them is that we all must be keenly alive to our duty to be thoughtful, compassionate citizens. It is in Madison’s essays written in the early 1790s that we find the richest resonance of his powerful statement at the Constitutional Convention: “In framing a system which we wish to last for the ages, we should not lose sight of the changes which ages will produce.”
Andrew Shankman is Associate Professor of History at Rutgers University-Camden. His book Original Intents: Hamilton, Jefferson, Madison, and the American Founding is being published by Oxford University Press in March 2017.
Donald Trump promises to solve all our problems by making America great again. Employing the rhetoric of demagoguery, Trump asserts that he will build a wall to prevent illegal immigration from Mexico, impose a ban on immigration and refugees from Islamic nations, bomb the “shit” out of the Islamic State, provide a tax bill that will considerably reduce taxes upon higher incomes, repeal and replace Obamacare, remove government regulation and controls over business while increasing our dependence on fossil fuels, increase military spending and the nuclear arsenal, and renegotiate trade deals. Trump’s sexism and association with right-wing racial hate groups, along with his contempt for such concepts as political correctness, seem to envision a return to the white America of the 1950s before the feminist revolution and Civil Rights Movement of the 1960s. This effort to take America back to the 1950s should encourage progressives to consider the post-World War II example of folksinger and political activist Woody Guthrie; raising the question—with apologies to Christian evangelicals--of “what would Woody do?”
An examination of Woody’s life and work demonstrates that he would hardly tolerate such reactionary politics without voicing his dissent and opposition. Woody challenged the discrimination confronted by migrants from Oklahoma and Texas when they were forced off their farms and faced hostility in California. He advocated public power for the people and embraced the labor movement. Despite being raised in a racist environment, he rallied to the cause of racial equality and fought against Jim Crow and the Klan. Woody also enlisted in the international fight against fascism; believing that the sacrifices endured by the people during the war would result in a world free from capitalist exploitation.
The postwar world did not usher in the millennium Woody had imagined. He was disappointed and discouraged by the Cold War, HUAC, and McCarthyism, but he refused to abandon the struggle for a better world. And Woody kept up the fight during a difficult time in his personal life. Suffering from Huntington’s disease, his behavior was sometimes erratic, and his marriage collapsed. But the greatest tragedy was the death of four-year-old Cathy Ann Guthrie in a fire only days after her birthday. Cathy symbolized the new world for which Woody had struggled during the war. In letters following her death, Woody praised Cathy’s progressive spirit at school and in the home. He also noted that in her final hours, she never complained; only expressing concern for her grieving parents and friends. Despite this crushing loss—which continued the tragic Guthrie family history with fires that killed his older sister Clara and injured his father—Woody maintained his efforts to forge that better world represented by Cathy.
Politically, Woody placed a great deal of faith in the union movement. In fact, he was entertaining striking workers when Cathy’s accident occurred. Combining his devotion to racial equality and organized labor, Woody believed the union idea would be the means for realizing John Steinbeck’s Preacher Casy’s “one big soul” and the folksinger’s concept of “commonism.” Before World War II, Woody fought to organize farmworkers in California and supported industrial unionism by the CIO among auto workers, electrical workers, and steelworkers. During the war, Woody joined the Merchant Marine and National Maritime Union while perceiving the global conflict as a struggle between the greed of fascism and the common humanity of the union idea.
After the war’s conclusion, Woody believed that he might witness the triumph of union solidarity. The post war environment, however, did not prove hospitable to organized labor. Seeking to roll back the gains made by unions during the New Deal and World War II, big business and reactionary politicians discredited labor leaders by preying upon the American public’s fears of the Cold War, Soviet Russia, and communism. Amid the climate of McCarthyism, the FBI and Congressional Committees such as the House Un-American Activities Committee (HUAC) violated the civil liberties of American citizens, as labor leaders who supported reforms, racial unity, and collectivist solutions to the nation’s economic concerns were dismissed as communists. Labor’s gains were curtailed by repressive legislation such as the Taft-Hartley Act, and labor leaders with radical agendas were purged, while the union movement abandoned Woody’s dream of forging a more egalitarian society in favor of the bread and butter unionism of pensions, wages, hours, and working conditions for their members.
Meanwhile, union membership continues to decline in the United States, while the right to work movement gains traction and undermines labor organizations. Today, only about ten percent of workers are organized, and unions fail to provide a source of countervailing power to big business. This erosion of labor influence, exacerbated during the 1980s under the Reagan Presidency when striking members of the Professional Airline Traffic Controllers Organization were fired, has left American workers with little means to combat the forces of globalization and automation that have lain waste to the industrial heartland of the United States; this has resulted in many desperate voters placing their trust in the demagoguery of Donald Trump who has consistently opposed organized labor. In fact, Woody was an early critic of Fred Trump, the Donald’s father, for his policies of supporting segregated housing, a family business practice that Donald Trump has never disavowed. For progressives seeking to check the power of Trump and his billionaire allies, it is time to promote the organization of American workers and reawaken Woody’s union ideas. It will not be easy, as is the case for almost any cause worthy of the struggle. Woody committed himself to the union idea during the dark days of McCarthyism, and progressives today should follow his example rather than curse the darkness.
Woody was discouraged by the political climate and personal tragedies he encountered in post war America, but the folksinger remained in the fray until sidelined by illness. He enlisted his guitar and song writing abilities in the struggle against the KKK, supported organizing efforts by the CIO among Southern textile workers, and campaigned for the 1948 Progressive Party candidacy of Henry A. Wallace. For these activities, Woody was denounced as a communist, but such accusations did not deter the musician from fighting for his ideas of a more egalitarian society based upon the union idea and “commonism.”
Much time and energy have been wasted debating whether Woody was a member of the Communist Party. Labels did not matter much to Woody, and he often supported the communists because in the 1930s and 1940s the party backed workers’ rights, while battling against racism and fascism. He refused to be intimidated by the red-baiters and never denounced the party. Failing health prevented Woody from suffering the indignities of the blacklist visited upon associates such as Seeger.
Woody also recognized that the concept of “commonism” was part of a larger historical movement to assure that the principles enunciated in the Declaration of Independence were bestowed upon all Americans. The folksinger was part of an indigenous American radicalism that was reflected in his music. Woody celebrated the courage of black abolitionists such as Harriet Tubman who fought against slavery, while also recognizing the bravery of Southern whites such as Stetson Kennedy who challenged the Klan and Jim Crow. The contributions of women to forging a more just society were eloquently addressed in the classic labor anthem, “Union Maid.”
The first red scare following World War I sought to obliterate the radical history of America in a wave of jingoistic patriotism by painting groups such as the IWW and Socialist Party as un-American. Thus, the fact that the Socialist Party had considerable appeal in Oklahoma and the American heartland is little known today, but Woody labored to keep this more radical past alive with compositions such as “1913 Massacre” and “Ludlow Massacre” that commemorate American workers, many of them immigrants fighting against capitalistic big business in order to feed their families. It is a legacy of struggle that deserves an honored place in the nation’s history classrooms.
In his Ballads of Sacco & Vanzetti, Woody also told a story of discrimination against immigrants that is often forgotten today but remains extremely relevant in an era during which immigration is blamed for terrorism and economic decline. In a beautiful introduction to his songs on the Italian immigrants, Woody relates Sacco and Vanzetti to the migrant experience of the dust bowl refugees who fled Oklahoma and Texas in search of new opportunities, only to find intolerance and repression. Instead, Woody believes that America should be a land that celebrates diversity and welcomes immigrants into the community. This inclusive vision is also the message of Woody’s most famous composition, “This Land Is Your Land.” Woody’s radicalism is also apparent in the anti-imperialist themes of his Korean War song cycle.
Woody’s voice of protest was silenced by disease before a widespread discontent with the Vietnam War was manifest in American society, but as many historians have noted the origins of the Vietnam conflict may be found in the Korean War and early years of the Cold War which Woody was not afraid to question. Thus, Woody served as a historian of the indigenous American radicalism that has played a significant but often ignored role in the American past. As a historian, Woody reminds progressive citizens of a radical tradition upon which they might draw in the contemporary fight for social justice. Woody provides us with examples of a usable past.
By Ron Briley, faculty emeritus at Sandia Preparatory School.
The Republican plan to end all federal funding for Planned Parenthood, baked into Trumpcare, would result in thousands of unwanted births. That's a lesser-noticed but foreboding finding from the same Congressional Budget Office report that shows Trumpcare would cut federal spending on Medicaid by a whopping $880 billion over the next decade. We all know how…
The firing of Preet Bharara and other U.S. Attorneys last week was suspicious for one reason: It comes at a time when Donald Trump's business is booming all over the world, which calls for a healthy skepticism -- if not a federal investigation -- of its legalities. It was only two months ago that the president…
“The longest-running show on television” is how NBC’s weekly Sunday morning political program Meet the Press bills itself. In this case, longevity might be proof of innocuousness. For years, under the stewardship of Lawrence Spivak, who had the personality of a high school shop teacher, the show was a press conference of the pre-Trump variety — low-key, staid, formal, non-confrontational. But over the years, Meet the Press and its clones on CBS, Face the Nation, and ABC, This Week, not to mention the knockoffs on cable, have gained importance out of proportion to their relatively meager ratings. This is in part because they are the place for politicians to spin, and in part because that spin is amplified by sound bites on the evening news, in newspapers and on the radio. You could almost say that the debate starts here, which was the case this past Sunday on the GOP’s new health care — or health I-couldn’t-care-less — plan. More, these shows help define the quality of the debate.
With that in mind, on Sunday I watched the two most venerable of these shows, Meet the Press and Face the Nation. Long ago Meet the Press had morphed from Spivak’s somnambulant show to Tim Russert’s less polite, more hyperactive one. Russert, who died of a heart attack in 2008 after presiding over the program for 16 years, is venerated now, but from his Sunday perch, he damaged political journalism in two ways. First, he indulged a faux populism in the persona of a beefy, working-class galoot from Buffalo who was a chip off Big Russ, his working-class Pop. It was a pose; if Russert were working-class, he was a blue-collar millionaire — and it seemed cleverly designed to play against media elitism, which hurt the media’s credibility even as it boosted Russert’s and the show’s. Second, he created a faux journalism in which catching a politician in a contradiction became an entertaining stunt, one that superseded real probing of ideas and values. In that way, he transformed the Sunday shows.
NBC knew Russert would be a hard act to follow. His first replacement, reporter David Gregory, apparently was too much a sobersides to perform the old Russet parlor tricks. His replacement, Chuck Todd, did better. And to give Todd his due, he wasn’t too bad on Sunday. In fact, sometimes he was quite good.
Yes, he referred to “moderate Republicans,” as if there were such a thing. And, yes, he let Health and Human Services Secretary Tom Price get away with a few whoppers, but not as many as one might have expected, and he even nailed Price down to making the surely erroneous claim that the GOP plan will provide better coverage than Obamacare and do it more cheaply. (This was before the impending Congressional Budget Office report that showed neither of these things was true.)
Now Price is on record. Where Todd fell down on the job was in letting Price get away with the refrain that Obamacare had “failed” (of course Price dare not mention that Republicans had done everything in their power to make it fail), and another refrain that premiums had skyrocketed when, in fact, they hadn’t. Only 3 percent of the insured, according to The New York Times, had seen substantial rises. Todd didn’t say, though he should have, that as premiums rose for all but this 3 percent, subsidies also rose. (This is a perfect case of the squeaky wheel getting the grease and the press.) And he failed to challenge Price on how Medicaid functioned. Price said not well. He is wrong.
Later in the show, Todd interviewed Ohio Gov. John Kasich, who opted for a more robust Medicaid program than the GOP bill provides. (Of course he does: Ohio has 700,000 of its citizens on Medicaid.) Todd was clearly sympathetic to Kasich’s view that any successful reform has to be bipartisan, but he still let Kasich get away with the most tired of conservative clichés — the benefits of a “market-driven system.” Todd didn’t ask the most basic question: If the market had worked so well, why were so many folks before Obamacare uninsured? Indeed, if the market worked so well, why did we need Medicare or Medicaid or SCHIP?
What Todd did do, powerfully, was go to the data. He showed what the impact of the GOP repeal and replace would have in various communities on a 60-year-old who makes $40,000 a year. And remember, the GOP bill is most generous to the elderly, which isn’t to say that it is generous. He found that the biggest losers — that is, the communities that would lose most from the Obamacare repeal — were those that voted for Trump. Either the folks living there have a big surprise coming when they find they can’t afford insurance, or they care more about baiting immigrants and Muslims than they do about their own health. We may be about to find out. In any case, anyone who had doubts about the GOP plan now had more information to make up his or her mind about it.
All in all, not bad.
And compared to Face the Nation, it was like the Lincoln-Douglas debates. That show’s host, John Dickerson, opened with a taped interview with Speaker Ryan that was textbook in how to be spun. Ryan was predictably flannel-mouthed, telling fib after fib with all the earnestness (and deceit) of Leave It to Beaver’s Eddie Haskell: that the GOP had a “much better policy” than Obamacare (just ask the CBO); that the plan had been months in development (yeah, sure); that what Americans want most of all is “more freedom” (apparently freedom from health insurance); and the old standby, that Obamacare is “collapsing.”
Dickerson, calm, reserved, non-confrontational, was also woefully ill-prepared and wildly overmatched, which isn’t easy with Ryan, who is not exactly the sharpest tool in the political shed. “People are missing the historic nature of this,” Ryan avowed, meaning not only the end of Obamacare but also the end of Medicaid as we know it. Dickerson didn’t even provide feeble resistance, like challenging the consequences of Medicaid’s demise. To top it off, when Dickerson brought up Trump’s charges of being wiretapped by former President Obama, Ryan insisted, “There has been a lot of reporting about this,” without Dickerson amending that comment with, “Yes, in Breitbart and the ‘alt-right’ blogs.”
Dickerson returned with more Ryan later in the broadcast, after letting Sen. Rand Paul (R-KY) deliver his own blather. (During the panel segment of the show, Republican adviser Avik Roy, pointed out that Paul, who now fiercely opposes tax credits to help folks pay for their insurance, felt very differently when the credits were being given to the elderly. Why didn’t Dickerson know that?)
Round Two also went to Ryan. When Ryan argued that the CBO is likely to find a large increase in the number of uninsured under his plan (as it did), he gave this cogent reason: because Obamacare had a mandate, and his plan doesn’t. Since he didn’t correct Ryan on this fundamental plank, Dickerson apparently doesn’t understand insurance any better than Ryan does. Of course it has a mandate. That is how you get healthy people to pay for sick people. “We are not going to make people do what they don’t want to do,” Ryan asserted, without any pushback from Dickerson about that being the only way you can insure the sick and elderly. Finally, when Ryan delivered his coup de grâce, that Republicans never said they would insure everyone, only that they would assure “universal access” to coverage, Dickerson didn’t fire back: Everyone already has access to health insurance. It is the means to pay for it that they don’t have.
I won’t belabor Face the Nation’s journalistic panel, except to say that when Peter Baker of The New York Times repeats the tired cliché that Ryan is “wonky and smart,” we just saw evidence that he was neither; and to say that Avik Roy acquitted himself again when he blew the whistle on his fellow Republicans by admitting many of them never believed in Medicaid in the first place.
So this is how the media debate on health care begins: with dueling talking heads on Sunday morning. What it demonstrates is that if we are going to have a serious conversation, the media better be up to the task. They need to know their stuff. They need to be willing to challenge obviously false assertions. They need to correct the spin. Dickerson seems to think doing so would be a violation of objectivity, which is the standard operating procedure of television news. Don’t talk back. Todd, at least, wasn’t going to play nice. That is a beginning.
This article was originally published at BillMoyers.com
On Monday, the Congressional Budget Office predicted that a whopping 14 million people will be left uninsured next year if the GOP's new health care bill passes. To the surprise of no one, the Trump administration has responded by sticking its collective fingers in its ears.
"It's just not believable, is what we would suggest," Heath and Human Services Secretary Tom Price said, a sentiment echoed by former Trump campaign economic adviser Stephen Moore later that day.
"I don’t believe this report,” Moore told Anderson Cooper in an interview on CNN’s AC 360.
“I think it’s hocus-pocus,” he added, insisting the GOP's multi-step process will “provide more competition and will make it more economical for people to buy insurance" long-term.
Count Labor Secretary Robert Reich among the report's many believers.
“Donald Trump said over and over again during the campaign, and he said again after he was president, that nobody would lose coverage,” Reich recalled. “Well, here you have the Congressional Budget Office, whose director was appointed by the Republican Congress, saying in effect that you’ve got huge losses.”
According to the report, that 14 million figure is set to nearly double over the course of a decade. Republicans, Reich explained, should proceed cautiously.
"If I were a Republican—a member of Congress right now—I would be worried that possibly this bill could be enacted because then I’d have to run for Congress again, I’d have to run for Senate when people were losing their health care and their health insurance and they’re angry about that," Reich explained.
He's not falling for the "access to heath care" rhetoric pushed by congressional Republicans like Paul Ryan.
“What kind of choice do you have if you can’t afford it?" Reich asked Cooper. "That’s when the Republicans are using these words like well, ‘you don’t lose access.’ Of course, you lose access if you don’t have any wherewithal.”
“Where is the replacement if it wasn’t in the Republican bill?” he hammered. “When are we going to see a replacement if it wasn’t already provided by the House Republicans and it is now being marked up by at least two committees? There is no plan."
Watch:
The system wasn’t supposed to work this way. The Founding Fathers deliberately devised a structure in which someone like Donald Trump — a vain, self-centered, mendacious demagogue — could never become chief executive, and in which the legislature could never be captured by a reckless, ideologically obsessed minority bent on overriding the majority interests of Americans. Those Founders labored to create an independent judiciary that was not captive to any single ideology or party. They carefully crafted a set of checks and balances in which no single branch of government could overpower another, and in which each held its own prerogatives dearly. In doing so, they thought they had provided posterity with a wise, cautious and magnanimous governmental operation that would serve the larger public weal rather than advantage any particular group or party, and that could withstand the gusts of any given historical moment.
It actually worked surprisingly well for 250 years, which is not to say that it didn’t have plenty of hiccups or that special interests weren’t often privileged. But it doesn’t work anymore, and though I am optimistic enough to believe that we will have a new president and Congress someday who will change policies and perhaps set us back on the road to rationality and common decency (“Make America Good Again”), the Trump presidency and the Republican Congress have nevertheless exposed the flaws in the system itself.
The prognosis isn’t good: These flaws are embedded in the Constitution and cannot be repaired without wholesale change, which isn’t coming. These defects are now openly visible for the next demagogue and the next gaggle of political hypocrites and power mongers to exploit. You can forget all the alleged fail-safes. The Constitution was supposed to protect us from this. It was expressly designed to do so. It didn’t.
The system failed because the Founding Fathers did not anticipate anything like the modern Republican Party. On the contrary, they believed that extremism and overweening self-interest of the sort Republicans routinely display could always be quarantined. Were they wrong! Instead of the Constitution circumscribing reactionary populism, reactionary populism has circumscribed the Constitution. That is where we are now. And there is no way out.
The Founding Fathers weren’t naive idealists. They understood the deficiencies of human nature, which is why they felt the need to devise structural defenses against them. “If men were angels,” wrote James Madison in Federalist No. 51, “no government would be necessary.” But men weren’t, so it was. Still, our forebears were comforted by four assumptions that would underpin American democracy — four assumptions that let them believe their Constitution would sustain the new nation.
First, they believed that a national government would attract what John Jay described as the “best men,” men “whose wisdom,” Madison would concur in Federalist #10, “may best discern the true interests of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” In short, they envisioned a government of sagacious men of good will who set aside their own interests for the country’s: the “best and brightest.” Instead, we seem to have gotten the “worst and dumbest.” Examples abound, and this week’s rollout of the new Republican health care plan, which is likely to deprive at least 10 million Americans of health insurance while further enriching the rich is just another vivid demonstration of how the Founders overestimated the quality of future representation as well as our representatives’ dedication to the larger public good. Paul Ryan, the Republicans’ much-vaunted intellectual, doesn’t even know how insurance works!
Second, the Founders separated the three branches of government and assumed that each would check and balance the others as a form of protection against any one branch encroaching on the power of the others. As Madison put in it Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands. . .may justly be pronounced the very definition of tyranny.” The basic idea was that if goodwill didn’t ensure good government, a sense of institutional loyalty — even across party lines — would help.
Again, for most of American history that actually worked reasonably well, despite the expansion of the party system and politicians’ growing allegiance to it. In the 20th century, for example, there was arguably no more popular president than Franklin Roosevelt. But when he sought to pack the Supreme Court by adding new justices after the conservative court had ruled much of the New Deal legislation unconstitutional, there were howls of outrage that he had overstepped his constitutional bounds, and when in 1938, he sought to unseat congressmen in his own party who had opposed him, he triggered an intraparty revolt. Institutional loyalty overrode party affiliation, what Madison had disparagingly called “faction,” which is precisely how the system was designed to work.
But not anymore. Establishment Republicans may have griped during the campaign that Trump wasn’t sufficiently doctrinaire for their tastes, but how quickly those congressional Republicans fell in line after the election. Now there is virtually no distance between Trump, Congress and presumably, once Neil Gorsuch takes his seat on the Supreme Court, that institution as well. Separation of powers in a monoparty system is an absurdity because party and power supersede everything else, especially the public good. There is nothing Trump could possibly announce (say, for example, a former president wiretapping him), nothing he or his minions could possibly do (say, consorting with the Russians to tilt the election his way) that would move congressional Republicans to challenge him. We live in a Republican monopoly, and to hell with institutional loyalty or checks and balances. They don’t work.
Third, the Founders assumed that extremism could never take root in the government — not because there weren’t any extremists, but because the system had safeguards against their assuming power. (Not incidentally, Madison also observed, in a prophecy of Trump’s rise, that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government.”) Here Madison relied not on government structures, but on social ones. He thought that the diversity of the country, the sheer number of competing and countervailing interests, would prevent any single faction from riding roughshod over the others, and he adduced the example of religious sects where there were simply too many for one to be dominant.
Again, Madison was just plain wrong, because on one hand, he subscribed to the notion of a public driven in large part by rational self-interest, and on the other, because he didn’t imagine how fiercely extremists would press their cause. He couldn’t have foreseen how modern tools and technologies of manipulation, like mass media, social media, propaganda and persuasion, have coaxed people to forsake their self-interest. We know, for example, that some of the fiercest opponents of Obamacare are those who have benefited most from it.
Madison, then, didn’t foresee that a major party could be hijacked by extremists, as the Republicans have been, or that those extremists would then expunge from the party the very diverse elements that Madison had identified as our democratic safeguard. Or to put it another way, the Republican Party monopolized itself before it monopolized our government. Not even the farmers, small businessmen, Rotarians and Wall Street bankers who had formed the core of the pre-Reagan party saw that coming. About one thing, however, Madison was right: Extremists have no interest in democracy.
And that brings us to the Founders’ fourth and most important assumption. They assumed that those who aspired to power did so to govern; they didn’t aspire to govern to gain power. But what happens when a major party doesn’t believe in government itself? Republicans profess to love the Constitution. They carry copies in their shirt pockets and wave them at every opportunity. But here is the quandary: The Constitution creates the government, and Republicans profess to hate government every bit as much as they love the Constitution. Indeed, the modern GOP not only arose from the forces of extremism — the Manionites, John Birchers and Apocalyptics. It arose from those who vowed to destroy government as we know it — or, as one recent anti-government Republican, Steve Bannon, promised, “to deconstruct the administrative state.”
You can’t blame the Founders for not having anticipated that the government could be taken over by fanatics who don’t believe in government. No document, no system could have offered protection from this.
So kissing the Constitution is really a neat trick to disguise how little the Constitution really matters now, how pro forma it has become, how its assumptions have been savaged. A government that was predicated on goodwill has few practitioners of it and virtually none among the current governing party. A government in which power was subject to checks and balances has virtually none, only party uniformity. A government in which, in the words of one constitutional scholar, it was “almost impossible for a zealous movement to sweep like wildfire . . . and seize control,” has been seized by such a movement. And a government that was designed to provide stability, temperance, deliberation and wisdom is controlled by a party that doesn’t even believe in government, much less those virtues.
Yes, as I said, others will occupy the White House and Congress and even the Supreme Court. But there is nothing they can do to rebuild the structure the Republicans razed when they tore down the Constitution. What is left is the rubble.
This article was originally published at BillMoyers.com
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