Cass Sunstein has gathered an ensemble cast of today’s intellectual Davoisie (several of whom taught me in law school) to tell us, in seventeen separate essays, whether Trump is the harbinger of American structural doom, and if so, how. It is illuminating to read this book immediately after having read Glenn Reynolds’s "The Judiciary’s Class War," with its distinction between the ruling Front-Row Kids and the ruled Back-Row Kids. This is because ultimately nearly all the authors presented here believe that “it” can’t, or is extremely unlikely to, “happen here,” because they expect the Front-Row Kids to be able to stop “it.” That is, in different ways but with the same result, the authors expect that people just like them will continue to rule, Trump and the peasants be damned.
That’s not to say that they’re not worried. Some of them are very worried. In particular, more than half of them explicitly recoil in horror at what’s happened in Hungary and Poland, where people just like them have had their power democratically eroded. Of course, if people like the authors lose power, it’s not really democratic, since history only goes one way, in their favor, so it must be “authoritarian.” I will talk more of Hungary and Poland at the end of this review, but this example of loose use of terminology points up how this book, as a whole, is hampered by a lack of definition of terms. Each author gets to pick his or her own definitions, which lends a somewhat scattered, ends-directed feel to the book. Still, it’s worth treating each author fairly, in turn, so off we go.
Most of these authors are law professors, and no exception is the first up, Eric Posner, son of now-doddering former federal judge Richard Posner. Now, Posner may seem like an odd choice for this book, since his public profile has been highest in the recent past for his 2011 book, written with Adrian Vermeule, "The Executive Unbound," in which he argued that under the American system, as it exists today, an extremely strong executive is both inevitable and mostly very desirable. But that was in Obama’s day, and now Posner has changed his tune. Still, Posner answers the title question in the negative. Like most of the authors in this book, he takes the concrete, anti-Trump, tack, rather than an abstract tack about possible American authoritarianism in general. Posner lists actions that Trump, specifically, would need to take to become a dictator—attack the press in various ways; attack Congress; attack the bureaucracy; attack the courts; attack state and local governments; attack the party system; attack civil society. He throws out a few historical examples of each type of attack, and concludes Trump can’t effectively execute any such attacks, because #Resistance from the Front-Row Kids.
Next is Jack Balkin. His contribution starts off sounding like it will be interesting, an analysis of “Constitutional Rot,” but it immediately careens off the rails. Balkin identifies causes of constitutional rot, “decay in the features of our system that maintain it as a healthy republic,” as political polarization, loss of trust in government, increasing economic inequality, and policy disasters (e.g., the Iraq War and the 2008 financial crisis). Whatever the validity of this framework (and Balkin makes no effort to justify it or evaluate alternative criteria), Balkin’s application of it is ruined by his only focus being unhinged ranting about Republican evil, which we are told is all-encompassing, and the main manifestation of which is the supposed fact that the Republican party merely exists to implement the (unspecified) demands of its “donor class.” On just a single page Balkin refers six times to these ghastly donors, usually with a modifier such as “wealthy donors” or “powerful donors,” and then adds metonyms such as “masters.” To the (very limited) extent Balkin actually seems to try to apply his framework, it is to show that Republicans are rotten, create rot, and spread rot, like the zombie fungus Ophiocordyceps unilateralis. Bad, bad Republicans. Then he tells us that, despite Trump being a fine example of where this (Republican) zombie rot has brought us, “I remain hopeful.” Why? Because Reaganism is dead, and now we will have “the possibility of a new beginning in American politics,” the exact nature of which is not specified, but about which we know it will give us, if we are fortunate, “greater democracy, equality, and inclusiveness in the face of well-entrenched opposition.” This essay is not worth reading except to gaze in wonder at its eye-popping awfulness.
Third is Tyler Cowen, left-libertarian economics professor and blogger. He tells us “fascism” (not defined) can’t happen here, or at least anytime soon, because the federal government is “so large and unwieldy.” Authoritarian takeovers are easier in a night watchman state, Cowen claims. Where there is a large bureaucracy, on the other hand, it is harder to convince them to “adopt fascism.” The proof given is that 4.3 percent of the population of Washington, D.C., voted for Trump. “I do not myself consider Trump to be an appropriate stand-in for the concept of fascism, but the point is that a lot of these people did make that association, to varying degrees, and they voted accordingly.” This isn’t real convincing, either Cowen’s disavowal or that such voting proves a fear of fascism under Trump. After all, only 7.3% of the District voted for Romney (not that Cowen notes that; I had to look it up), and I’m pretty sure “proto-fascist” wasn’t a serious criticism of Romney. But both statistics do give weight to my contention that the entire bureaucracy in the District should be rusticated to rural America, and what they do say is that the District is radically Left, by philosophy and by economic interest, and would likely vote in the same percentages in favor of a fascist of the Left. (More generally, the reader has the sneaking suspicion about almost all of these authors that their resistance level to any actual Left authoritarianism would be, uh, less than vigorous.) The rest of the article is rambling, pulling in Hayek and Friedman, denying the Khmer Rouge were Communist (instead saying “whatever label you wish to attach to their ideas”), and concluding that if fascism does arrive, it’ll not be by takeover of the government, but as a result of its collapse. That last claim is probably true, as is the idea that Right fascism won’t be possible as long as the federal government exists in its current form with its current power.
The next offering is from the editor himself, Cass Sunstein. This is one of the best essays in the book (a low bar, admittedly). Rather than focusing on Trump, Sunstein offers a good thumbnail sketch of the Federalist/Anti-Federalist debate (with some dubious claims, such as that the Federalists contemplated that “[a] central function of the independent judiciary would be to interpret the Constitution, and thus to ensure that the other institutions would be kept within their lawful bounds as established by We the People.”) And while certainly the American system has changed from what Publius anticipated, in its broad outlines it has worked well and continues to work well, including to prevent the rise of authoritarianism. The word “Trump” barely appears, and the reader leaves better informed than he arrived.
Fifth, though, is an unreadable steaming pile by the execrable Samantha Power, where, hopping off her broom to lecture us, she screeches about “Foreign Interference with American Democracy.” She’s not a law professor (she’s a journalist by trade, and a hack by practice), and it shows. Russia is bad, Fox News won the election for Trump by repeating falsehoods about Hillary Clinton (not by repeating truth disgorged from the DNC, which would be called “whistleblowing” if it had harmed a Republican), and we need to get back to the good old days, when the ruled only got their news from “mediated platforms” where any news was carefully selected by “professional gatekeepers.” Power doesn’t seem to have a real point other than to demand homage from the peasants, and she never answers the title question. Ugh. Let’s move on.
We seem to be falling into a rhythm where a bad essay is followed by a better essay. So next is Jack Goldsmith’s evaluation of the “Deep State,” a term used for different groups of entities, but here explicitly limited to intelligence agencies. Goldsmith admits there is a Deep State and identifies, since World War II, its occasional use of “political abuse” (actions to coerce non-state individuals, such as Martin Luther King) and “political sabotage” (actions to achieve political ends of policy or personnel; e.g., Hoover keeping files on politicians to ensure good behavior vis-à-vis the FBI). (No mention, of course, is made of the recently exposed massive political abuse and political sabotage by the Deep State under Obama, only the tip of the iceberg of which we probably know about, although to be fair some of that, such as the criminal IRS persecution of conservative groups, was not done by the Deep State as Goldsmith defines it.) The earlier era of the Deep State ended with the Church Commission in 1976, where Congress permitted continuing extensive intelligence activities but mandated greatly increased oversight, largely eliminating political abuse until 2008. But political sabotage continued, and Goldsmith divides that activity into the categories of “abusive” (Hoover) and “virtuous” (Mark Felt), although he admits “[i]t is sometimes hard to say precisely when and why opportunistic use of secret information to sabotage democratic leaders is deemed virtuous.” You can say that again. But Goldsmith even-handedly uses this framework to analyze the publication of various recent leaks by the New York Times, Edward Snowden, and so forth. He then admits that “[t]here is significant evidence that the Deep State so understood—either as part of a concerted movement or via individuals acting more or less independently—has used secretly collected information opportunistically and illegally to sabotage [Trump] and his senior officials.” Goldsmith notes that most of this anti-Trump activity is totally unprecedented, not only in amount but in type. Nonetheless, he refuses to conclude this Deep State behavior is “not virtuous,” muttering in essence that extraordinary times require extraordinary measures, but it clearly makes him very uncomfortable, and “the whole ordeal has already done great damage to both the presidency and the national security bureaucracy.”
Seventh is Tom Ginsburg and Aziz Huq, shilling for Huq’s upcoming book, who talk about “democratic backsliding,” among other places in Hungary and Poland (a topic which I will, as I say, discuss below). Their basic point is that sudden descents into autocracy (or whatever exactly the “it” of the title is) are not required to get to autocracy, or even likely. Slow erosion of democracy is more likely, more plausible and more historically demonstrated. (Ginsburg and Huq are occasionally unintentionally funny, as when they say flatly, “[D]emocracy can’t work if the ruling party has the courts and bureaucracy firmly in its pocket.” By that standard democracy is already over, and Trump and the Republicans lost.) Then they go on at length to tell us that Republicans are trying hard to erode democracy, but, God willing, their evil will not succeed, and if it is prevented, it will not be prevented by the Constitution (contra Sunstein), but by the people who, united, can never be defeated.
Noah Feldman parses each of “it,” “can’t,” “happen,” and “here,” to conclude that “it” means the erosion or end of “liberal democracy,” a term and concept he notes is found nowhere in the Constitution and is a post-1787 creation. Thus “it,” meaning material political transformation, has occurred, is occurring, and will continue to occur. What that will look like, though, is hard to say. True enough, I suppose.
Next was the essay I held out the most hope for, by Karen Stenner and Jonathan Haidt, both psychologists, with Haidt being the foremost voice on the Left today for attempts to reach across the aisle, encourage real debate and discussion, and arrive at negotiated ends. I was not disappointed, though it took a while to get there. This is a long essay; most of it is taken up with technical discussion of surveys of the “authoritarian dynamic” in individuals, how that differs from “conservatives,” and how those measures correlate with public opinion in the United States (especially with respect to voting for Trump) and Europe (especially with respect to voting for Brexit or Marine Le Pen). I found this fairly boring, though your mileage may vary. But at the end Stenner and Haidt turn to suggestions, among them Haidt’s often-made statement that diversity is not our strength, but instead democracy needs “an abundance of common and unifying rituals, institutions, and processes,” which will bring us together and blunt the authoritarian temptation. Speaking of Trump haters without specifying, they note that “the sentiments that seem to fuel those [populist] movements are often considered merely the products of frustration, hatred, and manipulation by irresponsible populist leaders—certainly not serious, legitimate preferences that a democracy must attend to.” This is especially true of immigration—Stenner and Haidt explicitly reject that any and all immigration must be good. “If citizens say they’re concerned about the rate of immigration, we ought to at least consider the possibility that they’re concerned about the rate of immigration, and not merely masking a hateful racism or displacing their economic woes onto easy scapegoats. . . . It is implausible to maintain that the host community can successfully integrate any kind of newcomer at any rate whatsoever, and it is unreasonable to assert that any other suggestion is racist.” Some level of intolerance is inherent and natural; to pretend otherwise is silly and is likely to itself destroy liberal democracy. Thus, this essay, which began dry, ends with a frankly radical approach relative to others in the book, many of which also name-check Francis Fukuyama, but none other of which suggest that not only was he wrong about the end of history being liberal democracy, but that further movement toward that end may be exactly the wrong thing to push.
Bruce Ackerman then offers a brief essay, recycling (by his own admission) his proposal that institutional frameworks for Presidential action in emergencies be put in place now, before an emergency allows an ill-intentioned president to distort the existing Constitutional system. Maybe, though my guess is that if a President uses an emergency as an excuse to seize broader power, such structures won’t matter much.
Next up, Timur Kuran offers a long article, trying (loosely) to use Hayek’s framework of the “road to serfdom” to explain how “cascading intolerance” can lead to that serfdom, defined as authoritarianism not arrived at by collectivism, but by suppression of communication and pandering to grievances. Kuran lays out an even-handed framework of how communities of intolerance have arisen on the Left, through many adopting identity politics enforced and advanced by political correctness, and on the Right, through many (allegedly) adopting “nativist” politics, enforced and advanced in a way not really specified. These groupings are fair enough, though Kuran ignores that the former is massively powerful and dominates American culture, while the latter, especially in its more extreme manifestations, has no power or real influence at all, and in its mainline manifestations, such as Fox News, has limited power and is much closer to the majority of American thought than are Left identitarians. (Also, Trump may “flaunt” the law, but I think Kuran means “flout”). In any case, these intolerances are mutually reinforcing, and further reinforced by “availability chambers” (i.e., echo chambers). Despite occasional howlers, such as the suggestion that we can reduce intolerance by all getting our news from CNN, to get “exposed to diverse perspectives firsthand,” this is a pretty good analysis. Kuran concludes that Tocqueveillian associations are destroyed by this process (although he seems to think they have not already been destroyed, an odd claim in light of Robert Putnam’s work), and that our only hope is a restoration of the “mushy middle” as against this increasing chasm between us.
The twelfth essay, by sociologist Jon Elster, is a somewhat offbeat offering about Louis Napoleon, Napoleon III (the nephew of the original Napoleon), who seized power in France in 1852. This is a fascinating account, featuring Tocqueville again, although here not with respect to his opinions on America, but as a direct participant in the action. (Tocqueville appears in some form or another in most of the essays in this book, followed, surprisingly, in number of references, as far as political thinkers go, by Carl Schmitt—not for the latter’s Nazi connections, but rather for his substantive political thought. This is frankly shocking to me—I had no idea the Schmitt revival had reached deep into the Front-Row Kids, not that any writer here endorses Schmitt, but several of these writers very evidently find his thought extremely valuable and important.) The point seems to be that Louis Napoleon could have been stopped at many points, but for a variety of reasons, he wasn’t. Nor was Trump. And to the extent Trump, or someone else, actually tries to become authoritarian, other opportunities to stop him will exist, and they should be taken. At least I think that’s the point.
Next Martha Minnow, the dean of Harvard Law School, asks “Could Mass Detentions Without Process Happen Here?” Her frame is the infamous Korematsu case, still valid law but part of a group of decisions generally “abhorred and rejected,” what she calls the “anti-cannon,” by which she means not a machine to defend against artillery pieces, but an “anti-canon.” Minnow notes that there is every reason to believe that in a future emergency equally bad behavior would be endorsed by the courts. Her point in this short article seems to be that Korematsu, which “remains like a loaded weapon” (a cannon, perhaps?), needs to be formally overruled, and the upcoming Supreme Court decision on Trump’s travel ban on foreign citizens coming to the United States from certain Muslim-majority countries is the place to do it.
Duncan Watts then talks at great length, much greater length than necessary, about how common sense is a bad basis for leaders to base political decisions on, and that we need a scientific approach, although he admits that isn’t all that much better in practice. (The name “Edmund Burke” does not appear, though Thomas Paine does.) Watts offers a very interesting Obama quote, “Nothing comes to my desk that is perfectly solvable. Otherwise, someone else would have solved it. So you wind up dealing with probabilities. Any given decision you make you’ll wind up with a 30 to 40 percent chance that it isn’t going to work. You have to own that and feel comfortable with the way you made the decision. You can’t be paralyzed by the fact that it might not work out. On top of all this, after you have made your decision, you need to feign total certainty about it. People being led do not want to think probabilistically.” Still, more scientific approaches mean, on average, more legitimacy for decisions, and I presume the message is that makes authoritarianism less likely.
[Review continues as first comment.]