The Double Crisis of the American Political System
By 
Michelle Goldberg writes some important things about what connects the anonymous “senior administration official” op-ed to the fact that Kavanaugh is almost certain to be confirmed. You’ve seen the line of argument before, but Goldberg makes it exceptionally well.
Since this dystopian regime began, I’ve wondered how Republicans who collaborate with Trump despite knowing he’s a disaster live with themselves. Why hasn’t a group of White House staffers quit in protest and then held a press conference? Why haven’t Senators Bob Corker and Ben Sasse, both of whom have said that the anonymous op-ed matches their own understanding of Trump, done more to stand up to him? Why aren’t former officials like Rex Tillerson, Gary Cohn and H.R. McMaster telling us publicly what they saw on the inside? How is it that none of these people have managed to behave as honorably as Omarosa Manigault Newman, who at least put her name to her words, and brought us evidence of what she witnessed?
One answer is that they care about the norms of American democracy — at least some of them — but not quite as much as they care about the agenda of the Republican Party.
In an earlier post, Paul argued that Trump’s presidency is a failure of the Constitution: “Donald Trump became president, and he will remain president for at least another two and a half years, because the nation’s foundational legal document has become fundamentally dysfunctional in the age in which we now live.”
In the United States, the Constitution is one of our sacred documents. My sense is that a lot of people don’t react well to criticisms of it, or of its authors. Both are lynchpins of American civic religion. The exception, of course, is slavery. For whatever reason, the fact that this great wrong was enshrined in the Constitution gets treated as a mulligan. But, as one of my friends routinely points out, the Constitution is obviously not a perfect document. For one thing, it contains drafting mistakes. It implies, for example, that the Vice President gets to preside over his own trial. This can lead self-proclaimed originalists into midrash-like contortions. And then we have the familiar arguments. For instance, its writers didn’t like political parties, but they designed a system guaranteed to produce them; they expected impeachment to function as a more regular remedy than the extraordinary one it became, and that it would keep the president from abusing his power; the Electoral College is a disaster, and the degree of malapportionment in the the American political system is staggering.
Thus, I think Paul’s point deserves to be pushed further. The bargain that Goldberg writes about—the bargain that makes the Republican agenda more important than doing something about a dangerous unfit Chief Executive—is itself an assault on the current constitutional order.
As Scott routinely points out, the Republican party and its Supreme Court appointments are pushing an antebellum vision of federalism, one that requires ignoring how the Reconstruction Amendments expressly changed the American political system. Obviously, this vision involves undermining the Second Reconstruction, especially when it comes to voting rights. The results have been depressingly predictable.
Whether or not the agenda is to return to Lochner, or merely to significantly curtail federal regulatory power in favor of business, the GOP and its justices clearly want some kind of rollback of the New Deal bargain on both the policy and legal fronts. They are very far along in giving capital a decisive advantage over labor.
Finally, consider the GOP’s efforts to destroy campaign-finance regulations, the attempt to appoint a proponent of the unitary theory of the executive to the Supreme Court, de facto abandonment of oversight of corruption and policy processes in the executive branch. Such goals and behavior aggregate to an effort—intentional or not—to undermine post-Watergate reforms and efforts to extend that spirit, such as McCain–Feingold.
What do all of these have in common? Each of them involves undermining, or rolling back, important “patches” to the Constitutional order—essentially, formal or informal kludges that responded to threats to, or outright breakdowns, of the US political system.
The Reconstruction Amendments were imposed by the victors after the antebellum Constitutional system failed completely. And when I say “failed completely,” I mean that the prior version of the Constitutional order produced a bloody Civil War that ultimately decided whether or not chattel slavery had a place in a republic of liberty.
The New Deal reordering of the American system came in response to an economic crisis that threatened to bring fascists or communists to power, or at least tear the country apart while destroying faith in the democratic system. It also allowed for mechanisms—such as automatic stabilizers—to reduce the risk of another economic crisis of that magnitude. The New Deal order salvaged political liberalism by mitigating the dangers posed to it by concentrated wealth, economic inequality, and exploitation of workers and ordinary people by large businesses. It didn’t go far enough, and has already unravelled in worrisome ways, but the GOP seeks to make a course correction impossible by rendering it unconstitutional.
The Second Reconstruction addressed the failure of the Reconstruction Amendments to prevent racial authoritarianism in large parts of the United States. Their promise, at least when it came to civil rights for African-Americans, was largely thrown under the bus so that Republicans could claim the White House in 1876.
The Watergate reforms attempted to prevent another constitutional crisis of the kind created by Nixon and prevent his many, many abuses of executive power.
Now, the conservatives believe that a return to something more like the “original vision” of the founders will allow the United States to thrive and prevent the threat to individual freedom posed by the regulatory state. And perhaps they’re right: perhaps the condition of the twenty-first century are best served by such a combination of a antebellum federalism, an imperial presidency, corporatism-masquerading-as-free-markets, and regulation of women’s bodies.
I, for one, think it extremely unwise to valorize constitutional orders that produced crises, failed, and even led to civil war. In some respects, we might see Trump as a symptom of the success that Republicans have already realized in reordering the political system. And we’re now facing another breakdown, one that certainly won’t be addressed by deregulating political campaigns, weakening oversight and increasing presidential impunity, and rolling back what’s left of social insurance.
NB: This post is based on a series of Tweets.
