Why Trump Can't Pardon his Closest Associates

 

Leading media outlets are full of speculation to the effect that President Trump might now issue blanket pardons to Rudy Giuliani, to his immediate family, and even to himself.  A Washington Post reporter, Gillian Brockell, writes such “preemptive pardons have a long history.”  Jane Mayer, perhaps the leading political journalist in the United States, discussed blanket pardons in a long piece on Trump’s future in the New Yorker.  While many question whether Trump can pardon himself, hardly anyone has even questioned his right to free family and associates from any legal worries growing out of his administration.  In my opinion as an historian, this is a grave mistake based almost entirely on a single relatively recent episode in our history: Gerald Ford’s sweeping pardon of Richard Nixon.  Although that pardon was never litigated in court, it had no precedent when Ford issued it, and a recent law review article by Aaron Rappaport points out that it violated a fundamental principle of pardon law.  President Trump, in short, has no demonstrated right to issue a blanket pardon to his family members, to Rudy Giuliani, or to himself.

Like our constitutional impeachment law, the Constitution’s pardon provision drew on English precedents established over centuries which the framers knew very well.  In medieval times the King of England had virtually absolute power to pardon offenses, but as early as 1389, Parliament (whose powers fell far short of what they later became) passed a law insisting that the King could not issue pardons for the most serious crimes—including murder, rape and treason—without specifying the exact offense he was pardoning. In 1689, after the Glorious Revolution, Parliament took away the monarch’s right to ignore such laws. By the next century, the most eminent legal commentators, led by William Blackstone, agreed that pardons of felonious conduct could only apply to specific offenses. “A pardon of all felonies,” he wrote “will not pardon a conviction . . . (for it is presumed the King knew not of those proceedings,) but the conviction . . . must be particularly mentioned.”[1] 

It does not require much reflection to see why this is so.  The pardon power existed in England and now exists in the United States because of many good reasons to excuse a particular offense by an individual, or, as has often happened—as we shall see—by a large group of individuals. A new president may reject a law under which people were convicted, or may find mercy a better strategy to deal with an outbreak of lawlessness.  Evidence may show that a convict was innocent. To issue a pardon for any offense that a person might have committed, however, would simply elevate that person above the law.  A chief executive might hire subordinates for the express purpose of committing federal crimes (as Richard Nixon did, indirectly, with the White House Plumbers in 1971), and promise them such a pardon before he left office to protect both them and himself. Such a possibility clearly lies well beyond the limits of legal, legitimate government as understood by the founding fathers.

Unfortunately, that is exactly the kind of pardon that Gerald Ford gave Richard Nixon in 1974, weeks after Nixon resigned from office.  In order to prevent the ordeal of a long trial, Ford said, he granted “ a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.”  Nixon appears to have been, literally, the first person in American history to get such a pardon.  At least one contemporary commentator has compared a possible Trump pardon for his family to the “blanket pardons” that previous Presidents have issued.  George Washington pardoned nearly all the rebels in the Whisky Rebellion. Thomas Jefferson pardoned everyone convicted of violating the Alien and Sedition Acts.  After Utah joined the Union President Benjamin Harrison pardoned all citizens of Utah who had committed the crime of polygamy.  Jimmy Carter became the last of a long series of Presidents to pardon all men who had resisted a wartime draft.  Many of those pardoned in these instances had not been charged, but in each case, they were being immunized against prosecution for a very specific crime.  They respected the English common law precedent that pardons had to refer to specific offenses.

Unfortunately, a subsequent President followed in Ford’s footsteps. When George H. W. Bush pardoned six convicted Iran-Contra defendants just before leaving office in 1992, he pardoned them “for all offenses charged or prosecuted by independent counsel Lawrence E. Walsh or other members of his office, or committed by these individuals and within the jurisdiction of that office.”  Not content to reverse these men’s prior convictions on cases brought by the independent counsel, Bush removed them from his jurisdiction.  Given that Bush himself had been an active participant in the Iran-Contra Affair and that his own superior, then-President Reagan, had agreed to appoint the independent counsel, this was a rather obvious betrayal of our principles of justice as well, and one that should show us how wrong the precedent that Ford set was. Even this, however, did not relieve the six of legal jeopardy for any federal offense that they might have committed during a specific period of time.

The whole career and presidency of Donald Trump testifies to weaknesses in our justice system.  Had Trump not managed to escape serious financial and other consequences from a long series of other legal scrapes, he would never have become president in the first place. Now, he is actively contemplating trying to place key associates, and himself, out of the reach of the federal criminal justice system for all time.  He must not be allowed to do this.  Should he issue such charges, and should prosecutors find sufficient evidence of new, indictable offenses by any of those he pardons, they should bring the indictments and challenge the pardons on the grounds that they did not mention a specific offense, and tried to give the recipients an immunity that the founders never intended anyone to have.  That will give the courts the opportunity to confirm that Ford’s pardon of Nixon is not a valid precedent in American law. 

---

[1] Quoted in Rappaport, op. cit., p. 289.

John LeCarré, Historian

 John LeCarré's extraordinary career as a novelist has ended with his death.  I have learned some new things about him from obituaries and reminiscences that have been published in the last few days.  I discovered him at the same time that most of the world did: in 1964, when I was 17, and The Spy Who Came in From the Cold  hit the western world with the impact of a small nuclear weapon.  From then until the end of the Cold War I believe that I read each of his books roughly at the time that it  came out, and beginning in 1978, when I taught my own lecture course for the first time, I found ways to work him into my teaching. It was in the 1980s when finally realized what the underlying point of his Cold War thrillers was--of which more later.  In the thirty years since the fall of the wall that was the scene of the opening and final scenes of The Spy Who Came in From the Cold, I read his books more intermittently, and I'm sorry right now that I don't have more of them in my personal library upon which to draw.  By by  the last decade, at the latest, it was clear that he had found a new theme.  He emerged, for me, as the critical western historical novelist of the 20th and 21st centuries, because he identified the  most serious human diseases of both the Cold War era and the  very different era that has succeeded it.  Both of them related to a central problem of human existence: individual allegiance to a greater good.

LeCarré's own career as a spy had soured him on the profession, and The Spy Who Came in  From the Cold (whose plot I will have to give away--spoiler alert), showed his disillusionment.  Alec Leamas, its protagonist, is a hard-drinking, burned out agent who   has watched the whole network the British Secret Service has established within East Germany (or "the Zone," as he insists on calling it, since Britain and  the NATO alliance didn't recognize it as a country), fall one by one to East German counterintelligence, led by an ex-Nazi, Hans-Dieter Mundt. I didn't realize when I read Spy that  LeCarré' had laid the foundation for it in an earlier, little known book, Call For the Dead, in which Mundt, then working in London, had killed several people, and nearly killed LeCarré's most famous creation, George Smiley, who played a background role in Spy. Back in London after watching his last agent shot at the wall, Leamas meets Control,  the never-named head of the service who became the tragic hero of Tinker, Taylor, Soldier, Spy about a dozen  years later.  Control convinces him to "take another crack" at Mundt.  To do so, Leamas plays the role of a drunken, violent, disillusioned ex-agent, whom East German agents eventually try to recruit to tell them what he can about British intelligence and its assets in their homeland.  This eventually leads him into East Germany.

The man behind his recruitment, it turns out,  is Lens Fiedler, Mundt's Jewish deputy, whose family first fled to Canada under the Nazis, but who returned, dedicated Communists that they were,  to help build the new socialist  Utopia.  Fiedler has watched  the destruction of Leamas's network from a different angle.  He has managed to identify some of these agents, but Mundt has managed to find ways to kill them before he could interrogate them.  Fiedler now suspects that Mundt is himself a British agent, the source of Leamas's best intelligence on the East German secret service istelf--recruited at the end of Mundt's stationing in Britain, when  he  had managed somehow to slip out of the country even though he was wanted for murder.   Leamas quietly encourages Fiedler's suspicions, partly by telling him that they could not be true.  This, we realize, is the whole point of Control's operation--to get Fiedler to take down Mundt by validating his suspicions.

In the novel's shattering climax, played out at Mundt's trial for treason, Leamas, and we, learn that he has been played all along by his own side. Using Leamas's younger lover Liz Gold--an idealistic, Jewish British Communist whom he met on his first job after leaving the Service--Mundt at the trial manages to show that Leamas is still working for the Service and has in fact come on a mission to destroy Mundt.  Fiedler becomes the villain of the piece in the eyes of the East Germans, and Mundt is saved from  his suspicions. In return he promises to let Leamas and Liz (who had been lured to East Germany under false pretenses so that she could testify) escape back over the Wall.  But Mundt hates Liz for her Jewishness, and guards shoot her as she climbs up the wall.  George Smiley, suddenly emerging on the other side of the wall, calls upon Leamas to jump to the western side, but he does not. Instead he climbs down on the other side, almost forcing the East German guards to shoot him so that he can die with Liz.  They are, as the last image of the book makes clear, two lowly individuals caught up in a great ideological struggle, crushed between the two great rivals of the East and West.  

When I read that book at 17 in the midst of the Cold War,  I felt that Leamas at the end had had to give up his role in the struggle, without questioning its broader purpose--which he defends, a bit too desperately, in his last conversation with Liz just before their deaths.  It was much later that I realized  LeCarré was asking whether the struggle had any real meaning for the average person at all.  The clue came from the plot of Spy, but also from that of his other masterpiece, Tinker, Tailor, Soldier, Spy, and really, I saw, from all the Cold War novels.  The issues that  the plots turned on never had any relevance to anyone but t he spies themselves.   A British or Soviet or East German "mole"--a foreign spy within their own service--never provided any information, in these books, except information about his own spy service.  Their deadly game was like a war between Mafia families, and had even less impact on anyone else's life, except those like Liz Gold drawn in as innocent bystanders. 

That point became more explicit in The Russia House, published ironically in 1989, and based upon a key true episode of the Reagan era.  During the 1980s, the US spent billions (and planned to spend billions more) based on a gross overestimate of the accuracy of Soviet missiles--an overestimate that suggested that  the whole US deterrent was vulnerable to a first strike.  In real life, two prized agents of the US within the Soviet mission in the UN--code-named Top Hat and Fedora--had told their handlers that the Soviet ICBMs were nowhere near as accurate as we had thought. So devastating was that information to US defense planners that they concluded that Top Hat and Fedora were double agents and henceforth discounted their information.  That theory in turn collapsed when the Soviets caught Top Hat and Fedora spying, brought them back to the USSR, and executed them.   In The Russia House, an anonymous Russian operative presents a British private citizen with a manuscript revealing what Top Hat and Fedora had said--that Soviet missiles were nowhere near as accurate as US intelligence thought.  But as a condition of providing the material, the Russian--who, standing in for    LeCarré', has grasped  the secret of the Cold War struggle--demands that the Brit release it publicly, rather than turn it over to intelligence services who will find a way to pooh-pooh it because it threatens their own mission!  Alas, the novel's protagonist doesn't manage to make this happen, but meanwhile, as The Russia House climbed the best seller lists, the USSR collapsed, and we found ourselves in a new era.

Within a little more than a decade, LeCarré had found his new theme. The protagonists of his new books  became relatively ordinary men and women who, out of either idealism or simple chance, learn about some private wrongdoing.  In The Constant Gardener, (2001), a British diplomat (not a spy) named Justin Quayle suffers the murder of his wife in Kenya.  He eventually finds that she was killed by a major drug company, after she had discovered that they had conducted a fatal medical experiment on some Kenyans.  It turns out, however, that the drug company has far too much influence around the world--including on the British government--to be called to account.  (I remember one reviewer who made another interesting argument:  that such companies were so impervious to criticism that the murder of the wife would have been entirely unnecessary.)  Similarly, in Our Kind of Traitor(2010), a British academic named Perry Makepiece on a Caribbean holiday meets a Russian oligarch who wants to use Makepiece as a conduit to British intelligence.  The oligarch, Dima Krasnov, wants to buy some international protection from a rival oligarch by providing information on criminal activities.  It turns out,  however, that Krasnov's rival has more influence in Britain than he does, and the story ends very badly for both Krasnov and Makepiece.  Some of the other later books reminded me of The Wire.  Anyone who has any integrity, who takes his job seriously, and who tries to do the right thing is likely to be seriously screwed over.

The world of spies was only one small corner of the  world of the Cold War, and certainly one of the more dysfunctional corners.  The allegiance that world demanded of the spies and of us all could be very cruel, and a new generation in the western world and in the east bloc as well rebelled against it and left that world.  Yet the new world  they created,  LeCarré ultimately felt, was worse. Like Balzac comparing  the 1830s to the Napoleonic era, he concluded that without the value of service to the state, a pure selfish individualism had taken over, with disastrous consequences. LeCarré left behind one more prediction.  Donald Trump, he said, seemed to him a carbon copy of his own father, a con man whom he immortalized in A Perfect Spy. For that reason he was convinced that Trump would eventually turn out to have no assets at all.   I will be watching to see if he was right.

                                    

A repost from the past, and possibly from the future

 The overwhelming decision of the Supreme Court against the Texas lawsuit suggests an interesting generational change there.  While two of the Boomer Republicans, Thomas and Alito, wanted to hear the case (albeit without providing the immediate relief the states demanded), the three Gen Xers that Donald Trump appointed weren't in the least interested.    While they are dedicated conservatives, they evidently are not partisan warriors.  That is at least marginally good news.   I do not yet feel confident that President-elect Biden will take office without some serious problems in the next five weeks, but Trump appears to have lost his last path to victory.

Being slightly under the weather this weekend--absolutely nothing to worry about, let me assure you--I am not going to try to write a whole new post.  Here instead is one of the more important ones that I ever did, now more than eight years old.  I'm afraid that the Republican strategy that it described is about to return.    

Struggle

One of the most important readings about the Vietnam War that I have ever encountered is a chapter by the late Douglas Pike, a real authority on the Viet Cong and the North Vietnamese, about dau tranh, or struggle, the philosophy behind the Vietnamese Communist revolution. Dau tranh, Pike explains, had two forms: military and political. Of the two, the political was far more important, and indeed, the Viet Cong always had several times as many active political workers as soldiers during the Vietnam War. Their mission was to rally their own troops and sow confusion among the enemy, doing whatever they could, in particular, to make the South Vietnamese government unable to function effectively. They also infiltrated that government at every level and tried to influence the views of enemy forces. Their goal, essentially, was to reduce society to chaos and allow the well-organized Communist Party to take over. The other day I raised some eyebrows in a small group setting by suggesting that the Republican Party has been practicing dau tranh for more than twenty years. It has now crippled government at all levels and has a good chance of reducing much of the United States to chaos in the next ten years.

Dau transh in its current form started with Newt Gingrich's all-out assault on the Democrats in the House of Representatives, whom he was determined to demonize in order to take away their majority. Grover Norquist's anti-tax pledge, now signed by almost every Republican in Congress and thousands more in state legislatures around the country, is another form of dau tranh. So, of course, is the ceaseless drumbeat of propaganda day after day, week after week, year after year, on Limbaugh, Hannity and the rest. So is the attack on the authority of the mainstream media, universities and scientists. Oddly, while this attack on government probably did more than anything to land us in our current economic mess, the mess also makes dau tranh more effective, because it undermines confidence in the government. Conservative Republicans have also waged long-term dau tranh within our legal system, using the Federalist society to develop a network of conservative lawyers and judges and packing the courts whenever they can. Jeffrey Toobin has analyzed the increasingly significant results of that effort in a series of articles in the New Yorker.

I was moved to write this post because I have to deal with dau tranh almost daily myself in managing this blog. One of my regular readers is a fanatical right-winger who probably posts 50 comments a week here, week in and week out. They are not really comments, for the most part--they are links to some piece of right-wing propaganda, often accompanied with personal abuse towards myself. I think I know who he is, although we have never met face to face, and I also regard him as the prime suspect for having put my name on the Obama=Hitler email which is still circulating, even though he denied it when we were both still on the same discussion forum. (He was kicked off the forum when his dau tranh and personal abuse went too far.) I warn, of course, on the blog, that abusive anonymous comments will be deleted, but he berates me for doing so nonetheless. The attempt to keep the extreme Republican view of the world in the foreground is a key element of Republican dau tranh, just as it was for Nazis and Communists.

The Republicans' real target is the idea that dominated the last century--the idea that human reason can design, and create, a better world. That is why Theodore Roosevelt and Woodrow Wilson have been given places in their Pantheon of villains. I'm afraid they have sufficiently discredited that idea that it no longer dominates our political life, and might be disappearing altogether. Their lust for power is much, much greater than their respect for the truth. This is the threat the nation faces. Pike also argued provocatively in one of his books that there was no known counter-strategy to dau tranh, and I'm afraid he may have been right.

The Establishment and the Nation

 President-elect Biden is already behaving like a president, speaking frankly about the health crisis facing the nation and appointing capable, calm and experienced people to a variety of positions.  Let us all hope that he will be able to secure a relatively rapid distribution of the two new vaccines, halt the spread of the epidemic, and allow the economy truly to recover while we all resume normal life.  Meanwhile, however, the nation will still face an unprecedented political problem.  At no time in American  history, in my opinion, has our political class and our journalistic and academic establishment been so utterly out of touch with large masses of the American people as it is today.  That gulf, once again, allowed Donald Trump to win the  Republican nomination and the election in 2016, with truly disastrous consequences that will be with us for some time.  And the danger will persist as long as gulf lasts--and it is far from clear that a Biden administration will heal it.

The American people in 2016 rebelled against the polices of both the George W. Bush and Obama administrations, policies which in many ways differed much less than political partisans realize.  Let us begin with foreign policy.  In the wake of 9/11, Bush, drawing on a momentary national consensus similar to the one that followed Pearl Harbor, found two new bases for American foreign policy.  First, the United States would use military force to eliminate foreign regimes that were building weapons that the United States did not think they should have.  That led to the invasion of Iraq--which turned out not, in fact, to be guilty as charged--and would have led, if the first invasion had gone better, to wars against Iran and North Korea.  Under Barack Obama, that same principle very nearly led the nation to bless or join in an Israeli war against Iran, although Obama and John Kerry eventually managed to reach the Iran nuclear agreement instead. The second principle gave the  United States a right and a duty to  use military force against any radical Islamic political movement that threatened to take power on any continent.  These policies have been disastrous economically and politically.  Iraq and Libya, where Obama and Secretary Clinton revived the Bush policy, remain in a disastrous state. A new effort under Obama to topple the Syrian regime has also failed disastrously.  We are carrying out military operations in various parts of Africa without result.  Donald Trump has now made the proliferation problem much worse by repudiating the Iran agreement, but to his credit--yes, I said that--actually seems to understand that the second policy is worse than useless, and is trying even now to reverse it in Somalia and Afghanistan.  Biden has chosen Obama Administration veterans to head his foreign policy team, and it is entirely possible that they, like Obama, will reverse course again and continue the endless struggles in Afghanistan and elsewhere.  That will continue to produce no good results on  the ground and   continue to alienate large portions of the American people.

No issue seems to have done more to divide the establishment and much of the American people than trade and globalization.  Trump made the impact of free trade agreements a key part of his platform, and took various steps aiming at reversing their effects.  Those steps had at best a marginal impact, and they did not allow him to carry badly hurt states like Michigan and Pennsylvania again.  Yet it remains true that globalization has been bad for many Americans, and that they will not support anything that smacks of returning to it.  Immigration also divided the elite, which favored it, from many Americans (not all of them white, by any means) who resented increased illegal  immigration.  Thanks in part to the pandemic, the Trump Administration has reduced new entries into the nation to a very low level.  In my opinion, we should now keep the level of new immigration low for some time, while simultaneously giving our millions of illegal immigrants legal status and the protections it provides, which they now desperately need. If instead the administration immediately rewrites the definition of asylum yet again, in ways that allow nearly Central American to enter the country, another severe political backlash is almost certain to follow. 

While those issues seem to have hurt the leadership of both parties among the American people, a Democratic administration has particular vulnerabilities which may re-emerge.   A number of important Democratic constituencies take positions on controversial issues, and use language, which have only negative resonance among many millions of their fellow citizens.  The newest of these, of course, is "defund the police," which Biden has sensibly repudiated.  Latinx, transgender [sic], and intersectional are examples of language that immediately persuades many Americans that the speaker lives in a different and hostile universe, especially if the speaker clearly characterizes anyone resisting such language as a "deplorable.". Perhaps most importantly, the strength and visibility of many minority constituencies with the Democratic Party, combined with the emphasis on diversity which Democratic presidents bring to appointments, has convinced many Americans that Democrats only care about those constituencies. This is the Democratic party's contribution to the great tragedy of contemporary American politics:  that among the lower economic half of our population, white people vote overwhelmingly Republican while nonwhites vote overwhelmingly Democratic.  President Biden will undoubtedly have many opportunities for a "Sister Souljah moment" in response to one or more shrill demands from various constituencies, but I am not confident that he will take advantage of any.

Nor is it clear that a Biden Administration will take any really effective steps to stop the march toward greater inequality.  Biden recently remarked that there is no reason that the top income tax should not be what it was when George W. Bush came into office, that is, 39.8%.  American society made the greatest progress towards equality from the 1930s through the 1960s, when the top rate was 90% (and it fell only to about 75% in 1964 and was still at least 50% when Reagan came into office.)  In any case, even if the Democrats win both of the Georgia Senate runoffs, a 50-50 Senate will not pass sweeping progressive reforms to our tax system.   The pandemic has led to an unprecedented expansion of government spending and government deficits in peacetime.  Such an expansion in spending in the two world wars led to confiscatory marginal tax rates on very high incomes in the first place.  Even in 1917, apparently, the nation understood that in a time of crisis, the richest had to make unprecedented sacrifices. I have seen no trace of that view today.

While part of me still yearns for a return to the principles that created the nation in which I was lucky enough to grow up, a larger part now believes that those principles will  not return to favor in my lifetime.  Perhaps Barack Obama in the midst of the great economic crisis of 2008-9 might have revived them, but he and his team chose not to do so.  Several generations have now become accustomed to inequality.   We may therefore have to focus on more immediate goals--such as the restoration of sanity to our political life, and at least a moderately effective attack on some national problems--for some time.   

How Times Have Changed

 I can't remember the first time that I read a review in  the Sunday New York Times book review, but it must have been more than 60 years ago.  That section and the whole Sunday paper have been a fixture in every house or room I have ever lived in, except in the two years that I lived in Africa where we never saw it.  (We lived on Time and Newsweek, which arrived several days late.)  I have been reading that section,  like the somewhat younger New  York Review of Books, for so long, it has become a kind of barometer of cultural and political change.  Never have I seen that more than this morning, when I read the enormous review of the first volume of Barack Obama's memoir, A Promised Land, by Chimamanda Ngozi Adichie. Please read carefully as I try to explain why.

Chimamanda Ngozi Adichie, Wikipedia informs me, is 43 years old. She was born in Nigeria, the daughter of a professor and an administrator in a university, and came to the United States for college.  The review shows her to be an extremely capable writer, and she is poised and articulate [sic]  in an interview that I am listening to as I write.  (I know some readers will think that I just committed a micro-aggression by referring to a black woman as articulate, but I have known too many inarticulate and articulate men and women, both white and black, to worry about that.)  Those, however, are not the characteristics that have me scratching my head about her selection to review Obama's book.  What struck me is that she is principally a fiction writer, the author of four novels--although she has also written two long essays on feminism.   Certainly I can imagine female historians like Doris Kearns Goodwin, or an immigrant like Henry Kissinger, or a black historian like David Levering Lewis, publishing a review of a presidential memoir in a leading forum, but I think it would hard to find such a review by a novelist in earlier decades.  Why, then, was she selected?   The reason is clear: it reflects a long intellectual shift that has recently accelerated, as illustrated both by the Times's own 1619 Project and the events this year that followed the death of George Floyd.   Consciously or unconsciously, the Times editors evidently accept the idea that the most important thing about Barack Obama is his race, and that only another black person could do justice to it.  That was far more important than finding someone who could put the successes and failures of his eight years in the White House in a broader historical context.  My own academic profession is partly to blame: with rare exceptions like Jeremy Suri at UT Austin, we don't turn out serious political historians any more.  In this case, however, the Times didn't seek one out.

Not surprisingly, the review focuses on the personal revelations within Obama's book, and what it reveals more generally about his character.  Joe Biden has described Obama as the most self-aware man that he has ever known, and Adichie's selections certainly  tend to confirm this.  He is one of those remarkable people who continually do and observe at the same time.  That sets him apart from many of our greatest Presidents.  Washington, Jefferson, FDR, Truman and Kennedy were too busy acting, it seems to me, to have been so self-reflective, although Theodore Roosevelt, Wilson,  Lyndon Johnson and Lincoln resembled Obama more in this respect.  Oddly enough, however, I cannot remember Obama ever comparing himself to another President.  (I do plan to read the memoir myself, which I have not, and I will be looking for that when I do.  I have read the New Yorker excerpt about the early stages of the debate over the ACA.)  She also gives  him a lot of credit for ambivalence about his own ambition, and suggests that his pursuit of the presidency was less than whole-hearted. There I am skeptical: no one goes through what is necessary to reach the White House who is not determined to get there.

Adichie's account of Obama in power, however--which only covers the President's first term, like the book itself--is extraordinarily incomplete, much more so than the book itself could possibly be.  She hardly says a single word about the financial crisis of 2008 that brought him into power or about his response to it in office.  For me as an historian his single most important decision was to regard the crisis as a temporary foul-up  that could be managed within the existing framework, rather than as overwhelming evidence that American and world capitalism had been heading in a disastrous direction for decades--but she has nothing to say about any of this.  More generally she  recognizes, and does not disapprove of, his centrism, and accepts his explanation that the public option had to be dropped from the ACA in order to pass it.  She is nearly as taciturn about foreign policy, simply noting (needlessly, one might think), that Obama disapproved of the second Iraq war, and believed Afghanistan to be a war of necessity--without asking whether that necessity required the increase in our troop presence that he almost immediately put through.  "And in case anyone was wondering," she writes in a strange sentence, " he admires the foreign policy of George H. W. Bush for managing the end of the Gulf War."  I find it hard to believe that Obama didn't say something about the disastrous decision of intervene in Libya or his broader response to the Arab Spring, but nothing about those episodes found it way into Adichie's review. Both of those crises took place during his first term, which this volume of the memoirs covers.   Space did not determine these omissions.  At almost 5000 words, this may be the longest single review that I have ever read in the Sunday New York Times.

In other ways, though, the review provides what the Times editors evidently were looking for. Adichie praises Obama's attitudes towards women, which she traces to his relationships to his mother and grandmother.  And then, late in the review, she writes, "But it is on the subject of race that I wish that he had more to say now."  We see in what follows another example of the mainstreaming of political race theory.  On the one hand, she recognizes and very grudgingly accepts that Obama, to be nominated and elected, could not  present himself primarily as a black candidate focused on black concerns.  "There is something so  unfair about this," she writes, "and yet one realizes that this approach was probably the most pragmatic, the only way to win, much as pragmatism brings with it a foul smell."  Many, though far from all, black intellectuals now regard it as their role, if not their duty, to focus exclusively on the issues they believe to be most important to black people--but could a presidential candidate in 2008, when 74% of the electorate was white and 13% black, conceivably be elected by using (or endorsing) that kind of rhetoric?  All groups, Adichie claims, have practiced special interest politics--but John F. Kennedy in 1960 had to proclaim that his Catholic religion would not affect any decisions he might make as President, which he did both honestly and categorically.  

Here we encounter one of the key principles of critical race and gender theory:  that the oppressed have a sacred right to express all their emotions loudly and clearly at all times, simply because they are oppressed.  Referring to Obama's account of Congressman Joe Wilson shouting, "You lie!" during his State of the Union address, she writes, "His downplaying of the matter at the time is understandable--he is a Black man who cannot afford anger"--but regrets that now, in  his book, he does not explore  the theoretical implications of this incident more thoroughly, that it was yet another instance of "a white man disrespecting a Black man."  Since Adams and Jefferson, and through  Jackson, Lincoln, FDR and Truman, presidents in controversial times have been subject to the most virulent and insulting attacks, including on the floor of Congress.  All those men understood that the performance of their office on behalf of the whole American people required them not to respond in kind, but to  speak in an entirely different kind of language, and to try to rely on rationality, not emotion.  It  has occurred to too few of us, I believe, that the white politician who has taken the creed of black and female activists to heart and treated the expression of his own rage as a sacred duty is none other than Donald Trump.  No claim of oppression can relieve any of us from the duty to try to lower the temperature of our public life.   Until 1966 or so, civil rights leaders understood that better than anyone.

The Times editors have endorsed the idea that race and gender are primary to any issue, and that everything else is secondary, to everything: politics, art and culture.  Those ideas began and grew in academia, which they have dominated for some time.  In a future post I will discuss the issue of exactly how and why this has happened.  In conclusion, I do not regret the Times decision to assign the review to   Adichie because she is female, black, or an immigrant.  I regret it because she did not make a real attempt to address most of the key issues of Obama's first term, or to place it in historical context--and because I think that is what all the Times's readers really need.                   

  

What We Have Lost

 We have good news this week.  Kenneth nd, the Secretary of State of Georgia, and the Republican leaders of the Michigan legislature have shown that we still have among the Republicans of this nation--at least, the ones who do not hold national office--just enough honest men and women for our government to function honestly.  They have braved the hatred of much of their own party to certify, or accept, the victory of Joe Biden in their respective states.  Trump sent Rudy Giluiani and Sidney Powell out a few days ago to regale us with conspiracy theories worthy of QAnon, and they will become facts among a certain group of Republicans, but it looks as if Biden's victory will be certain when the states submit their electoral votes in two weeks.  It will remain to be seen whether some Republicans challenge the results when Congress formally counts the electoral votes on January 6, but any such challenge is certain to fail. Whether Trump attends the inauguration or not, he will have to leave the White House.

So ends the greatest threat to American democracy in particular and world democracy in general since the Civil War.  Lincoln rightly defined that conflict as the supreme test of the democratic experiment.  If parts of the nation could repudiate central authority at will, government by the people would have failed.  It would also have failed if a President who governs according to whim, who has packed the Justice Department to protect his friends and allies,  who promoted foreign interference in our elections, and who refuses to make and execute policy through any orderly process, had managed to win a second term.  The threat is not over.  Trump still dominates the Republican Party and will probably try to use twitter or a tv network to set himself up as a President-in-waiting after January 20, and Congressional Republicans are quite likely to resort to maximum obstructionism once again to try to bring him back, as they did in 1993 and 2009.  Those are subjects for future posts.

I fortunately grew up in one of the great eras of American politics, and it shaped me.  My nation had helped win the Second World War and had emerged as the leader of the free world.  I lived in a society with 90% marginal tax rates, a strong and expanding educational system, steady economic growth, and growing infrastructure.  Yes, for nearly a century, a Senatorial minority from the Deep South had blocked any and all legal attempts to secure full citizenship for black Americans, but I saw us overcome that when I was 16 and 17, in the great civil rights acts of 1964 and 1965. School, and reading outside it, immersed me in the remarkable story of American history, and in fifth grade, I believe, the Landmark book about the Declaration of Independence and the Constitution by Dorothy Canfield Fisher  brought tears to my eyes.  Perhaps, I now think, the idea of individual rights meant so much to me because I was a middle child in a rather chaotic and very migratory household.  But in those days, despite continuing imperfections, nearly every American could feel that he or she was part of a great enterprise working for the benefit of all.  

As I have written many times, all this began to change at the moment that postwar America had reached a political and economic peak, in 1965, thanks to two developments.  First, the older generation made the catastrophic mistake of embarking upon the Vietnam War, tearing the Democratic Party apart and starting the nation on a different path at home.  Equally importantly, it emerged even before the escalation of that war, at Berkeley in the fall of 1964, that much of my own generation had an instinctive aversion to much of their parents' world, wanted to eat from its own tree of good and evil, and did not understand how unique their inheritance was.  Spurred by the war, many of us had decided by 1968 that our whole society was irredeemably corrupt, based upon false values.  Reflexive opposition to authority--political, legal, and intellectual--became, for many, a mark of enlightenment.  And the conservatives among us--and there were many--took advantage of the same rebellious spirit to began a long struggle against the achievements of the Progressive Era and the New Deal.  Both sides also began to value emotion more highly than reason.  Our intellectual culture began to decline in part because of television, and it has not survived the second, bigger assault that came from the internet.  Beginning the 1980s, and more rapidly by the 2000s, a very different America began to emerge.

Economic inequality is the fundamental fact of that America.  While Republicans have always favored it, Democrats had started abandoning the values of the New Deal as early as 1974, and Democratic administrations collaborated in the steps that set capitalism free.  Greater inequality naturally followed.  Neither party did anything to stop the de-industrialization of America, with terrible consequences. Individual farmers became a tiny minority with little political power.  I also remember that in fifth grade my class did a year-long geography program  looking at various regions of the United States.  The North Central states, we agreed--the old midwest--were the strongest part of the nation, because they combined industry and agriculture.  Now those states show the ravages of decades of decline, on both fronts.  That in 2016 led to their repudiation of traditional politics and the narrow victory of Donald Trump.  This year, Wisconsin and Michigan returned to the Democratic column, but by narrow margins, and without loosening the Republican grip on their legislatures and thus their gerrymandered Congressional delegations.

As you all surely know, the last four years have had significant consequences for the emotional health of many of our fellow citizens.  That is, I think, because our nation truly is a family--if sometimes a dysfunctional one--and we all had become children of a highly addicted, unstable, hopelessly narcissistic parent.  In a widely viewed clip, the commentator Van Jones teared up the day after the election as he declared that today, it was easier to be a dad.  I knew what he meant.  Yet just a few minutes later, on the same show, the conservative Republican Rick Santorum declared that many people on his side of the fence were now feeling the same things that Jones had been feeling for the last four years.  Jones, to his enormous credit, nodded at him understandingly.  I don't sympathize with the fears of the Republicans and I doubt Jones does either, but many truly do hold them and they stand in the way of a a return to a reasonable degree of consensus under Biden.   And only 4% of the vote separates the two utterly unreconciled halves of our electorate.

I still think that only one thing can cure our division: a determined and successful assault by the government on a serious problem, one that increases the security and prosperity of the American people.  That is what Lincoln led 160 years ago and what FDR led 80 years ago.  We now seem in sight of victory over COVID-19, but it has already increased the division among us.  (A long story in the November 22 New York Times on the development of new vaccines by Pfizer and Moderna shows, in inspring fashion, that private enterprise did rise to the occasion to meet this great crisis.  Having worried that the pharmaceutical companies and the government would be in too great a hurry to develop a sufficiently effective vaccine, I am greatly relieved.)  I think Joe Biden, the first President of the Silent generation--which came to adulthood in the wake of the Second World War--understands this at some level but I don't know if he can do it.  The biggest obstacle remains the Republican Party, which is entering its fourth decade of determined struggle to undo the achievements of the middle of the century and discredit the idea that the federal government can serve the needs of the American people. I described their approach in detail eight years ago. Those Republican values now dominate our court system, and even if the Democrats win the Georgia Senate elections, they will be strong enough in the Senate to make real progress very difficult. Meanwhile, Biden will face plenty of problems within his own party.

Various pundits are asking whether Biden could become a new FDR--just as they asked the same question exactly twelve years about Obama.  Then the answer was no, and I don't think it's likely to be yes this time.  Perhaps he will be more like another Democratic President, Grover Cleveland, who took office in 1885 after a similarly divisive and bitter campaign.  Cleveland was the first Democrat to take office since the Civil War.  He did not reverse any of the major Republican policies or check the trend towars inequality, but he made the Democracy (as it was then called) respectable again, and was successful enough to win the popular vote twice more and the presidency once. That will not be Biden's destiny: I don't see how an 82-year old man can seriously contemplate re-election.   But if Biden can restore some civility, some sense of normalcy, and some confidence in our national institutions, he will have done well.

A few thoughts

 This will be a brief note.  Like so many others, I am continually learning and  thinking about the meaning of the election and pondering what the Biden Administration is going to be like.  I am not especially optimistic on either front, but I will save my thoughts on these issues for at least a week.  It won't be time to go into them until the Trump threat to overturn the electorate has clearly failed.  That certainly is the direction things are going in, but it will be a few weeks yet before electoral votes are cast.  

I do want to comment on one Republican idea: that state legislatures in Pennsylvania, Michigan and elsewhere might direct the appointment of Trump electors, based on the constitutional provision that calls upon states to appoint electors "in such a manner as the legislature may direct."  That ship has already sailed.  The laws of every state require that electors be chosen by statewide popular vote (except in Nebraska and Maine where some of the voting is by Congressional district.)  The appointment process is already going on. Changing the rules in the middle of the election would violate a number of basic legal principles, and I'm glad to read that Republican legislatures are not showing any interest in this plan.

I also do not think that the changes in the Pentagon have anything to do with resisting the election result.  Trump fired Mark Esper vindictively, of course, but the other replacements of senior civilian officials at the Pentagon look like they might be related to a policy shift. (No senior military officials were affected.)  The two leading possibilities seem to be to ensure a full military withdrawal from Afghanistan--which would not disturb me--or to allow Israel to attack Iran, which would be much more serious.  Trump however may be too depressed and disoriented to make anything that significant happen now.

Now for the good news:  we seen to have fixed a lot of the problems in our electoral system.  Voting by mail has been a spectacular success, and it would have been even more successful if not for Republican-passed regulations that slowed the counting of mail ballots.  We have had one of the biggest increases in turnout in our history, and I haven't seen a single story about voter suppression.  Georgia, where there was more talk about voter suppression than anywhere, has gone Democratic. That, by the way, should encourage Democratic voters and organizers as they prepare for the two critical Senate elections in January.  

Really restoring our political system will require a lot more.  We will have to cope successfully with some major problems--and the Republican Party shows no signs of wanting to cooperate in that process.  That will be a subject for future posts.  

An intergenerational Discussion of the Election Results

 Regular readers might be interested in this discussion.

Dodging the bullet

 Like so many of my fellow citizens, I felt extreme nervous tension early this past week, waiting for the election.  I realized how much it frightened me a few months ago when I made a routine dentist appointment for the morning of election day.  It wouldn't affect my vote--I knew I would cast it in person, well in advance, as indeed I did--but I was frightened to think that that day might actually come, and end with Donald Trump's re-election and American democracy in tatters.  Despair threatened on Tuesday night, and some of the younger viewers that I watched the returns with on zoom succumbed to it briefly, but I went to bad around 12:30 convinced that there were far too many outstanding votes to know what would happen, and that we would not have clear results at least until Wednesday morning.  After I got up Wednesday and had breakfast, it didn't take too much calculating to realize that Joe Biden was quite likely to win.  Now,. on Saturday morning, that seems like a certainty, although the four key states are counting their final ballots at an excruciating pace.  We will turn to Donald Trump's reaction later.

I had hoped to do a comprehensive state-by-state analysis of the differences between 2016 and 2020 this morning, but I can't find state-by-state popular vote data in convenient form--form that can be easily put into a spreadsheet. Wikipedia is waiting, apparently, for more final results.  I have enough overall data, however, to contribute some original observations.

The 2020 election saw a probably unprecedented increase in voter turnout, probably the largest such increase since women got the vote before the 1920 election.  The total vote in 2016 was 136.7 million; so far this  year 151.7 million votes have been counted, a full 10% increase, with more to come.  Equally importantly, we have seen a return to an effective two-party system.  In 2016, Clinton and Trump together secured only 94.2% of the total popular vote.  So far this year Biden and Trump have won 98.2% of the vote, and Biden, like Barack Obama in 2008 and 2012, seems certain to have an actual majority of popular votes cast.  The Democrats appear to have picked up nearly all the votes that went to third parties in 2016.  Biden was a more appealing candidate than Clinton, and voters took this election much more seriously than the last one.  Biden already has about 13.2 million more votes than Clinton received in 2016 and his total will increase.  Clinton by contrast in 2016 did not quite equal Barack Obama's total in 2012.  All this confirms what I found in an earlier analysis of the 2016 election: the Democrats lost in 2016 because they nominated a very unpopular candidate.

That, however, is only half the story.  Donald Trump also gained significant votes, increasing from 63  million in 2016 to 69.9 million (so far) this year.  While Biden increased the Democratic share of the total vote from 48.1% to 50.5%,  Trump increased his share from 46.1% to 47.7%, evidently picking up a much smaller portion of 2016's large minor party vote.  That is what has depressed so many liberals and flabbergasted so many commentators.  I wanted systematically to look at where Trump had increased his vote share, but I don't have enough data in convenient form.   I will look one by one at some critical states.  His share of the vote in Wisconsin increased from 46.1% to 48.8%, even though he won it in 2016 and lost it this time.  He declined marginally in Michigan, where he went from 47.9% to 47.5% this year.  He has done better in Pennsylvania, increasing from 48.2% to 49.1%.  In Georgia he has fallen from 50.8% to 49.3%, and he currently has the exact same percentage of the vote in Arizona--48.7%--that he had in 2016, and in Nevada he has increased from 45.5% to 48%.  Of the critical states that are deciding the election, Georgia is the only one in which Trump's percentage of the vote has suffered a measurable decline--1.6%--and even there, his vote total increased by about 360,000 votes.  

What about the large states that have become Republican strongholds?  Trump in Texas had 52.2% of the vote in 2016, and he has exactly the same percentage of the Texas vote right now.  He had 49% of the Florida vote in 2016, and he has 51.2% of it now.   How about the biggest blue states? Trump gained slightly in California,  from 31.2% in 2016 to 33%. this year.   He gained significantly more in New York, 36.5% to 40.4%--a gain, so far, of 115,000 votes.  (Biden is currently running more than 300,000 votes behind Clinton in 2016 in the Empire state, but New York as 16% of its vote left to count.  Trump did lose about a single percentage point in most of the New England states, the only group I have discovered where he polled worse as a percentage of a larger electorate than he did four years ago.

I do not have time to do a systematic analysis of exit poll data this morning, but a quick look at CNN's data has yielded an extraordinary shock.  I knew that Trump increased his share among both black and Hispanic voters--he lost both of them badly, of course, but he did better than four years ago.  The CNN data shows him 7 points better among black voters and about 6 points better among Hispanics, where there was a substantial gender gap.  But the real shock is that despite all the talk about suburban women, white women voted for Trump in a slightly larger percentage--about 1.5% more this year as they did in 2016.  White men, on the other hand, shifted significantly away from Trump, losing about 6.5% from their 62% Trump majority in 2016. The gender gap shrank this year because white men shifted towards Biden.  That may have given him the election.  In  later post, I will revisit the issue of generational voting.

The electorate remains deeply divided, as the House and Senate results show as well.  I don't see much chance of Donald Trump overturning the election results, but I am very worried about the role he might play out of office, riding herd on the Republican Party and perhaps inciting violence.  Unless the Democrats do win two runoff elections in Georgia, the Senate will remain Republican, and it will be very hard for Joe Biden to pass the test I set for him last week--to substantially improve the lot of the American people in the next two years.  Still, it appears that a functioning adult--who will appoint more functioning adults--will occupy 1600 Pennsylvania Avenue on January 20.  The American people have barely passed one of the most severe tests in their history.

Another New Book Available: States of the Union, The History of the United States through Presidential Addresses, 1789-2023

Mount Greylock Books LLC has published States of the Union: The History of the United States through Presidential Addresses, 1789-2023.  

States of the Union uses State of the Union addresses and other presidential addresses to tell the story of the political history of the United States from Washington's inauguration in 1789 through 2023. The addresses provide a remarkable record of how the country saw itself, what problems required solutions--both at home and in the larger world--what solutions presidents proposed, and what was actually accomplished. Meanwhile, election results register the verdicts of the American people. Washington, Jackson, Lincoln, Franklin Roosevelt, and Reagan emerge as our most influential presidents. These presidential addresses, it turns out, tell the amazing story of the great American political experiment that began more than two centuries ago, and faces one of its greatest tests today.

Here are some prepublication comments:

“ Drawing on readily available sources, David Kaiser provides a superb and concise political history of the United States. States of the Union provides the concise yet magisterial political history of the United States that today’s college students desperately need but increasingly cannot find.”

—James McAllister, Professor of Political Science, Williams College

“ States of the Union is an unusual book. It looks at American political history as an experiment—as a continuing effort to keep what Washington called the ‘sacred fire of liberty’ alive in the world. Kaiser uses U.S. presidents’ own words as a kind of lens through which to view this whole extraordinary story. And that approach is very effective. It puts the reader in direct contact with the relatively small group of people—the forty-six presidents—most deeply involved with managing the American project. It allows the reader, that is, to hear their voices and thus get a deeper sense for what they were doing and for how the experiment was going. The result is a wonderful book, one that anyone interested in American history will very much enjoy reading.”

—Marc Trachtenberg, Professor emeritus, University of California at Los Angeles

“ In this exceptional study of the speeches of American presidents, David Kaiser explores the way every chief executive—from Washington to Biden—has addressed public events, explained his policies and stated the nation’s first principles. Filled with essential facts and written in lucid prose, Kaiser’s book makes innovative use of State of the Union, Inaugural, and other official addresses as a record of the country’s historic challenges and opportunities, international and domestic. At stake, the presidents realized, were the twin commitments of democracy itself: individual equality before the law and a government elected by the people. Kaiser finds no inflexible model of public address dictated by literary custom or party bias. Rather, most presidents met good and bad news alike with a sense of the responsibilities of their office, an awareness of precedent, and an estimate of citizens’ needs. States of the Union truly brings to life both the leaders’ personalities and the country’s long history, making it a remarkable chronicle of the nation’s political experience.”

—Anne Rose, Distinguished Professor of History and Religious Studies, Penn State University

“ States of the Union surveys how presidential rhetoric has highlighted each president’s policies and politics. Ably summarizing key elements of State-of-the-Union addresses and other major presidential speeches, historian David Kaiser analyzes how well they addressed major domestic and foreign policy issues of each era. Kaiser finds Lincoln’s brief second inaugural as his masterpiece—and this book reprints it in full. The author judges Franklin Roosevelt as the president with the clearest vision and the greatest ability to translate it into practical reality, enabling him to have a unique impact on the history of the modern world. Kaiser also offers trenchant, up-to-date assessments of Obama, Trump, and Biden. Compact, well-written presidential history.”

—Richard Breitman, Professor Emeritus,

American University

 

The book can be ordered here.

I look forward to seeing your reactions. For the time being I am pinning this post. Thanks in any case to all of you for your faithful support.

Check below for more recent posts.

China, the West, and the Pandemic

 The New York Times reports this morning that life in China has returned almost to normal and economic growth has resumed.  The worldometers web site that I rely on for COVID data reports that the US has now suffered 709 deaths per million and the major European countries between 600 and 800 (except for Germany, which is much lower 1t 125), while China has suffered 3 deaths per million, Japan 14, and South Korea 9.  China, with 1.44 billion people, reports 4,000 deaths, while the US, with 331 million or so, reports well over 200,000.  These astonishing figures, in my opinion, show where these various nations stand in the development of modern civilization.

Beginning in the 18th century, the ideas of the Enlightenment provided not only a concept of individual rights, but a framework for disciplining a population.   Laws were now passed, and had to be obeyed, for the common good, and taxes paid for public goods.  During the nineteenth century these trends dominated both the relatively authoritarian states of continental Europe and the emerging elected governments of the United States, Britain, and eventually France.  After Japan encountered the modern west in the 1850s, new Japanese leadership eventually decided that it had to adapt some western institutions to remain an independent nation.  The ideas of the Enlightenment eventually reached both Russia and China via one of their extreme offshoots, Communism, and transformed their societies as well.   

The influence and impact of these ideas peaked in the first half of the twentieth century.  In two extraordinarily destructive world wars, they enabled modern states to mobilize men and resources on an unprecedented scale.  During the 1930s, when dictatorships took over so much of the world, many questioned whether democracies could effectively compete with them, but the Second World War proved that they could. Both Great Britain and the US combined free economies and political institutions with very high taxes, conscription, and unprecedented economic mobilization, and emerged as two of the victors in the struggle.  They fought explicitly for ideals of freedom and democracy, and those ideals spread over more of the world in the aftermath of the war--even within the British Empire.  Within the west, highly disciplined societies--economically and culturally--survived for another twenty years after the war, until the mid-1960s.  Then, the American state embarked upon a catastrophic adventure in Southeast Asia, just as a major cultural rebellion began.

I have often cited a famous speech by Mario Savio, then 22, at Berkeley in the late fall of 1964 as emblematic of that revolt.  Savio, who had joined the Mississippi Summer voting registration project a few years earlier, found an equivalence between the plight of Mississippi's black citizens on the one hand, and Berkeley undergraduates--who were enjoying a world-class education free of charge--on the other. Both, he said, were fighting the same oppressive machine, and that idea apparently found a lot of resonance in the audience, however absurd it seems now.  It signaled, in any case, the beginnings of a world-historical shift, a revolt against nearly all of the restraints that society had imposed upon the citizenry, in return for providing unprecedented benefits.  In the next few years and decades, it shredded all sorts of behavioral codes, involving dress, hair style, the use of language, sexual behavior, and the public expression of emotion.  Some of these codes were oppressive; some had been recognized for centuries as the price of civilization.  The rebellion also became race-based, gender-based, and sexuality-based, as more and more groups rebelled against simply being treated like everyone else and claimed various kinds of authority based upon their demographic.  The attack on authority extended to intellectual authority, and we can see now, when political leaders freely challenge scientific authority on matters of life and death, where that was ultimately going to lead.  Meanwhile, in a parallel development, private economic interests mounted a long, determined, well-organized fight against mid-century economic restraints, cutting top tax rates by almost 2/3 and eventually freeing the financial sector and giving it a license to create new wealth for itself. 

It is fitting that a public health crisis has laid bare our system's inability to cope with a national problem, since public health measures such as quarantines were among the first major initiatives of modern states.  When infectious diseases ranked among leading causes of death, the citizenry had to accept draconian measures to stop them.  That era ended with antibiotics.  It is also significant that we have failed to develop desperately new antibiotics, both because the public no longer takes the threat of infections seriously enough, and because the corporations who control our medical care can't make enough money developing them for it to be worthwhile.  Whether they can develop a really effective COVID vaccine remains to be seen.  Meanwhile, the Chinese, the Japanese, the South Koreans and others have proven that they have the will to use the old methods to fight a fatal infectious disease, and that the old methods still work.  A mixture of testing, isolation (which we aren't practicing formally at all), and contact tracing has worked well enough to allow their economies to resume to normal, while we are still desperately struggling and moving into a new wave of infections and deaths.

The Asian success seems to owe as much to cultural as to political factors, since both Communist China and non-Communist South Korea and Japan have shared in it.  Those nations may also be drawing on a Confucian, bureaucratic tradition of discipline that goes back many centuries.  This shows that these nations can impose a discipline on their people which we cannot.  They have also shown in many ways (as have some of the western European nations) that they can still mobilize impressive resources for infrastructure projects, which Britain and the US have had much more trouble doing.  It fascinates me, by the way, that the three victorious nations in the Second World War--Russia, Great Britain, and the US--have all seen spectacular declines in civic virtue and political effectiveness as their postwar generations have taken power.  Perhaps they were too spoiled by victory to appreciate the qualities that had been necessary to achieve it.  Like so many generations in so many nations, they took their parents' achievements for granted, and let many of them slip away.

Faced with a worldwide crisis, these Asian nations have proven that they have authority effective enough, and citizens obedient enough, to cope with it.  Some of the leading western nations have not.  No matter who wins the election on Tuesday, the related problems of authority, discipline, sacrifice, and the common good will remain very serious in the United States.  We will have to solve at least some of them, I think, to function effectively in the decades ahead.  It is interesting that the nation seems prepared to turn to Joe Biden, an exact contemporary of Mario Savio, but one who grew to young adulthood and launched his family life and career without ever being seriously touched by the great revolt around him.   We will not return to world of the 1950s, but we need to take some steps in that direction to remain a leading nation--or even, perhaps, a functioning one.

A Biden Administration?

 More than a month ago I was listening to two of my favorite people, Glenn Loury and John McWhorter, talking about the state of the nation, and McWhorter referred to the book he is now finishing about wokeness.  He said that the text already refers to "President Biden," on the assumption that Biden will defeat Trump.  I was riding in my car when I heard that, and I yelled loudly, "NO! DON'T DO THAT!" because it struck me as tempting fate.   We don't know who is going to win, and we don't know how long it will take to confirm their victory.  Yet fivethiryeight.com now gives Biden a very solid chance of winning--around 85%--expects the Democrats to add a few seats in the House, and gives them a better-than-even chance of controlling the Senate.  This column on that site asks what Democratic control would lead to, and spends most of its time predicting that centrism will triumph.  While stressing once again that we do NOT know what is going to happen on November 3 and after, I will make a few suggestions of my own.

If Joe Biden wins, he, like Barack Obama, will take office at a moment of profound economic crisis.  That means to me that he will face the same test that FDR did in 1933 and that Obama did in 2009: to show the American people, within two years, that he has materially improved their lot.  Because Roosevelt passed that test, his large majorities in the House and Senate increased further in 1934 and again in 1936.  (We'll look a little later at what happened after 1936.)  Obama, on the other hand, passed a stimulus that might have kept things from getting worse, but did not rapidly make them get better, and then put all the Democrats' time and energy into the ACA, whose benefits would take years to become apparent.  As a result, in my opinion, he lost control of the House of Representatives in the 2010 election and had to fight a series of holding actions for the rest of his two terms.  Democrats at the moment are so obsessed with Donald Trump, that they are discounting the possibility that the Republican Party might have a renaissance without him.  If a Biden Administration can't rapidly help the American people in this new economic crisis, adding jobs and protecting mortgage holders (as FDR did) and renters, another 2010 looks to me quite possible.  Biden will, of course, face unprecedented deficits when he comes into office thanks to Trump's tax cuts and the pandemic, but he has already promised to increase taxes on incomes over $400,000. To that I can only say, the higher the better.  Anything like this will require doing away with Senate filibusters--and that is the one sweeping institutional change that I recommend.

Biden has another equally important and almost unprecedented task: to show that the federal government can function effectively.   At least three of our most important cabinet departments, State, Justice, and Interior, have been sacrificed to Republican prejudices and Trump's political needs.  The Post Office is also in serious trouble and the EPA has essentially worked for four years to put itself out of business. The FAA appears to have let us down badly over Boeing's 737 Max.  Instead of simply handing out jobs based on demographic balance, Biden needs to find ambitious, determined men and women who can get these institutions back on track, and give them the authority to do so.  That is what both Lincoln and FDR did in our previous crises.  It would help our political culture and our media culture enormously if we could get the public focused on what the government is actually doing.

Action on immigration is extremely important as well.  In the last debate Biden called for a path to citizenship for our 11 million (if not much more) illegal immigrants, who now live in terror of deportation.  This is essential for many reasons, not least because it will allow them to become voters, with vast consequences.  In the meantime, however, I do not think he should be in a hurry to restore the new flow of immigrants into the country to much higher levels.  We coped more easily with the Great Depression, as I have pointed out many times, because Congress in 1924, five years earlier, had already brought immigration almost to a halt.  A similar pause now might also serve us well.

On the foreign scene, Biden will undoubtedly begin with well-publicized meetings with our NATO allies to show that we once again support that alliance.  He would be well advised to put forward some vision of normal relations with China, including a willingness to compromise on some of our differences about maritime rights.  He might also give some thought to continuing the peace talks that Trump has gotten underway in Afghanistan.  Stopped clocks are right twice a day, and neither the Afghans nor the nation need that endless war.   

Climate change is at least as serious as Biden made it out to be in the last debate, and he certainly needs to put serious proposals forward to deal with it, as well as returning to the Paris Accords. Yet there will be enormous resistance to truly drastic steps.  I would recommend that he make this a three- or four-year project, beating the drum, stressing the terrible effects such as wildfires that we are already dealing with, and accepting anything he can get right away without sounding as if the problem is solved.  Several of Roosevelt's most impactful measures, such as the Wagner Act and Social Security, passed in 1935.  That's a precedent to keep in mind, one that might also apply for serous financial reform.

Democratic activists, meanwhile, are pressing for new steps to change the political balance in both Congress and the Judiciary.   One is electoral reform, which has already gotten through the House and should be pushed through the Senate.

Activist Democrats are pushing for more radical measures to change the political balance in both the Senate and the judiciary.  Such attempts were also common in the era of our other divisive crisis, the Civil War.  The Republicans increased the size of the Supreme Court under Lincoln and then decreased it again to prevent Andrew Johnson from filling a seat, only adding another justice after Grant was in office.  Lincoln during the war made a concerted effort to get new western states into the union to balance the south after the war was over, and Johnson stopped it.  The  admission of new states remained profoundly political all the way up until 1912, when New Mexico and Arizona (that had been territories for about 60 years) finally came in.  I do not think that returning to such measures would improve our political climate.  In the Senate, it might be easier just to win over a majority of voters in certain hitherto red states (as is already happening in Arizona and perhaps Georgia) than to make D.C. or Puerto Rico states.  Regarding the Supreme Court, we should remember that FDR's attempt to pack it in 1937 was the greatest disaster of his administration.  The controversy tied up the Congress for the first six months of his second term, before ending in a humiliating bipartisan defeat, and his huge majorities secured only one important piece of legislation before he lost them in 1938.  The same thing could happen now.

Never, in my opinion as an historian, has our government worked as badly as it is working now, and never has public interest in it fallen so low.  Rather than focus on specific measures, we need to show, once again, that it can work.  If a new administration does that many new things will become possible.  If it cannot, then the Trump Administration will become just one symptom of a long, possibly terminal decline.

The Supreme Court and American Democracy

 On both sides of the political aisle, Americans see the appointment of Amy Coney Barrett to the Supreme Court as a potential turning point in our history.  A 6-3 majority for the well-organized conservative bloc may overturn the Affordable Care Act, reverse the decision in Roe v. Wade, and possibly (although I think this is less likely), undo federal protection of gay marriage in Obergefell v. Hodges.  Any of these steps would give an anti-democratic Republican Party huge victories in major national issues--but I do not think the situation can be blamed on the Republicans alone.  It reflects a long-standing desire of both sides to use the court system in general and the Supreme Court in particular to accomplish goals that the ordinary political process will not allow them to reach.  Rather than try to pack the court if the Democratic Party regains control of the government next month--a precedent that could make the whole situation worse, not better--it might be better to reconsider the proper limits of the court's role.

The Supreme Court's power to test both state and federal laws against the text of our Constitution, and to strike down laws it finds in conflict with that text, was, I think, inherent in the text of the Constitution itself.  For most of the pre-Civil War era, however, the court used that power very sparingly.  The great exception was the Dred Scott decision of 1857, which, as I tried to show in a much earlier post, used an ahistorical reading of precedent to try to stop all regulation of slavery in the territories, and implied that slavery was legal all over the United States.  The modern era of legislative jurisprudence, as one might call it, began after the Civil War, when conservative justices (and they were all conservative for much of the late 19th century) began using the 14th Amendment's guarantee of due process to outlaw state attempts to regulate their economy, including wages and hours legislation.  Such rulings continued through the first four years of the New Deal, when they took down major New Deal laws, and they led to FDR's court packing plan, which failed dismally in Congress but convinced some moderate justices, led by Chief Justice Charles Evans Hughes, to help affirm the Wagner Act and the Social Security Act to forestall a greater constitutional crisis.

The broadening of the court's power entered a new phase, however, in Brown vs. Board of Education, when in 1954 the Warren Court ruled that school desegregation was an unconstitutional violation of the equal protection clause of the 14th amendment.  While the definitive work on that case, Richard Kluger's Simple Justice, showed pretty clearly that the authors of that amendment had not intended to outlaw segregated schools, the decision certainly reflected the broader purpose of that amendment, namely, to secure truly equal status for former slaves, which it defined specifically as citizens.  In addition, Kluger showed that Chief Justice Warren, recognizing the gravity of the decision and the enormous impact that it would have, worked very hard, and successfully, to insure that the decision would be unanimous, even though the court at that time included several white southerners.  The subsequent history of school desegregation in this country, however, shows how hard it is to impose such a change by judicial fiat.  After decades of litigation, including 1970s decisions that approved school busing in some cases to promote integration, 69% of black children attend schools that are predominantly nonwhite.  In parts of the Deep South, integration led almost immediately to the creation of a separate system of private "Christian" schools for white students, leaving the public schools almost completely segregated, and often underfunded as a result.

During the next 15 years, the Warren Court issued a series of decisions that extended the reach of judicial power to try to transform various aspects of American life along more liberal lines.  Several were based on the relatively new idea that all state legislation might be tested against the Bill of Rights, and at least one critical decision, on reapportionment, relied on relatively abstract ideas of justice.  In the realm of criminal justice, Mapp vs. Ohio (1961) excluded evidence that had been seized without a warrant, Gideon vs. Wainwright guaranteed every defendant a lawyer, and Miranda vs. Arizona forced law enforcement agencies to inform defendants of their right to counsel and protection against self-incrimination.  Reynolds vs. Sims and Baker v. Carr ordered states to apportion all their legislative districts according to population, rather than to favor rural districts against urban ones.  Engel vs. Vitale (1962) outlawed organized prayer in public schools.  New York Times v. Sullivan (1964) made it almost impossible for public figures to win libel suits in state court.  While I certainly agree with the goals of all these decisions, every of them aroused considerable resentment against the courts because they bypassed or overruled the political process within states, and started the Republican assault upon the independence of the judiciary.  These precedents had another impact.  By continuing to test various specific state laws and practices against broad provisions of the U.S. Constitution, they encouraged a whole new style of litigation to which several generations of activist lawyers have devoted their lives.  Rather than organize politically or run for office to try to achieve worthy goals, they look for ways to secure them in the federal courts, and thereby weaken our democratic processes.

The expansion of judicial power took a new step forward in 1973, when the court handed down Roe v. Wade, making abortion legal all around the country.  I personally regard that decision as tragic, even though I agree with its goal, because, when it happened, the political process was already attacking this issue with some success. The nation's two most populous states, New York and California, had already legalized abortion.  That was beginning to trigger a nationwide political fight over the issue, but I think it's very likely that they would have maintained that right and that other states would have followed suit.  Instead, Roe v. Wade made abortion advocates complacent, energized at least three generations of opponents to an extraordinary extent, and turned abortion into a critical national political issue that has distorted our politics ever since. Furthermore, new state laws and new federal court decisions have narrowed the right it decreed to such an extent that in much of the country it is almost impossible to secure a legal abortion, and a market for back-alley abortions has been created once again.

By the time of Roe v. Wade, Richard Nixon, who in 1968 had campaigned explicitly against many of the Warren Court's decisions, had appointed four new members of the Supreme Court.  By 1976, a conservative majority was using the Bill of Rights to invalidate major liberal legislation.  In that year, Buckley v. Valeo held that the federal government could restrict a candidate's use of his own money in his election campaign, and two years later, in First National Bank of Boston v. Bellotti, the court struck down a Massachusetts law designed to keep corporate money out of politics. These decisions laid the foundation for even more sweeping ones down the road.

In 2003, in Lawrence v. Texas, the court struck down laws against sexual relations between gay people, and twelve years later, in Obergefell v. Hodges, it established a right of gay marriage in every state.  The former decision strikes me as a straightforward application of the equal protection clause, allowing consenting adults to choose their sexual partners.  The latter, while just in my opinion, remains open to the same criticism as Roe v. Wade.  By the time it was handed down the political processes in many states had already legalized gay marriage and that would have continued.  As it is, gay marriage, as we shall see, is now under attack from another Constitutional angle.

The appointment of two members of a new generation of conservative justices, John Roberts and Samuel Alito, by George W. Bush--who was forced by his own party to abandon what would probably have been a more moderate appointment--allowed the court to move three critical areas of policy in a conservative direction, each time by a 5-4 vote.  In District of Columbia v. Heller, the court overruled more than two centuries of precedent and almost completely eliminated a state's right to regulate the possession of firearms.  Citizens United v. FEC (2010) essentially ended any restrictions on corporate spending on election campaigns, overturning a century of federal laws.  And in Shelby County v. Holder(2013), the same 5-4 majority invalidated the key preclearance provision of the Voting Rights Act--perhaps the most obvious judicial usurpation of legislative power in the history of the Republic.  The 15th Amendment explicitly gave Congress the right to enforce itself by appropriate legislation, and the Voting Rights Act had repeatedly been renewed by large Congressional majorities.  The court majority threw out the provision simply because they, in contrast to Congress, did not regard as fair or necessary any longer.  Numerous states have passed legislation attempting to reduce voting in response.

No one, really, should be surprised that both political parties have tried to bend the enormous power of the Supreme Court as it has evolved since the Second World War to their own purposes.  Democrats are especially frustrated at this moment, first, because luck as well as electoral politics have given Republicans so many more court appointments than Democrats over the last 50 years, and secondly, because the Republican Senate majority shamelessly used its power four years ago to deny President Obama an appointment that rightfully belonged to him, and having made sure then that Justice Scalia would be replaced by another conservative, they are making sure now that Justice Ginsburg will be, as well.  The situation we are in, however--in which the appointment and confirmation of federal justices may well have become the single most important thing that the President and the Senate do--reflects a long deterioration of American democracy, which has taken so many decisions out of the voters' hands.  

Eleven years ago, the political scientist James MacGregor Burns--then 92 years old--published a remarkable history of the politics of the Supreme Court, Packing the Court, which I reviewed at the time.  Burns as a college student had lived through the battle between the Court and the New Deal, and that had left him with a firm belief that the Court should not be allowed to invalidate acts of Congress. That book railed against the enormous role of the Court in our political life, and looked forward to the day when a President might defy its attempt to invalidate a law. That, it seems to me, might be a more effective step for a new President Biden to take than a new attempt to add justices to the Court, if the Roberts Court, as seems fairly likely, does confirm the argument that Roberts himself made when the ACA first came before it, and tries to invalidate the ACA on the grounds that without the tax that went along with the individual mandate, it is now unconstitutional.