We Americans are a cantankerous and argumentative lot. We hold vastly different political philosophies and policy preferences, and we increasingly inhabit alternate realities. Partisans routinely attack elected officials—especially Presidents—who don’t share their preferences or otherwise meet their expectations.
Politics as usual. Unpleasant and often unfair, but—hysteria and hyperbole notwithstanding– usually not a threat to the future of the republic. Usually.
We are beginning to understand that Donald Trump does pose such a threat.
In the wake of Trump’s moral equivocations following Charlottesville, critics on both the left and right characterized his refusal to distinguish between the “fine people” among the Nazis and KKK and the “fine people” among the protestors as an assault on core American values. His subsequent, stunning decision to pardon rogue sheriff Joe Arpaio has been described, accurately, as an assault on the rule of law.
It’s worth considering what, exactly, is at stake.
Whatever our beliefs about “American exceptionalism,” the founding of this country was genuinely exceptional—defined as dramatically different from what had gone before—in one incredibly important respect: for the first time, citizenship was made dependent upon behavior rather than identity. In the Old World, countries had been created by conquest, or as expressions of ethnic or religious solidarity. As a result, the rights of individuals were dependent upon their identities, the status of their particular “tribes” in the relevant order. (Jews, for example, rarely enjoyed the same rights as Christians, even in countries that refrained from oppressing them.)
Your rights vis a vis your government depended upon who you were—your religion, your social class, your status as conqueror or conquered.
The new United States took a different approach to citizenship. Whatever the social realities, whatever the disabilities imposed by the laws of the various states, anyone (okay, any white male) born or naturalized here was equally a citizen. We look back now at the exclusion of blacks and women and our treatment of Native Americans as shameful departures from that approach, and they were, but we sometimes fail to appreciate how novel the approach itself was at that time in history.
All of our core American values—individual rights, civic equality, due process of law—flow from the principle that government must not facilitate tribalism, must not treat people differently based upon their ethnicity or religion or other marker of identity. Eventually (and for many people, reluctantly) we extended that principle to gender, skin color and sexual orientation.
Racism is a rejection of that civic equality. Signaling that government officials will not be punished for flagrantly violating that foundational principle so long as the disobedience advances the interests of the President, fatally undermines it.
Admittedly, America’s history is filled with disgraceful episodes in which we have failed to live up to the principles we profess. In many parts of the country, communities still grapple with bitter divisions based upon tribal affiliations—race, religion and increasingly, partisanship.
When our leaders have understood the foundations of American citizenship, when they have reminded us that what makes us Americans is allegiance to core American values—not the color of our skin, not the prayers we say, not who we love—we emerge stronger from these periods of unrest. When they speak to the “better angels of our nature,” most of those “better angels” respond.
When our leaders are morally bankrupt, all bets are off. We’re not all Americans any more, we’re just a collection of warring tribes, some favored by those in power, some not.
As the old saying goes: elections have consequences.
There are multiple reasons to be horrified by Trump’s pre-emptive pardon of the despicable Joe Arpaio.
There’s his usual display of legal and constitutional ignorance: By disdaining the process for determining the propriety of issuing a Presidential pardon and by displaying, once again, contempt for the Separation of Powers that is a foundation of our legal system, Trump has again illustrated that he is the perfect Dunning-Krueger model–an ignoramus who doesn’t know what he doesn’t know.
Traditionally, Presidential pardons are issued after a person has served some part of his sentence and shown remorse, or alternatively, to correct a miscarriage of justice. There’s a thorough vetting process by the justice department to assess these factors. Trump, of course, ignored these criteria.
If that were the extent of the damage, this typically Trumpian fit of pique would simply be another entry in the extensive list of “reasons we shouldn’t elect people who don’t know what government is or does.” But it’s actually the least significant of the issues involved.
To understand those issues, you need to know some things about Arpaio. From the Guardian, we learn
Arpaio, the self-styled “toughest sheriff” in America, systematically abused his powers during his two decades in office before being voted out last November. Most notoriously, Arpaio commanded his police to detain people solely on the suspicion that they were illegal immigrants, even in cases where the “suspects” had violated no state law. This amounted to a blanket invitation to terrorize the domestic population through egregious practices of racial-profiling.
In 2011, a federal district court judge, a Republican appointee, ordered Arpaio to stop a practice that constituted a flagrant violation of constitutional rights. Rather than submit to the federal court order, Arpaio acted in open defiance, placing himself above the federal judiciary and the rule of law. Last month, he was properly convicted of criminal contempt for his defiance. He faced a maximum of six months in jail, but all that is now moot thanks to the president’s pardon.
From the Boston Globe, we learn this behavior was nothing new.
In 1997, a few years after Arpaio assumed office, the US Department of Justice sued him after an investigation found rampant mistreatment of inmates in his jails and a pattern of excessive force by the sheriff’s staff. Officers hog-tied inmates and used stun guns on them while they were handcuffed or in restraining chairs. The lawsuit was dismissed in a settlement, but Arpaio’s methods of abuse didn’t change at all.
As a result, many prisoners died at an alarming rate without explanation. According to the Phoenix New Times, taxpayers in Maricopa have paid more than $140 million to litigate and settle countless claims of brutality while Arpaio was sheriff.
By the mid-2000s, Arpaio had found another target to terrorize and criminalize: unauthorized immigrants (much like Trump did during the presidential campaign.) Arpaio became obsessed with enforcing federal immigration law, conducting workplace raids and immigration patrols where his staff stopped people who looked Hispanic and arrested those who were illegally in the country.
This history is well known, both to the populations Arpaio targeted and to the White Supremacists, neo-Nazis and Klan members who supported his behaviors. Trump’s pardon sent a clear message to both groups– especially to the bigots in his base who might have worried about Trump’s continued commitment to their “cause” in the wake of Bannon’s departure from the White House.
This pardon goes well beyond the “dog whistles” and “winks” employed by many Republicans to let bigots know they remain welcome in the Grand Old Party. It is a flat-out endorsement of racism, and I’m sure it comforted Trump’s White Nationalist supporters.
The spectacle of a United States President openly siding with enemies of everything America purports to stand for is nauseating, but even that is not the worst implication of this pardon.
Allow me to explain.
The Bill of Rights protects individual rights against government infringement. When a government agent–that is, someone acting on behalf of the government–violates the constitutional rights of an individual, both that agent and the government are answerable for that infringement. Our legal system punishes people who misuse the power of the state.
This pardon voids that guarantee of accountability. It guts the rule of law that anchors our constitutional system. It is telling government officials who abuse their authority that this President has their back, that they won’t be held to account for their misconduct–so long as their misconduct is consistent with the President’s own “priorities” and interests.
That’s how a constitutional democracy becomes an autocracy.
If this isn’t a constitutional crisis, I don’t know what is.
I was asked to speak to participants in the local OASIS program about the interaction of the Constitution with municipal government, and about my experiences during the Hudnut administration. I decided to share it, both as a needed vacation from Trumpism and as a reminder that there used to be decent politicians in both parties…
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When constitutional issues arise, most of us think of the federal government, and especially the Supreme Court. But the Constitution and the Bill of Rights apply to all levels of government, and are enforced by both state and federal courts—it’s what we mean when we talk about “the law of the land.”
There are differences in jurisdiction, of course—we have a federalist system, which means that some areas of the law are left to state and local governments—but those areas have to be consistent with the national Constitution. I am constantly amazed at how many people don’t know anything about federalism—that division of authority between the federal government and state and local governments—or about Separation of Powers or other basic aspects of America’s legal structure.
I really encountered this lack of “civic literacy” when I was at the ACLU. The ACLU defends the Bill of Rights, which is essentially a list of things that government can’t do. The Bill of Rights answers the question: who decides? Who decides what prayer you say, what political beliefs you hold, what books you read? In the United States, citizens get to make those sorts of decisions for ourselves, free of government interference.
Since the Bill of Rights only limits what government can do, the ACLU only sues government. Not only did I discover that a lot of people don’t know that the Bill of Rights only restrains government, I also discovered that a lot of people don’t know what government is.
Originally, the Bill of Rights applied only to the federal government. It wasn’t until passage of the 14th Amendment that states were required to extend the “privileges and immunities” of citizenship to their own residents. After the 14th Amendment was ratified, there was a series of decisions in which the Supreme Court ruled that the Bill of Rights also limited the authority of state and local government officials.
Evidently, a lot of people haven’t encountered the 14th Amendment: When I was Corporation Counsel, I issued an opinion that the 1st Amendment prohibited the City from doing something—I no longer recall what—and someone wrote an angry letter to the editor that began, “I read the First Amendment, and it says Congress shall make no law…” That’s an excellent example of why just reading the text of the Constitution—especially the text of only one amendment—won’t give you the whole story.
Speaking of stories…I was asked to share some of the highlights—and low points—of my three- year stint as Corporation Counsel (chief lawyer) of the City of Indianapolis, with a focus on how the Constitution and Bill of Rights affect municipal governments.
I was appointed Corporation Counsel by Mayor Bill Hudnut in 1977. To the best of my knowledge, I was the first woman to hold that position in a major metropolitan area, and my first encounter with a constitutional issue was a lesson in both sexism and freedom of the press: Indianapolis still had two newspapers then, and the evening News featured a “Gossip” box on the front page. When my appointment was announced, the Gossip box “item” was something along the lines of: a high-ranking official has appointed his most recent honey to an important position in City Hall. No names, but it wasn’t hard to figure out who they were talking about. (After all, as one newspaper had described me, I was a “divorcee.” We don’t hear that word much these days, fortunately…sounds pretty racy.)
On my second day on the job, I got a call from the U.S. Justice Department. At the time, the City was being sued for a history of race and gender discrimination in the police and fire departments; we ultimately entered into a consent decree, because Mayor Hudnut recognized that history and wanted to correct it. But the suit had just been filed a few months before the call from the Justice Department lawyer. He asked for Dave Frick, my predecessor, who had become Deputy Mayor. Dave’s Secretary explained that he was no longer Corporation Counsel and asked him if he would like to be transferred to the new Corporation Counsel. He said yes—and I picked up the phone and said “May I help you?” He said, “Yes, I’m holding for the new Corporation Counsel.” This was 1977, and there weren’t many women lawyers then; he clearly thought he was talking to a secretary. After a pause, I said “This is the new Corporation Counsel.” He was suitably embarrassed. (On the other hand, he was really easy to deal with after that.)
Within my first couple of months on the job, I confronted a pretty classic First Amendment Religious Liberty issue. (The First Amendment has two religion clauses: the Establishment Clause and the Free Exercise Clause; together, they mandate governmental neutrality in matters of religion). For many years, the City had erected a Nativity scene on Monument Circle at Christmas. Monument Circle was—and is—publicly owned. Erecting a religious display on government property is a violation of the Establishment Clause; it is an endorsement of religion—in this case, the Christian religion. The jurisprudence was very clear, and when the City was threatened with a lawsuit, I advised Hudnut that we would lose such a suit if it were to be brought.
Unlike so many of today’s politicians, Hudnut did not use the conflict as an excuse to grandstand. He could have made points with people who didn’t understand the Constitution by “defending” the display; instead, he used the incident as an opportunity to educate. We sold the nativity scene to the Episcopal Church across the street and they displayed it, still on the Circle, where it was equally prominent and totally Constitutional.
Mayor Hudnut—who had been a Presbyterian Minister before he was elected—took all kinds of heat for “attacking Christianity.”
I think this incident was the first time I realized that some people want their religious symbols on public property because they want government to endorse their particular beliefs. It didn’t matter to these folks that the nativity scene was still on the Circle, still easily viewed: they wanted the City to send a message that their beliefs were favored, that their religion made them “real Americans,” and that people who hold different beliefs should be considered second-class citizens. That message, of course, is precisely what the Establishment Clause forbids.
One of the things that the City’s legal department does is advise committees of the City-County Council when legal questions arise. I still vividly remember being asked to testify about a proposed ordinance to ban Rock concerts from City parks. A local Reverend had persuaded his City-County Counselor to introduce the ordinance, which as I recall was pretty explicit about the reason, which was to protect Indianapolis’ citizens from immoral lyrics. It wasn’t concerns about traffic or noise or other issues that are entirely appropriate for City government to consider.
This minister had brought a busload of his church members with him to this particular committee meeting, and they sat in the public hearing room waving small American flags. It was surreal.
I testified that the ordinance as written would violate the First Amendment’s Free Speech Clause. Freedom of speech requires government to be what lawyers call “content neutral:” government can restrict the time, place and manner of communications, to a degree, but it can’t pick and choose what messages get exchanged. I explained to the Committee (and the audience) that there were a number of things the City could constitutionally control—traffic, noise, sanitation—but that the Constitution would not allow censorship of certain kinds of music based upon disapproval of the messages being conveyed by the lyrics.
When I completed my testimony and turned to leave, the Pastor rose from his seat and yelled at me, “My bible is more important than your Constitution.” (I thought it was interesting that the bible was his and the Constitution was mine…)
Most of the Constitutional issues I dealt with at the City were (fortunately) a lot less “exciting” than that encounter. For example, during my three years in City Hall, City Legal defended a number of what lawyers call Section 1983 cases. Section 1983 is a provision of federal law that allows people to recover attorney’s fees if they win a lawsuit alleging that someone acting on behalf of City government violated their constitutional rights. It’s a very important safeguard, because many—probably most—people whose rights have been violated can’t afford a lawyer. If lawyers know that they will be paid by the city if they are successful, in other words, if they can prove that the City really did violate their clients’ rights, they are more likely to take meritorious cases—and more likely to decline sure losers.
As I noted previously, Mayor Bill, as we called him, was a minister, and sometimes his minister side pressured his Mayor side. For example, he really wanted to close down bookstores that sold sexually explicit books and magazines, and periodically he would suggest some creative—but constitutionally dubious—ways of doing that. I like to think I kept him constitutionally compliant while I was there, but after I left, the City passed a truly bizarre ordinance that tried to sidestep the Free Speech provisions of the First Amendment by defining “pornography” as sex discrimination.
The most depressing thing I learned at the city and in my subsequent positions at ACLU and as a Professor of Law and Policy is how little people know about even the most basic provisions of America’s founding documents, our law and history. Some of you may have seen the story from this year’s 4th of July, when NPR tweeted out the Declaration of Independence, and got hundreds of angry emails from people who thought it was an attack on the President, or “communist propaganda.”
I don’t want to belabor this lack of civic literacy, but I do want to share some statistics that should concern all of us. A few years ago, the Oklahoma Council of Public Affairs asked high school seniors in that state some simple questions about government. Let me share a few of those questions and the percentages of students who answered them correctly:
What is the supreme law of the land? 28%
What do we call the first ten amendments to the Constitution? 26%
What are the two parts of the U.S. Congress? 27%
Who wrote the Declaration of Independence? 14%
What are the two major political parties in the United States? 43%
We elect a U.S. senator for how many years? 11%
Who was the first President of the United States? 23%
Only 36 percent of Americans can name the three branches of government. Fewer than half of 12th graders can describe federalism. Only 35% can identify “We the People” as the first three words of the Constitution. Only five percent of high school seniors can identify or explain checks on presidential power.
America is the most diverse country on earth. What we have in common—what makes us Americans—is allegiance to a particular concept of law, a particular approach to self-government. When we don’t know what that approach is, or why our Founders crafted the system we have, we lose what holds us together, what makes us one nation.
To borrow a phrase from the Tweeter-in-Chief: that’s sad.
As I watch the unfolding train wreck that is the Trump Administration, and talk with friends and colleagues, it’s increasingly clear that most of us are more mystified and appalled than angry. (Not that we aren’t angry…)
How, we ask each other, could anyone be so ignorant of the most basic rules that govern our society? How could someone whose background was entertainment and whose entire focus was ratings be so oblivious to massively negative public opinion? How can anyone get to the ripe old age of 70 without even a shred of self-awareness?
And of course, the recurring question: why would anyone vote for this ignorant buffoon? It’s not like his abundant deficits weren’t obvious during the campaign.
The article was one of many that attempted to evaluate Trump’s first 100 days in office; it reported on an interview with the President’s favorite source of “news.” (Note quotation marks.)
Donald Trump has blamed the US constitution for the problems he has encountered during his first 100 days in office.
In an interview with Fox News to mark the milestone, the Republican called the system of checks and balances on power “archaic”.
“It’s a very rough system,” he said. “It’s an archaic system … It’s really a bad thing for the country.”
Lest we shrug this off as just another “open mouth, let stuff come out” incident in Trump’s stream-of-(semi)consciousness mode of utterances, I would simply point out that everything he has done in office has been consistent with contempt for, or ignorance of, America’s charter, and his unwillingness to be bound by the rule of law–indeed, his clear lack of comprehension of what “rule of law” is or means.
I think I’m going to add a codicil to that question about American voters. Why would anyone vote for a man who quite clearly does not understand or even pretend to value the legal premises of the country he was proposing to lead–a man who is unwilling to give even lip service to the U.S. Constitution?
To date, I am unaware of any Republican criticism of Trump’s comment.
What happened to all the posturing bloviators who constantly profess their undying devotion to a constitution they clearly don’t understand? Why aren’t they registering shock and concern at the President’s airy dismissal of America’s founding document?
What happened to all those pompous assholes who whip a small copy of the Constitution out of their pockets at the slightest provocation? Where are the members of the NRA’s Church of the Second Amendment? Where are all the pious frauds who constantly promote their ahistorical version of the First Amendment’s protection of religious liberty?
Surely they are all appalled. Where are they?
And a more pressing question: why are Congressional Republicans continuing to enable and defend a man who not only dishonors the Constitution by word and deed, but also poses an unmistakable threat to American democratic institutions at home and the country’s stature abroad?
Can you imagine their response if Obama had said or done any of these things?
Of course, Trump’s white. (Okay, orange, but close….)
In the very first book I wrote (“What’s a Nice Republican Girl Like Me Doing at the ACLU?”), I advanced a theory I called “the American Idea.” My thesis was that one becomes an American through allegiance to what I call “the American Idea”–the philosophy of governance advanced in the Declaration, the Constitution and the Bill of Rights. Unlike citizenries that depend upon identity–ethnic, religious, etc.– for their cohesion, one becomes an American via acceptance of those overarching ideas.
Of course,it would help if more people knew what those “overarching ideas” are…
Robert P. Jones begins the column by sharing Chesterton’s description of the American Idea.
After the British writer G. K. Chesterton visited the United States for the first time, he remarked that America was “a nation with the soul of a church.”
Mr. Chesterton wasn’t referring to the nation’s religiosity but to its formation around a set of core political beliefs enshrined in founding “sacred texts,” like the Declaration of Independence. He noted that the United States, unlike European countries, did not rely on ethnic kinship, cultural character or a “national type” for a shared identity.
The profoundness of the American experiment, he argued, was that it aspired to create “a home out of vagabonds and a nation out of exiles” united by voluntary assent to commonly held political beliefs.
This “voluntary asset to commonly held political beliefs” is what I meant in my earlier (less eloquent) formulation, and what I still believe is the essential characteristic of that elusive thing we call “Americanism.”
But it’s badly frayed. As Jones writes,
Recent survey data provides troubling evidence that a shared sense of national identity is unraveling, with two mutually exclusive narratives emerging along party lines. At the heart of this divide are opposing reactions to changing demographics and culture. The shock waves from these transformations — harnessed effectively by Donald Trump’s campaign — are reorienting the political parties from the more familiar liberal-versus-conservative alignment to new poles of cultural pluralism and monism.
Jones shares polling results that highlight the very different worldviews of today’s Republicans and Democrats, and concludes that America’s increasing pluralism is something of an existential challenge to many of the country’s white Protestants.
Taken as a whole, these partisan portraits highlight contrasting responses to the country’s changing demographics and culture, especially over the past decade as the country has ceased to be a majority white Christian nation — from 54 percent in 2008 to 43 percent today. Democrats — only 29 percent of whom are white and Christian — are embracing these changes as central to their vision of an evolving American identity that is strengthened and renewed by diversity. By contrast, Republicans — nearly three-quarters of whom identify as white and Christian — see these changes eroding a core white Christian American identity and perceive themselves to be under siege as the country changes around them.
Jones compares the current times with other eras in which the American fabric has been severely frayed: the Civil War, turn-of-the-century immigration upheavals, and the turmoil of the 60s. But as he points out, White Christians still saw themselves as owners of the civic table–the question was whether they would make room at that table for others.
Suddenly, they find themselves in a position in which they are not inviting “guests” to “their” table, but facing the prospect of shared ownership. That’s a new and very unsettling challenge, and the way forward is by no means clear.
The temptation for the Republican Party, especially with Donald Trump in the White House, is to double down on a form of white Christian nationalism, which treats racial and religious identity as tribal markers and defends a shrinking demographic with increasingly autocratic assertions of power.
For its part, the Democratic Party is contending with the difficulties of organizing its more diverse coalition while facing its own tribal temptations to embrace an identity politics that has room to celebrate every group except whites who strongly identify as Christian. If this realignment continues, left out of this opposition will be a significant number of whites who are both wary of white Christian nationalism and weary of feeling discounted in the context of identity politics.
This end is not inevitable, but if we are to continue to make one out of many, leaders of both parties will have to step back from the reactivity of the present and take up the more arduous task of weaving a new national narrative in which all Americans can see themselves.
I firmly believe that the American Idea can still serve that purpose. But we need to build a culture that supports and nourishes that Idea, and doing that requires that we improve and emphasize civic education and that we abandon–or at least stop encouraging–racial and religious resentments.
