Category Archives: Public Policy and Governance

Being An American

I recently happened on a post I wrote in the run-up to the 2000 election, addressing a question that had been posed to me during a speaking event. The question was “What does it mean to be an American, and how will the answer to that question matter in the 2020 election?

I argued that being American requires understanding, supporting and protecting what I have frequently referred to as “The American Idea”– the essential elements of our country’s version of liberal democracy: majority rule and the libertarian brake on that majority rule, aka the Bill of Rights. American identity isn’t based upon race or religion or country of origin–it is based upon support of the American Idea.

I also argued that, in order to protect the legitimacy of U.S. government, we needed to address the escalating assaults on majority rule– gerrymandering (the practice whereby legislators choose their voters, rather than the other way around); the growth of vote suppression tactics (everything from voter ID laws to the spread of disinformation); the disproportionate influence of rural voters thanks to the operation of the Electoral College; the growing (mis)use of the filibuster, which now requires a Senate supermajority to pass anything; and the enormous influence of money in politics, especially in the wake of Citizens United.

Those assaults on democratic legitimacy were troubling enough in 2020. They clearly enabled the further assault on American democracy that we are experiencing under a mentally-ill would-be autocrat and his MAGA cult in 2025.

Trump hasn’t limited his efforts to the assault on majority rule. He has also taken Musk’s chainsaw to the individual liberties protected by the Bill of Rights, refusing to recognize–let alone honor– fundamental rights to due process, free speech and (above all) civic equality.

Individual liberty in the United States is protected by the constraints on majority rule required by the Bill of Rights and the 14th Amendment. Those provisions–those protections–mirror the libertarian principle that animated the nation’s Founders: the right of all people to live as they see fit, so long as they do not thereby harm the person or property of others, and so long as they are willing to grant an equal liberty to others. That “live and let live” principle doesn’t just  require limitations on government overreach; it requires that we combat official sanctions of racism, anti-Semitism, homophobia, misogyny, Islamophobia…all of the “isms” that deprive some citizens of equal civic status and that operate to deny them their individual liberties.

It’s one thing to understand Trump himself: he’s obviously damaged– needy, massively ignorant, intellectually limited, declining into dementia. The harder question is, what explains the MAGA cult? What leads millions of presumably sane Americans to cheer on Trump’s defiantly anti-American efforts?

Part of the answer is civic ignorance; understanding and protecting both majority rule and individual rights requires an informed citizenry–something we don’t have, as mountains of data clearly show. When people don’t know how their government is supposed to work, they are less likely to recognize assaults on its governing philosophy. But civic illiteracy doesn’t explain MAGA, although it undoubtedly feeds it.

Racism, White Christian Nationalism and other associated bigotries are at the root of MAGA and Trumpism. America has never been able to overcome the periodic emergence of primal hatreds that motivated the Confederacy and the KKK, despite the fact that those hatreds are contrary to everything that defines Americanism.

Back in that 2020 talk, I said I was convinced that our civic challenge was about America’s structural and systemic distortions—that (assuming a Biden victory) our first order of business should be to confront the misuses of power that make fair and productive political debate about substantive issues impossible–that these failures of American governance needed to be addressed before any of the policymakers we might elect would be able to discuss, let alone pass, rational, evidence-based policies.

The need to address those systemic distortions has become more imperative, as we watch Trump take advantage of them to turn America into a very different country. As I said in 2020, you can’t drive a car if it’s lost its wheels, and you can’t govern if your institutions have lost their legitimacy.

Unless the systems are fair, unless we can rely on obedience to the rule of law by those in office, no minority of any sort–political, religious, racial, economic–is safe.

Assuming we emerge from this lawless and destructive administration more or less intact, we have our work cut out for us.

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About That Rule Of Law…

On Tuesday, I spoke at the Zionsville Christian Church. I had been asked to define what is meant by the “rule of law,” and to explain why it is important. This is what I said. (Warning: longer than my usual posts.)

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Those of you who read my blog know that I refer a lot to the rule of law—how important it is, and how very negative the consequences are when governments ignore or violate it. What I don’t do often enough, however, is explain just what the rule of law is, and why it is the absolute bedrock of democratic governance.

Depending upon how you count them, there are seven essential elements that together make up the rule of law.

You’ve undoubtedly heard the first—the one most often cited by scholars and lawyers. That’s legal supremacy, which means that the law—the same law—applies to everyone. Another way to say that is “No one is above the law.” The importance of equal application of the law to everyone should be obvious; if elected or appointed officials weren’t restrained by the law, if We the People had to obey the laws but those in authority didn’t have to, the result would be what we lawyer types like to call “arbitrary and capricious” behavior by government officials, who would be free to use their authority in unfair and unjust ways, as monarchs used to do.

In democratic countries pledged to the rule of law, we don’t have kings who are free to ignore the rules the rest of us must live by.

The second element is really another version of the first. If the law applies to everyone, then everyone is entitled to equality before the law.  In an ideal “rule of law” system (which I’m compelled to admit we’ve never had), everyone would have equal access to—and equal treatment under– the laws of the land. Things like social status, wealth, elective office, and popular or  unpopular political beliefs wouldn’t affect access to or operation of the legal process or the way the laws are applied to individuals. The rule of law requires us to work toward a system in which laws and legal procedures are applied to all individuals equally and without favoritism.

To take an example from the headlines, under the rule of law, a government accusation that someone is a “bad actor” or a gang member, or “a threat to America” cannot relieve that government of its obligation to demonstrate the validity of such accusations in a court of law before it can punish that individual. That is what is meant by “due process of law” and due process is foundational to a fair and impartial legal system.

The third element of the rule of law is accountability. In other words, We the People are entitled to know what our government is doing, and whether it is functioning in a constitutionally appropriate manner. In the United States, a major element of accountability is built into our constitutional structure—what most of us learned in high school government classes as “checks and balances”—the division of legal authority among the Executive, Legislative and Judicial branches of our government.

We are now seeing what happens to accountability and the rule of law when one branch of our government fails or refuses to exercise the powers granted to it by the Constitution—when the legislative branch allows the executive to appropriate and abuse powers that have been vested in the legislature. Future historians—assuming we have them—will identify that cowardly failure as a rejection of both elective responsibility and the rule of law, and a betrayal of the Constitution and of the individual legislator’s oath of office.

The fourth element of the rule of law is its interpretation and application by a fair and independent judiciary. Federal judges have lifetime appointments because the Founders’ believed that judges should be shielded from political passions and reprisals, that they should be able to apply the law and facts as they see them, free of pressure or bias.

That judicial independence has recently come under an unprecedented attack, when the administration arrested a Wisconsin judge who failed to knuckle under to demands by ICE to turn over a defendant in her courtroom.If Judges can be arrested for disagreeing with the executive branch about their authority,–in this case, evidently because the judge found ICE had an incorrect warrant–we no longer have checks and balances or the rule of law.

The Founders’ goal of judicial independence remains important, but it’s true that in today’s America we have encountered a consequence to lifetime appointments that the Founders didn’t foresee; Americans today live much longer and there is consequently much less frequent judicial turnover –especially at the Supreme Court. That concern is heightened by evidence that at least two members of the current high court are ethically compromised.

The lower federal courts, on the other hand, have been functioning  properly; those courts have issued a number of important decisions upholding the rule of law and restraining Trump’s flood of unlawful and unconstitutional executive orders. Unfortunately, within the legal community there is substantial concern about the degree to which our compromised Supreme Court will uphold those lower court decisions. Should it fail to do so, we risk losing the rule of law.

If we do emerge from this terrifying time with our legal system largely intact, imposing 18 year term limits on Supreme Court justices—as many scholars have suggested– would achieve the Founders’ goal of insulating jurists from political pressure, while also minimizing the risks of judicial senility. (If the legislature once again operates properly, judges shown to be ethically compromised can be impeached.)

The fifth element of the rule of law is certainty. Laws must be clear and understandable in order to allow citizens to know what behaviors are expected of them. When you read that a law has been found “void for vagueness,” it’s because some legislative edict has failed to clearly explain what behavior is being banned or required. Certainty also requires continuity and predictability—meaning legislators should avoid frequent and dramatic changes in the laws that make it hard for citizens to keep abreast of their responsibilities.

The sixth element, again, is implied by others: all citizens must have access to the legal system and the means of redress. That means all are entitled to legal representation and to fair trials with impartial judges.

And finally, the seventh element echoes the protections in America’s Bill of Rights: the rule of law must protect the rights that have been found essential to human liberty—what we call “human rights.” As I used to tell my students, it’s important to recognize that the Bill of Rights does not confer rights on American citizens—it forbids the government from interfering with the inalienable rights that we possess by virtue of our humanity.

Those basic rights include freedom of speech and religion, the right to due process, the freedom to go about our business without arbitrary interference, freedom from excessive, cruel or unusual punishments, the right to trial by jury, the right to be treated equally by our government…in other words, the right to live under a regime that respects the rule of law.

Everything I’ve said so far has revolved around longstanding notions of fairness and morality, but I would be remiss if I didn’t point out that there are also very practical reasons for supporting the rule of law. Mountains of scholarly research have confirmed that countries where the rule of law is established and respected are more stable and have far more robust economies. As we are seeing, uncertainty and chaos are bad for business!

Attacks on the rule of law like those we are currently experiencing destroy trust in government, undermine the economy, and promote conflict and violence.

No government is perfect, and ours certainly can be improved. But  improvements have to be made with fidelity to the Constitution and the rule of law—not from the willful destruction of the underlying philosophy of this country, a philosophy I call “The American Idea.” It is that Idea, that philosophical framework, that insistence on the primacy of the rule of law, that has fostered social progress and truly made America great.

It’s up to We the People to protect it.

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Patrimonialism

What in the world is “patrimonialism”?

In a recent Atlantic essay, Jonathan Rauch argues that Trump’s approach to governance isn’t classic authoritarianism, autocracy, oligarchy, or monarchy. Instead, Trump is installing what scholars call patrimonialism. (I’m evidently not much of a scholar, because that’s a term I had never previously encountered. Live and learn…)

Rauch began by describing what we’ve all seen:

Since taking office, he has reduced his administration’s effectiveness by appointing to essential agencies people who lack the skills and temperaments to do their jobs. His mass firings have emptied the civil service of many of its most capable employees. He has defied laws that he could just as easily have followed (for instance, refusing to notify Congress 30 days before firing inspectors general). He has disregarded the plain language of statutes, court rulings, and the Constitution, setting up confrontations with the courts that he is likely to lose. Few of his orders have gone through a policy-development process that helps ensure they won’t fail or backfire—thus ensuring that many will.

In foreign affairs, he has antagonized Denmark, Canada, and Panama; renamed the Gulf of Mexico the “Gulf of America”; and unveiled a Gaz-a-Lago plan. For good measure, he named himself chair of the Kennedy Center, as if he didn’t have enough to do.

Rauch cites to scholarship that locates the origin of the term in the writings of Max Weber–he of the Protestant ethic.

Weber explored the issue of legitimacy. What elements of leadership support an individual’s claim to rightful rule? According to Weber, there are two avenues to such legitimacy. One is “bureaucratic proceduralism”– a system in which following the rules and norms of institutions bestows legitimacy,. That, of course, is the system Americans have taken for granted. It’s why Presidents, federal officials, and military inductees swear their oath to the Constitution, not to a person.

The other source of legitimacy is more ancient, more common, and more intuitive—“the default form of rule in the premodern world,” Hanson and Kopstein write. “The state was little more than the extended ‘household’ of the ruler; it did not exist as a separate entity.” Weber called this system “patrimonialism” because rulers claimed to be the symbolic father of the people—the state’s personification and protector. Exactly that idea was implied in Trump’s own chilling declaration: “He who saves his Country does not violate any Law.”

In his day, Weber thought that patrimonialism was on its way to history’s scrap heap. Its personalized style of rule was too inexpert and capricious to manage the complex economies and military machines that, after Bismarck, became the hallmarks of modern statehood. Unfortunately, he was wrong.

As Rauch explains, patrimonialism isn’t a systematic approach to governing; instead, it is “a style of governing,” replacing  rule-based, formal lines of authority with highly personalized ones based on loyalty to an individual. It’s a “system” of rewarding the leader’s friends and punishing his enemies. (Think about how “governance” works in tribes, street gangs, and criminal organizations.)

In government, it’s running the state “as if it were the leader’s personal property or family business.”

The difference between patrimonialism and autocracy is the former’s disdain for bureaucracy, because bureaucratic rules and processes might obstruct the “dear leader’s” desired actions.

People with expertise, experience, and distinguished résumés are likewise suspect because they bring independent standing and authority. So patrimonialism stocks the government with nonentities and hacks, or, when possible, it bypasses bureaucratic procedures altogether. When security officials at USAID tried to protect classified information from Elon Musk’s uncleared DOGE team, they were simply put on leave. Patrimonial governance’s aversion to formalism makes it capricious and even whimsical—such as when the leader announces, out of nowhere, the renaming of international bodies of water or the U.S. occupation of Gaza.

Rauch points out that Trump is patrimonialism “perfect organism.” He’s unable to distinguish between public and private, legal and illegal, national and personal. As John Bolton, Trump’s first-term national security advisor, said “He can’t tell the difference between his own personal interest and the national interest, if he even understands what the national interest is.”

Patrimonialism has two fatal flaws: incompetence and corruption, and Rauch spends much of the essay documenting the evidence of both. It is well worth your time to click through and read in its entirety, especially since most observers–including this one–have been fixated on the incompetence and insanity, and only vaguely aware of the copious corruption. As Rauch reminds us, however, corruption is the real Achilles’ heel, because it’s understandable– not an abstraction like “democracy” or “Constitution” or “rule of law.”

The resistance needs to focus on it.

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Send This To Your Republican Senator Or Representative

Stuart Stevens is one of the “Never Trump” Republicans who established Lincoln Square Media. In a recent Substack newsletter, he traced the decline of the GOP into its current cult form, and described what he called “the great betrayal”–the squandering and shaming of the legacy left by former Republican defenders of freedom and liberty. Stevens bemoaned what he sees as MAGA’s dishonoring of the sacrifices made by the “greatest generation”–the soldiers who fought and died to defeat fascism in the second World War, of whom his father was one.

What struck me about this particular diatribe, however, wasn’t the understandable despair by a former partisan over the party’s abandonment of long-held principles. It was the following message, aimed directly at the spineless Republicans currently “serving” in the U.S. House and Senate.

As I read these four brief paragraphs, I became absolutely convinced that they hold a message that thousands of us should reproduce and send to the cowardly Republican Senators and Representatives who are refusing to do their jobs.

 We should never lose sight that Republicans can end the evil that is creeping over America at any time. No one is asking them to take a beach or charge a machine gun. No one is forcing them to support a president who Russia helped elect and now is delivering for Russia in ways that not even the most vodka-drenched FSB colonel dared hope. They can do what Liz Cheney, Mitt Romney, Adam Kinzinger, and a handful of others have done. They stood up for what they knew was right, and lo and behold, they still walk the earth. They are not superhuman or Gods, just decent human beings. You could be the same.

Winston Churchill said of the Battle of Britain pilots, “Never was so much owed to so few.” To these cowardly Republicans, we can only say, “Never was so few to blame for so much.” The murdered innocents in Ukraine are your legacy. An America that votes in the U.N. with Russia and North Korea is your legacy. You go to bed and wake up, hoping that shame is an endangered species headed to extinction.

But you know you have failed the moral test of our time. You know the face you see in the mirror is a coward. You will be remembered without respect. You have allowed evil to sit at America’s table and feast on what is good and right about our country.

May God have mercy upon your souls. History will have none.

Read those paragraphs again. They distill the contempt so many of us feel for the political posturing and excuses that are offered by elected officials who are too timid to protect even their own legal and governing perquisites. Stevens isn’t taking aim at the Red State “true believers”–the racists, the White Christian Nationalists, the conspiracy theory buffoons. He isn’t expecting thoughtful  and considered action from the Marjorie Taylor Green/Jim Banks contingent, aka the “crazies.” He is describing the many Republicans who actually know that we have three branches of government, and that the Constitution has vested specific governmental powers to each of them.

He is reminding them that they have the legal and constitutional authority to stop the madness and destruction. All they have to do is use the powers that are constitutionally theirs. Congress could revoke the insane tariffs tomorrow. Congress could refuse to allow the Russian asset in the Oval Office to shame us, and continue to support Ukraine. Congress could begin investigations of the multiple corruptions that this lawless President doesn’t even try to hide (his solicitation of bribes via “sales” of his meme coins, to take just one example.)   

I don’t know whether Senator Jim Banks is a MAGA ideologue or simply corrupt in the Trump mold, but Indiana Senator Todd Young obviously understands how fraught America’s situation is. His discomfort with Trumpism, however, routinely dissipates when it’s time to cast a ballot–his vote to confirm the disastrous Pete Hegseth is only the most recent example.

Last week, some 300 Hoosiers rallied outside Young’s Indianapolis office. My sister participated. She has back problems and used a walker; the sign on that walker echoed Stuart Stevens’ message. It said “My spine isn’t perfect–but I have one.”

America could emerge from its precipitous national decline almost immediately-if Republicans in Congress regrew their spines. And it wouldn’t take all of them– a principled handful would be sufficient to put the brakes on Trump’s coup.

Stevens is right: God may or may not have mercy upon their souls, but history–and the rest of us– most definitely will not.

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There’s No Method To His Madness

The New Republic recently ran an essay titled “There is No Method to his Madness. He’s Simply Insane.” I couldn’t agree more.

The article began by noting that past heads of state have sometimes pretended irrationality in order to confuse opponents, but noted–confirming what any rational observer has already concluded–Trump is not among them. For one thing, he clearly lacks the intellectual capacity to devise such a strategy. Or any strategy.

It’s not just Trump’s unpredictable tariff policy that appears insane. His entire administration is defined by madness—in both senses. On Friday, he went on another incoherent rant on social media, claiming once that the 2020 election was stolen from him and rewriting history to blame all of our current problems, including Russia’s invasion of Ukraine, on Joe Biden. In other Truth Social posts, he’s boasted about being a king and claimed that the “European Union was formed for the sole purpose of taking advantage of the United States.”

If these acts were merely confined to deranged posts, perhaps one could argue there’s “method in his madness.” After his rant on Friday, Trump gave a speech at the Justice Department wherein he kvetched about various imaginary enemies of the United States (which, coincidentally, are his personal enemies) and made clear that he expects the department to serve as an extension of his personal wrath. Similar delusions have led to the dismantling of USAID, a wasteful visit to Fort Knox to check if the gold had been stolen, and continual talk about annexing other countries.

The article goes on to detail further evidence that our would-be King has no (mental) clothes, despite his courtiers’ efforts to find method in the madness.

What makes the insanity so dangerous, however, isn’t simply Trump’s ignorance of governance and economics, but the venom that characterizes his approach to others, and the festering resentments that impel his actions. Trump is a limited intellect and damaged ego occupying a human body;  fears and jealousies and grievances–not strategies or principles–prompt his eruptions, and explain both his grandiose fantasies (comparing himself to Winston Churchill, annexing Canada) and his tacky decorating fetishes (gold toilets).

While it would be inaccurate to describe them as principles, there are a few long-standing grievances that predictably motivate Trump’s constant stream of illegal (and often ridiculous) Executive Orders. Our mad king thinks he is in a position to take revenge, not just over the legal system which (finally) was holding him to account, but over all those people who sneered at him over the years–those “elitists” with their intellectual and cultural bona fides, the businesspeople who made their fortunes without ripping off suppliers or hiding in bankruptcy court, the women who found his “charms” unpersuasive.

Politics gave Trump the adulation he wanted, but from people he clearly despises.

Those long-standing resentments explain so much: Trump’s war on a legal community defending rules he regularly broke–and his special animus for the lawyers who had the nerve to represent people antagonistic to him. His refusal to allow disclosure of his own GPA undoubtedly sheds some light on his efforts to destroy intellectual inquiry on the nation’s campuses. Both his own resentments and the need to pander to his MAGA cult help explain his efforts to turn academia into a mechanism for Right-wing propaganda.

As for the roots of his White Nationalism–his definition of “DEI” as discrimination against White men and his ferocious efforts to return women and minorities to subservience–I can only assume that he agrees with MAGA that his White skin is a sign that he is superior and that any effort to ensure fair treatment for women and minorities is an attack on that superiority. (Unfortunately, his entire administration demonstrates the folly of believing Whiteness denotes even minimal competence…)

Bottom line: the United States has a president who is ignorant, petulant and demonstrably insane. He is also, in all probability, a Russian asset. Our constitutional system of checks and balances is currently not working, because members of the GOP majorities in the House and Senate fear the mad king and are not living up to their oaths of office, and the Supreme Court’s majority is ethically compromised.

The remedy must come from We the People. And it begins by acknowledging the truth of that last paragraph.

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