It always comes back to culture–the paradigms into which we are socialized. We call the color of the sky “blue” because that’s what everyone else calls it. We wear clothing that (usually) covers our genitals because we have been socialized to believe such coverage is appropriate. (I’m waiting for the anti-mask “patriots” to insist that laws requiring such clothing are an assault on their liberties…but I digress.)
We accept society’s expectations for large areas of our behavior: the side of the road we drive on, what we consider edible, how many people there are in a marriage…(my students are always shocked to discover that–despite the anti-same-sex-marriage insistence that marriage is between “one man and one woman,” in many countries those unions are between one man and two or three women…)
Culture is incredibly important. True, changing a culture is a very slow process, a fact that tends to “bake in” unjust rules and attitudes. But without cultural expectations, we humans would have to make decisions about every aspect of our daily lives. I once heard a lecturer ask why men in certain businesses/professions routinely and unthinkingly wore a patterned piece of cloth around their necks. (A tie.)That expectation does appear to be changing.
All this is to say that most behaviors are not simply the result of explicit laws or rules. We call expectations of many behaviors, especially ethical ones, “norms,” and those expectations are frequently more potent that statutes and ordinances–especially when they guide political behavior.
A recent column from the New York Times is on point.Tim Wu asked “What really saved the Republic from Trump?” Assuming the Republic actually was saved–I worry that the jury is still out–I think Wu makes an important point.
Americans are taught that the main function of the U.S. Constitution is the control of executive power: curtailing presidents who might seek to become tyrants. Other republics have lapsed into dictatorships (the Roman Republic, the Weimar Republic, the Republic of China and so on), but our elaborate constitutional system of checks and balances, engineered largely by James Madison, protects us from despotism.
Or so we think. The presidency of Donald Trump, aggressive in its autocratic impulses but mostly thwarted from realizing them, should prompt a re-examination of that idea. For our system of checks and balances, in which the three branches of government are empowered to control or influence the actions of the others, played a disappointingly small role in stopping Mr. Trump from assuming the unlimited powers he seemed to want.
What really saved the Republic from Mr. Trump was a different set of limits on the executive: an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials. You might call these values our “unwritten constitution.” Whatever you call them, they were the decisive factor.
Wu described the failures of multiple, explicit “checks and balances” over the last four years, pointing out that Senate Republicans mostly allowed Trump to do whatever he wanted. They allowed “acting” appointees who could not have been confirmed to run the federal government. They treated the impeachment process as nothing but a party-line vote. It’s hard to dispute Wu’s conclusion that the Senate “became a rubber stamp for executive overreach.”
Wu identified as “firewalls” what he called the three pillars of the unwritten constitution.
The first is the customary separation between the president and federal criminal prosecution (even though the Department of Justice is part of the executive branch). The second is the traditional political neutrality of the military (even though the president is the commander in chief of the armed forces). The third is the personal integrity of state elections officials.
I had considerable concern about the first of those firewalls under William Barr, but it ultimately did hold; Barr refused to find massive vote fraud where it didn’t exist. And a large number of lawyers with the DOJ protested, quit and otherwise made it clear that efforts to turn the Department into Trump’s personal law firm were a violation of DOJ culture.
Members of the military have been pretty uniformly admirable, and to my great surprise, so have Republican election officials–even in Georgia.
The question going forward is: how do we sustain and nourish those democratic norms? How do we reinforce a small-d democratic culture, and ensure that future generations share its expectations? I don’t have the answer, but I’m fairly certain it involves a significant improvement in civics education.