The American Christmas Story

Listen and I’ll tell you a Christmas story. Let me tell you what Dickens was really trying to tell us. This is not a story the greedy Grinches want you to know. But it is an American story. And it is a story that rang throughout the world until greedy politicians tried to tell you it wasn’t good for you and me.

It’s is a story about the greatest language in our Constitution.

In 1787 the American people wrote and in 1788 the American people ratified the promise that the Constitution was designed “to promote the general Welfare,” not just the welfare of the rich and mighty or British aristocrats.

In 1865 the people wrote and, just before Christmas, they ratified the words which said:

Neither slavery nor involuntary servitude … shall exist within the United States, or any place subject to their jurisdiction.

That wasn’t the law in Europe but it became the law in America. Law is for everyone.

In 1866 they wrote and in 1868 they ratified the words that read:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

They wrote that because the Supreme Court had denied that African-Americans were citizens, had the rights of citizens, or could even use the courts, but those who wrote that 1868 language also discussed their clear understanding that the citizenship clause covered people who’d come to the United States to build the country we are all so proud of from places as distant as Europe and China. They were making good on the promise of the Declaration of Independence that “that all men are created equal,” a promise that would ring out of the Liberty Bell and reach the far corners of the globe, a promise that frightened and still frightens dictators.

Then, they continued:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

Notice the triple guaranty to make the point as clear as they were able – they guaranteed to all the “privileges or immunities of citizens,” and immediately followed that language about citizens by guarantying to any “person” the rights to “life, liberty … property … due process … [and] equal protection of the laws.”

Equal protection should have made the voting rights of African-Americans and all other citizens of the US clear, but, to be sure, they made clear in the Fifteenth Amendment that they meant:

The right of citizens to vote shall not be denied or abridged on account of race, color, or previous condition of servitude.

In 1920 they added that the right to vote could not be denied to our mothers, wives, sisters and daughters.

In 1964 they barred any fee or charge for voting, and in 1971 they lowered the voting age so that those who served in our military could vote, and reinforced the promise of the Fourteenth Amendment that this is a government of, by and for the people and that anyone engaged in “insurrection or rebellion against” it may not hold office.

That’s a real Christmas story, a story of the great principles that Christ and the leaders of the world’s major faiths tried to teach us.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on December 26, 2023.

WHY AM I WRITING THIS?

For the podcast, please click here.

I’ve been working for decades on a book about the 1787 Constitutional Convention. Why?

In college, I worked for a collateral descendant of George Mason who was a member of that Convention. When, years later at a Reunion, I told Prof. Mason that I was working on what the Founders meant when they wrote the Constitution, he asked me why? I’d worked on one of Mason’s books that presented the U.S. Supreme Court as a great agency of decency and civilization. And he treated a famous footnote in a 1938 decision as laying down the principles that guided the Court. Prof. Mason himself had been a protégé of Justice Louis Brandeis and depicted the Court in the long swing which would reach from the 20s through the early 80s, during which it was increasingly sensitive to the ways that authorities took advantage of the powerless – blacks, workers, women, prisoners. And that Court saw the connections. There was much to admire for precisely the reasons conservatives despised it. That Court cared, from the time of Chief Justice Taft through the time of Chief Justice Burger. Mason understood that conservative history could be a way to take all that apart.

I remember giving him a kind of naïve answer, that I trusted Madison much more than contemporary conservatives, but on reflection I wish I had just said we have no choice. Either we let conservatives define the Founders or we have to do it ourselves.

But it hardly seems to matter now. Our system makes the U.S. Supreme Court the arbiter of the meaning of the Constitution. I’ve written articles attempting to change their views. This isn’t going to do it. It’s not that the Founders didn’t fear the dictatorship of demagogues, the ways that demagogues could twist the Constitution to give themselves absolute power and use it for their own enrichment at the expense of the people. They talked a lot about that. And they wrote many provisions in the Constitution designed to prevent it. But we watched Trump ignore many of those guardrails and change the personnel of the Court and federal agencies to weaken any possibility of holding him in check. Will the Constitution hold? Can it hold when the people with the reins of power are determined to ignore and pervert it? When one House of the Congress that is supposed to hold the President in check is determined to put partisanship above principle, above democracy and above accountability, and, so that they can stay in power, encourage their partisans to exclude opposing voters from the ballot box, miscount those they can’t shut out, and wink at the violence, threats and intimidation of thugs who’ll support them, can the Constitution hold?

Then I realized studying how our Constitution was shaped is like reading a good novel. You can lose yourself in it. And you know how it comes out. I never thought of history as escapism but it’s become that for me. Each new pathway I try to explore is just another plot in the story. I’ve a draft of most of the book. But will I have time to finish it before the infirmities of old age? If it’s just a story, maybe it doesn’t matter.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on October 13, 2021.

Trump’s Final Days

There’s been much news about whether Trump would use force or declare martial law to stay in office. Trump bumped that off the news by declaring he wouldn’t sign the stimulus and relief bill, then signing it after widespread criticism. Perhaps he’s abandoned using force to stay in office. But he’s taken many steps to set up the possibility. Ignoring the Senate confirmation process and civil service protections, he put his most reckless and irresponsible supporters in acting positions. He tested which federal forces would and which would not respond to his commands to take over parts of America, in defiance of state and local officials. Typically, Trump sends ambiguous messages to his [quote] “Second Amendment supporters” and others, to get them thinking about how they can keep Trump in power. If they create enough chaos, he’s ready to take advantage. If not, he’ll claim he was trying to keep the peace.

There are signs that Trump’s armed mobs are revving up. In my last book, I brought together reporting and studies about the threat of domestic terrorism, but so far America hasn’t grappled with the problem. There’ve long been warnings. People from areas with many armed right-wingers have been telling those willing to listen about the threats, intimidation and violence unleashed on surrounding communities. The threat has only been getting worse. As Time Magazine summarized:

white nationalists have become the face of terrorism in America. Since 9/11, white supremacists and other far-right extremists have been responsible for almost three times as many attacks on U.S. soil as Islamic terrorists ….

They’ve been talking for decades about using their guns to defend against what they label federal tyranny – which means making war on the United States. Unlike legitimate gun owners who keep their guns for sport or to defend their homes, they’ve threatened, shot at or killed members of Congress, federal judges, poll workers, park rangers, demonstrators, and blew up the Oklahoma City federal building, injuring hundreds and slaughtering the children in its day care center. Donald Trump read Hitler closely, and knows that Hitler was brought to power by his unofficial armies of thugs, called “Brown Shirts.”

Whether Trump, or his supporters, have abandoned the idea, we need to think of this as a risk, not a certainty. But if Trump resorts to violence, the Army can stand up to its Commander-in-Chief by refusing to obey illegal orders, while governors, police and the National Guard will be charged to defend America. No doubt some are sympathetic to the white nationalists; others, one hopes most, are disgusted by the effort to overthrow the Constitution of the United States, to violate the oath they, most of us, have taken to defend this country.

The third section of the Fourteenth Amendment barred anyone who’d taken an oath to support the Constitution and then “engaged in insurrection or rebellion against” this country from holding any office under the United States, or any State. Rebels were traitors.

We must let any potential traitors know that this generation of Americans has no room for insurrection, for people who put their racial hatreds above loyalty to country. There is no right to commit treason, to try to overthrow the constitutional government of the United States by force and violence. Those are crimes against all of us.

The Civil War is over; the so-called “lost cause” should stay lost, so that government of, by and for all the people, not just armed and dangerous people, shall survive.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on January 5, 2021.

To prevent a coup – strengthen the military spine

Two weeks ago, I commented about Jefferson’s fear of a presidential coup. Last week I spoke about using nonviolent methods to prevent a takeover by the incumbent president, who told Chris Wallace on Fox that he might not leave the White House if he loses the coming election. Afterward, I expressed my concerns and showed a copy to Ian Shapiro, a friend and polymath who’s done brilliant work on both foreign and domestic policy. He sent me back a portion of his new book on economic insecurity, The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It. I quickly realized we were approaching the same problem from different angles. Insecurity makes people want to believe that Trump is leading them to better days. And getting Ian’s message across will help protect us against a presidential takeover.

The Army is a crucial player in any takeover. American military tradition is stanchly against political activity and devoted to defending the Constitution. There would be great resistance at all levels to using the military politically, especially to end politics by takeover. And because the military contains a large cross-section of America, we all influence it. Military diversity makes it harder to unite on unauthorized, unpopular activities in conflict with American military tradition, especially if they depend on secret planning.

But presidential takeovers in other countries force us to the sobering realization that a perverted commander-in-chief can pervert the military, given enough time. That makes all the work we’re doing to prepare for this election crucial to prevent White House treason – even though he’s talked about it openly. Concerted opposition to Trump and to takeovers, expressed in a vigorous campaign, make it less likely that the military will participate in a coup.

But outside the military, Trump has been constructing other forces which respond to him – using or threatening to use the National Guard, border guards and other armed federal agents in Portland[1] and elsewhere to stir up trouble where peace had reigned. Even more serious are the private militias that conduct their own training with their own arsenals. The great bulk of domestic terrorism has come from those groups. Instead of fidelity to the Constitution, they aim at violently defeating American government in order to achieve undemocratic aims in conflict with the Constitution and the law. Some American elections have been overturned by force of arms.

Unreconstructed admirers of Civil War secessionists would gladly reverse the results of the Civil War. Guns and racism have become closely entwined. Gun shows and private militias confront us with a plethora of racist and conspiracy theories making the point.[2] Their treasonous impulses fuel my strongest objections to gun rights today – guns are not being used for self-defense but for calculated murder, intimidation and political takeover.[3]

Trump’s outrageous racism and complements to racist killers are obvious efforts to get those armed but irresponsible groups behind him, ready to function as a palace guard to keep him in office regardless of the election. Private militias, like gangs and criminal cartels are dangerous because they oppose democracy, are divorced from national values, and expect to gain from violence. Instead of respecting peaceful demonstrations, they’ve spawned provocateurs in places like Portland, to give Trump an excuse for shutting democracy down. They and their standard-bearer in the White House must be stopped. And we have to keep up the fight for government of, by, and for the people.

[1] Washington Post Blogs, A violent send-off on feds’ final night at Portland courthouse, July 31, 2020 Friday 12:07 AM EST

[2] John A. Wood, THE PANTHERS AND THE MILITIAS (Lanham, MD: University Press of America, 2002); Kenneth S. Stern, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT AND THE POLITICS OF HATE (Norman: U. Okla. Press, 1997); Southern Poverty Law Center, “Terror From the Right: Plots, Conspiracies and Racist Rampages Since Oklahoma City,” http://www.splcenter.org/get-informed/publications/terror-from-the-right (visited Jan. 23, 2014).

[3] Stephen E. Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 173-77 (NYU Press, 2016).

Our Human Constitution

Recently I spoke with a class of high school girls. They asked me to talk about the Constitution and we agreed I’d talk about how we interpret it. I wasn’t advocating any particular method. In fact, I referred to the late Justice John Paul Stevens, adopting an observation by the then sitting president of the Israeli Supreme Court, that a judge does best who “’seek[s] guidance from every reliable source.’”[1]

While talking with the girls, I finally realized how to encapsulate what I wanted to say: The Constitution is a human document, written by human beings for use by human beings. It is not self-executing. There’s nothing automatic about checks and balances. They work when people believe in and use them. They don’t work when people in power care only about favoring themselves and their friends.

That’s not a flaw in the document. There are flaws in the document. It still bears the marks of slavery  ̶  numerous clauses were designed to protect slave-owners even though the word slave does not appear. And it was written by men for men in 1787. But the men who wrote the Constitution referred to its prohibitions as “parchment barriers.” Parchment was an older form of fine paper, often used for formal documents. The Founders clearly understood that the document they wrote and ratified would prove as good as the people running it.

I didn’t draw conclusions for the girls, but I want to spell out some implications for you:

• When the president thinks he is an elected king and should control all the levers of government without being questioned or restrained and when a majority of Senators believe they should protect him, they’re simply making the Constitution irrelevant. The Constitution doesn’t protect the president or the senators; they do it for themselves.
• When the president is more intent on encouraging us to fight among ourselves over the color of our states and our skins than to work together for the good of the country, the Constitution hasn’t failed us. We’ve failed it.
• When the president turns us from leader of the free world to its laughing stock, the Constitution hasn’t failed us. He has.
• When the president encourages the most selfish among us to sacrifice the air, land, water and climate that sustain us, the Constitution hasn’t failed us. He has.
• When the president dithers for months after being warned of a coming health catastrophe, the Constitution hasn’t failed us. He has.
• In the days before we had antibiotics and other drugs, quarantines were the principle way that our governments tried to protect us from infectious diseases. When people carry weapons into the state Capital and threaten state governors over quarantines,[2] the Constitution hasn’t failed us. They have.

The Constitution is a parchment barrier. We have to do more than protect the document. We have to use it wisely.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on July 14, 2020.

[1] Judicial Discretion 62 (Y. Kaufmann transl. 1989).@ BedRoc Ltd., LLC v. United States, 541 U.S. 176, 192 (2004) (Stevens, J., dissenting).

[2] See https://www.businessinsider.com/michigan-open-carry-laws-legal-protesters-guns-at-state-capitol-2020-5 and https://www.newsweek.com/michigan-closes-down-capitol-face-death-threats-armed-protesters-against-gov-whitmer-1504241.

The Nunes Memo and Trump’s Disloyalty

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

— This commentary was broadcast on WAMC Northeast Report, Feb. 6, 2018.

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.

The Innocence Project

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.

Can American Democracy Survive Trump?

Will democracy in America survive?

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.

Is Democracy in America Coming Apart?

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

• His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
• He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
• He selects America’s wealthiest to run our economy;
• He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
• He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
• He seems to think that winning means he can do whatever he wants.
• And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 

A Scary Election

Over a century ago, populism was sweeping the country, with white and African-American workers standing together, until a scared Southern aristocracy started race-baiting. Whites took the bait, breaking the back of Southern populism. The rest of the country surged forward because their governments cared about the people, the regular people, not just the fancy financiers. But not in the South, which languished.

That race-baiting aristocracy also killed political competition, leading to the one-party South. No democracy, no concern for the people, no progress. Because race-baiting broke the back of Populism.

Trump uses rhetoric to divide the people hoping he and his cronies can conquer while the rest of us fight each other. Trump attacks everyone – immigrants, African-, Hispanic-, and Muslim-Americans, women, hard-working, warm-hearted, caring Americans of every background.

Democracy is in danger when people can’t accept the legitimacy of disagreement, drown out and threaten opponents, and don’t respect the right to vote of other people because of where they live or where their parents came from. Losing respect for others threatens democracy. Most of us believe that everyone has a right to their opinion. Democracy is in trouble when some try to shut down that right.

Democracy is threatened by campaign crowds yelling “Lock her up” and “Hang her in the streets.” Promising to appoint a special prosecutor to go after Hillary, Donald feeds their hostility to democracy. Like Italy’s Berlusconi, Donald tries to cover revelations about his behavior by throwing hate to angry crowds. Hillary responds “That happens in dictatorships, not democracies.” She’s nailed it; Trump does not want to lead a democratic country; he’s trying to sabotage it.

Trump’s racism and nativism has broken the back of the movement for economic justice. His invitation to settling the election by beating people up and using their Second Amendment rights encourages force, intimidation and even guns, to take Hillary out. Telling his supporters to prevent the polls being rigged codes Trump’s message to control the election by threats and intimidation.

Democracy is in serious trouble when police and military institutions take sides. Individuals in the uniformed services have every right to their political views. But we’ve had a tradition of keeping the military out of politics. We should be able to rely on them to protect every voter’s rights regardless of politics. The military and police need to be above politics or democracy is at risk.

Trump is trying to forge a coalition to muscle democracy out of the way.

If the self-proclaimed rich guy wins, he knows how to enrich himself and his cronies. But he pulls his supporters along with constantly repeated half-truths, lies and fabrications until they seem true because he says them so often – stringing them together like a rant overwhelming any attempt to answer because there’s too much to deal with.

Economic desperation leaves many open to his lies. But they cannot put a populist program together on the back of a divided America. They cannot get government to work on behalf of all the people, not just the super rich, by dividing over skin color, national origin and gender.

The Constitution, the Declaration, the Founders’ legacy, are in trouble when despondent and demoralized people lose faith in self-government. When democracy is in trouble, everyone is in trouble because dictators don’t take care of their people – they take care of themselves.

These same patterns have brought democracy down in many parts of the globe. But for Mr. Trump, we’re all losers and our democracy is a loser too. For Trump, only Trump counts.

— This commentary was broadcast on WAMC Northeast Report, October 25, 2016.