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Maybe it can’t happen here, but fasten your seatbelts anyway

Larry Struck

Now that the traumatic process of adding a new justice to the U.S. Supreme Court is finally over, we can ask what this might mean for the court, the presidency and the country. No one who watched the confirmation hearings and the resulting turmoil can avoid the feeling that something has gone awry in the United States. Knowing how these developments will play out in the coming years and decades isn’t easy since making predictions is difficult, especially about the future. But there are a few clues that can be useful in gauging our general drift.

It’s been suggested that Justice Kavanaugh was picked not only for his reliable conservative views but for supporting the idea of pardoning the President for misdeeds. Defending presidential prerogative may not be so alarming in itself but applied to this President could lead to grotesque outcomes that even Putin would envy. More importantly, such an expansion of executive power could pave the way for a captive judiciary ready and willing to make room for a true authoritarian leader dressed in democratic trappings. A model and precedent for such a power grab already exists.

One of the lesser known figures of post-Weimar Germany was the legal scholar Carl Schmitt. His work provided a theoretical basis for the Third Reich and rests on three propositions. First, the leader in a constitutional government is the nation’s sovereign, the absolute ruler. Representing the true will of the people, he has ultimate power and at times is expected to exercise that power outside the constitutional framework.

Next, there are emergency or exceptional situations when the sovereign must act on behalf of the nation without approval or consultation. We certainly do live in dangerous times that require decisive leadership. But here the leader/sovereign is the only one who decides what situation is an emergency and the action to take.

Finally, the world is viewed not as a cooperating community of nations and peoples but as a competitive battleground in which others are either friends, or enemies, and treated accordingly. Determining who is an enemy is not necessarily a rational process analyzed by political experts, but can be a subjective sense about who or what threatens the leader’s position. This is not a world view based on what we normally regard as facts or truth, so don’t bother arguing about it.

Uncanny similarities

Why should we care about an obscure German legal doctrine, particularly when comparisons with the Nazi era are overused and often hysterical? Of course the national experience of an absolute leader in Germany became more than a theory, but Schmitt’s work reveals uncanny similarities to our current situation. For example, the sovereign decides when conditions are so bad that legal norms no longer apply. The appearance of ruinous international agreements, the uncontrolled influx of foreigners and generally being taken advantage of in world affairs would prompt such a leader to take action at the edge of or outside the law.

A sympathetic Supreme Court could offer generous legal means to strengthen presidential power and eventually abdicate its own role as guardian of the law altogether. The way would then be cleared for an unrestrained, and uninhibited, leader to take unilateral action with every means at his disposal.

This outcome may seem unlikely in a country with a system of checks and balances and a revered Constitution. However, the system would need to work as designed, with a functioning and independent legislative branch not servile to the president. A recent article by a scholar of German history shows how conservative leadership in that country’s legislature gradually ceded power to an upstart politician and eventually surrendered control to what became a monstrosity. Christopher Browning, professor emeritus at the University of North Carolina, points to the slow degradation of democratic norms and extreme polarization of politics as warning signs.

Culmination of a long-term backlash

Republican stalwarts and true believers are currently thrilled with a president who has pushed their agenda of tax cuts, deregulation and reduction of government-sponsored programs like health care. These actions are often seen as the culmination of a long-term backlash to liberal projects going back to the anti-consumer Powell Memorandum of 1971 and all the way to FDR’s New Deal. Whatever its source, the long reactionary march through democratic institutions has now arrived at the nation’s centers of power with great exultation. Those not celebrating hope that some remnants of toleration and compromise will survive Trump’s triumph, sparing us a version 2.0 of It Can’t Happen Here.

Former Secretary of State Madeleine Albright’s favorite quote from her book, “Fascism, A Warning,” comes from Mussolini, that by plucking a chicken one feather at a time, people won’t notice. The squawk fades, and then comes another pluck — be it an attack on the news media, science, friendly nations or immigrants. Each outrage helps create a cumulative sense of public alarm that could later be melded into a state of emergency caused by those “enemies“ out there. Next, retaliation would be in order, at what cost we don’t want to guess.

Only the true leader, shrewd enough to recognize these subtle threats, can save the republic using extrajudicial powers, as explained by Carl Schmitt’s prescriptions. President Trump has been accused of destructiveness, nihilism, and fomenting general chaos. True, to judge by the results, but the bigger picture is all about a new order brought to life and given shape by a volatile mixture of charisma, resentment and pathos.

This dire future may not happen here; we can hope it’s a case of runaway imagination. But the fundamentals for this unwelcome vision are sound and staring us in the face. Does our country have what it takes to survive the bumpy road ahead?

Larry Struck is a writer based in Edina.


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Comments (8)

  1. Submitted by Tory Koburn on 10/12/2018 - 08:53 am.

    We’ve been in a slow slide towards unchecked executive power for a couple decades now. With a consistently impotent congress and, more than ever, a partisan and obsequious Supreme Court, our democratic institutions are indeed under threat.

    As much as we are said to “revere” the constitution, that is certainly up for interpretation – court decisions like Heller, Citizens United, or Shelby County seem to represent a backslide against longstanding constitutional norms – “judicial activism,” if you will. The originalists on the court famously disregard substantive due process concerns, raising questions for the sustainability of the 4th, 5th and 13th amendments.

    Perhaps the most important constitutional idea – that power is ultimately vested in the people – doesn’t alleviate these concerns either. When a substantial amount of the voting public is willing to postpone elections, or believes that even if Dr. Ford’s allegations are true, Kavanaugh should still be on the SCOTUS – it suggests that the people themselves are less reverent about democracy and justice than in seeing governance as a zero-sum game where the ends justify the means.

    I think that is the most important aspect of all this, and tends to fly under the radar. Checks and balances can be restored, executive power restrained, and bad court decisions reversed – but only if the people will it to be so. Between the win-at-all-cost partisans, and the disengaged or disenfranchised non-voters, I don’t see the political will there to reverse these tides in the near future. The more disgusting our politics becomes, the more people lose interest in participatory democracy – and it is not an easy thing to inspire them in it again.

    It’s likely that this president’s term ends as a normal president’s does, with a peaceful transfer of power to a democratically-elected opponent. What happens – and I ask this of partisans on both sides – when, one day, this doesn’t happen? What if a president of your party has their own Reichstag Fire moment, and postpones elections under broad emergency powers? What if the court is stacked in their favor, and a limp-wristed congress does nothing?

    Will we look back and wonder why we did nothing to stop it? Or will we cheer that our party’s side won another victory against the evil “other party”, and be ready to dismantle what’s left of our constitutional protections in the name of “freedom”?

  2. Submitted by Curtis Senker on 10/12/2018 - 09:37 am.

    “It’s been suggested that Justice Kavanaugh was picked not only for his reliable conservative views but for supporting the idea of pardoning the President for misdeeds.”

    No. Kavanaugh has suggested a President *may* be immune to prosecution while in office. He has not said anything about pardons, or about the ability of the Congress to impeach a President.

    Let’s stick to the facts, shall we?

    • Submitted by Neal Rovick on 10/12/2018 - 10:30 am.


      “immune to prosecution while in office”

      How’d that work with his actions and statements during Clinton’s presidency ?

      Couple that with his “vast left-wing Clinton conspiracy” rant and his fundamental political nature is revealed.

      I guess it depends on who is in office, eh ?

      A certain “flexibility” of beliefs.

      • Submitted by Curtis Senker on 10/12/2018 - 11:20 am.

        “He has not said anything about …the ability of the Congress to impeach a President.”

        Maybe that wasn’t clear the first time.

      • Submitted by RB Holbrook on 10/12/2018 - 11:35 am.

        “I guess it depends on who is in office, eh ?”

        It does, bigly. In his famous law review article, written a decade after the Clinton witch hunts, Kavanaugh claimed that, in retrospect, it wasn’t such a good thing to have done. Apologizing for his shameless hackery was and remains out of the question

        The shamelessness of his pivot doesn’t seem to have caused anyone any concern.

  3. Submitted by Peter Pesheck on 10/12/2018 - 12:16 pm.

    Agreed. I would add the steady erosion of the concept of truth (3-4 big lies/day, first he’s going to fire Rosenstien then he’s not… following an autocrat’s playbook on how to blur the very idea that truth exists), Trump’s 100% focus on himself as “good” and the opposition as “bad” (no shades of gray, no one else matters). He’s got Congress and the Supreme Court, and is currently chipping away at DOJ and law enforcement (did he make the FBI blink around the sharply curtailed Kavanaugh investigation?). I always thought that serious folks in the Legislative or Judicial branches would step up when needed “…to protect, preserve, and defend the Constitution”… so far, it’s a bunch of fellow-travelers and no-shows from the R’s, with the D’s howling in the distance. The coming election might help, but potent R-driven voter suppression efforts around the country may save them.

    My seat-belt has been fastened for quite some time now. Every once in a while I tighten it another notch. / p

  4. Submitted by Ron Gotzman on 10/15/2018 - 08:44 am.

    Such a possible rise and expansion of executive power will not come from the right but from mobs on the political left.

    The thing that the “Moderate political left” needs to be concerned about -is when they take the control of the house – will they deliver?

    They too could be victims of the “entitled extreme left” and will feel the pressure to surrender jurisprudence, trample over the rights of the political minority, and even receive threats and harassed by the mob.

    • Submitted by Dennis Wagner on 10/15/2018 - 08:08 pm.

      Really Ron? So “T” and his gang are spot on dead in the middle? The last of the great truth tellers? 99% of the scientists are wrong! 60-70% of the words coming out of his mouth are lies, exaggerations or shear speculation, and that is “norm” ! So all Mexicans are murders, robbers, and rapists,Surrender jurisprudence? You mean like holding a supreme court seat hostage? And we are suppose to believe the “R”‘s that have both houses of congress, the white house and the supreme court are the political minority? Keep repeating the BS and sooner or later folks believe it. It is insulting that you believe we are that short. .

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