February 26, 2021

Till It's Over, Part 1 & 2

Guest Opinion
By Isiah Smith | Jan. 16, 2021

Whew! Glad that's over. It looks like we have survived the worst!

As America's annus horribilis limps to a merciful close, we must resist the impulse to celebrate, assuming the worse is over. While it is true that we somehow managed to avoid a total American apocalypse, we came alarmingly close. 

Our pestilential president nearly brought the nation to its knees with his fanatical and incomparable incompetence. However, despite his obsessive-compulsive efforts, it seems he has failed. Nonetheless, Trump's authoritarian overreach revealed the inherent weaknesses in our Constitution that are vulnerable to exploitation by a future dishonorable leader. America's founding documents have within them the seeds of our Nation's destruction.

What now?  For starters, let's not pretend that it's a surprise that a corrupt leader such as Trump wound up in the Oval Office; a cursory review of history reveals many cautionary tales about protecting the nation from tyrants. James Madison, who seems to have written everything worth reading about forming a just government, predicted it when he wrote in the Federalist Papers that "good men will not always lead us." 

Because it invests so much power in one person's hand, the Constitution practically invites tyrannical leaders to take control of our government. Next time, a smarter, more disciplined tyrant might improve on Trump's playbook and succeed where he failed. So, consider this a trial run.  Way back in the dark days of 1963, the great American essayist James Baldwin warned us that there might be fire next time. This time, that fire might consume us.

Every first-year law student learns that courts do not accept cases that fail to allege present harm. An exception may exist where the injury alleged is "capable of repetition, yet evading review." The most notable example of this are abortion cases (think Roe v. Wade), because gestation lasts, at most, 9 months, and an appeal to the Supreme Court regarding reproduction rights will always take longer than nine months.  Otherwise, the court cannot adjudicate the case.

Likewise, Trump may be gone, but another corrupt leader could easily repeat the damage he has inflicted on our government. We do not have the luxury of waiting for this foreseeable repetition. In the shadows, other miscreants reviewing Trump's playbook could already be devising plans of their own and waiting for an opportunity to go full Mussolini on us. Each of us can imagine smarter, more disciplined Republican aspirants dreaming tyrannical and authoritarian dreams, making plans to take Trump's place in the pantheon of political depravity.

Political commentators are now falling all over themselves proclaiming "This is not who we are."  Please don't believe them; this is precisely who we are! The most extraordinary thing about American exceptionalism is how exceptionally duplicative and deceptive that jaundiced notion is. Any serious American history student knows that damaged and deranged leaders like Trump are not only foreseeable but also practically inevitable. 

When the ground began to shift under the feet of white supremacy, producing America's first black president, one who dared to appoint a Puerto Rican (gasp!) woman to the Supreme Court, the fear and loathing that ensued practically guaranteed the spectacle on display last week at the U.S. Capitol.

Author and New Yorker staff writer Adam Gopnik recently filed an essay that challenges our democratic delusions and exposed our myopic misconceptions. In "A Thousand Small Sanities,” Gopnick wrote that the descent into authoritarianism is not what we need to explain:

"… it always happens. Humankind's default condition is not to thrive in broadly egalitarian and stable democratic arrangements that get unsettled only when something happens to unsettle them. The default condition of humankind, traced across thousands of years of history, is some autocracy."

Gopnik argued persuasively that "America … has never had a particularly settled commitment to democratic, rational government." Those who refuse to acknowledge the soundness of Gopnik's argument are doomed to repeat the same errors that brought us Trump in the first place and allowed us to turn a blind eye to our recent history: 1) The desire to keep FDR in office in perpetuity, 2) the myth of the inevitability of a ruling Kennedy dynasty, 3) the discussions of repealing the 22nd Amendment to permit Reagan unlimited terms in office, 4) the nascent Bush dynasty, with George P. Bush, Jed Bush’s boy, prepping for a future White House run, 5) the inexplicable, silent acceptance of Trump's assumption of monarchial powers, and 6) the hilarious notion that Ivanka and/or her brothers might one day be president. Seriously?

Gopnik wrote that he, a middle-aged essayist, purveyor of epigrams, lack aphoristic subtleties to explain why "the specter of an oafish, predatory authoritarian" was allowed to "annihilate the system of values that [we]had been brought up to respect."

Part 2: Solutions
In Part 1 of this essay, I took a descriptive approach, briefly outlining how America found itself being led by an incompetent and corrupt leader. Part 2 is prescriptive: How do we work ourselves out of this mess we found ourselves in? More importantly still, what can we do to ensure that we never repeat those same mistakes again? Trump might be gone, but the trail he blazed through America’s mystical greatness laid bare our country’s inherent institutional weaknesses.

In electing Trump, America demonstrated to the rest of the world that it wasn’t so special after all.  It, too, could blindly follow the siren call of a Mussolini-like master manipulator into an authoritarian nightmare. After the 2016 election, the fable of the Trojan horse no longer seemed so far-fetched.

Trojan horse is a tale from the Trojan War about the subterfuge that the Greeks used to enter the independent city of Troy and win the war. The tale is a metaphor for any trick or stratagem that causes a target to invite a foe into a securely protected stronghold or place. 

I spent nine of my boyhood years living on my grandfather’s farm in Fort Gaines, Georgia, in the southeastern part of the state. Consequently, I know a thing or two about farm animals. I wouldn’t call the 45th president a Trojan horse per se; horses are beautiful and loyal. Horses have been valuable and indispensable, and they played a big role in America’s growth and development — all things Trump is not. He’s more like a mule — a notoriously dumb, unattractive animal that’s genetically inferior, and thankfully, sterile and therefore unable to replicate itself. 

America allowed its Trojan mule behind the fortified Constitutional walls we thought was impervious to his ilk. Then, we watched in horror as he plundered and pillaged our precious freedoms and norms, preening all the way to the National Treasury. Confused and disoriented, large swarths of our never-really-free citizens, believing themselves incapable of resisting his messianic message (“only I can fix it”), worshipped at the altar of Trump, somehow blinded by despair and delusions. 

America finds itself in a precarious position, surrounded now by a self-created enemy operating from within. In Part 1 of this essay, I made the unassailable assertion that ours is a Constitution that contains the seeds of its own destruction, and those seeds were planted at the birth of our constitutional Democracy. So, let’s start there, at the beginning: the Constitutional Convention.

THE CONSTITUTIONAL CONVENTION
Four years after the United States won its independence from England, 55 state delegates convened in Philadelphia to compose a new U.S. Constitution. During three months of debate, the delegates devised a brilliant federal system characterized by an intricate system of checks and balances. On September 17, 1787, the Constitution of the United States of America was signed by 38 of the 41 delegates present at the conclusion of the convention. 

In the words of D.W. Buffa of The Brookings Institute, “the Framers of the American Constitution thought of everything. When it came to the pardon power, they even thought of Donald Trump.” On the one hand, they gave the president pardon powers similar to those the British monarch possessed. On the other hand, they sought to impose safeguards to prevent abuse of that power.

The Founders were acutely aware that a future president might attempt to use the pardon powers to pardon a coconspirator with whom he conspired to commit crimes.

On June 18, 1788, George Mason of Virginia rose wearily from his chair on the floor of the Virginia Ratifying Convention. The Virginia delegate was deeply troubled because he thought the convention did not understand that a future president of the United States might be someone who lacked sound character and high intelligence. Mason’s prescience is astounding in retrospect! Mason’s objections are so illuminating that I consider it a public service to quote it, in lawyer parlance, in toto: The president, he said, “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”

James Madison did not miss the significance of George Mason’s objections. Being the critical thinker history has proven him to be, he was ready with a swift response:

“There is one security in this case to which gentlemen may not have adverted: if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

History has shown that Madison had too much faith in the Constitutional system largely devised by himself. His myopia demonstrates how easily it is to be seduced by one’s own words and devices. His belief in the power of the impeachment process presupposed a Congress comprised of men of good conscience, men devoted to constitutional principles instead of men devoted to a party. Patriots are devoted to their country; acolytes are devoted to a leader! 

One of my most vivid history lessons was delivered to me by my daughter, Carly. When she was in middle school in Burke, Virginia, her mother and I took her to Monticello, Thomas Jefferson’s estate in Charlottesville, Virginia. She grew tired of me singing Jefferson’s praises and began to lecture me on George Mason. “He objected to the Constitution because it did not contain a provision for the eradication of slavery,” she admonished me. “But Jefferson didn’t seem too worried about that.”

She was right (and precocious)!

Mason is little remembered by Americans who have not spend several decades living in The Old Dominion, as the writer of the present essay did. He understood how fragile a republic was and how easily it could devolve into a tyrannical system, only answerable to the whims of a narcissistic despotic who would be king!

EXECUTIVE POWERS
Individual founders were fervent in advocating for concentrating executive authority in a single man.  They did this, even with the knowledge that they had just recently been subjects of the British crown.  They should have been aware of the inherent risks of such a system. Extant records of the Convention’s proceedings indicate they felt that those awesome powers would increase, rather than diminish, our ability as citizens to hold the executive branch to account.

I must profess to being confused and amazed that these “Best and Brightest” men were so easily blinded by their own brilliance! The only explanation for this blindness was that they thought by investing such authority in the president, he could not hide from, or attribute to, his advisers or subordinates any deceitfulness in which he might be involved. Nor could he blame a complex structure and executive-governance apparatus, to avoid taking responsibility for his wrongful conduct or poor decision-making skills.

In Federalist No. 70, Alexander Hamilton argued in favor of vesting awesome executive power in the hands of one man so as to give him the necessary “decision, activity, secrecy, and dispatch” to execute his duties.  He would not be hamstrung by the need for cooperation and consensus.  Hamilton, who did not live long enough to observe the errors in his thinking, thought that a President needed the ability to act quickly and decisively, which was necessary in matters involving national security and foreign diplomacy.

My grandmother could have cautioned him that “haste makes waste”, as history, both recent and not so recent, bares out. Sadly, the necessity for, and benefit of political constraints of practical restraint on the executive’s awesome powers, never occurred to this most voluble and impulsive of men with a history of shooting his shot and worrying about consequences later.

The tragic idea of concentrating almost absolute power in the hands of one man so as to clarify accountability is chilling as we find ourselves digging our way out of the tragedies of the Trump pestilential presidency.

Hamilton was not alone in harboring such romantic and illogical belief in a “unitary executive”  Founding Father and Scottish immigrant James Wilson of Pennsylvania (and William Barr precursor) argued that the awesome powers given to the President meant that the country had to look to “the ultimate responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes.”

The wrong-headedness of these early views seems obvious to us today. But what is not obvious is the country's continued fealty to such disastrous decisions promulgated by 18th Century mortals. They were defective humans, as we all are; not Gods throwing down lightning bolts to light the darkness in our souls. Why do we remain frozen in the past, imprisoned by the mistakes in reasoning perpetrated by pernicious slave owners who lack the foresight to anticipate a rascal like Trump?

If the American carnage Trump himself saw — behind him, not in front; not created by him — has taught us anything, it is the need for a new Constitutional Convention to create “a more perfect union.” 

As Benjamin Franklin said at the end of the Convention: “You have a Republic if you can keep it.”

Isiah Smith, Jr. is a retired government attorney. 

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