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Taking the Measure of 45

Two law professors—Eric Posner of the University of Chicago, and John Yoo of the University of California, Berkeley—have published books this summer assessing President Trump from constitutional standpoints. Their opinions about him are as sharply divided as the country’s. In The Demagogue’s Playbook: The Battle for American Democracy From the Founders to Trump, Posner argues that Donald Trump, “a political monstrosity,” is America’s worst president ever, and leaves readers wondering if Trump might not be the worst person in our history. Defender in Chief: Donald Trump’s Fight for Presidential Power argues that Trump has been good for the country, primarily by being good for the presidency. In treating it “as an office of unity, vigor, and independence,” Yoo contends, Trump has secured “the benefits of an energetic executive for his successors,” thereby advancing constitutionalism.

Posner and Yoo disagree not only about Trump, but about which yardstick to use when measuring him. Posner judges Trump to be bad for American politics, while Yoo considers him good for American governance. Without addressing each other, the two books wind up conceding elements of the other’s argument. For Posner, Trump is a demagogue but not a dictator, having pursued his policy goals in a manner consistent with the laws and Constitution. Yoo shared Posner’s low opinion of Trump’s character during and following the 2016 election: “a populist, even a demagogue, who had not prepared for the heavy responsibilities of the presidency.” Since then, however, Yoo has come to find Trump less threatening than disruptive. His disruptions, moreover, challenge progressivism’s administrative state and reinvigorate the constitutional order that preceded it, which Yoo applauds.

For Posner, Trump’s ascendence is the nightmare we averted until now by avoiding Huey Long, Joe McCarthy, and George Wallace presidencies. For Yoo, it’s more like electing Al Czervik, the real estate developer played by Rodney Dangerfield in the 1980 movie Caddyshack. Czervik has more money and less impulse control than anyone else at Bushwood Country Club (except for Carl Spackler, the assistant greenskeeper played by Bill Murray, who has no money and no impulse control). But he also possesses the clarity and disdain for propriety needed to grasp and do what the circumstances demand.

What’s most interesting about the books is how both engage the same fundamental political question: what are the best ways to promote good government and popular government simultaneously, and to resolve tensions when the two imperatives conflict? To treat this as a problem requires believing that democratic consent is a necessary but not sufficient condition for good government—that the latter sometimes requires policies the people would defeat in a national plebiscite. Thus, Posner and Yoo would both reject John Dewey’s famous axiom that the cure for the ailments of democracy is more democracy in favor of James Madison’s claim: the great political difficulty is to enable government to control the governed while obliging it to control itself.

Demagoguery through the Years

For Posner, the keys to reconciling good and popular government are sturdy institutions that clarify and pursue the public interest, and norms that moderate political conflict. His book, ostensibly a study of demagoguery in American history, devotes only the last of its seven chapters to Donald Trump. Posner defines demagogues as “charismatic, amoral” people who subvert democracy by targeting “the political elites, blaming them for everything that has gone wrong,” and who attempt to “destroy institutions—legal, political, religious, social—and other sources of power that stand in their way.” The bulk of his book is a chronological study of how, from the constitutional convention in 1787 until Donald Trump’s escalator ride in 2015, the challenge of striking the best balance between democracy and good governance involved resisting demagogues and the populist passions they exploited.

Despite this form, the substance of The Demagogue’s Playbook makes two things clear. First, it is as much about Trump as is Defender in Chief, where Trump dominates every chapter and nearly every page. Posner’s book reads as a reverse-engineering project. Every item in its explication of the problem of demagoguery in the 18th, 19th, and 20th centuries is employed to demonstrate Trump’s singular odiousness. Accordingly, any and every bad thing Trump has done is far worse than the similar things all other presidents have done in the past.

Posner exonerates Franklin Roosevelt from the charge of demagoguery, for example, by saying that FDR “largely avoided . . . negative emotions and the vilification of opponents.” Really? The 1944 State of the Union address claimed that if Congress failed to enact FDR’s “Second Bill of Rights,” it would mean that fascism had been defeated on foreign battlefields only to triumph at home. Though he “indulged the public with his attacks on Wall Street,” Posner allows, Roosevelt’s language against the rich was “always vague.” Really? On the eve of the 1936 election, Roosevelt told a Madison Square Garden rally, “I should like to have it said of my first administration that in it the forces of selfishness and of lust for power met their match. I should like to have it said of my second administration that in it these forces met their master.”

Similarly, Trump’s hostility toward the media is worse and more menacing than that of other politicians because he refuses to honor the free press’s essential role and fundamental professionalism. Political journalists, Posner writes, “become attuned to the tension between [a politician’s] image and the reality, and resent being manipulated to promote the image at the expense of that reality.” Again, really? Before going on to establish a media empire, Ezra Klein reported on the 2008 Democratic caucuses in Iowa:

[Barack] Obama’s finest speeches do not excite. They do not inform. They don’t even really inspire. They elevate. They enmesh you in a grander moment, as if history has stopped flowing passively by, and, just for an instant, contracted around you, made you aware of its presence, and your role in it. He is not the Word made flesh, but the triumph of word over flesh, over color, over despair.

Obama won two presidential elections by surmounting, somehow, this sort of cool, detached journalistic skepticism.

To avoid tyranny, presidents must not cross the constitutional boundaries defining executive power. But, Yoo insists, they must also affirm the full extent of presidential legitimacy within those boundaries.

Second, in seeking the best reconciliation between democratic and effective government, Posner does not split the difference. Rather, he clearly believes that governmental quality is the more urgent imperative, and excessive democracy the more pressing danger. The fact that a man like Donald Trump was able to win a contested presidential nomination leads Posner to wonder if we shouldn’t go back to the smoke-filled rooms that selected nominees before 1972, when party bosses mattered more than primary voters in elevating nominees. The fact that Trump then won a general election finds Posner suggesting we might go all the way back to the initial conception of the Electoral College: a council of eminent citizens “selected for their wisdom,” in his words, who would be “expected to exercise discretion in choosing among presidential candidates.”

A Federalist Presidency?

Though they disagree about Trump, Posner and Yoo both convey that they would have been quite comfortable in the Federalist Party of the 1790s. Posner is drawn to their idea, which he associates most closely with John Adams, that the best regime would be something close to Aristotle’s mixed regime, blending democratic and aristocratic elements. Any such polity rules out indulgent cant about the people’s collective wisdom and virtue. Unlike William Buckley, Adams and Posner, both Harvard graduates, appear more favorably disposed to the idea of entrusting all government power to the Harvard faculty than to an equally large group of Boston residents selected at random.

The Federalist cause that most appeals to Yoo, on the other hand, is presidential vigor. He approvingly quotes Alexander Hamilton in Federalist 70: “a government ill executed, whatever it may be in theory, must be in practice a bad government.” Good government requires execution, and execution requires an executive: the single, independent presidency framed by the Constitution. That such a presidency could culminate in Caesarism is a fear shared by our era and Hamilton’s. “In all but two of the revolutionary states,” Yoo notes, “executives were chosen annually. ‘Where annual elections end, tyranny begins,’ went the revolutionary slogan.”

To avoid tyranny, presidents must not cross the constitutional boundaries defining executive power. But, Yoo insists, they must also affirm the full extent of presidential legitimacy within those boundaries. The best way to do this is to exercise their powers right up to the boundaries, if and when it is necessary to advance their policy agenda, protect future presidents’ ability to do their job, and defend the office’s constitutional turf.

Accordingly, Yoo defends Trump’s forceful use of the presidency’s constitutional powers, even when he disapproves of Trump’s policy objectives, such as more immigration restrictions. The real threat to the constitutional order, Yoo believes, comes not from Trump but from his opponents, especially from the institutions Posner considers the republic’s essential safeguards: Congress, the courts, the press, and above all the government bureaucracy. If Trump had not resisted and, in many cases, defeated their efforts to thwart him, their victories would have deprived future presidents of powers they’ll need and which the Constitution affords the president and no one else. “The bureaucracy’s vision of itself as representing a non-ideological national interest,” Yoo warns, “will inevitably conflict with the agenda of elected presidents, regardless of party.”

Posner treats progressivism’s outsourcing of policy formulation and implementation to disinterested bureaucratic experts as a flawed but earnest, workable effort to recreate the Founding’s mixed regime in a post-aristocratic age. The progressives, he concedes, never solved the problem of how to constrain the bureaucrats and guarantee that they really are disinterested or even expert. But that does not stop him from claiming that “New Right” criticisms of the “technocracy”—by McCarthy, Wallace, Nixon, Reagan, Patrick Buchanan, H. Ross Perot, and now Trump—were fundamentally demagogic. There are, apparently, propositions that can be true, but to which no decent person would call attention.

Yoo, on the other hand, believes that the problem of a government more answerable to itself than the people is not just theoretical but real. “At certain periods in our history,” he writes, “government can become ossified and overgrown by rules and bureaucracy that have grown too distant from the wishes of the people.” We live in such a period, when hundreds of government agencies “regulate the economy and society without having to obey the president or observe the Constitution’s process for enacting laws.”

In his view, the best solution to the problem of reconciling governmental accountability and wisdom is to restore the constitutional order the progressives displaced. True, the founders did not anticipate the zealous embrace of democracy that took hold in the 1820s with the arrival of Andrew Jackson and demise of the last surviving demigods from the founding era. But they did bequeath the more fully democratic nation a structure that, better than any available alternative, minimized the dangers of misgovernance, whether caused by pressures from below or above. Yoo calls it a “great experiment in the separation of powers [that] took the form of a presidency with independent constitutional powers and responsibilities and separate election by the people.”

The aftermath of Donald Trump’s presidency commences in either five months or five years. We may safely predict that opinions about him will remain bitterly divided for decades to come. Professors Posner and Yoo have performed a service by connecting the evaluation of Trump to questions that are older and much bigger than the quality of his leadership.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on September 14, 2020 at 08:24:26 am

A nice review. I am of two minds about the measure of 45, but recently I was startled when I realized that 45 squared = 2025.

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BMan
on September 14, 2020 at 12:58:56 pm

The political power of two (terms)!

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paladin
on September 14, 2020 at 09:37:19 am

It is a truth universally acknowledged, that pejorative is to be abjured except when ad hominem is more than the man warrants. That man is Professor Posner, who, yet again, pretends to be what he is not, a trustworthy scholar of American political history, while disguising what he is, an academic hack for the Democrat Party.

Voegeli is a writer of abundant good character, who in his amplitude concedes to Posner too much, even if very little, of the stamp of objectivity. Voegli inadvertently demeans Yoo by comparing his intellectually serious book to that of Posner, a writer of ideological license and ulterior political motive which render his work academically unserious.

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paladin
on September 14, 2020 at 13:14:44 pm

Paladin,

I wonder who Judge Posner declares to be The Author Of Love, Of Life, And Of Marriage, and thus The Author Of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness. Perhaps you can ask him, for certainly the correct answer to that question is necessary for someone to be, “a scholar of American political history”, from the start.

Godspeed and God Bless!

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Nancy
on September 14, 2020 at 11:10:15 am

Judge Posner's pro-elite, ahem, arguments are vibrantly self-parodic. He imagines that the disease, of which he and his ilk are infestations, can cure itself.

A self-congratulating idiot, the thing itself.

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Joe Sansonese
on September 14, 2020 at 11:40:22 am

From those of us who have had the misfortune of reading Eric Posner's book The Executive Unbound (co-authored w/ Adrian Vermule), and were further appalled by seeing his being one of the only con-law scholars to (try to) present a full-bodied justification of Obama's patently unconstitutional 11/20/14 "Big Amnesty" directive, I think the only fair response to this new book is: "Posner, sir, you are a 'DEMOGOG-O-PHOBE!' Plagued you are by childish fears unworthy of an objective scholar!" (See how cheap and easy that was, Prof. Posner?) He deserves that because he ended his book with a section on "Tyrannophobia" in which he dismisses all concerns about expanding executive power and his model of "plebsicitary dicatorship" (as exemplified, he claims, by the two Roosevelts and Lincoln) as merely being an irrational fear.

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Carl Eric Scott
on September 14, 2020 at 15:02:39 pm

who attempt to “destroy institutions—legal, political, religious, social—and other sources of power that stand in their way.

This is really too much, attributing to Trump what in fact is the life's work of Western progressives from Croly and Dewey right down to the woke puppets being danced in our schools and streets. So far as I can tell Trump has not destroyed one thing, yet it is an article of faith--not to be questioned, not to be discussed--among the Left that he is reducing the institutions of this country to ruins. It has been alarming to see lifelong friends who are intelligent persons fall in with this cult.

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QET
on September 14, 2020 at 17:26:53 pm

"Keep your friends close and your enemies closer" ??

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R2L
on September 14, 2020 at 17:59:47 pm

"leave the [Posner book]; take the cannoli."

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gabe
on September 14, 2020 at 18:08:26 pm

"It has been alarming to see lifelong friends who are intelligent persons fall in with this cult."

Your friends haven't (necessarily) become idiots. This nation-breaking phenomenon has everything to do with what passes for news "reporting" today. For example, most people are surely "know" that Minneapolis police "killed" George Floyd. In fact, he died of a self-inflicted fentanyl overdose: He'd already said "I can't breathe" seven times before he lay down on the ground (he wasn't forced down). The medical examiner reported that, at autopsy, his lungs weighed 2 - 3 times normal, because they were filled with fluid (the reason he couldn't breathe!), a result of the fentanyl.

But the narrative requires that any black who dies with police involvement is yet another case of law enforcement wantonly murdering blacks. And the narrative is so effective that eminences such as LeBron James wind up saying that every time he ventures outside, he's being "hunted." I've no doubt that James is sincere in this, because he, like so many, has been captured by the narrative.

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Paul Nachman
on September 14, 2020 at 17:57:53 pm

Thank you Mr. Voegeli for this clever literary shiving: "Obama won two presidential elections by surmounting, somehow, this sort of cool, detached journalistic skepticism."

But in the battle between Posner's demagogue and Koo's strong executive, we should also have the capability for a proper and rapid response from the legislative branches, hopefully even before the (slower acting?) courts have to be called into play. We have recently seen many examples of executive over reach in the exercise of police powers (or perhaps "police powers") by governors, county executives, and mayors in declaring lock downs for pandemic health related reasons. I gather in most cases they are relying on previously created "emergency response" legislation for the authority to do this. But it appears that in too many cases they were given more free reign for a longer time span than is/was really necessary, without a corresponding endorsement or confirmation via legislative action/ law/ resolution. At the federal level Mr. Trump may yet also exercise the Insurrection Act, and I have read comments elsewhere suggesting he declare marital law after he wins the election to bring order to troublesome blue state strong holds. It strikes me that many legislative bodies should revisit their emergency response law and the powers it grants to their respective executive. They should ensure they have provided for a responsive and responsible means of moderating or extending those executive powers as circumstances warrant. Not all emergencies should be treated in the same way.

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R2L

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.