Robert Mueller's authority hinges on whether he has been issued a commission from the President, and if he has, the President can remove him.
I am very grateful to Richard Reinsch, the editor of Law and Liberty, for inviting me to write an essay on “The Future of Political Parties” and for enlisting three perspicacious critics to respond to it. It is gratifying that my frantic attempt to place the madcap events of 2016 in historical perspective resulted in such probing responses—a credit less to the quality of my essay, I think, than to the intelligence of my interlocutors and the times in which we live. All of us are trying to get our heads around history as it happens—a risky and stimulating scholarly enterprise. Rather than offer point by point responses to these big picture critiques, let me, as a gesture of respect, offer some general reactions to the major arguments of each.
Jay Cost elaborates on my concern that party organizations have declined, and he looks for a constitutional grounding for this apprehension in the founding of the Republican Party by Thomas Jefferson and James Madison. Neither embraced the idea of a party system—that is, the view that an ongoing contest between two parties served the public interest. And yet, Jefferson and Madison embraced partisanship to mobilize popular support against Alexander Hamilton’s program to consolidate power within the executive branch. They believed this program would undermine the authority of the Congress and the states and thus create an administrative power that served a privileged few. A national party was needed, Madison argued in the National Gazette essays that Cost invokes, to arouse public sentiments against “consolidation”—in support of restoring checks and balances among the federal branches and between the national and state governments. Only then, Madison insisted, would the Constitution refine and enlarge, rather than mute the public views.
I much admire Cost’s “institutional” thoughts; at the same time, it is not clear to me whether this rallying force was dedicated to buttressing the republican character of the Constitution, as Cost suggests, or part of an acknowledgement that the original Constitution did not provide adequately for an active and competent citizenry. Nor am I certain that Madison and Jefferson, both of whom seemed to view the Republican Party as a party to end parties—a temporary instrument that would purge the Constitution of the Hamiltonian disease, thus restoring national harmony on sound republican principles—believed that a “partisan republic was superior to a nonpartisan republic.” Only with Martin Van Buren and the rise of Jacksonian democracy did such a view take hold.
But the Jacksonians, indeed, Andrew Jackson himself, seemed torn over whether the Democratic Party should empower or presume to foster responsibility among the mass supporters they summoned. It is telling, I think, that the party system Cost praises for reconciling public opinion and constitutional principles could not prevent a Civil War, or the neutering of the Fourteenth or Fifteenth Amendments in its aftermath, or the rise of a strong reform movement by the end of the 19th century that would severely weaken party organizations. That movement, framing American politics as a contest between Progressivism and conservatism, is what began the bracing yet disruptive battle for the soul of the Constitution that we are still in today.
And it is that battle—between the proponents of an executive-centred administrative state and the defenders of limited constitutional government—that Kevin Portteus writes about. Like Cost, he looks to the 19th century for historical precedents, comparing the raucous Trump versus Clinton contest to the struggle between “court and country” during the early days of the republic. But Portteus’ main focus is the rise of a fragile yet regnant Progressive state during the first half of the 20th century that he feels might have finally met its match in the alliance between a populist billionaire and what Ronald Brownstein dubs the “coalition of restoration”—blue-collar, religiously devout, and non-urban whites who are exceedingly anxious about demographic and cultural shifts that appear to be transforming the United States into a country that excludes them. Whether Clinton and the Democrats truly represent a denigration of the Constitution, and Trump and the Republicans a movement to restore it, as Portteus avers, is a questionable proposition. Cost’s depiction of the struggle between the Federalists and the Republicans suggests that the Framers of the Constitution—indeed, two of the titans who shared the pseudonym Publius—disagreed fundamentally about what role administrative power should play in a constitutional republic.
More to the point, as I note in my essay, it is far from clear that America is currently roiled by a contest between friends of the national state that was consolidated during the New Deal and elaborated in the attempt to build a Great Society, and enemies of that state. Trump’s campaign and the early days of his administration seem to confirm that the objective is to redeploy rather than roll back the state—to exploit national administrative power in the service of energizing a War on Terror, protecting the borders (with extreme vetting), imposing limits on abortion and same-sex marriage, developing new standards for education, facilitating the building of oil pipelines, imposing limits on trade, and taking tougher measures such as stop and frisk to restore law and order in urban areas. As John Pitney suggests, beginning with Richard Nixon, Republicans have been less devoted to dismantling the state than to demonstrating that it can be, ideologically, a double-edged sword that can cut in a conservative as well as a liberal direction.
Of course, one should not dismiss lightly Portteus’ suggestion that 2016 was a realigning election. Indeed, parallels can be drawn between the late 19th century and now. After two decades of deadlock between the two major parties, the Republicans, led by William McKinley in 1896, won a major victory that secured the dominance of a program dedicated to advancing industrial capitalism. Republicans now, having witnessed partisan combat in a fractured polity since the late 1960s, control the White House, both chambers of Congress, and the overwhelming number of state governments, and may be poised to assume command of the judiciary.
The election this fall, however, was far less decisive than McKinley’s triumph over William Jennings Bryan in 1896. The unprecedented divergence between the popular vote won by Clinton and the Electoral College vote amassed by Trump seems to portend a new, and perhaps even more toxic struggle between Red and Blue America rather than a foundation for a new conservative political order.
Although I have not signed on to David Mayhew’s charge against realignment theory, I do think the dynamics that once seemed to shape the rise and fall of political orders in the United States have been largely supplanted by major developments over the course of the 20th century, most notably the rise of a national state with important responsibilities at home and abroad, and that these have made “classic” party realignments unlikely. As Cost and I note, this does not mean that administration has replaced politics. FDR’s hope that “the day of enlightened administration has come” never seemed likely to transcend the anti-statist sentiments that are so powerful in American democracy.
Indeed, Tocqueville argued that if such an extreme form of centralized administration were to emerge in a democratic country, it would likely be an ephemeral monstrosity. Given the modern individual’s passion for equality, the “proper object . . . of our most strenuous resistance, is far less either anarchy or despotism than that apathy which may almost indifferently beget either the one or the other.” I agree with Cost that general indifference is not the cause of our present discontents. Since the 1960s, populist strains on the Left and Right have eroded the foundations of national administration, leaving us with this puzzling situation of weak party organizations and angry partisanship—a rancorous, all-consuming battle for the levers of administrative power.
As John Pitney argues persuasively, Richard Nixon’s presidency was a critical juncture in the emergence of a political order combining combative politics and polarization. Knowing the Progressive tradition well (it is fascinating that his father was a Bull Mooser!), Nixon pioneered methods to challenge it. Flattered by Daniel Patrick Moynihan to view himself as the Disraeli of America, Nixon was more of a “Third Way” politician in the vein of Bill Clinton than the sort of right-wing populist that Ronald Reagan edged toward and Donald Trump embodies. But the Nixonian appeal to the silent majority—and to not-so-silent conservative Democrats in the South and small towns—and to the cause of law and order certainly helped pave the way for the political environment of today, and for what some (on the Left and the Right) are already calling the Era of Trump.
As I note in my essay, I have not joined the chorus of the condescenti who denounce polarization. Even though it may resemble rubber-necking at a terrible car wreck, the current engagement of the citizenry is preferable to the ennui of administration that seemed to have taken root by the early 1960s. Still, we should be troubled by Portteus’s claim that there is no common ground in American politics. Even during the darkest days of the Civil War, Lincoln never gave up on the proposition that most Americans, even those under the spell of slave hounds like John C. Calhoun, were part of a Union forged on the principles of the Declaration and Constitution. An intractably fractured nation, as Pitney warns, is vulnerable to demagogues—to those who presume to be champions of people only to betray their interests.
One might describe the rise of social democracy on the Left and of populism on the Right—the breaking apart of America’s “vital center”—as the Europeanization of American politics. Yet the United States has become an exporter rather than an importer of illiberal politics. Speaking at an unprecedented meeting in Germany of Europe’s right-wing populist parties whose leaders had convened to celebrate Donald Trump’s inauguration, France’s far-right presidential candidate Marine Le Pen called on European voters to “wake up” and follow the example of American and (referencing Brexit) British voters. “2016 was the year the Anglo-Saxon world woke up,” she enthused, “I am certain 2017 will be the year when the people of continental Europe wake up.”
With such friends, who needs enemies. To distance ourselves from such dangerous populist authoritarianism—to regain America’s place as the lodestar of liberty—the nation’s leaders, even as they engage in a heated contest for the soul of democracy, must rediscover the core principles that bind the country. Loathe to finish his First Inaugural amid the fracturing of the Union, Lincoln’s peroration still rings true to me today.
We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.