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The Constitution’s Ugly Win

One need not see President Trump’s impeachment and trial as Congress’ finest hour to recognize it as a respectable moment for the Constitution. The House may have acted hastily; the Senate may have prejudged the case; both bodies may have dug into partisan rather than institutional trenches. But the architecture of the regime worked in its most basic function of refining and enlarging—which entails ultimately respecting—the public’s views.

The Constitution’s purpose is not to do perfect justice. It is to combine the principle of deliberate majority rule with accommodation of intensely held minority views. There is a reason the nation’s Latin motto is e pluribus unum (“from many, one”), not fiat justitia ruat caelum (“let justice be done though the heavens fall”).

In the end, the Constitution is a mechanism for enabling the people to govern themselves without coming apart. That entails an underlying ideal of majority rule but also institutions that encourage accommodation of political minorities. If America is going to remain polarized, and all indications are that it is for the moment, we had best start learning to respect both principles.

James Madison did. The most fundamental way he respected his core principle of majoritarianism while encouraging respect for minorities was to harness the power of conditions and institutions that caused people to stop and think before acting. The separation of powers, which puts a brake on legislation, was one of these. So was the size of the country in an age of slow communication. Madison believed these constitutional pauses would allow passions to disperse and reason to take hold.

Meanwhile, constitutional devices that are often derided as undemocratic—such as the Electoral College and the equality of large and small states in the Senate—serve the purpose of helping to accommodate those who are not part of a raw majority.

For Madison, this was a matter of national survival. The cohesion of the original 13 states was necessary to maintain the new nation’s independence from a still threatening Great Britain. Today, the country is secure, but cohesion serves the purpose of maintaining what Abraham Lincoln called “the mystic chords of memory.” With Democrats and Republicans ideologically separated but geographically interspersed, it behooves us to find ways to get along. If patriotism does not impel us to work with political minorities, self-interest might: Those who belong to a narrow majority today, as opponents of President Trump temporarily do, might stop and ask how they would fare as a political minority in a system without the protections they now decry.

The process of impeachment requires Congress to connect this respect for the majority will—the House, Federalist 65 says, accuses in the name of “the people”—with the accommodation of political minorities. Importantly, impeachments are so convulsive—and convulsion is so contrary to the aspiration to national unity—that a president can only be removed by an overwhelming margin that clearly includes both a large majority and enough of a minority to reconcile dissenters to the result.

This representative function of the Constitution—its ability to register what the people want in a way likely to keep the nation together—is its fundamental purpose. It cannot guarantee just results in every individual case, only a tendency toward justice that grows with time—what might be called quantum constitutionalism.

Polling on impeachment registered a fragile majority for Trump’s conviction and removal. That majority, however narrow, is itself notable. Senator Susan Collins could not have been either serious or sincere when she said she thought the impeachment had taught Trump a lesson, a notion he promptly repudiated. Still, the public majority that favored his conviction might serve to clip the wings of future chief magistrates. Trump’s actual removal was not necessary to do so, especially given the bitter divisions among the public.

This problem of a close majority that seeks to remove a president compared to a smaller but at least equally intense minority determined to keep him reflects a variation on what Willmoore Kendall and George W. Carey called the “intensity problem”: What if a narrow majority has a loose preference for something the minority vehemently opposes?

Generally speaking, if such a group wants to stay together, the minority should be accommodated. The challenge in the case of Trump’s impeachment is that both sides felt intensely. But the majority for removing him was never large enough to reconcile the minority to that result. Any process that leaves a substantial proportion of Americans feeling strongly that a coup has been affected—no matter how wrong their constitutional reasoning about impeachment may be—is not one for which the constitutional system was designed.

In that sense, the Constitution won ugly: It achieved what it should—the accommodation of intense minority views—despite the antics of members of Congress who rushed or prejudged the case or, worse, accepted without comment the absurd claim that impeachment requires a literal crime.

The frustration pro-impeachment Americans feel is rooted in an understandable desire for abstract justice. Trump was guilty, the logic goes, and so his acquittal was unjust. But impeachment is a political device, not a juridical one. It invariably does and should involve political judgments not just about whether an act was committed but also about whether removal from office is prudent. And while the Constitution’s preamble aspires to “establish justice,” its other ambitions—“domestic tranquility” among them—are not always compatible with justice pursued to the utmost.

There is, beneath all this, a warning: For Madison, it was in the majority’s interest to accommodate the minority because he assumed coalitions would shift from issue to issue. That chastens winners, who know they may soon be in the minority, and it salves losers, who know they fell short today but may prevail tomorrow.

Because Madison’s assumption appears to rely on flexibility, polarization challenges it. If party labels describe immovable commitments that cut across most major issues and prevent coalitions from realigning as issues change, the Madisonian logic begins to erode. If these overbroad coalitions harden geographically into an urban-rural divide, the result—which Madison predicted when he noted that the real divide in America would not be between large and small states but rather between northern and southern ones—can be disastrous.

There are no issues dividing Americans today of either the intensity or moral gravity of enslavement. Nonetheless, if last week’s acquittal was a moment when the Madisonian system performed as it should, it is also a call to Madisonian healing.

Magnanimity is not Trump’s strong suit. Neither is introspection. But we do not always have to look to presidents for healing. Perish the thought, we might even look to ourselves. To that end, Trump’s partisans can begin listening to why his critics dislike him so intensely, while the president’s critics can examine their condescending treatment of his supporters as rubes. This constitutional moment resolved itself. There is never a guarantee of future success.

Reader Discussion

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on February 14, 2020 at 06:59:33 am

Yada, yada, yada!
Sounds like Ben Sasse trying to sound like a man of wisdom.

Talking in a voice one does not possess sounds as authentic as Lunch Bucket Biden in South Carolina this week mimicking Hillary's African-American dialect.

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Fustigate Plumply
on February 14, 2020 at 07:28:07 am

Even if no crime was committed, there would still have to be some clear evidence of foul play. None was shown. I have no skin in the game and really just want as much chaos in US as possible, but the whole process was ridiculous. The author assumes too much and builds statements on those assumptions, as if he didn't follow the process at all.

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Boris
on February 14, 2020 at 08:56:09 am

Perhaps I was caught unwitting; however, Professor Dershowitz’s parsing of the grammar was persuasive: “and other high crimes and misdemeanors “ fits in a string with bribery and treason, meaning the Constitution is listing a group of similar crimes, not listing an assortment, some crimes, others not. Mr. Weiner’s implication that Mr. Dershowitz’ argument is “absurd” is lacking totally as a counter argument, both as to grammar and as to the extensive legal history for this interpretation presented to the Senate.

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Eric Ressler
on February 14, 2020 at 09:38:41 am

No, actually, Weiner is simply trying to assure his continued presence on National review Online blog and maintain good standing with the Never Trumpers.

Also, Weiner may want to recheck his polling numbers. Last, I noticed a majority disapproved of the "sham-peachment."

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Guttenburgs Press and Brewery
on February 14, 2020 at 11:20:58 am

"...Perish the thought, we might even look to ourselves. To that end, Trump’s partisans can begin listening to why his critics dislike him so intensely"

Perhaps, Weiner can help us *listen* by providing his reasons for his present (and ongoing) discomfit with The Trumpster. Over the course of the last three years, I have heard nothing other than Trump's lack of "civility", his, admittedly, at times intemperate comments /Twitter feeds.
And for this, we are to accept Weiners constant castigation of a man that has not been shown to have either shirked or violated his constitutional duties.

Even his critique of the Judiciary has been followed by a willingness to COMPLY with some rather "tenuous" legal determinations.
Are we to accept the Establishment Policy positions on Foreign Affairs such that we are to deem him guilty of malfeasance, or worse in the Ukraine matter. "Listen" to the arguments put forth by the Establishment Foreign Policy actors. Was it not clear when they admitted that The Trumpster did not agree with "established" policy positions / doctrine? Ambassadors and other APPOINTEES" were distressed that someone would challenge the established consensus. And we all know how well that consensus opinion has served this nation.

Guess what? They ALL serve at the pleasure of the President.

In the past, I have had occasion to fire subordinates who refused to follow policy. How many others have done this very same thing? The decision by The Trumpster (and myself) may have been incorrect BUT... it is THE decision and corporate or Departmental unity of purpose is essential to efficient functioning, not to speak of the viability of attaining the objective.

So help us listen, Prof. Weiner. Other than being afflicted with a Queens, New York dialect / tendency to rebuke those who attack you (recall Give-em Hell Harry), what has The Trumpster done that warrants such constant criticism?

I am (and have been) listening.

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gabe
on February 14, 2020 at 11:32:08 am

And then there is this from todays LLB transcript of a discussion between Richard Reinsch and Christopher Caldwell:

"Richard Reinsch:
And then we move into Barack Obama. You know at one point in the book, he was constantly defining what it meant to be an American by progressive standards and suggesting that if you disagreed with him, you’re in effect disloyal and that he enjoyed playing with fire that way, I thought that was interesting.

Christopher Caldwell:
I think that the key thing about Obama is that he’s the first president to really understand this new way of delivering rights, this civil rights’ model of government action as being a new constitution. And he said so even, I think quite explicitly in his Second Inaugural address when he paid tribute to Stonewall and Seneca and Selma, basically gay rights, women’s rights, civil rights.

Richard Reinsch:
As expressing the core of American citizenship. Barack Obama, in my mind, the way if you watch him proceed, it was always to drop little bombs on his opposition in the expectation that they would react or maybe not react, but understand that they were not included and that they were a part of the past. You note in the book, just because people might be afraid socially to express opposition, there was a lot of opposition to what he was doing, but opposition doesn’t necessarily go away because it’s made politically incorrect, it smolders and waits and then comes out at a certain time, an opportune time."

Weiner would have us accept this "uncivil" behavior from Obama but not The Trumpster.
On the contrary, Trump's "twitter" strategy, and it IS a strategy, is the response AND a much needed and welcomed response to the decades long practice of the Proggies of "shaming" all who disagree with them.

I'll take The Trumpster, thank you as will millions of other newly minted second class citizens.
Could he be better? Of course?

Then again, I do not subscribe to the fantasy that our elected official either are, or must be Grand Orators, and the perfect embodiment of the "aristoi" of whom Jefferson remarked.

I have news for you. The modern "aristoi", aka, the elites" are lacking in the most salient virtue of those earlier elites - a sense of "noblesse oblige." Current aristoi are concerned primarily with themselves and their own ambitions.
The Trumpster, at least, is transparent - unlike our Proggie friends.

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gabe
on February 14, 2020 at 13:43:12 pm

Always a pleasure to read Professor Weiner's patient, thoughtful, and humane work.

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Peter B. Josephson
on February 15, 2020 at 15:13:31 pm

Gabe,

I do not pretend to speak for Professor Weiner, as I am sure he his quite capable of addressing your reasonable questions on his own. Nor will I aver any deep analysis of his Essay, as my thoughtshere are first impressions based on my reading of his essay this morning. I will however, suggest what I think is relevant to your question.

My sense is that, if Professor Weiner were to provide an abstract to his Essay, it would read "Just because you were acquitted, don't think we aren't still unhappy with you, Buster!" Professor Weiner's thoughts seem to drift with a kind of Brownian motion, alternately confusing and substituting various concepts without frankly declaring basic principles. A few examples:

1. Professor Weiner declares "The Constitution's purpose is not to do perfect justice. He" then informs us that "impeachment is a political device, not a juridical one." He describes the tension as between "abstract justice" and "prudence." Professor Weiner does not mention the far more significant difference, i.e. that judicial processes seek to minimize the effect of biases on outcomes, where political processes seek to turn biases into outcomes. One would not expect an allegorical representation of politics to wear a blindfold.

2. We are told that "undemocratic" institutions, like the Electoral College are, in effect, a sop to "intense" minorities, a pragmatic compromise that Madison made in preference to principle. We are not told how Electoral votes are to be allocated on the basis of intensity. Does Montana's presence in the Electoral College vary with intensity?

3. We are also told that Madison had a plan for "allow[ing] passions to disperse and reason to take hold." We are left to our own devices to decide if there is a difference between intense minorities and merely passionate ones.

4. We are told that that Democrats and Republicans are "ideologically separated but geographically interspersed," and somehow this interspersion is accommodated by undemocratic institutions such as the Electoral College and equality of representation in the Senate. This of course makes no sense and serves only to provide a basis for insinuating that Trump's acquittal had more to do with the quirks of a Constitutional union than his fitness.

5. In a similar vein, Professor Weiner cites "polling," as though this were some sort of Constitutional mechanism that received short shrift from fevered political operatives. One need only look at the polling fortunes of the current Democratic crop of candidates, the accuracy of polling one, two and three months before an election, etc., to see that polling is a mechanism for measuring not necessarily conviction but also sentiment, whimsy, emotion, and any number of other factors that make marginal entertainment but decidedly bad policy. The fallacy is that what a person tells a pollster regarding short term, and often transient impressions is representative of more established values. This fallacy has no role in "justice," abstract or otherwise. It is also a shoddy basis for Constitutional procedures such as impeachment.

There are more, but in the interest of brevity, I shall defer them. As to your question, I think that a lot of Never-Trumpers are offended by his apparent disregard of the traditions of the office. There is an arguable sense that, in important ways, style is substance, that boorishness in tone or manner in the executive is corrosive to more fundamental principles. Conservatives in particular are protective of traditions and institutions whose legitimacy entails a certain degree of dignity, and a practical measure of manners. I don't think that these concerns are frivolous, but I also do not think they originated with Mr. Trump. There appears to be a popular affinity for the "man of action," who makes a spectacle of defying customary norms, whether this is Trump, or Duterte or Bolsonaro or Farage. The disquiet among conservatives also arises from a recognition of the perils of populism, and among a certain portion of the commentariat, exemplified by Bill Kristol, becomes obsessive. I think there is at least an argument to be made that Trump's successes should not be used as an excuse to sweep away established norms of dignity, civility and manners. I also don't think this argument justifies sacrificing more consequential institutions to which Mr. Trump is favorably disposed, just to get rid of him or "teach him a lesson."

Again, these are initial impressions. I am open to other views.

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z9z99
on February 15, 2020 at 18:46:06 pm

Well said, gabe.

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QET
on February 15, 2020 at 20:07:31 pm

Trump was prejudged by the House long before he was formally impeached. By the House, I mean Democrats, and by Democrats, I mean all committed anti-Trumpers--political office holders and thousands of ordinary folk--who began calling for his impeachment on the morning after he was elected. The Internet is an interesting phenomenon. Because all matter published on it is eternal, most people, having once unequivocally committed themselves to a position on it, are compelled to reaffirm that initial position constantly; to double-, triple-, quintuple-down on it. So many people--not just "prominent" persons but nobodies like the rest of us--publicly committed themselves to an incorrigible Trump hatred on November 9, 2016, if not before, that walking that hatred back as time demonstrated he was not the Antichrist foretold in progressive scripture was simply beyond possibility.

Everything that has followed that initial mass denunciation of Trump has been just so much ballast to keep the S.S. Anti-Trump from capsizing in the Reality Sea. The absurd impeachment (and BTW I always thought the GOP impeachment of Clinton was equally absurd) is nothing more than ballast. Attempts like Weiner's and those nincompoops at Reason to impute a Constitutional Moment to it, to present it as some kind of poultice for healing our diseased separation-of-powers organon, are rationalizations par excellence.

I don't have to listen to Trump's "critics" to know why they dislike him so. I can't shut out their din. Their so-called reasons are nothing more than psychic defense mechanisms, protecting their egos from the assaults of their ids, their deep-seated neuroses. These people cathect everything Trump and they have cracked under the strain.

While I frequently criticize the dogmatism of Reason, they did publish a wonderful article last year by Emily Yoffe on the psychic underpinnings of the HashTag-Me-Too phenomenon. In a nutshell, it is a "moral panic," just as is the anti-Trump phenomenon. Here is the relevant paragraph from Yoffe's article:

In their book, The Coddling of the American Mind (Penguin Press), Greg Lukianoff, president of the Foundation for Individual Rights in Education, and social psychologist Jonathan Haidt write that moral panics are situations "in which a community becomes obsessed with religious or ideological purity and believes it needs to find and punish enemies within its own ranks in order to hold itself together" (my emphasis). Such search and destroy missions can be ecstatic experiences. Quoting a founder of sociology, Emil Durkheim, they write that groups can provide a "collective effervescence" when individuals come together and achieve a feeling of oneness.

This perfectly describes all Anti-Trumpers of whatever nominal political stripe.

Dave Chappelle, who I have lauded in these comment pages, perfectly illustrated the Trump moral panic phenomenon in one of his Netflix specials when he said: Because I have never felt more American than when we all hate on this motherfucker together.

And if one wants additional evidence, put on the first episode of World at War and listen to Werner Pusch describe the "bubbling pot" he felt the urge to jump into.

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QET
on February 15, 2020 at 20:47:28 pm

A thoughtful sequence, z9z99 (what does that moniker mean, anyway?), but your last paragraph's concern with "established norms of dignity, civility and manners" to me simply highlights the essentially aesthetic basis for the prevailing anti-Trump sentiment.

Isolated from his Twitter-ready rhetoric, Trump's policies, whether one agrees with them, thinks them sound, or not, are well within the historical US political consensus. Many prominent Democrats for years ran on a tariffs platform, and the issue with mass unauthorized immigration from Mexico and Central America has been with us since the 1980s if not before (there was even a bipartisan "comprehensive solution" to it in 1986 that solved nothing, sort of like how socialism has failed in each place it has been attempted). The politics of today's Democrats are many more standard deviations from the "established norms" of US politics than are Trump's.

Ah, but Trump is Falstaff when what our media elites want is Henry IV. Usurp authority all you like, just be sure to do it in the accent of a Lancaster.

FDR was certainly mindful of the established norms of dignity, civility and manners of the presidency when he hid his wheelchair from public view. Ditto JFK and his back pain-induced limp. Clinton was notorious for his rages and tantrums, his foul-mouthedness; he just kept them from public view and, as with Kennedy, the media was not inclined to report them. Trump is, aesthetically, rather like Cromwell: we see him warts and all; but it is his Democratic predecessor and all of his putative Democratic successors who are Cromwellian in substance ("Necessity hath no law"). As we all know, not one journalist or editor has been disappeared, enemy of the people though he is proclaimed on Twitter to be; but Democrats talk openly of imprisoning (and in the UK they are actually imprisoning) all who utter the latest political impieties.

So I think you and everyone else aghast at Trump's rudeness should reevaluate the significance of the purely aesthetic in the political universe of 2020.

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QET
on February 15, 2020 at 22:07:20 pm

QET,

You misunderstand my last paragraph. I am not advocating a Never-Trump position, I am trying to explain it based on observation. The observation is, incidentally, not confined to Professor Weiner, but also considers the opinions of other commentators whose conservative credential are otherwise intact. The implied assumption of your last sentence, that I am "aghast" at Trump's rudeness is simply mistaken. I am not convinced however that their quarrel with the President is merely aesthetic. For some, I suspect that you are correct; for others I think their Ahab-like obsession has veered off the rails of good-faith disagreement into the realm of pathology. But there is another group who do, in fact believe that conservative principles of decorum are essential to conservative principles in general. National Review has a section helpfully entitled Books, Arts and Manners. I perceive that some conservatives believe that Trump's behavior discredits more substantive conservative principles, even as his official acts seem to vindicate them. They seem to argue that trading off conservative values in discourse is a slippery slope to abrogating others down the road. I mention this in response to Gabe's question. I can see where principled conservatives, perceiving a existential struggle, would be baffled as to why others who should share their larger goals instead seem to be abandoning the field over points of style. But I can also see a great many people who wholeheartedly support Trump taking the fight to the progressives while also wishing that he show a little more tact. Maybe this is unrealistic, a case of having one's cake and eating it too, or complaining that the firefighters did not wipe their feet when entering the home to extinguish the grease fire in the kitchen. I will not venture a verdict on the matter, but only remark that I find it interesting that a certain population of conservatives are so put off by how Trump does something that it does not matter to them if that something is otherwise good or bad.

As to your other observation, we are in agreement. I think that perhaps the greatest weakness of Professor Weiner's essay is the lack of comment on the political origins of the recent impeachment. He seems put out that a process with a political origin reached an "imperfect" result because of politics. It seems not to have occurred to him that the result was, in fact the correct one, and that any other outcome might be far uglier.

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z9z99
on February 16, 2020 at 00:25:57 am

Another thought occurred to me as I was beginning my daily, by which I mean bi-weekly, workout. There is a popular notion that culture precedes politics; that political discourse cannot only be focused on contemporary doctrines but must be mindful of the cultures in which they circulate. It may thus be the case that certain conservative objections to Trump are not ideological, or even aesthetic, but cultural. Some conservatives may see support for President Trump not as a tactical advantage but as a strategic blunder. I think this may explain some of the navel-gazing over Trump's support among evangelical Christians.

I think it plausible that conservative opposition to Trump is heterogeneous, with rationales varying from person-to-person and perhaps day-to-day. Some rationales may make more sense than others, and some probably make little sense at all. I would allow four possibilities that apply both to conservative support for and conservative opposition to Trump, with respect to conservative principles:

1.) Support (or opposition) is both tactically and strategically prudent;

2.) It is tactically smart and a strategic blunder;

3.) It is a tactical blunder but strategically smart;

4.) It is both a tactical and strategic blunder.

Frankly, I don't think anyone can say for certain which of these is true. I would also suspect there is another possibility: "I don't care if supporting Trump makes sense or not; I just don't like the guy."

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z9z99
on February 16, 2020 at 01:02:57 am

Z:

(This is odd. I have had three posts on this thread blow up on me. I will try one more).

Curiously, as you referenced culture, I just finished a movie "Peterloo) a historical (such as they are) drame centered around the Corn Riots in early 19th century England.
What struck me is that the "villians", i.e., wealthy, magistrates, Crown, etc all presented themselves as highly cultured, patriotic and the defenders of what was both culturally and politically proper.

One wonders whether the same self serving, self enhancing estimates of ones own cultural (political) preferences as was evidenced by the British elites of 1817 were a) as wrong as may be the estimates of our present elites / defenders of political propriety and b) how much of it may be likened to the apparent self-interest of our earlier elites?

Then again, is there not a disdain, evident in the intelligentsia / academia for anyone who is not quite so articulate / clever as are they. Clearly Trump is not so erudite as are the Weiners, Kristols and Wills of the world. This, to their minds, should be sufficient to condemn him for FINALLY implementing many of the policies that they had "cried in the wilderness" for over several decades.

As for me, were Trumps Twitter barbs on a par with some famous Churchillian insults, I would be quite satisfied. But Trump is a builder,not a poet, painter and majestic writer. Builders are subject to ridicule, not poets. I accept that - along with his accomplishments.

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gabe
on February 16, 2020 at 11:08:45 am

Well, Gosh, now here is a different take on Trumps tweets from our Ambassador to Germay, Richard Grenell:

"On Saturday’s broadcast of the Fox News Channel’s “Cavuto Live,” U.S. Ambassador to Germany Richard Grenell stated that President Trump’s tweeting makes his job “so much easier” and “I like having a president who’s willing to be very tough.”

Grenell said, “It makes my job so much easier. We as diplomats have to be at the forefront of trying to solve problems. You don’t want to have a war. You want to avoid war, which means diplomats need to be able to talk. If you want to really solve problems, you better have diplomats who are really tough, diplomats who know how to push and know how to cajole. Because the alternative is to transfer the file over to the DOD. So, I like having a president who’s willing to be very tough. Look, we can also talk about whether or not the style of the president works. I think $400 billion in new defense promises for NATO members is one surefire way to point to the fact that the president’s style has worked.”"

It apparently works!

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gabe
on February 17, 2020 at 09:31:57 am

Sorry if I misunderstood your statements. While I do often wish that Trump were more tactful (a friend once quoted someone's, can't recall who, definition of tact to me: the ability to make a point without making an enemy; judged by that standard, I have no more tact than our president, unfortunately), I am equally often trying to decide whether Trump's tactlessness is one of his strengths. While we might not desire all POTI to have Trump's manners, it is not obvious to me that in this time period his rudeness is not an effective catalyst for his policies, especially his foreign policies.

Regardless, if, as you suggest, decorum--humility, grace, gentility--ranks among the principles that professional conservatives demand conservatism uphold, then I must part company with conservatives as political fox-hole mates. As I have said elsewhere, moderation is incapable of effectively opposing passion and belligerence. For 50 years, at least, we have watched the Left in this country actively, belligerently, passionately, shift the political center leftward, while professional conservatives did their best impression of the impotent Henry VI ("frowns, threats and words will be the war that Henry means to use"). It is high time that the right-of-center in this country prefer substance to form for a time until we can drag the political center back to a real, meaningful center position. Sometimes you have to beat your ploughshares back into swords, no?

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QET

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.