Tags
21st century, democracy, Donald Trump, Han Feizi, Korea, law, Liz Truss, Republican Party, Thomas Hobbes, Tim Wu, United States, Yoon-Suk Yeol
When the head of state or government goes rogue, what happens next?
Consider the recent experiences of three countries where the top leader pursued an agenda far more radical than they had campaigned on, in a way that caused widespread panic. In South Korea, Yoon-Suk Yeol attempted to impose martial law, marking an attempted return to something like the country’s past military dictatorship. In the UK, Liz Truss attempted tax cuts so radical that even the business community hated them. In the US, Donald Trump is now attempting something like both: after having been blatantly caught trying to sabotage the election and encouraging a riot that sought to prevent a peaceful transfer of power, now he is not only claiming to be move toward an unconstitutional third term in office, he has also engaged in tariffs so drastic that the market’s reaction to them was even worse than to Truss’s cuts. (Trump is taking as much from the rich as much as Bernie Sanders would – just without giving any of it to the poor.)
But there is an obvious difference between the three cases: Yoon and Truss were removed from power within a few months after their drastic measures, while there is not the slightest sign of any such thing happening to Trump. And that should lead us to ask: why this difference?
There is a simple core variable distinguishing the cases, and that is the members of the leader’s own party. Truss left office after a rebellion within her Conservative Party; Han Dong-hoon, the leader of Yoon’s People Power Party, proclaimed: “The president’s martial law declaration is wrong. We will stop it along with the people.”
Now compare the United States situation. Referring to the riot on 6 January 2021 that cost multiple lives, Republican Senate Leader Mitch McConnell called Trump’s reaction “a disgraceful, disgraceful dereliction of duty” and said he was “practically and morally responsible” for the event; Republican Senator Lindsey Graham proclaimed, “count me out. Enough is enough.” But none of these senators actually voted to impeach him when such a vote happened after they made their speeches. And now with Trump back, while several Republicans are voicing public concern about the Trussian tariffs, none is yet willing to work openly to oppose Trump on them or any other issue, let alone remove him from office.
A major underlying factor in this is popular support – specifically in a small but strategically concentrated minority. Yoon’s popularity was already very low when he tried to impose martial law, and he had no loyal base backing him, so his party faced few consequences for his removal. Trump, however, commanded such loyalty from his faithful that he has made Republican politicians – even the ones who loathe him, which may well be most of them – terrified to challenge him, lest he back their challengers in a primary election. The problem is that those faithful are a small minority of the American population – likely no more than a quarter – but the politicians’ fear means that that minority can impose its will on the rest of us, with disastrous consequences.
All of this is a case study in how checks and balances actually work. The US teaches its children to be proud of its divided government, with a presidential executive elected separately from two congressional legislatures. The drafters of the constitution supposedly feared tyranny so much that they created this system to ensure power did not centralize too much. The experience of recent years strongly indicates that the founders failed in that task. The UK has no such separation, and yet it was able to oust a destructive leader in a way that the US was not. A system of checks and balances means nothing if it is not used by the people with the right authority at the right time.
Why? Because ultimately the law is the people tasked to make and interpret it and enforce it – and therefore, so is the rule of law. Human beings, including political leaders like Truss and Yoon, try to do crazy stuff all the time; the idea of the rule of law is that other parts of the system limit their ability to do so. But the most important limits on the leader don’t come from the opposition party. The opposition is always an easy sell on those limits; naturally they will be inclined to get rid of a government leader engaged in wrongdoing. But they typically don’t have the power to do that; that’s what makes them the opposition. It is the party in power that is another story. In practice, in times of crisis, every national political system winds up depending a great deal on the willingness of the party in power to put the national interest over party loyalty – a willingness that the UK and Korean right-wing parties clearly showed, while the US party did not. The biggest factor isn’t the formal division of powers; it’s the behaviour within the party holding the highest power.
This is not a particularly new insight; something like it was available in ancient China. Confucian philosophers correctly held it against the Legalist school of Han Feizi. The Legalists, much like Thomas Hobbes a millennium later, rightly understood that human nature easily tends to the dark, and thought that a powerful system of laws or a powerful sovereign could keep bad human impulses in check. But Hobbes and the Legalists got that solution wrong: overreliance on laws, let alone on a single sovereign, makes things worse, because the dark tendencies of the people in charge will have far worse consequences than the dark tendencies in those they rule. Confucians knew that no formal system is enough without some virtuous behaviour on the part of those charged to enforce it – the most important virtue in the present case likely being courage, a courage conspicuously lacking from the Republicans who refuse to back up their own pronouncements.
How do you cultivate such virtuous behaviour? Before the 6 January attacks, Tim Wu had rightly pointed out the need for an unwritten constitution, “an informal and unofficial set of institutional norms upheld by federal prosecutors, military officers and state elections officials”: a shared recognition that there are some things you just don’t do, irrespective of party. That unwritten constitution clearly came into play in the UK and Korea, but has not, so far, in the US – not this time. I suspect that the major reason for this is the US’s unfortunate reliance on the written constitution, on the scriptural text rather than on institutional norms. Even back in 2003, watching the Texas redistricting conflict, I remember being struck by a Republican politician defending their gerrymandering simply on the grounds that it was legal. There was no pretence of a larger purpose, any sense of national or state interest, let alone of morality; because we can was deemed sufficient. I could not think of any example of a Canadian politician ever saying something like that. That Americans would put up with such a rationale already struck me as a sign of a very unhealthy political culture – one whose unwritten constitution is far too weak. Two decades later, Americans are paying the price for it – as is the rest of the world.
Amod wrote:
Your two issues here seem right to me, as far as they go: over-reliance on, or excessive veneration of, the Constitution and insufficient extra-Constitutional norms and enforcement of them.
But I think there’s another part of the story that is worth mentioning, one that Aziz Rana recounts (from a left-wing perspective) in The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (University of Chicago Press, 2024). This is a story of how that over-reliance on a certain romanticized conception of the Constitution came to be during the Cold War, which Rana calls “the rise of originalist America”, resulting in an ebb of political will to improve the Constitution.
Americans don’t just need improved extra-Constitutional norms; they need an improved Constitution. This post admits that “the founders failed“, but the emphasis on informal codes of conduct in this post could be read as implying that the Constitution is not part of the problem. Such a reading would concede too much to Constitutional originalism, I think.
An example to illustrate the power of constitutional reform:
In the state where I live, the state constitution was amended after a citizen-led ballot initiative that effectively made gerrymandering unconstitutional. This constitutional reform can’t replace informal morality, but it takes away the partisan excuse that “it was legal”.
It may be that there is a common conceptual error on both sides of the issue, the constitutional and the moral. The error would be the assumption of the fixity of both sides: on the one side, that the Constitution is fixed and sufficient (or at least that it just has to be accepted), and on the other side, that morality (and “human nature”) is fixed and sufficient (or at least that it just has to be accepted), when in reality both sides can be changed through methods that are not the same, and that can’t be expected to produce perfect outcomes, but can be generally summarized as systemic transformation.
An improved written Constitution would certainly help – from the “right to bear arms” through the anti-democratic Senate composition to the absolute insanity that is the presidential pardon power, there is a huge amount that is wrong with it. But I don’t think the failure to improve it is primarily a matter of political will: the threshold required to change it is already so high that changing it would have been extraordinarily difficult even in a less divided time (say the early ’90s).
The point here is that even if the written Constitution were a better document, it would still be insufficient. The written constitutions of the UK and Canada are kind of a mess – scattered across a bunch of separate documents, in some respects going back to the Magna Carta. Canada didn’t even have a bill of rights until 1982. Yet that hasn’t led to the kinds of messes in governance that the US has experienced over the years, because there’s so much more of an acknowledgement of the proper role of the unwritten constitution.
“The point here is that even if the written Constitution were a better document, it would still be insufficient.”
I understand your point, but I’m not so sure that it’s the most important factor in the failure of Trump’s impeachment after January 6, nor could I confidently say how much political rot is constitutional rot or generalized moral rot (cf. Adam M. Mastroianni & Daniel T. Gilbert, “The illusion of moral decline”, Nature, 618(7966), 2023, 782–789). I am more inclined to blame that “anti-democratic Senate composition” that you just mentioned, given that impeachment in the U.S. is tried in the Senate.
In the bigger picture, I suspect that the robustness of the constitutional system is, or should be, more important than the robustness of the decision-making of a few people. “Which factor is more important?” is a very interesting question, though, that I would like to see a deeper analysis of.
I always feel a little torn on this subject.
On one hand, even as a fairly hardcore legal formalist, I can’t deny the fundamental truth that law is a state machine that runs on distributed human hardware, and that fundamentally affects the legal system in myriad ways, both for good and for ill.
Where I start to get uncomfortable is the lines of thought that start there, then conclude we should treat law like a realpolitik exercise in which the exploitation of those quirks of the distributed human hardware are at best tolerated and at worst celebrated. It doesn’t start with Foucault, not by a longshot, but he’s certainly the basis of the modern incarnation of this family of attitudes: there’s no meaningful reason that there should be “an informal and unofficial set of institutional norms” because those norms are just a morally-neutral-at-best (but in practice always morally repugnant because the powerful are somehow always bad) result of the powerful trying to entrench their power.
The norms you and I are advocating for have proven significant tangible benefits (see Acemoglu and Robinson, as well as the examples you cite) and weren’t arrived at arbitrarily or maliciously. Sometimes those norms don’t prevent all injustices, and maybe on rare occasion cause injustice, but I suspect (believe?) violations of those norms are responsible for far more injustices than the norms themselves. Maybe Foucault and the Crits are right to point out that the norms need some tweaking at times, but I think it’s a mistake to conclude we should abandon the Rule of Law project entirely.
This is where I feel personally stuck as a somewhat liberal-leaning legal formalist: On any given issue, I can turn left and hear “we can’t use the Rule of Law to defend the Rule of Law; it’s an artifact of white supremacist misogynist imperialism anyway so who cares?” or turn right and hear “Look at those lawless anarchists! We stand for order and procedural justice (except for everywhere that it matters to you.)”
And the liberal-leaning complaints about the right violating these sorts of norms usually come from people who’ve also said things like “Obama was elected with a mandate to do The Good Thing We Want, but the Republican Congress is blocking him. He should ignore the norms around legislating by executive order and just do The Good Thing We Want that way” and “Biden is trying to do The Good Thing We Want but the courts keep telling him he can’t. But they also say that the President can’t be criminally prosecuted for his official acts, so he should just do it anyway.” What’s an advocate for these sorts of norms to do?
Which I guess is all to say I fully support the project of establishing and enforcing these sorts of institutional norms to prevent abuses of power. I just don’t know where to turn to for allies in that fight.
Yeah, “the rule of law is only as good as the people who enforce it” does not mean “therefore it’s not worth anything”! It means you need to find ways to get people to commit to following it. The Confucian answer is about the cultivation of civic virtue, which does seem like a project that the US has been lacking in despite its education in formal civics. After long enough of all this, we might yet convince people of its importance.
I don’t have problems in principle with attempts to do things by executive order (including ones by the previous Trump administration) because the US system is set up to make it very difficult to do things by legislation. The big difference now is the attempt to make it so the legislative branch effectively can’t do anything at all: the executive defunding organizations that were set up by the legislature. The safeguard the US system is supposed to have is that legislators would step in in their own self-interest and assert their own power, but apparently the founders didn’t count on those legislators being too afraid of the tyrant to do so.
Tom, analogues of those extreme positions on legal issues that you identify with the left and right can be found in other subjects as well, such as morality, metaphysics, epistemology. People who hold such legal positions are likely to apply the same forms of thinking to informal moral norms as they apply to the law. It’s a general cognitive issue. That’s why I commented (in part) on Amod’s 2020 post “On civic virtue and unwritten constitutions”:
What I called in 2020 “a process of criticizing” is where I think it’s wise to put an emphasis. Most generally, the object of such criticizing is systems, whether psychological or legal or whatever.
So the “allies” you are looking for, I’d suggest, are people who advocate for processes of criticizing (i.e. rational deliberation) and for educating people in such processes (i.e. rational cognitive development), and you will find them in organizations such as the Deliberative Democracy Consortium (DDC) and the National Coalition Dialogue and Deliberation (NCDD). Rational deliberation applied to constitutions gives us deliberative constitutionalism, and applied to moral norms gives us moral philosophy, etc.
This is exquisitely timely. I habitually listen to news on public radio in the morning. There were three pieces on accountability/checks and balances this morning. Additionally, an older story on Trump’s opposition to offshore wind farms was rehashed. I did not know the whole story there before. Seems he had asserted that such wind power installations were, in his opinion, harmful to whales. I never knew he cared about whales! Anyway, the news person clarified by saying research had been conducted on the issue and evidence suggested the likelihood of wind farms being harmful to whales was, perhaps, ten percent. It was another instance of laying a claim, off the cuff, without knowing facts. Mr. Trump does that sort of thing, frequently. He enjoys bending rules and flinging exaggerations to emphasize his authority—old news, sure.
Insightful post, especially regarding the rule of law.