Why the Republic Can Hold

Richard M. Reinsch, II

Winter 2021

Almost from the moment it began, the year 2020 seemed to be building toward some terrible climax. We can barely remember it now, but in the waning days of 2019, the House of Representatives approved articles of impeachment against President Donald Trump along partisan lines, setting the stage for 2020 to open with the drama of a Senate trial. A partisan acquittal came in early February — and then things really got wild. The global Covid-19 pandemic, the consequent economic downturn, the police killing of George Floyd, and the subsequent protests that morphed into riots in many cities all left Americans with the sense that the country was spinning out of control.

These mounting crises brought out the worst in our elected officials. The Republican president appeared feckless in the face of the virus, as his reality-television model of the presidency ran aground when confronted with a real crisis. His efforts to talk the virus out of existence were almost as embarrassing as the willingness of other elected Republicans to play along for the sake of the president's mood. Progressive mayors, governors, and national politicians followed suit, proving worthless in the face of escalating violence and disorder, refusing to defend the property and safety of those living in their cities — supposedly their core constituency. Presidential candidate Joe Biden's fitful criticism of the summer's violent rioting fell largely on deaf ears, while his running mate, Senator Kamala Harris, didn't hesitate to visit a Wisconsin man shot by police during a domestic dispute as he appeared to be grabbing something from his car. She neglected to visit the two Los Angeles police officers hospitalized after being shot in an ambush attempt on their lives — an incident that occurred in her home state.

For many on the right, 2020 was also a year of mounting fear of cultural-political catastrophe, as the strength of the progressive grip on the commanding heights of American commercial, cultural, educational, and entertainment institutions became increasingly evident through a rolling "woke" revolution. For many on the left, the year saw rising fear of an authoritarian threat to our democracy, which seemed to point toward grave dangers for the election. Some kind of reckoning seemed imminent.

And yet, the year 2020 ended rather anti-climactically. The election proceeded with fairly little disruption, and although Trump and his most ardent followers refused to accept its outcome for some time, that outcome might have eased some of the worst fears on both sides. The public had rejected the president, albeit mildly and half-heartedly, while also denying Democrats the sorts of congressional majorities that might have enabled them to act on their more radical ambitions.

This was a frustrating outcome for many progressives, delighted as they were to see Trump lose. In recent years, they have come to realize that the actual barriers to progressivism's goal of a fully egalitarian order engendered by identity politics and rooted in global humanitarianism are the American nation and the constitutional government that orders it. As Joshua Mitchell argues in American Awakening, virtually every plank of the Democratic platform now aims at a kind of spiritual purity that transcends the capabilities and limitations of the federal government. These planks do not reflect a disconnect between the party and its base — on the contrary, according to a Politico poll conducted in June, close to a majority of Democrats support defunding the police, while 2020 primary exit polls found that between 47% and 60% of Democratic voters have favorable opinions of socialism. Views held by that many members of a party will not be ignored by its leaders.

Progressives want to construct a social-justice empire ruled by those the old America victimized while ignoring the giant constitutional and policy steps that have brought much of that victimization to an end. But can they achieve the breakthroughs their ambitions demand and their ideology grandiloquently justifies? Or are the highest ambitions of the left, and therefore the worst fears of the right, bound to be rendered moot by our governing institutions? Did 2020, that annus horribilis, somehow manage to end with a real cause for hope in our constitutional order?

A DOUBLE SEPARATION OF POWER

Perhaps no thinker better understood the barriers that a sober liberal-constitutional model can pose to political dominance, if not oppression, than the 18th-century French republican theorist Montesquieu. His dynamic understanding of power heavily influenced the framers of our Constitution — it was the "celebrated Montesquieu" they turned to in order to understand the need for the separation of powers as a barrier to tyranny.

In The Spirit of Laws, Montesquieu describes the dual-layered structure of separation and representation that prevents parties within a republican regime from dominating one another. The first layer incorporates the separation of powers, as embodied in the distinct branches of government. These branches — the executive and legislative branches in particular — have more or less equal power, and they frequently divide opposing partisans who compete for control of government. Once a party assumes control of a branch, partisans of that party attempt to wield their power in a given direction, while partisans of the other party in a separate branch push in the opposite direction. The separation of power among the branches thus prevents partisans from dominating one another to achieve their goals.

The second layer of this structure comes from our representative form of government. Society, like government, is itself divided among partisans who seek out and wield political power in service of their preferred ends. Yet their efforts to reach the objects of their desires through the representative branches of government tend, after a time, to be hindered by other partisans' essentially equal and opposite efforts within those same branches. Under such a system, citizens are forever scheming but ultimately unable to harm each other.

Why was Montesquieu confident that citizens under constitutional liberalism will divide into two almost equal opposing parties in this way over time? Pierre Manent provides an enlightening answer in his Intellectual History of Liberalism, where he identifies an additional layer of separation among the citizenry. The key to this separation lies in the fact that citizens are both partisans of government power and independent members of civil society.

In Manent's telling, as partisans of one party assume power, they will attempt to exercise that power to achieve their ends at the expense of the opposing party. Yet if they do so too forcefully, the more lukewarm partisans of the party — being not only government actors, but members of civil society — will begin to feel threatened. They'll wonder, if such power is left unchecked, what will prevent the more radical partisans from turning against them to further bolster their power. That worry will lead erstwhile partisans of one party to protect their own interests by lending their strength to the opposing party.

In sum, citizens have a two-fold interest: that the power of government serve their interest, and that it not weigh too heavily on society. They also have a two-fold sentiment: that the party they favor represent them, but that it also remain distinct from them, since the power of government could betray its partisans. The interplay of these two inseparable interests and sentiments guarantees that a portion of the citizenry will almost spontaneously help the weaker power in society. In other words, the people in a constitutional republic tend to react negatively to overreach and to punish the party that overreaches by withdrawing power from it. This kinetic model of politics ensures that, as the desire for political identification grows, alienation will occur in tandem, leading some citizens to grow suspicious of their fellow partisans and decide to form new allegiances and memberships on the opposite side of the aisle.

Manent argues that this regime produces a double impotence as well. First, the division of power between the branches leaves citizens generally incapable of doing much to injure or impair each other's liberties. Second, citizens can and will easily render a given party powerless by shifting their allegiances. Their old enemies can become their friends, at least temporarily, as they react against threats to their independence. This dynamic conditions citizens' political interactions with one another, upholding compromise as the essential driving force of republican constitutionalism.

For Montesquieu, this double impotence is the essence of liberty. It isn't the most beautiful ideal, but it's a durable one, and probably the best we can hope for in the modern republican state.

It's also what ultimately drives progressives to distraction. America's constitutional and policy processes are ordered to yield compromise between powers and parties as partisans come to realize their best course of action is to preserve freedom under the law and their independence from government power. Progressive ambition for bold social change experiences this arrangement as a source of constant vexation and failure: The system always stands in the way, and in key moments, the public seems always to fortify its resistance to change. Their frustration leads them to attempt end runs around the system through power grabs that undermine our constitutional order.

Forgetting the tendency of both the system and the public to react against political overreach can be very costly. It has been so particularly for Democrats, who have repeatedly failed to account for how their power grabs negatively motivate not only their immediate opponents, but also the least devoted members of their own coalition.

Such disregard for the consequences of overreach was on display during the early years of the Obama administration, when progressives became convinced they had secured power for the long haul. John Judis and Ruy Teixeira's influential 2002 book The Emerging Democratic Majority had argued that a racially diversifying America would likely be led by Democrats, while the Republican Party would be relegated to a rump regional party. In fairness, the authors claim that this is an overly simplistic reading of their book. But its underlying premise clearly shaped the Democrats' strategy at the time.

The Affordable Care Act serves as a particularly compelling example. Rushed to passage without any deliberation or compromise and bereft of Republican support, Democrats believed they could amend the legislation as problems emerged. They didn't account for one big problem: Voter aversion to the law was so substantial — their fear of losing a portion of their independence in civil society, Montesquieu would say, was so strong — that Democrats lost control of the House in 2010 and, with that, control over the law's implementation.

Or consider the party's approach to the federal courts. In 2013, owing to the pressing need to protect Barack Obama's regulatory agenda from frequent assault by Republican state attorneys general, then-Senate Majority Leader Harry Reid ended the filibuster for district- and appellate-court nominations. Reid needed to install federal appellate judges in open seats — on the D.C. Circuit Court of Appeals, above all — to counter the state attorneys general. But Reid lost the Senate in 2014 — and thus the power to install new judges — in part because of Obama's regulatory agenda, some of which had been pursued extra-constitutionally. As Montesquieu knew, fear of losing autonomy motivates political re-alignment, thereby creating unstable majorities.

The reasons behind Trump's victory in 2016 have been told, retold, and debated without end. But in this context, it is worth understanding that a President Donald Trump initially became thinkable because of the manner in which President Obama governed, which helped create the conditions for a new center-right coalition. Of course, Obama was not the first occupant of the White House to use expansive executive powers. But his distinctly energetic use of them drew a reaction, especially when coupled with his thinly veiled contempt for his opponents. He rubbed their noses in their losses from the beginning, bluntly telling Republicans that few of their ideas would appear in the 2009 stimulus legislation because "I won." He mocked Republicans a year later, noting that the GOP had "[driven] the car into the ditch" and was "[asking for] the keys back." Those dismissive comments, among others, sealed the ire of Republicans toward him for the duration of his presidency.

His 2014 comment that he would adopt a "pen-and-phone" strategy of executive rulemaking was a remarkably explicit assertion of power outside its constitutional confines. He pursued regulations beyond the bounds of existing legislation as well — by treating immigrant children and their parents in ways the law did not authorize and by granting companies exemptions to and deferrals from the Affordable Care Act's regulations, among other examples. Obama, his cabinet members, and his solicitor general also firmly indicated to religious conservatives that their institutions would increasingly become targets of federal harassment unless they accepted progressive sexual mores. Finally, enough citizens — many of them former Obama supporters — concluded that the party with executive power could no longer be trusted to protect their interests and freedoms. They soon rebelled, throwing their allegiance behind Trump.

But Obama's extra-constitutional regulatory maneuvering — a sure precedent for future administrations — and the sheer size and authority of the executive branch pose a profound problem for Montesquieu's confident view that the double separation of power enables modern republican states to withstand intense partisanship. What happens to Montesquieu's model when the two elected branches of government are no longer roughly equal in strength? What if the cause of that imbalance has been the corruption of the legislative power — its refusal to deploy its authority out of fear of political accountability?

As the legislative branch has willfully surrendered its power to the executive, its capacity to enable the balance our system requires has unavoidably diminished. This has led partisans to sense they must gain control of the executive branch in order to protect their interests, and that they must use this control not to counteract the legislature, but to overpower society at large. In the absence of an assertive legislative power, the very mechanisms intended to keep republican government in balance can turn against it, creating a dangerous political crisis.

A CORRUPTED LEGISLATIVE POWER

Our politics is now defined by the clamor for executive power. Over nearly a century, our legislature has created a vast administrative state that the executive can engage with limited accountability. There is little desire to use legislative muscle to challenge or retrench executive power. Citizens can now regularly find themselves under the binding judgment of the government, courtesy of the administrative state, without the protection of a legislature insistent on its own prerogatives that might guard their independence.

Does this mean that constitutional liberty is now doomed, that the "Flight 93" thesis should permanently guide conservative thinking? Michael Anton's 2016 essay held that our country would come undone if Hillary Clinton became president. To stave off this regime-level implosion, Anton argued for the necessity of electing Trump to the White House. True, Trump might fail, and the plane might still crash, but his election would give patriots a fighting chance.

Yet what if the proposed solution only made the problem worse? As president, Trump certainly accomplished several important objectives for conservatives over the last four years — on taxes, foreign policy, and federal judicial appointments. He also sparked astonishing amounts of opposition to his style and rhetoric. Perhaps nothing better epitomized this period in our politics than the first presidential debate in 2020, which featured a sitting U.S. president openly hectoring his opponent while the latter called the president a "racist" and a "clown." We seem stuck in a cycle of uncomprehending voices fighting for the opportunity to shove each other to the margins of political and social life. This tendency predated Trump, but it has grown worse during his time in office. Only a recovery of constitutional balance can protect us from the cultural, economic, and political power of the left.

That there is no easy way to achieve such a recovery does not mean that recourse to an out-of-control executive of our own is a solution. Making matters worse cannot be justified on the grounds that there were no easy ways to improve them. If the path to a solution requires clearing and paving, then that is the work we must begin — through a defense of the Constitution's balanced array of institutions and a revitalization of those that have decayed.

Progressives know full well that the Constitution's norms and divisions of power pose barriers to their Jacobin quest. Though the limitations on federal power have been steadily eroded, the constitutional foundations of representation are still tied to the Constitution's original objective of preserving the sphere of liberty. Among these foundations is the U.S. House of Representatives, whose members are not delegates from numerically equal districts across the country but representatives whose district boundaries are drawn within state lines through intense state-level politicking. Another representative foundation of the Constitution is the Senate, which permits sparsely populated states like Wyoming and South Dakota to equal California and New York in voting strength. The Electoral College, too, roots the president's electoral appeal not in a national popular vote, but in states and their dispersed regions and populations, ensuring that a potential president speaks favorably to a much broader variety of groups, coalitions, and citizens than would be the case under a majority-vote system. Los Angeles, Chicago, New York, and other large urban centers do not decide our presidential election. The system exists to sustain a balance of forces, not to empower simple majorities to rule.

Obama's striking remarks at Representative John Lewis's funeral in 2020 offered evidence of progressive frustration at these firm structural obstacles to the left's ambitions. The former president's calls for adding Puerto Rico and the District of Columbia as states and eliminating the filibuster, which he falsely labelled a relic of Jim Crow, are nothing short of an attempt to smooth the path to a progressive federal government without securing the consent of anyone but themselves.

Adding Washington, D.C., as a state would violate the Constitution and inherently enfeeble the operation of the federal government, as it would be surrounded by state land, the 68 square miles of the District reduced to virtually nothing. The abolition of the filibuster would allow the majority party in the Senate to run roughshod over the opposing party to accomplish radical legislative measures. Incessant calls from leading Senate Democrats to "pack the Court" in response to President Trump's three Supreme Court appointments added another troubling layer to the drama of progressive empire building. As a candidate, Biden only belatedly and half-heartedly backed away from these threats.

These ambitions were largely thwarted by the outcome of the 2020 election, but they were not permanently shelved. Far from it. The left's frustration persists, and as progressives are forced to put aside their plans under a divided government, their impulse to overturn the constitutional system's restraints against despotic ambition will only intensify.

THE CONSERVATIVE FUTURE

The only path forward for conservatives will be to grow their party and their power in government — within our constitutional framework. Montesquieu's articulation of our dual membership as partisans and free citizens can help guide this process of coalition building. Democratic overreach, rooted in frustration, could reinforce it, too. Along the way, conservatives will have to rebuild republican institutions, recognizing that the debate, delay, and compromise achieved within Congress and with the president is a perennial friend to anyone eager for social peace and political stability.

Conservatism will be populist in orientation, almost by necessity, for the immediate future. But populism does not have to be synonymous with economic nationalism, redistribution, protectionism, or a monolithic definition of what it means to be an American. Rather, it can simply mean speaking for the people.

A political program that is populist in orientation must first acknowledge some unsettling truths for conservatives. We are removed from control, or even much of a voice, in many key institutions that shape our nation. The incredible nexus of America's largest and newest corporations, tech entrepreneurs, and Democrats has produced a massive monetary-campaign edge for the party of the left. The Democratic Party is now a corporatist party, joining its business allies to the government on favorable terms. These same companies also fill the coffers of activist progressive groups; one might call it the price to be paid for stakeholder corporatism to work.

More troubling is that Facebook, Google, Twitter, and other social-media companies increasingly enforce an aggressive censorship mentality that tends to fall hardest on conservative voices. These same companies are tactically joined to the progressive ruling class, which exercises power even when it lacks control of the federal government. These companies' capacity to censor, shame, and even exclude conservative arguments and personalities can obviously channel conversations in certain directions.

And yet, the struggle for control of these institutions may not be the most important dynamic playing out in our politics now. A reaction against the left's excesses has begun to take shape, one that promises some surprising and more truly populist ways forward, even when it comes to the most contentious of the issues we face.

For example, promising signs that conservatives may partially de-colorize American politics have already begun to emerge. Nowhere was this more dramatically illustrated than during the 2020 election, when Trump's success with a diverse range of Latino voters in Texas and Florida indicated that the famous "emerging Democratic majority" thesis may no longer be received wisdom on the future of American politics.

The signs weren't limited to those states, either. According to Edison Research, in 2020, Trump received 32% of the Latino vote nationwide, up from 28% in 2016. He also received 12% of the black vote, up from 8% in 2016. His standing among Asians rose as well — from 29% in 2016 to 31% in 2020. The irony is that while Trump performed better than expected among minority voters in 2020, he still lost the election because he lost ground with white voters in the suburbs.

Though these numbers are based on preliminary data and thus subject to change, they indicate that members of black and Latino groups may be becoming more interested in the Republican message of patriotism, economic growth, the rule of law, and equality under law. We can understand this in terms of Montesquieu's dynamic working to the advantage of our constitutional system. Crucial portions of these voting blocs may be actively declining to understand themselves exclusively as racial-group members, if they ever really did; instead, they may be more inclined to see themselves as Americans who value having the space to pursue dignified lives for themselves and their families.

As a result, increasing numbers of racial minorities may no longer naturally look to the Democrats in lopsided fashion to represent them. This would go far in undermining a key progressive piety: that race and justice are exclusive provinces of the left. It would also do more for conservative ideas, the Republican Party, and, quite frankly, America as a whole than any policy package advocating economic populism.

The same dynamic is also becoming apparent in the policy realm. In September 2020, the group United Latinos Vote purchased an advertisement in the Los Angeles Times entitled, "Open Letter to the Sierra Club," which firmly rejected the green-energy policies of California's Democrat-dominated state government. The ad declared, "[y]our world is not our world." It went on to explain, "we are people who make tough daily choices about how to drive to work, feed our kids, share a video screen for school, and take our parents to the doctor. All these things are hard. Your world would make them only harder." To date, Latino advocacy groups have filed multiple lawsuits to limit green-energy policies because of their impact on the jobs members of the Latino population hold and the wages they earn. Should the Democratic Party under President Biden push a Green New Deal, they may well continue to lose Latino support. One wonders how well leading Democrats understand this tradeoff. Montesquieu would.

Meanwhile, progressives have increasingly embraced anti-racism and other offshoots of woke politics that accuse America of systemic racism — a largely indefinable term that stands for the proposition that racism in our country is an inextricable part of our institutions. In making these claims, progressives are tapping new ideological justifications for state power and the steady erosion of individual liberties. Our nation was built on race-based slavery, the New York Times' 1619 Project asserts, meaning racism is engrained in America's DNA. They tell us the problem is of such macro-level proportions that simple non-discrimination policies governing open and competitive markets and institutions will not suffice. Calls for a colorblind and equal society under the law are similarly inadequate; the only thing that can rectify these systemic wrongs is massive state action.

To disabuse citizens of the spirit of American constitutionalism, economic progress, and civic confidence, the voices of woke-ism relentlessly preach against our national history, demanding we disown our constitutional heritage. Tearing down statues and monuments is an open proclamation to America that our civic gods stand rejected.

Many Latino voters of Cuban, Peruvian, Colombian, and Venezuelan descent will immediately recognize this behavior for what it is: laying the groundwork for revolution. Still other Latinos will see the canceling, harassment, and political intimidation of those who refuse to cop to systemic racism for what it is: a despotic politics that makes democratic government nearly impossible. And they will want none of it.

According to Chuck Rocha, former senior advisor to Senator Bernie Sanders's presidential campaign, many Latinos view the appeals for justice from Black Lives Matter and other groups with sympathy, but they are averse to the violent riots that accompanied much of this rhetoric over the summer. Regarding the violence, Rocha notes that Latinos "are very susceptible to messaging around law and order, protecting [one's] family, because we live in rough neighborhoods lots of times and we want our families to be safe."

This observation ties into an emerging view that substantial numbers of Latinos are not making the crucial identity-politics move of seeing themselves first as people of color aligned against a dominant and antagonistic white oppressor. Rather, many Latinos think of themselves first as spouses, parents, members of the middle class, Christians, or Americans. As Geraldo Cadava, a professor of history at Northwestern University and author of The Hispanic Republican, said in Vanity Fair, "with Latinos in particular...they talk a lot about rising rates of homeownership, rising family incomes, low rates of unemployment. Their argument is that those are the things at the end of the day that matter." That sounds positively mainstream American — and mainstream conservative.

Of course, this doesn't mean Latino voters are anywhere near becoming movement conservatives. But it does suggest they see their stories and their families' stories becoming intertwined favorably with America writ large. It also suggests that a Democratic Party that endlessly caters to woke politics will rapidly lose its appeal to wide swaths of Americans of all backgrounds who want to become upwardly mobile. Do middle-class Latino families in Charlotte, North Carolina, see Representative Alexandria Ocasio-Cortez as one of their own, as someone who represents their future? Probably not. Her prominence may well enable their willingness to shift allegiances, at least temporarily (or maybe not so temporarily) to the Republican Party.

THE DYNAMIC BALANCE OF AMERICAN LIFE

Americans should recognize Montesquieu's notion that a constitutional republic predicated on the division of powers is never politically static; it is dynamic to a dizzying degree. That dynamism is the source of its stability and its appeal. Being dynamic doesn't mean it moves forward along a path laid out by progressive ideologues; rather, the system moves back and forth in response to overreach and excess, thereby sustaining the space for freedom and flourishing.

Should we Americans wish to live without our political hair continuously on fire, balanced, constitutional government is our best hope. Strengthening it will require a public willing to respond to a polity that leans too far in any direction by shifting its weight in the opposite direction — and we do seem to have such a public. But it also requires a system of government with elected branches that compete for control and so keep each other in check. This would require a recovery of the federal legislature. Indeed, the future of American constitutionalism depends on such a recovery.

Ultimately, our future also depends on recognizing that our way of life requires a moderate approach to power. It demands that we punish those who go to extremes in their uses of power. If neither Democrats nor Republicans can dominate the federal government, then the best option we have is for both sides to agree not to abuse each other with the power they do possess. Out of this promise might emerge a spirit of moderation, along with the recognition that what matters most isn't winning at any cost, but compromise in the service of protecting people's ways of life.

If our politics seems like it exists in a blender, it's because we keep fighting against the fundamental framework of republican constitutionalism — divided government, compromise, and the good of liberty under law in a vibrant civil society. We would do well to surrender that fight.

Richard M. Reinsch, II, is editor of Law & Liberty, host of Liberty Law Talk, and co-author with Peter Lawler of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty (Kansas Press, 2019).


Insight

from the

Archives

A weekly newsletter with free essays from past issues of National Affairs and The Public Interest that shed light on the week's pressing issues.

advertisement

Sign-in to your National Affairs subscriber account.


Already a subscriber? Activate your account.


subscribe

Unlimited access to intelligent essays on the nation’s affairs.

SUBSCRIBE
Subscribe to National Affairs.