Whatever happened to the Republicans as the “party of law and order”? True, Richard Nixon, who first branded the party that way, was lying when he famously said, “I am not a crook.” Both Watergate and the Iran-Contra scandal rank among the most notorious examples of executive branch lawlessness in our nation’s history. But through it all, the narrative commitment to the brand never wavered. It was a source of moral and political strength, always to be contrasted with “soft on crime” Democrats, however contrary the front-page facts might be.
But not anymore. As noted here by Jennifer Mercieca, a historian of rhetoric whose book, "Demagogue for President: The Rhetorical Genius of Donald Trump" (table of contents here), will be published next year, it’s the Democrats who are the party of law and order in the impeachment drama, while the GOP is the party of conspiracy:
Democrats, led by Speaker Nancy Pelosi, are betting that public opinion will move toward impeachment and removal once more information is made public. To try to shape public opinion they are relying on a law-and-order frame that tells Americans that the impeachment inquiry is legitimate and legally justified.
Democrats are positioning themselves as the only ones willing to uphold the rule of law and the Constitution.
Republicans, led by President Trump, are counting on their power to frame reality to prevent the public from moving toward impeachment.
The GOP is relying on a conspiracy frame that tells Americans that the impeachment inquiry is illegitimate and part of a plot to destroy America.
Of course the rhetoric of conspiracy isn’t entirely synonymous with that of crooks and criminals — but when you start to insist that career law-enforcement officials are all in on it, and you’ve abandoned the “law and order” frame to the Democrats, the crooks and criminals stench is difficult to dispel. And it’s not happening in isolation, either — above and beyond the plethora of scandal Trump generates, and the lockstep support Republicans are giving him.
That lockstep support is perhaps the most striking difference between now and Watergate-a difference most readily understood via the role of asymmetric polarization and negative partisanship, which cautions us not to expect the kind of gradual but inexorable opinion shift seen 45 years ago in response to the buildup of evidence.
In turn, dramatically increased polarization is a predicted result of historical trends described by structural demographic theory (SDT), which I wrote about previously in October 2016, reviewing “Ages of Discord,” an analysis of American history by evolutionary anthropologist Peter Turchin. SDT identifies three underlying factors contributing to increased levels of political instability: mass immiseration (stagnant or falling wages, worsening health, declining well-being), elite overproduction (increased competition for wealth and power), and fiscal distress (a product of both public debt and trust in public institutions). Mass immiseration helps fuel elite overproduction, since stagnant or falling wages leaves more money for elites, and the increased competition that results reduces broad cooperation and intensifies elite fragmentation (which also contributes to fiscal distress). In America, political polarization is a prime indicator of that fragmentation.
The fact that polarization has been asymmetric deserves special attention, as it’s not yet implicated in SDT. But it can be credibly explained. In "The Authoritarian Dynamic," Karen Stenner presented compelling evidence that expressed intolerance resulted primarily from two factors: an innate predisposition to intolerance, demanding obedience and conformity, (“authoritarianism”) interacting with increased societal threat, particularly dissension in public opinion and loss of confidence in political leaders. Thus, there is both a logical reason for the expression of authoritarianism to increase as political instability rises, and motivation for either authoritarian or opportunistic elites to strategically manipulate conditions to intensify this process.
One can read “The Long Southern Strategy” (Salon interview with co-author Angie Maxwell here) as a coherent history of how GOP-affiliated elites have pursued just such a strategy over the past 50-plus years.
“Authoritarian attitudes peak not only when social conditions change, but also if folks are made to feel like social conditions are changing (even if they aren’t),” Maxwell said. “The threats are recycled, renewed with a sense of urgency, stoking a fire that is always smoldering. It isn’t a natural rise in authoritarian attitudes, it is an orchestrated rise in authoritarian attitudes.”
SDT suggests that it may be both, but without the orchestration it would be much more manageable, and much less prone to produce lawless behavior.
One can also view conservative legal activism as a key component in that process, as well as a profound influence on elite politics as a whole. At the time of Watergate, authoritarians were more evenly divided between the parties, but they’ve become much more concentrated in the GOP since then. As their experience of threat has risen, they’ve become more inclined to lawlessness — although it's not tolerated on the part of others, of course!
In short, the lawlessness at the top of the GOP isn’t new — just vastly more blatant than it was during Watergate. But the infrastructure supporting, defending and excusing it is dramatically more powerful and robust, and the authoritarian mass base is much more consolidated within their voter base.
Aside from impeachment itself, three other developments this month underscores the GOP’s broader embrace of lawlessness, in contrast to its decades-long self-branding. First, there is Trump’s pardoning of three war criminals, burnishing his brand of support for official lawlessness and thuggish brutality. He may mistakenly believe this endears him to the military — which wants nothing to do with them — but it's also meant to hype authoritarian support among his most rabid supporters.
Second, his Roy Cohn-style attorney general, William Barr, delivered a widely criticized authoritarian screed to the Federalist Society, portraying the impeachment inquiry as dangerous to the rule of law, rather than warranted by Trump’s self-professed crimes. Third, legal scholar Steven Calabresi, chair of the Federalist Society's board of directors, wrote a pair of opinion articles accusing Democrats of violating Trump’s rights, one of which, according to Steven Mazie, the Economist's Supreme Court correspondent, "reads like the first draft of an op-ed by a MAGA middle-schooler who was inspired by Jacob Wohl's erstwhile Twitter account.”
The combination of Trump’s blatant endorsement of lawlessness and the double-whammy high-profile embarrassments of Calabresi and Barr reflects something much broader and profoundly troubling. The latter two offer striking indicators of just how seriously this is impacting establishment conservatism, in a way that can't be fobbed off on Trump alone, while Trump's pardons of war criminals — following earlier pardons, including that of ex-Sheriff Joe Arpaio — not only enable brute lawlessness in uniform, but points towards outright valorization in the future, especially if performed in direct support of Trump himself.
To better understand the role of the conservative legal movement, I turned to two law professors I’ve interviewed before: Eric J. Segall, author of “Originalism as Faith,” to help illuminate the role that faith has played in this process, and David Pozen, co-author (with Joseph Fishkin) of the paper, “Asymmetric Constitutional Hardball,” which starts making sense of how the political asymmetry discussed above impacts norm-violating practices, with profound systemic results. In that paper, Fishkin and Pozen write:
The "restorationist" constitutional narratives and interpretive theories promoted by Republican politicians and lawyers, [this] Essay suggests, serve to legitimate the party’s use of constitutional hardball.
While this has surely been the elite focus of the actors involved, movement conservatives have also made remaking the Supreme Court and the entire judicial branch central to their politics in ways progressives have not, and this means engaging in authoritarian mobilization via threat manipulation, as described in “The Long Southern Strategy.”
Originalism plays a key role in this, but the meaning of that term shifted sharply in the process. At first, Segall told me, the originalist position argued that judges shouldn’t be engaged in moral reasoning:
It’s not for judges to select the best moral position for a country, it's for people who are elected to do it. Unless judges can point to something in the text of the Constitution or something clear in the history, then judges should say look, the Constitution doesn't speak to this, vote on it.
Originalism, at first, “was inextricably tied to deference. That's the only way that works.”
But that all changed when conservatives gained control of the court in the late '80s and early '90s, Segall says: "After 12 years of Reagan-Bush judges, the people who embraced originalism dropped the deference part." That meant a return of moral reasoning, “because history cannot answer modern problems," and while conservatives won't admit that, "it's true and they act that way.” The Constitution is silent about the rights of transgender people or the definition of marriage, to cite obvious examples.
So originalism flip-flopped from being highly deferential to political bodies to highly resistant. Despite this 180, its symbolic function stayed the same, Segall told me:
Originalism provides a symbolic foundation for the GOP and its adherents to argue their politics are the politics of the framers, who this country tends to venerate. While the way that originalism is justified and practiced has changed in legal academia, the way it functions symbolically for mass propaganda and voter mobilization purposes for party elites has not — and this is arguably the main reason for its continued stature.
Supposed fidelity to the framers is a powerful means of virtuous identity-formation: “I’m a real American, I vote to seat judges who follow the Constitution as written.” That’s the narrative promoted for the GOP base. Why let the far messier facts get in the way?
At one level, Segall rejected the premise I presented. While Nixon and Reagan campaigned on law and order, for example, “They were not the law and order party by any stretch of the imagination,” he said. “Iran-Contra was more lawless than anything we've seen before Trump. And one would have to stretch one's definition of law and order to think that Richard Nixon really believed in that.”
Perhaps the principal actors, like presidents and other party leaders, have not changed much, I suggested. But the party as a whole has — both the voters and the increasingly polarized representatives in Congress.
I don't think this is complicated. Most things in life are complicated. I don't think this is. What changed everything, in my opinion — about constitutional law, about the Republican Party, about the dynamics of our country — was the unification of the evangelicals with the Republican Party over abortion in the late 1970s. That changed everything.
About a third of the public in any nation holds authoritarian views, he argued, a figure confirmed by Karen Stenner. Segall continued:
That third in America got united with the Republicans and has created a force where I don't think that third represents the other two thirds at all. But because of our political system, because of the Electoral College, because of we don't vote for the president by majority vote, for all the counter-majoritarian reasons that we have in our government, that third has enormous power and Reagan knew it. And that's how Reagan came to power. He doesn't come to power without that third. and And there's no question Trump doesn't come to power without that third.
In fact, the 2009 study “Authoritarianism and Polarization in American Politics” showed that there was an ongoing realignment around authoritarianism, such that the GOP today is significantly more authoritarian than it was in the 1980s, and issue views are more consistently aligned with whether people are more or less authoritarian — meaning that Trump is significantly more dependent on authoritarian support than Reagan was.
Segall sees Roe v. Wade as crucial to that development — the combination of “abortion as a moral issue” and the narrative that a few liberal lawyers in Washington were "ramming it down our throats,” adroitly exploited Reagan and his supporters.
Angie Maxwell, co-author of “The Long Southern Strategy,” takes a broader view:
The legalization of abortion alone was not what merged evangelicals with the GOP. It was the rise of second-wave feminism and the ERA, along with an assertion of reproductive rights, that triggered a reactionary Christian fundamentalism, that included biblical literalism. To win those voters required a certain amount of posturing by non-fundamentalist candidates like Reagan. The coded language of Nixon is, in many ways, a soft con. Reagan was a more likable con. Phyllis Schlafly, of course, was the "housewife who was never home" con.
Over time, Roe’s importance has solidified, because of how much organizing has been done around it and so much mythology has been built up. This importance highlights another fundamental misrepresentation by the originalists, Segall notes: “They claim that 'living constitutionalists' just make principles up. That's not true. It's a demonstrably false, bad straw man. Justice [William O.] Douglas relied on five constitutional provisions to find the right to privacy” in Griswold, the decision that laid the foundation for Roe.
“That's lot more than the court did in Seminole Tribe, Shelby County v Holder, or any of the conservative decisions,” he said. “All judges are trying to anchor their value judgments in some indirect way to the text of the Constitution. They're all doing the same thing.” Originalists falsely claim otherwise — both to claim the authority of the Framers, and to obscure the arbitrary and capricious nature of their own reasoning, as well as the impoverished nature of their moral vision and their concept of American democracy.
David Pozen suggests a number of ways to view what the latter-day originalists are advancing. One of those frames is "authoritarian constitutionalism," he said via email. “Alexander Somek describes it as accepting many governance features of constitutional democracy, ‘with the noteworthy exception of . . . democracy itself.’"
The Republican penchant for voter suppression and gerrymandering certainly lends itself to such a description. “There is also a resonance with what Mark Tushnet has described as ‘mere rule-of-law constitutionalism,’ Pozen said. “The forms of legality are respected, at least nominally, but many of the thicker, substantive commitments are drained of meaning.”
What both of these approaches share is important to note, and dangerous: They’re hard to distinguish from genuine democracy through the fog of misdirection that originalists routinely deploy.
Pozen also recommended “The Rule of Law" as a Concept in Constitutional Discourse” by Richard Fallon Jr.
As Fallon details, there are numerous different models of, and elements to, the rule of law. Arguably some of the conservatives you describe are employing relatively narrow, formalist or historicist conceptions of the rule of law and neglecting its substantive and legal process dimensions. ... There is also a separate concern that they are trying to narrow the community of persons to whom rule-of-law obligations are thought to be owed in the first place.
Both these possibilities seem highly likely outcomes if you’re devoted to plugging 21st-century pegs into 18th-century holes.
Pozen also considered the recent antics of Calabresi and Barr:
When Barr asserted in his Federalist Society speech, categorically and without any evidence, that contemporary ‘conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means,’ my first instinct was to assume that he was gaslighting us. “Has he ever heard the two words ‘Mitch McConnell’? But perhaps even more concerning is that possibility that — owing to some combination of motivated reasoning, epistemic closure and partisan media bubbles — Barr really believes it.
Segall says he wasn't surprised by this, noting that Iran-Contra independent prosecutor Lawrence Walsh, a lifetime Republican appointed to the federal bench by Dwight Eisenhower, said that George H.W. Bush's Christmas 1991 pardon of former Defense Secretary Caspar Weinberger “was one of the great cover-ups in American history at the highest levels of executive branch government.”
Who encouraged Bush to pardon Weinberger? Our current attorney general, who held the same post during the last two years of the elder Bush's administration. “Barr takes credit for not only persuading Bush to make those pardons, but that it was the right thing to do,” Segall notes. “We knew what Barr was that day. We didn't have to wait until now to know what that man stands for. His Federalist Society talk was nothing new.”
In fact, Nixon defenders like Ronald Reagan, have flourished in the GOP, far more and far longer than Republicans like Walsh or Robert Mueller or John Dean who have broken with their party to stand for the rule of law. As Iran-Contra cover-up king, Barr was carrying on a GOP tradition. Segall elaborated further:
[Barr's] statements that the executive power, the president, has been losing power consistently over the last few decades is demonstrably false, idiotic and obviously wrong. With the exception of the immediate aftermath of Watergate, the presidency has grown in power consistently for the last 40 or 50 years, and for him to say it hasn't is "Twilight Zone" material.
It’s a "Twilight Zone" episode designed specifically to cast Trump as the victim. Why let facts get in the way of that?
As for Calabresi's argument that Trump has Sixth Amendment rights in impeachment proceedings, Segall noted that he’s on an email list with many “very famous” and “not so famous” law professors, “and 98% of them were just aghast ... thinking it was the worst argument, with no basis in the text of the Constitution.”
Segall went on to say that it was "crazy" to argue that Sixth Amendment rights apply in House impeachment proceedings, which are more like a grand jury indictment than a trial. He also thinks Calabresi's argument about a Senate impeachment trial is "obviously wrong," but offers a caveat:
I think it is no more wrong than equal state sovereignty [a John Roberts invention] in Shelby County. I think it is no more wrong than state sovereign immunity from lawsuits from citizens of their own state [a Rehnquist invention] in Seminole Tribes of Florida vs Florida. I think it is no more wrong than 30 other Supreme Court cases I can give.
So, since the Supreme Court does such nonsense all the time, “Having law professors do it strikes me as not that bad.”
As for the matter of Trump’s pardons for war criminals, here’s what Seagal told me:
I said on Twitter the other day — jokingly — "Does anybody think Trump is pardoning all these war criminals because he's building a cadre of war criminals to help him maintain power when he loses power?" And I was kidding about that, because there aren't that many of them. I am, however, sincerely concerned that it feels like Trump wants to derive loyalty from people like that sheriff in Arizona [Joe Arpaio], that he is trying to build a group of people who are devoted to him who appear to be essentially lawless. And that is very troubling.
Indeed, it reminded me of a description of how small-town bullies and sadists had been empowered in Stalin’s Russia, as described by Ian Hughes in “Disordered Minds: How Dangerous Personalities Are Destroying Democracy.” I reached out to him for additional comment.
“Bullies, narcissists and sociopaths exist in every walk of life and in every town and city in every country,” Hughes said. “If encouraged by a pathological leader, this minority will enthusiastically step forward to act beyond the law, to target opponents, and violently assert their pathological values. If this process has the support of a critical mass of the general population, as Trump has, history suggests that societies can find themselves powerless to stop further descent into darkness. In my view, the American public should see the impeachment hearings as a wake-up call that time is running out.”
We should also view the Ivy League Federal Society antics of Calabresi, Barr and those who cheer them on in the same harsh light. Their obfuscations of the law erode both the protections it should afford equally to all, as well as the faith people must feel in the law for it to function properly. They are, in their own ways, more dangerous to the law than any mere criminal, for they undermine it from within.
“As through this world I travel, I meet lots of funny men,” Woody Guthrie wrote in “Pretty Boy Floyd the Outlaw." “Some will rob you with a six gun, and some with a fountain pen.”