In an apparent anticipation of Godwin’s Law, there have long been progressives and liberals who reflexively liken every Republican occupant of the White House to a fascist or Nazi. The trend began with Richard Nixon, intensified with Ronald Reagan, and became rampant during the latter years of the second Bush Administration. Even the genial George H.W. Bush was not spared; in an editorial on his foreign policy on December 11, 1989, The Nation described him as “Eichmann with a smile.”
Of course, although the alarm is raised every time, fascism and autocracy have never come to pass in the United States. After leaving the White House, yesterday’s Hitler or Eichmann becomes today’s senior statesman. All the while, whenever a Democrat occupies the White House, those same partisans insist on more federal control over more aspects of American society.
This “tradition” of crying wolf presents problems for sober analysts now legitimately worried about the presidency of Donald Trump. Many Americans seem sincerely to believe that their nation is tottering on the brink of fascism. Since Election Day, the Amazon and New York Times bestseller lists have included titles such as George Orwell’s 1984, Hannah Arendt’s Origins of Totalitarianism, Sinclair Lewis’s It Can’t Happen Here, and Timothy Snyder’s On Tyranny. Soon after Inauguration Day, the Washington Post coined a new motto for its mission: “Democracy Dies in Darkness.” And the New York Public Theater recently staged Shakespeare’s Julius Caesar while striving to give the actor who played Caesar a strong physical resemblance to our current president. Even if some of this is overwrought, many Americans seem genuinely worried.
In this unusual political milieu, analysts on the left and in the political center have come to champion our nation’s commitment to representative democracy and the institutions that undergird it as bulwarks against oppressive national power. Consider the recent writings of David Frum, Timothy Snyder, and Jeffrey Rosen, three prominent center-left intellectuals. Their worries, taken collectively, include Trump’s use of controversial executive orders, the rhetoric of confrontation and violence at his campaign rallies last year, and a litany of extravagant promises, sometimes accompanied by a cool indifference to the accuracy of facts. This list is hardly exhaustive. As Frum pithily notes: “Civil unrest will not be a problem for the Trump presidency. It will be a resource.”
Our representative democracy is well suited to prevent fascism from arising, but analysts who want to allay their worst fears about a Trump presidency must bear in mind the crucial role of federalism in checking the national government—and they must acknowledge the ways in which judicial supremacy and progressive centralizing tendencies have undermined federalism.
The perspectives of Frum, Snyder, and Rosen complement one another. Frum is an editor at The Atlantic and a former speechwriter for President George W. Bush; Snyder is a professor of European history at Yale; Rosen is a law professor who directs the National Constitution Center. Each assesses the prospect of fascism or authoritarianism from the standpoint of an American citizenry that could be either apathetic or engaged, with civic apathy being a great danger in this setting.
In his March cover story for The Atlantic, Frum depicts the United States in 2020 soon after Trump’s reelection. The country has drifted toward illiberalism and kleptocracy, a chief trait of which is “less the power to persecute the innocent, more the power to protect the guilty.” Invoking Dickens’s “Ghost of Christmas Future,” Frum reveals a two-part strategy for preserving our republic: greater civic engagement among the people and greater reliance on federal judges and federal civil servants to keep the president and Congress in check. Because of Trump’s populist appeal, Frum argues that the current Republican Congress may be powerless to resist some of the president’s initiatives.
Snyder’s widely acclaimed On Tyranny draws from his vast knowledge of twentieth-century European history, especially of Hitler’s Germany and Stalin’s Soviet Union. Snyder tries to distill twenty lessons from those horrible years, “adapted to the circumstances of today.” Like Frum, Snyder praises and encourages civic engagement. Some of his lessons align with specific fears about the Trump administration, while others—“Defend institutions,” “Believe in truth,” “Be kind to our language,” “Do not obey in advance”—would seemingly apply at all times, regardless of who occupies the White House.
Because both men are writing about the United States, it is curious that Frum and Snyder say almost nothing about American federalism. A twenty-first lesson would have been well placed in Snyder’s book: “Respect American federalism,” or more broadly, “Devolve power from central authorities.” The framers recognized that the authority of the several states would be a feature, not a bug, in inhibiting the growth of an oppressive central government like the one against which they rebelled. In Federalist No. 10, James Madison saw that the dispersal of power amongst a wider sphere and a broader array of factions would make it “less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”
Federalism and Our Fractious Republic
In a long feature article published in the Wall Street Journal in late May, Rosen identifies American federalism as an essential tool to check an imperial or authoritarian presidency. His point of departure is a series of controversial executive orders issued by President Obama and President Trump, prompted by their inability to gain support for certain initiatives in Congress. Rosen does not invoke the specter of fascism, though our highly polarized electorate and the scope of executive authority trouble him. And unlike Frum and Snyder, Rosen sees the legislative authority of the states as a counterbalance to federal overreaching. Yet in several ways his analysis stops curiously short.
He describes initiatives in three areas—education, immigration, and law enforcement—that allow for both federal laws and local variation. While Rosen rightly recognizes the potential of executive power to undermine representative democracy, he gives no account—not even the barest acknowledgment—of the ways in which representative democracy in the states has already been compromised by the Supreme Court through judicially invented rights. Some of these rights are more controversial than others, but they all involve federal judges removing certain topics from the political realm.
Observers on the left and right agree that the Supreme Court has invented rights without grounding in the text, logic, or original meaning of the Constitution—even if they sometimes cannot agree which rights are invented. On the right, there is a healthy skepticism of the constitutional provenance of judicial decisions involving abortion and contraception, sexual freedom, the scope of racial and gender equality, and the imposition of various punishments, including capital punishment. On the left, commentators question the legitimacy of Supreme Court decisions that have, under federal law, broadened the rights of corporations, limited the ability to blunt the influence of moneyed interests in politics, and—in one instance—decided a presidential election. Our focus here is the Court’s invalidation of duly enacted laws passed by state legislatures.
In arguing that the Court compromised representative democracy in the states through certain rulings, we withhold judgment here about the wisdom or desirability of the policies that it invalidated. Judicial review is constitutionally warranted in some circumstances, but even when properly exercised, judicial review of state legislation effectively nationalizes issues, leaving many Americans disaffected. Unlike when the Court leaves state laws in place, the losing side has no political recourse when the Court strikes down a popularly enacted law. Judicial review effectively ends debate, and with debate, the potential for meaningful persuasion and compromise. Thus, the grounds for disaffection are clear: invalidating state policies through judicially invented rights involves a form of condescension to those who backed the policies. An elite institution reproves or chastises a republican or demotic institution—a familiar story in our time.
Given Americans’ sharp differences on these issues, it is fair to say that the Court’s rulings have helped to divide and polarize the nation. Moreover, judicial intervention has transformed several important policy debates into a winner-take-all enterprise, and sometimes with no discernible limits as we look ahead. It is no wonder, then, that judicial confirmation battles have bordered on all-out warfare.
Frum, Snyder, and Rosen know that a highly polarized electorate presents problems for the functioning of representative democracy and increases the odds of an imperial presidency or something more ominous. Yet they seem unwilling to consider how much the Supreme Court has done to polarize our nation.
Other observers, including David French and Angelo Codevilla, believe that our nation has become so polarized that the most worrisome scenario for the near future is not nationalist tyranny, but civil war. But one does not preclude the other. The two might be coterminous, and they might be accompanied by widespread violations of individual rights. As political theorist George Kateb argues, the most egregious human rights violations typically occur when a prominent faction in a political community has a strong sense of group identity and clings to a dualistic, “we-they” mentality. Such a mentality, alas, is seen in many places in the United States today.
Federalism, Pluralism, and “Populist” Liberalism
Any scholar or commentator who truly worries about the prospect of fascism, nationalist tyranny, or civil war should favor the restoration of a more robust American federalism, with more powers exercised by the states and fewer powers assigned to the national government. There are several reasons for this.
First, the dispersion of power in our federal system should be regarded as a salutary way of avoiding the concentration of power in the national government. Those who support the judicially invented rights cited above have tended to assume that the Supreme Court is the final interpreter of the Constitution and that all states must accept its rulings as soon as they are handed down. But given the constitutionally dubious grounds of these rulings, states may in the future push back and defy the Supreme Court by ignoring a decision and leaving enforcement to Congress and the president. If one accepts a “departmentalist” view of constitutional interpretation, it is possible that those two branches of the federal government will not enforce it, but even if they do, relying on them to protect such dubious rights is problematic, even worrisome. Liberals could help to avoid such a situation and a possible constitutional crisis by reviewing and reaffirming the principles and practices of American federalism.
Second, when state legislatures exercise their powers to promote public health, safety, and morals, they function, in the famous words of Justice Louis Brandeis, as “laboratories of democracy.” Different state policies in response to different questions—should the death penalty be used? should public schools in a state be required to provide gender-neutral bathrooms?—are to be expected, given the basic fact of American pluralism. By the “fact of pluralism,” we mean something akin to Isaiah Berlin’s statement on pluralism—namely, that there are many ways for human beings to lead fully human lives deserving of recognition from others, even if others remain strongly attached to their way of life. If appellate court judges and Supreme Court justices would honor the principles of American federalism, they would see that our federal system can accommodate the great religious, ideological, and cultural pluralism that exists in this land.
A third reason for embracing a restoration of American federalism involves the trajectory of liberal thought in this century. A fascist state frightens people because it insists that all or nearly all pursuits in society must advance the aims of the state or at least be subservient to the state. In our time, however, some versions of liberalism make similar demands, and this development deserves the attention of those who worry about the authoritarian tendencies of our current president.
In Two Faces of Liberalism, John Gray delineated two accounts of tolerance in liberal theory and distinguished a “modus vivendi” account of tolerance from an account that sees tolerance as a feature of a universal, liberal civilization. In the former, tolerance is a means to the end of civil peace, a precious good in all times. In the latter, tolerance is supposed to be both a principle and a mindset, integral to a universal liberal civilization that is now emerging.
The role of tolerance in this emerging liberal civilization is theoretically intelligible, yet in recent years many American liberals have displayed different kinds of intolerance. This occurs because tolerance as a principle sometimes conflicts with other goods or principles that liberals and progressives deem more important, such as some vague notion of equality or the self-esteem of individuals, ethnic groups, and sexual minorities. The imposition of sundry “orthodoxies” in academic life and the use of violence in early 2017 at institutions like Berkeley and Middlebury attest to this.
Events such as these should be construed as warnings about the future, especially if this kind of “populist” liberalism continues to spread. These events also tell us how we should think of tolerance in our republic. The modus vivendi account of tolerance helps those who seek to understand more fully the implications of American pluralism, especially the nation’s religious and cultural pluralism. The modus vivendi account also helps us to appreciate the virtues of a federal system in maintaining civil peace and avoiding authoritarian politics, regardless of whether the threat emerges from the left or the right.
David L. Tubbs is a Fellow of the Witherspoon Institute and Associate Professor of Politics at The King’s College in New York City. Daniel J. Hay is a litigator in Washington, DC.