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Hyper-Polarization, Executive Power, and the Constitution

By Peter BerkowitzRealClear Politics

Polarization, or a tendency toward the extremes, is a matter of degrees and frequently vexes free and democratic government. The hyper-polarization that disfigures American politics today — the determination to view fellow citizens who vote differently as mortal enemies — subverts free and democratic government.

A healthy liberal democracy thrives on a diversity of opinions. Hashing matters out in public frequently gets messy and often makes a hash of matters. But the gains that come from putting competing opinions to the test of open discussion with fellow citizens representing a range of perspectives and parties offset the inconveniences and unlovely aspects of democratic give-and-take. Free-flowing debate exposes errors to the light of day, refines evidence and argument, and develops the habit of listening and considering before dismissing or embracing.

The hyper-polarization that plagues the United States stifles the conversation among citizens that is democracy’s lifeblood. To benefit from the public exchange of opinion — indeed, to sustain it – citizens must respect others and trust that their views will be heard fairly and responded to in civil fashion. That can’t happen when a significant segment of the right despises the left and believes they are enemies of the state and a significant segment of the left despises the right and believes they are enemies of the state.

Hyper-polarization differs from the endless disagreements about policy and the normal opportunism and hypocrisy that mark democratic debate. Between 2001 and 2016, for example, views on executive power tended to reflect preferences in the most recent presidential election. As polarization intensified, the opportunism and hypocrisy got harder to swallow, but the controversies followed a familiar pattern.

During the presidency of George W. Bush, Republicans argued for far-reaching presidential powers, encompassing the authority to employ highly coercive interrogation techniques against enemy combatants, to detain them indefinitely, and to intercept a wide range of foreign and domestic communications. Democrats accused Bush of shredding the Constitution.

Subsequently, Democrats defended President Barack Obama’s still more expansive interpretation of presidential power. It included sending Americans into battle in Libya without congressional authorization, making new law through executive fiat to grant approximately 5 million undocumented immigrants the eligibility for temporary legal status, and promulgating a “dear colleague letter” that sidestepped the legally prescribed regulatory process in order to compel colleges and universities to deny the accused in campus sexual-misconduct cases elementary due-process protections. Republicans were aghast not only at Obama’s substantive policies but at the latitudinous view of executive power that informed them.

Donald Trump’s victory in the 2016 Republican primaries changed the terms of the debate. While frequently speaking in characteristically grandiose and sweeping terms of the extent of his power as president, President Trump did not surpass Bush or Obama in expanding executive power. Nevertheless, the self-proclaimed “resistance” to Trump’s presidency — launched before he entered the White House and set in motion publicly and behind the scenes before he won the election — indefatigably challenged his very exercise of executive power.

With Trump’s presidency, polarization in America turned into hyper-polarization. The anger and bitterness that had been increasingly rearing their ugly heads metastasized into fury and hate engulfing the body politic.

To slow down the spread of these destructive passions and lower the temperature of American politics, it will be necessary to exercise virtues of evenhandedness, toleration, and civility while embracing shared principles that can frame political controversies, bridge disagreements, and yield accommodations and compromises — sometimes favoring the right, sometimes favoring the left — with which both sides can live. In “The President Who Would Not Be King: Executive Power Under the Constitution,” Michael McConnell exhibits those virtues and shows that those principles can be discovered in the Constitution.

A Stanford Law School professor and my colleague at the Hoover Institution, McConnell did not in the first place undertake to counter hyper-polarization. The work of an eminent scholar of constitutional law, his book authoritatively reconstructs the original understanding of Article II — which lays out the scope and character of the president’s powers, eligibility for the office and the manner in which the president is chosen, presidential duties, and the actions for which the president may be removed from office — and related constitutional provisions in order to illuminate contemporary controversies over executive power.

At the same time, McConnell’s study of the Constitution’s original design and his treatment of executive power furnish a nonpartisan standpoint for organizing partisan political disputes of all shapes and sizes. In addition, his unfailing judiciousness in considering evidence, sorting through claims, and reasonably interpreting and impartially applying constitutional principles provides a model of virtues that undergird free and robust discussion.

Among the leading questions at the Philadelphia convention of 1787, according to McConnell, was how to “achieve the independence, vigor, secrecy, and dispatch necessary for an effective executive without rendering him an elected monarch?” Taking advantage of executive power — which, as the president’s constitutional responsibility as commander-in-chief demonstrates, extends well beyond implementing the law made by the legislative branch — without opening the door to illiberal and anti-democratic government remains the central question for constitutional government concerning presidential power.

To understand the delegates’ answer, McConnell argues, we must become students of history. Only by grasping how the Constitution’s clauses would have been understood by Americans at the time of the document’s drafting and ratification by the states can we appreciate the Constitution’s legal meaning. That in turn requires detailed examination of British political and legal history in which the drafters were steeped as well as of the writings of Locke and Montesquieu among other seminal thinkers who shaped the era’s leading ideas and major intellectual currents.

Some will disparage — or praise — such an approach as conservative. In fact, it lies at the very heart of the judicial enterprise. If federal judges confronting cases and controversies about the supreme law of the land are not construing the Constitution as understood by those who composed it and expressly consented to it — the authority of which is tacitly affirmed in every generation by those who live under it and enjoy the rights it secures and the prosperity it promotes — then they depart from the specific grant of power the Constitution assigns to the judicial branch.

Because language is malleable, judges will encounter — in even the most carefully crafted charters of government — play in the joints and face the responsibility of filling in gaps, overcoming ambiguities, and reconciling conflicts. Whether they discharge that responsibility in light, or in defiance, of the Constitution’s text, structure, and history makes all the difference.

“Constitutional text and original meaning are the only hope we have for finding principles that could constrain modern assertions of presidential prerogative,” writes McConnell. And the principles of free and democratic government embedded in the Constitution are the only hope we have for establishing a common ground on which to conduct constructive public discourse; refine opinions about law, policy, and politics; and advance the public interest.

McConnell places on a sounder footing the jurisprudence of the presidency and the separation of powers. Legal scholars and experts in political ideas and constitutional government will derive great benefit from his meticulous and trenchant account of the work of the Philadelphia convention; of the distribution between Congress and the presidency of what were considered  “royal powers” in the British political tradition; of the internal logic of Article II; and, not least, of the application of constitutional text and original meaning to classic Supreme Court cases and contemporary controversies about executive power.

Amid the hyper-polarization racking the country, McConnell’s demonstration of the centrality and wisdom of the Constitution along with the spirit of his argument, at once rigorous and generous, also contribute to the still more urgent task of stabilizing liberal democracy in America.


What a mess!

Recovery in parisan crosshairs; New conspiracy evidence; China fighting back!

By Dr. Larry FedewaDrLarryOnline.com

As if quarantine and recovery were not enough to worry about, Americans have other headlines competing for our attention. Most tiresome is the conflict between those who want to resume economic activity as much as possible and those who don’t. At issue is the frustration experienced by everybody at the lifestyle we have been forced to adopt because of the threat of the COVID-19 pandemic – everybody staying home while their jobs and earnings dwindle away.

Recovery in partisan crosshairs

A vocal minority has rebelled openly against the closed-door policies of many jurisdictions which have been slow to authorize the back-to-work recommendations of the President. Some are claiming that these restrictive mandates violate the basic rights guaranteed by the Constitution. Others are desperate for an income, still others are just tired of the inactivity. None of this is too surprising given the circumstances.

The surprising part comes when many leading Democrats began advocating the stay-at-home crowd, claiming that the plague is still too widespread to admit the proximity of daily life encounters in businesses and churches. They blame President Trump for sloppy management of the national response, apparently because he has instituted a “go-local” approach economic recovery.

They claim that there should be a “one size fits all” federal policy for the recovery, even though there is a vast disparity between the various local circumstances. This is not really a credible solution to the problem of managing the national opening of doors. But it gets serious when the House of Representatives passes a bill aimed at financially supporting the closed economy in the name of public safety from the virus. How do you deal with ridiculous proposals which are advanced by one of the highest authorities in the land?

New conspiracy evidence

Then, just when we are beginning to deal with that idiocy, we find out that President Obama may have been intimately involved in the attempted overthrow of his successor. The Dems are losing their minds over this one. The current administration has released some very incriminating documentation of testimony kept hidden for as long as two years by Adam Schiff, Jerrold Nadler, and Nancy Pelosi. These documents in effect begin to substantiate the assumptions of the President’s supporters that the attempted coup d’état which led to the impeachment trial of Donald Trump was in fact a treasonous conspiracy to overthrow the legitimately elected President of the United States.

China fights back

This is very serious stuff, but it is hard to concentrate on it when you are facing financial ruin because of a lost job or business. But if you are able to devote sufficient attention to these two political issues, there’s still another one brewing which is equally important but just about, as they say, “a bridge too far”. This is the mounting tension between the USA and China. The war of words is getting more and more aggressive. More importantly, the Chinese are increasing their military threats to American shipping and air surveillance. Unless cooler heads prevail on both sides, this is the kind of rhetoric that can lead to war.

America is already taking on many of the policies which characterized our Cold War with Russia for two generations. But China is a different opponent. It is better positioned to engage in an economic and diplomatic rivalry not only because of the leverage of its huge market, but also because it is much more familiar with the intricacies of the American corporate and technological infrastructure, having worked closely with American firms and government departments and personnel (including Joseph Biden and family) for the past forty years (since the collapse of the Soviet Union).

Those relationships are wide and deep, including not only corporate partnerships but also generations of Chinese students educated in American universities, as well as the capture of America’s technological base, and the purchase of US public debt.

We do not want this cold war to turn into a hot war not only because of the tragic cost to all concerned, but also because it is not at all clear that we would ultimately win such a war. China’s space and long range weapons technologies are arguably superior to our own, especially since, unlike China, we have not been preparing for war over the past two decades and in fact let our military capacity deteriorate to an alarming extent during the Obama years. The Steve Bannon hawks need to think through again their anti-China positions before someone starts shooting. Yesterday’s fall of Hong Kong may be just the provocation to precipitate Western action. Things are getting very tense.

What can you do?

So, that is the menu of top issues facing America. The question is, how do we deal with all these problems? Do we just decide to let the powers that be resolve everything? Do we pick a cause and go all out to  support it with demonstrations, social media campaigns, and all the modern communications technologies?

There is an ancient prayer which includes the words,” Lord, give me the strength    to accept   things I cannot change, the courage to change the things I can, and the wisdom to know the difference.”  Good advice in these troubled times.


The First Postmodern Pandemic

Column: The only predictable fallout of coronavirus? Partisanship.

By Matthew ContinettiThe Washington Free Beacon

The pundits are having difficulty settling on a historical analogy for the COVID-19 coronavirus. Will the spread of the disease be President Trump’s Katrina or his financial crisis? Will it be similar to the H1N1 avian flu pandemic in 2009 or will it be politicized like the Ebola outbreak in 2014?

Comparisons are tough. After all, the situation is unprecedented. The political consequences of COVID-19 are difficult to predict because of the interplay between a public health emergency and a fractured public narrative. Coronavirus is the first postmodern pandemic.

It has the makings of a phenomenon not seen in a century. The Spanish Flu of 1918 infected an estimated one-third of the global population. It had a case fatality rate greater than 2.5 percent—slightly higher than the rate for coronavirus observed in China so far. More than 600,000 people died in the United States of “La Grippe.” No one wants to see these numbers repeated.

Perhaps they won’t be. The malpractice of the Chinese Communists may be responsible for the high fatality rate there. The rate outside its borders, according to the World Health Organization, is lower. And America inhabits a different public health universe than a century ago. Flu vaccines and therapeutics did not exist. Hospitals, the sciences of virology and epidemiology, and medical technology were primitive. Authorities relied on quarantines and appeals for good hygiene. Results were mixed. And disappointing.

This is different from the Spanish Flu. Science, medicine, and public health have improved immeasurably. But that is not the only difference. COVID-19 is novel. No one saw it before last December. No one is sure where it came from. And it has spread quickly. Despite record advances in gene sequencing and drug testing, it will be more than a year before a vaccine can be mass produced.

The global economy is far more integrated than in the past. And a worldwide broadcast, digital, and social media exist that would have been fanciful to President Wilson. This system distributes misinformation, incentivizes hysteria and partisanship, and expects immaculate performance from the government while ignoring, dismissing, and excusing its own failures. Dealing with “community spread” is hard enough. Try doing it while watching Don Lemon.

We were better off when the media focused on impeachment. Now that it is interested in coronavirus, a familiar pattern will set in. Data will be publicized without the slightest sense of proportion. The most outrageous scenarios will receive the most attention. Speculation will be paraded as fact. And every conceivable negative outcome, from infections to deaths to plunging stock values, from reasonable and warranted travel bans to unanticipated diplomatic and economic fallout, will be related back to the president in an effort to damage his reelection.

Financial journalists who see bears around every corner now point to coronavirus as the irrepressible agent of recession. A columnist for the New York Times says, “Let’s Call It Trumpvirus.” CNN slams the president’s coronavirus task force for its “lack of diversity.” The Washington Post transcribes Democratic Party talking points when it suggests Vice President Mike Pence is incapable of overseeing the government’s efforts because he opposes needle-sharing programs. Among the reasons Trump is said to have weakened public health? He defunded Planned Parenthood.

The Democrats criticize Trump for budget cuts that never happened. Chuck Schumer plots a campaign to bash the president for a paltry supplemental request, only to have Trump say Congress can appropriate whatever it wants. Elizabeth Warren introduces a bill to “transfer all funding for @realDonaldTrump’s racist border wall” to coronavirus defense. Has she seen her doctor lately?

This isn’t a serious response. It’s a tantrum. There are plenty of additional things the Trump administration could do to prepare for an outbreak. My American Enterprise Institute colleague, former FDA commissioner Scott Gottlieb, M.D., has several recommendations, including allowing for more testing. What the media and Democrats offer instead are dispatches from Resistance Land—that magical place where the border is open, Medicare is for all, the New Deal is Green, and coronavirus isn’t the problem, Donald Trump is.

Knowledge of the physical universe has grown exponentially since 1918. So have the means by which we are able to express discontent, fear, blame, and unreason. Which is why I do have one prediction about the weeks ahead: Our politics will remain nasty, polarized, overheated, and dispiriting. Even as Mother Nature reminds us who’s really in charge.


Partisanship & Violence In Congress: The Caning Of Senator & Abolitionist, Charles Sumner (1811-1874) (R-MA)

Partisanship and Violence in Congress — Not All partisanship Is Bad, but Some partisanship Is Catastrophic

By George LandrithConstituting America

Washington is a city that has long been known for partisanship. Even as respected and honored as he was, George Washington was viciously and unjustly attacked by partisans.

Thomas Paine who helped build support for America’s independence by writing the historic political pamphlet “Common Sense,” accused Washington of corruption and wrote that “the world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles, or whether you ever had any.”[1]

Partisans for Thomas Jefferson and John Adams viciously attacked each other with such labels as: atheist, tyrant, coward, fool, hypocrite, and weakling. Jefferson’s allies accused Adams of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”[2] Adam’s partisans called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”[3]

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