Friday, November 11, 2016
An electoral college coup?
I was working up something hopefully intelligent to say about the (entirely predictable) calls for an anti-Trump coup in the electoral college, but as usual my colleague Garrett Epps said pretty much what I wanted to say and said it better. What he said.
Wednesday, November 9, 2016
So Trump happened.
Like many of my fellow Americans -- how many I can only guess; certainly many of the almost 60 million people who voted for Hillary Clinton (and probably many more who voted for Johnson or Stein or who didn't vote at all, God help them) -- I'm not quite sure how to feel today or what I would do about it if I knew. I'm stunned, I'm demoralized, I'm grieving, I'm genuinely afraid of my government and a large percentage of my fellow citizens for the first time in my adult life. (On this last point, perhaps it's only fair that this middle-aged, upper-middle-class white heterosexual male should finally get a taste of the kind of fear and dread that many women, minorities, immigrants, LGBTQ people, and people who are impoverished experience on something like a daily basis.)
Unexpectedly, and perhaps selfishly, a significant source of my distress is my worry that, as a teacher and scholar (of The Law, no less), I ought to be doing something besides sitting here, numb and dumbstruck like so many other citizens. I'm a Law Professor, for goodness' sake; Law Professors have Theories, they can provide Objective Analysis, they can reassure students and others that what has just happened fits neatly into an Analytical Model they have lying around for just such an emergency. (Break Glass, Remove Theory.) But Trump's victory has shattered the illusions of confidence and certainty in which, as a scholar, I've been conditioned to indulge.
An example: Rarely in my career has there emerged such a ready-made "teachable moment" for lawyers-in-training as this election cycle and its culmination yesterday. But unlike many of my colleagues (whom I hold in awe for their dedication and cool-headedness), I didn't say a word about the election in either of the two classes I taught today, save for an oblique reference or two to "being up all night" or welcoming the "soothing effects" of Civil Procedure. Part of this was my dispositional reluctance to expose my personal political views to my students, for fear of building pedagogical walls (pardon the all-too-apt metaphor) between myself and students who may disagree. Part of it was the very real worry that, on three fitful hours of sleep and an overflowing emotional reservoir, I literally would break down in tears while standing in the front of the classroom. But most of it, I think, was something else: an existential terror that everything I was supposed to be teaching these students, every aspect of legal rules and procedures and institutions that I hold dear, had suddenly been revealed as fraud, or as myth. Like a schoolyard bully tossing the nerd's science project in the mud, Trump seems to have exposed my life's work as silly, futile vanity.
Another example: My wonderful colleague Garrett Epps published this achingly elegaic piece today in The Atlantic. Garrett, a lawyer's lawyer, as attuned to the imperative of the rule of law as anyone I know, argues in essence that Trump's win, while legally legitimate by every reasonable measure, nonetheless violates the Constitution -- or rather voids it. Electing Trump has broken the Constitution, Garrett thinks, in the same way driving a car with an oil leak eventually blows the engine. The shell of the Constitution remains intact but its core has melted down, burned out, decayed. The rule of law means following the results of the rules, Garrett writes, even when we disagree with them; it means, after a fair-and-square election, recognizing as President even someone you think makes a lousy President. But not Trump; not for Garrett. Trump is a bridge, or a wall, too far.
Normally I would view Garrett's essay as an opportunity, a glorious opening to a stimulating scholarly conversation. His argument is in my wheelhouse; I have built my scholarly career, such as it is, on the proposition that legitimate democratic law gives us reasons to obey even when we sorely disagree with its outcomes, that the imperative of living together peacefully as a diverse society requires sacrificing even deeply held substantive commitments to the results of fair democratic rules. But now I am not so sure. My theory has failed me when the facts on the ground need it most.
Perhaps my theory will reinflate with time, after the sting of yesterday's result fades away. Or perhaps a new theory will emerge in its place. For the moment, all I can offer is a couple scattered observations that I hope will become stitches in the emperor's new set of clothes.
First: Somewhere in me, the faith in the democratic rule of law, or at least the acknowledgment of its necessity, lingers on. I hate Trumpism and dread the consequences of its ascendancy in our country. But I believe -- I have to believe -- that the best response is to continue to insist on rigorous adherence to and vigorous enforcement of our longstanding legal rules and traditions. No faithless Electors scenarios or seceding northeastern States for me, at least not yet. Salvation lies within.
Second: I'm coming to the conviction that the profession I've chosen (professions, really) -- the law and, in particular, education about the law -- are more important than ever and must, simply must, be nourished and given the means to grow and thrive. Trumpism, I believe, does not triumph in a nation whose citizens are well-educated, including about the system of law and government that, when all is said in done, is the only tangible thing that unites us beyond the random fact of joint tenancy on a single continent. Democracy withers and dies without education, and it is our national failure to provide a steady, clean supply of that life's blood that is to blame as much as anything else for what happened on November 8th.
CJP
Unexpectedly, and perhaps selfishly, a significant source of my distress is my worry that, as a teacher and scholar (of The Law, no less), I ought to be doing something besides sitting here, numb and dumbstruck like so many other citizens. I'm a Law Professor, for goodness' sake; Law Professors have Theories, they can provide Objective Analysis, they can reassure students and others that what has just happened fits neatly into an Analytical Model they have lying around for just such an emergency. (Break Glass, Remove Theory.) But Trump's victory has shattered the illusions of confidence and certainty in which, as a scholar, I've been conditioned to indulge.
An example: Rarely in my career has there emerged such a ready-made "teachable moment" for lawyers-in-training as this election cycle and its culmination yesterday. But unlike many of my colleagues (whom I hold in awe for their dedication and cool-headedness), I didn't say a word about the election in either of the two classes I taught today, save for an oblique reference or two to "being up all night" or welcoming the "soothing effects" of Civil Procedure. Part of this was my dispositional reluctance to expose my personal political views to my students, for fear of building pedagogical walls (pardon the all-too-apt metaphor) between myself and students who may disagree. Part of it was the very real worry that, on three fitful hours of sleep and an overflowing emotional reservoir, I literally would break down in tears while standing in the front of the classroom. But most of it, I think, was something else: an existential terror that everything I was supposed to be teaching these students, every aspect of legal rules and procedures and institutions that I hold dear, had suddenly been revealed as fraud, or as myth. Like a schoolyard bully tossing the nerd's science project in the mud, Trump seems to have exposed my life's work as silly, futile vanity.
Another example: My wonderful colleague Garrett Epps published this achingly elegaic piece today in The Atlantic. Garrett, a lawyer's lawyer, as attuned to the imperative of the rule of law as anyone I know, argues in essence that Trump's win, while legally legitimate by every reasonable measure, nonetheless violates the Constitution -- or rather voids it. Electing Trump has broken the Constitution, Garrett thinks, in the same way driving a car with an oil leak eventually blows the engine. The shell of the Constitution remains intact but its core has melted down, burned out, decayed. The rule of law means following the results of the rules, Garrett writes, even when we disagree with them; it means, after a fair-and-square election, recognizing as President even someone you think makes a lousy President. But not Trump; not for Garrett. Trump is a bridge, or a wall, too far.
Normally I would view Garrett's essay as an opportunity, a glorious opening to a stimulating scholarly conversation. His argument is in my wheelhouse; I have built my scholarly career, such as it is, on the proposition that legitimate democratic law gives us reasons to obey even when we sorely disagree with its outcomes, that the imperative of living together peacefully as a diverse society requires sacrificing even deeply held substantive commitments to the results of fair democratic rules. But now I am not so sure. My theory has failed me when the facts on the ground need it most.
Perhaps my theory will reinflate with time, after the sting of yesterday's result fades away. Or perhaps a new theory will emerge in its place. For the moment, all I can offer is a couple scattered observations that I hope will become stitches in the emperor's new set of clothes.
First: Somewhere in me, the faith in the democratic rule of law, or at least the acknowledgment of its necessity, lingers on. I hate Trumpism and dread the consequences of its ascendancy in our country. But I believe -- I have to believe -- that the best response is to continue to insist on rigorous adherence to and vigorous enforcement of our longstanding legal rules and traditions. No faithless Electors scenarios or seceding northeastern States for me, at least not yet. Salvation lies within.
Second: I'm coming to the conviction that the profession I've chosen (professions, really) -- the law and, in particular, education about the law -- are more important than ever and must, simply must, be nourished and given the means to grow and thrive. Trumpism, I believe, does not triumph in a nation whose citizens are well-educated, including about the system of law and government that, when all is said in done, is the only tangible thing that unites us beyond the random fact of joint tenancy on a single continent. Democracy withers and dies without education, and it is our national failure to provide a steady, clean supply of that life's blood that is to blame as much as anything else for what happened on November 8th.
CJP
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