John Adams famously wrote that the infant United States, as a new republic, was a nation of laws and not of men—by which he presumably meant no single personality, no matter how large or formidable, can create the standards to which we hold ourselves as a people. Only the law, in the form of our paradigmatic and immortal Constitution, can do that. But recent events suggest that Adams may be incorrect, or at the very least, that the question remains unresolved and that perhaps we should hope to prove him wrong. Preet Bharara, former U.S. Attorney for the Southern District of New York, spoke on this question at Brown last month and testified to the fact that effective public service begins with an aspiration to help the helpless and a strong sense of duty to the Constitution, the public and the oath of office. In doing so, he offered hints as to how the very safety of American democracy may depend on those with the aspirations, rather than the document they swear to protect.
David Kestenbaum, a producer for NPR’s This American Life, talked shortly after President Trump’s inauguration with a few of those hopeful protectors, mid-level bureaucrats at D.C. federal agencies. His conversations revealed shock and disappointment, but also passion and resolve. “If you stay, at least you can steer things,” he said, paraphrasing his sources. “Or you can fight.” Government workers told Kestenbaum that many have become proficient in the “dark arts of civil service,” the process of slowing the chain of command so that objectionable projects grind to a halt. They told him of plans to keep “controversial stuff under the radar.” They even resolved to make it through at least the four full years of one Trump term. The law may grant the current administration a fair amount of power, but career civil servants will evidently not lie down. Regardless of what the law may indicate, the men and women of government present a formidable obstacle.
Bharara, a dedicated public servant with an impressive resume in his own right, echoed this emphasis on the human element of government. American institutions, he said, are as strong as ever and won’t fold in the face of a man with some distinct “authoritarian crushes.” If Donald Trump could do whatever he wanted, perhaps we might have reason to be afraid. “But he can’t, so I worry a little bit less,” Bharara said. With that in mind, he went on, much of the substance of our democracy depends not on written laws, but on norms, which are by definition soft and malleable and are perpetuated or curbed by the choices of individuals. Bharara cited George Washington as an example—no law precluded him from serving as president until the day he died, but he chose to step aside because the new nation was founded to avoid a monarchy. It’s not against the law, he said, for a sitting president to fire his FBI director or to tell his Justice Department not to file charges against an ally. He can degrade norms and therefore alter the shape of democracy if he chooses to. At that point, it’s up to people like Kestenbaum’s sources to respond. “Time will tell how vulnerable we are,” Bharara ominously concluded.
And scholars agree with Bharara that the future is murky. The structure of American democracy may not be all that exceptional and we may even be naïve to assume that it can weather a crisis. Aziz Huq and Tom Ginsberg suggest that the scale of our problems is bigger than we ever imagined. Examining mechanisms of constitutional retrogression, or the methodical process of democratic erosion through healthy democratic institutions, Huq and Ginsberg conclude that the power of checks and balances is being overestimated; that Kestenbaum’s heroes of the bureaucracy can easily be undermined; that the government can quickly and decisively “pollute the informational marketplace” with its own propaganda through dissemination of fake news; and that through gerrymandering, partisan efforts to redefine separation of powers on both the federal and state levels, and usage of the court system, executives can fight the very existence of the political competition that seems to epitomize the American system. If we are a nation of laws, Huq and Ginsberg lament, then we are in grave danger, because those laws can and will crumble to the ground given the right context and the presence of a motivated demolition crew.
Bharara’s open-ended conclusion and the scholarly literature point to a disturbing reality. Donald Trump is probably not the apocalypse. His administration has been historically incompetent and his approval ratings are some of the worst of all time at this early stage of a presidency. Odds are, the American democracy will survive the next four or even the next eight years. But the possibility of a much more effective and intelligent authoritarian taking the reins is frightening, as it seems our laws aren’t equipped to deal with such a figure. Here, Bharara’s remarks on the nature of public service raise some reasons for optimism. He noted that we need people who value public service and who do it out of a desire to give back and to uphold the values of justice and equality, like Kestenbaum’s interviewees who chose to educate the next generation of bureaucrats on how to resist and resolved to keep their jobs and fight authoritarianism from the inside. They should serve those values, no matter who occupies the Oval Office or with what political party they are affiliated. Though John Adams was hoping to highlight the durability of the Constitution, it’s time we acknowledged that his adage doesn’t tell the whole story. People hold the power to build or break our democratic system. America is a nation of people.
Photo: Painting by Gilbert Stuart, uploaded by Daderot – Wikimedia Commons