Thursday 23 January 2020

Danielle Allen: 'Democrats might not triumph in this battle - but they'll surely win in the long term'

Self-interest: Donald Trump tosses the coin before the Army v. Navy football game in Philadelphia on Saturday. Photo: Andrew Caballero-Reynolds / AFP via Getty
Self-interest: Donald Trump tosses the coin before the Army v. Navy football game in Philadelphia on Saturday. Photo: Andrew Caballero-Reynolds / AFP via Getty

Danielle Allen

With their memorandum 'Constitutional Grounds for Presidential Impeachment', the US House Judiciary Committee has done a significant public service: It takes America's founders and the principles of democracy seriously.

Regardless of what happens with the impeachment this week, we are getting a much-needed civics lesson. Every book group in the US should take the time to read this memo. It returns to questions at the roots of any democracy. Why is the corrupt exercise of power bad for society? Why are there three distinct aspects of power - legislative, executive and judicial - and why is it best to keep them both separated and intermingled? Why does the health of a constitutional democracy depend on civic virtues like the faithful execution of the laws? What was the original purpose of impeachment?

Here's the short answer: Corruption endangers liberty; the constitutional structure, including separation of powers, was designed to ward off corruption; the structure can work only when combined with civic virtues like honesty and unswerving preference for the public good over private good. The place where the structure and the need for civic virtue come together is, above all, in the Office of the President. When the president is charged in the constitution with executing the powers of his office faithfully, the constitution makes civic virtue in the president - preference for the public good - the final ingredient necessary to make the whole thing work. Impeachment is a tool to protect self-government anchored in free and fair elections, when that is endangered by a corrupt official.

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In this memo, the Democrats are being more republican than the Republicans, despite their history of objecting to originalism and of shying away from concepts like civic virtue or, in education, character education. Think of how everyone was asked to put questions of character aside during the Clinton impeachment.

Civic virtue - that preference for the public good - is at the heart of the matter in this case. Every set of articles of impeachment ever presented against a president has begun by charging him with being in violation "of his constitutional oath faithfully to execute the office of president of the United States". The antithesis of faithful execution is corrupt execution. By definition, impeachment turns on a question of character. This is what makes it such a challenging topic.

In the memo's most powerful segment, the Judiciary Committee reviews the evidence for their argument that President Donald Trump's motives were corrupt - that he was giving preference to personal over public good - and analyses his motives for seeking a "thing of value", in the form of a public announcement of an investigation into a political opponent.

Do the president's explanations for his actions with Ukraine hold water? The memo argues that they do not on grounds of (1) a "lack of fit" between his conduct and his explanations for it, (2) arbitrariness in his selection of a target for a corruption investigation, (3) shifting explanations, (4) irregular decision-making, and (5) explanations based on falsehoods.

Some defenders of the president say that his desire for a public announcement was not terribly significant and such an announcement not much of a "thing of value". This fails to acknowledge a political universe transformed by social media. Nothing is now more precious to PR professionals than "earned media" - the label for generating a story that people cover and that gets your message out, in this case a message against Trump's political rival, Joe Biden. PR professionals calculate earned media's value in detail - in terms of numbers of eyeballs reached, dollars moved and the like. It is considered more valuable and effective than paid media or spreading messages through one's own channels, such as websites. Anybody with two eyes in their head understands that Trump is the world's master of earned media and knows a "thing of value" of that sort when he sees it.

Some scoff at the Democrats' invocations of the founders as fig leaves cloaking naked partisan interest. Indeed, Republicans have conventionally been more likely to draw on these intellectual resources. But what if this is an honest recovery of key principles of free self-government?

This is how it reads to me. Indeed, it reads as one of the best such statements I've seen in quite some time. If that is the case, and if the Democrats can commit to this course, then the mantle of defending constitutional democracy may have passed to the Democrats.

Certainly, it is encouraging to see them sticking up for the legislative branch. The founders did not understand the three branches of government as co-equal. Congress, described in Article 1 of the US Constitution, is the first branch. The exercise of power originates with the expression of a will or intention. Congress expresses the will of the people. Only after the will is expressed can there be execution of the desired action. When the impeachment process moves to the Senate, the Democrats may not win this particular battle.

But if they have earnestly taken up the cause of constitutional democracy itself, they will surely win in the long term.

Danielle Allen is a political theorist at Harvard University and a contributing columnist for the 'Washington Post'.

Irish Independent

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