The conceptual coup

How we ended up with a lawless government, and what to do about it

At the founding of the United States, there was understandable concern about tyranny. Those who drafted the Constitution understood from history that many people, when in power, seek to relentlessly expand their power. Accordingly, they understood that it would be an invitation to tyranny to simply replace the British king with an American king.

Part of what they did instead – brilliant from a system perspective – was to exploit this “power-seeking” behavior against itself. They divided the government into three coequal branches with different rights and responsibilities, assuming that each would seek to expand its power at the expense of the others. The overall system would then maintain a kind of dynamic balance.

We seem to be nearing, or perhaps past, a point where that balance has broken down, and it feels like there’s been a slow-motion coup d’état. It’s useful (if perhaps depressing) to consider how that happened.

To put it differently, why have Congress and the Supreme Court been so supine in the presence of the recent relentless expansion of presidential power? Why has the three-way division of power failed to rebalance the situation?

Where we are

The Republican majority in Congress seems to demand no power for itself. It eagerly does the president’s bidding. The Supreme Court repeatedly re-enables lawless executive behaviors that have been checked by lower courts. Even granting the possibility that there is a commonality of vision among these parties – that everyone basically agrees with the content of Project 2025 and the goal of rolling back decades of change within a small amount of time – it’s nonetheless surprising that everyone is such a “team player.”

However, an interesting point of comparison comes from Ada Palmer’s book, Inventing the Renaissance. She describes how Florence and Venice both had elaborate systems of democratic governance that worked for hundreds of years… but were eventually undercut. One fatalistic position might be that any such system will eventually fail, so it’s hardly surprising the US system is failing.

At one level, the thuggish behavior of the current president is no surprise and is aligned with how he has always behaved. What is more puzzling is both the number of more capable people who have enabled him, and the number of other Americans who have been willing to support him despite his manifest deficiencies. (I have previously written about my own late parents as Trump supporters.)

The sad truth is that part of this situation is about the people we have elected democratically. We the people have repeatedly failed to take offramps from fascism, for reasons that are rooted in the electorate’s exploitable ignorance. It’s hard to complain about where we find ourselves without also complaining about some combination of laziness and ignorance in the body politic, and thereby effectively arguing against democracy as a form of governance.

How to reboot?

A systems design perspective might want to look for some kind of emergency backup that could reboot the government at the point of corruption. There are two problems inherent with any such approach. First, it’s important to be sure that the emergency backup system can’t itself be used to subvert governance. Second, any such scheme also has the “backup generator” problem: many (most?) backup generators fail when they are first needed, because of inadequate maintenance. Failover/recovery mechanisms need regular exercise to ensure they are functional when needed, and it’s not clear how to do that here.

With the perspective of two Trump impeachments followed by failure to remove, it’s reasonable to say that the Constitution makes removal too hard. It seems we don’t have to be concerned about impeachment being used as a subversion of normal governance, but we do have to be concerned that the current configuration of Congress has rendered the president immune to any accountability.

In principle, we might want to separate the chief executive from the head of state, stagger their selection, and have the head of state able to remove the chief executive. However, it’s hard to imagine a mechanism that couldn’t be corrupted in a way that is analogous to today’s problem. For example, the head of state could be a sycophant. If we instead imagine that the head of state were limited to handing the problem to Congress, that body could be as sycophantic as they are today.

How did we get here?

In retrospect, we can see certain elements that contributed to our situation today. I would point to

• the Citizens United case,

• the rise of the unitary executive theory at the Supreme Court,

• the cheating by Mitch McConnell that stole two Supreme Court seats,

• the failure to successfully prosecute those who were responsible for the January 6th insurrection,

• the failure to disqualify Trump from office as an insurrectionist under Section 3 of the 14th Amendment, and

• the grant of presidential immunity in US v. Trump.

In addition, there is a harder to characterize element that I would be tempted to describe as gangsterism, coupled with political opportunism. The parts of the government that should be serving as a check on the executive have been rendered passive by a combination of heavy-handed threats and promises of gain to mediocrities for whom alignment with the gangster offers their best opportunity for money, power, and glory.

Votes vs. dollars

There has always been a tension between votes and dollars as the driving mechanism of elections and decision making at all levels of the US government. In some previous periods of history, dollars have been arguably even more dominant than they are now. Nevertheless, we are in a place where voters as individuals seem to be the least significant element of democracy, when one might plausibly expect them to be the most important. In the world after Citizens United, we must deal with the twin “bizarro world” claims that “corporations are people” and “money is speech.” Whereas each single person has a single vote, some people control much more money than other people. Every opportunity for that money to be converted into power and influence undercuts the promise of “one person, one vote.”

The concentration of wealth in this country is perhaps beyond what can be handled by the Constitution. In its original conception, the Constitution was a form of self-governance among a relatively small segment of the population: relatively wealthy, entirely white and entirely male. Although voting has been extended over time to larger fractions of the populace, Citizens United in combination with extreme concentration of wealth may well have fatally disrupted the delicate balance between dollars and votes.

Presidential immunity

Making things worse is the appalling decision in US vs. Trump on the immunity of the president from prosecution. Either because they were steeped in the historic norms of other presidents in a way that made it impossible to see the actual criminal behaviors of Trump, or because they cynically wanted to enable a gangster president as long as he was aligned with their political preferences, the majority on the Supreme Court has created a monster.

The only remedy for lawless behavior by the president is impeachment and removal, which is out of reach if the president successfully cows at least 1/3 of the Senate – not a hard threshold to reach, as it turns out. Although presidential immunity only protects the president in person, the coupling of immunity with the pardon power has produced near-impunity. The only constraints on executive misbehavior are the existence of state authority and Trump’s own inconsistency and unpredictability. A presidential pardon can’t counter a conviction for a state offense and can’t eliminate a civil fine, so presidential minions must still beware of committing state offenses. And of course, as an increasingly erratic and unhealthy person, there’s no guarantee that Trump will actually issue a promised pardon: he may die or just change his mind. But in the short run, at the federal level, the president has no checks or balances at all.

Rule by crime gang

It does seem as though the founders did not anticipate today’s gangsterism. At one level, this oversight seems surprising. It seems unlikely that the style of rule via nonspecific threats (“bad things might happen unless I get my way”) is a modern invention; however, I am unaware of instances that fit the classic gangster mold before the 20th century. Earlier tyrants and criminals seem to have been more straightforward about being bad people, not manufacturing some kind of myth of their innocence.

It also seems clear that the founders made incorrect assumptions about the intrinsic role of honor and virtue in a political system. There are aspects of the Constitution that assume that honor matters, at least to most of the participants in the system. Our current world, in which the ruler and his ruling party are without honor and without shame, seems to be a configuration that the founders did not anticipate.

Indeed, it’s possible that the founders would have judged a people who elevated such a ruler, along with such a ruling party, to be beyond help. It’s quite possible that they would have seen our current situation as either so unlikely, or so unrecoverable, as to be unworthy of consideration. Worse, they might well think that any polity that had painted itself into this corner was unworthy of being saved.

Money and social media

While it is still mercifully true that one cannot reliably buy an election in most cases, it is also true that enough money can produce dramatic effects in terms of the information that is available, particularly for relatively disengaged voters. This money effect is almost certainly increased by the technical capability of social media to target different voters with different messages from the same candidate. The Constitution was designed for a world in which it was easier to detect that candidates were speaking out of both sides of their mouth. In the modern world it is remarkably easy, at least for that fraction of the population that is online, to create information bubbles and to deliver messages targeted to those bubbles.

Remedies

What can we do to make things better? There are no easy fixes, and there is no simple “return to the past.” But having seen the ways that the system has broken down, we can make some concrete changes if we get the opportunity.

• Repudiate Citizens United via legislation or constitutional amendment: democracy, personhood, and voting are only for people. Rejecting Citizens United should also enable reasonable restrictions on how money affects elections.

• Repudiate US vs. Trump via legislation or constitutional amendment: no-one is above the law.

• Repudiate the various strains of current anti-democratic thinking: “No Kings” is still a sound principle.

• Eliminate all the Trump administration’s renamings, especially but not limited to the ways in which Trump has put his name and/or picture on buildings, money, documents, and the like.

• Prosecute all the corrupt and lawless activities of the Trump years. No “moving on” for “healing.”

• Entirely abolish ICE, as an improper attempt to build a personal paramilitary answerable only to the president.

• Change laws so that insurrectionists and convicted felons can no longer run for national office, nor be appointed to cabinet-level positions.

• Strengthen rules and norms that prevent Federal authorities from policing states. Ensure that DC is no longer an exception to those rules and norms.

• Impeach and remove the Supreme Court justices who perjured themselves during their confirmation hearings. Expand the Court and institute fixed terms instead of lifetime tenure.

• Consider sensible social media regulations: perhaps a threshold number of viewers after which the platform is considered to be a publisher, and is jointly liable with the author for falsehoods and libel.

• Inculcate workplace democracy (push democracy into companies, instead of corporate autocracy coming into the public sphere)

Failing to address these structural items is tantamount to accepting that our current nightmare will be extended, or will re-occur in the future.