A U.S. Appeals Court Rules Against Trump's Suspension of the Right to Due Process

In my previous post, I wrote about Federal District Court Judge James Boasberg's temporary restraining order (TRO) blocking Trump's effort to deport hundreds of Venezuelans without allowing them their right to due process of law.  This TRO was for only 14 days.  But Trump's government lawyers appealed the case, arguing that a delay in the deportations of even a few days would do irreparable damage to the U.S., and therefore they asked the U.S. Appeals Court for the D.C. Circuit to stay this TRO.

By a 2-1 vote, in J.G.G, et al. v. Donald J. Trump (U.S. Court of Appeals, D.C. Circuit, No. 25-5067, March 26, 2025), the Court denied the emergency motions for stay.  The majority consisted of Circuit Judge Karen LeCraft Henderson (appointed by President George H. W. Bush) and Circuit Judge Patricia Millett (appointed by President Barack Obama).  The one dissenter was Circuit Judge Justin Walker (appointed by Trump).

To grant a stay pending appeal, the Court does not render a final decision on the merits of the case, but it must consider the applicants' likelihood of success on the merits.  It must also consider whether the applicant faces irreparable injury without a stay, whether granting a stay will irreparably injure the other parties in the case, and whether the public interest would be served by denying a stay.

The two judges in the majority decided that the Government was unlikely to win the case on the merits because the President's proclamation for deporting these Venezuelans was probably illegal and unconstitutional in denying them due process of law.  They also decided that if they granted a stay of Boasberg's TRO, the injury for the Venezuelans would be far greater than any injury to the Government from denying the stay.  And, finally, they decided that the public interest did not demand a stay.

In his dissent, Judge Walker made two arguments for why the Court should have granted the stay.  His primary argument was that the Government was likely to win the case on technical grounds: the Plaintiffs' claims for relief require a habeas corpus petition, and a habeas petition should have been brought in Texas where they were detained rather than in Washington, DC.  

His second argument was that "the Government likely faces irreparable harm to ongoing, highly sensitive international diplomacy and national-security operations," because any delays in the deportations of the Venezuelans will disrupt the Government's negotiations with El Salvador and Venezuela over whether they will accept the deportees (Walker, 22).

I have written about the plan to make Trump the Red Caesar.  And one can see here that the Government lawyers are making the legal arguments for allowing Trump to become the Red Caesar.  The primary question is whether Trump has the power to interpret the laws--statutory laws and the Constitution--for himself and to refuse to accept the courts' interpretation of the law.  If Trump can interpret the law for himself, that means that his will cannot be restrained by law because his will is the law, which allows him to become a tyrant with absolute power.  As Trump says, "I can do anything I want as president."

The majority in this case have found that the "original public meaning" of the Alien Enemies Act (AEA) does not allow Trump to deport Venezuelan immigrants accused of being Tren de Aragua gang members without allowing them a hearing in which they can present evidence that they are not members of that gang.  First of all, the AEA is restricted to circumstances in which the U.S. is in a "declared war" with a foreign nation, or in which there has been some "invasion or predatory incursion" by a foreign nation.  Congress has not declared war with Venezuela, and Venezuela has not launched an "invasion or predatory incursion" against the U.S.

Trump's Government lawyers argued that the word "invasion" in the AEA encompassed "the arrival somewhere of people or things who are not wanted here."  The judges pointed out, however, that the text of the law, its context, and its history all supported the conclusion that the original public meaning of the term "invasion" was used in a military sense.

Moreover, the judges indicated, other statutory laws of Congress--such as the Administrative Procedures Act--clearly require due process of law in a case like this.  Trump's proclamation denies due process, and therefore it is illegal.  It is also unconstitutional insofar as it denies the Fifth Amendment's guarantee that "no person shall be . . . deprived of life, liberty, or property, without due process of law."

Trump's Government lawyers responded to this by claiming that the President has the authority to interpret the laws in any way he wishes, and therefore the courts have no authority to impose on the President their own interpretations of law.

The two judges in the majority answered this claim by pointing out that the Constitution vests the "judicial Power of the United States" in federal courts, and it is surely the case that it is the duty of the judiciary to say what the law is (Millett, 26-32).  Trump's lawyers said that interpreting the laws in this case was a "political question," and under the "political questions" doctrine, the courts cannot decide purely political questions.  But clearly, the Court argued, interpreting laws is a legal question, not a political question, and thus it clearly falls within the judicial power.

We see here the crucial questions that will probably have to be resolved by the Supreme Court.  Does President Trump have the authority to interpret the laws as he wishes, and thus refuse to accept the interpretation of the laws coming from the courts?  Or must the President be constrained by law as interpreted by the courts?

If the Supreme Court says yes to the first question, then the courts cannot limit Trump's power.

If the Supreme Court says yes to the second question, then Trump is likely to refuse to obey their decision.

In either case, Trump's power will not be checked by the courts.  And if the Congress continues to allow Trump to make laws by issuing executive orders, then he will have combined the executive and legislative powers of the federal government in his own hands.

We will then be under the one-man absolute rule of the Red Caesar, as advocated by Michael Anton, Curtis Yarvin and others who look forward to a "postconstitutional order" ruled by Trump.

Americans will then have to take one side or the other in the debate between Robert Filmer and John Locke in seventeenth-century England--passive obedience to the king, even when he claims absolute power, or active resistance to tyranny. 

That will be the subject for my next post.

Donald Trump--The Red Caesar--Abolishes the Individual Right to Due Process of Law

Jerce Reyes Barrios was born in Venezuela in 1989.  In February and March of 2024, he marched in two demonstrations in Venezuela to protest the authoritarian rule of Nicolas Maduro.  At the second demonstration, he was detained and taken to a secret building where he was tortured.

Shortly after he was released, he fled the country, hoping to receive asylum in the United States.  In Mexico, he registered online with the U.S. Customs and Border Protection (CBP) to request asylum in the U.S.  He presented himself to CBP officials on the day of his appointment.  He was taken into custody and detained at Otay Mesa Detention Facility in San Diego, California, in September of 2024.  His immigration attorney--Linette Tobin--filed a request for asylum.  His final individual hearing was set for April 17, 2025 before an immigration judge--Judge Robinson--at the Otay Mesa Immigration Court.

Barrios was initially placed in maximum security at Otay Mesa because he was accused of being a Tren de Aragua gang member.  This accusation was based on two claims.  The first was that he has a tattoo on his arm of a crown sitting on top a soccer ball with a rosary and the word "Dios."  Department of Homeland Security (DHS) officials say this tattoo is proof of gang membership.

The second claim is that when DHS reviewed Barrios' social media posts, they found a photo of him making a hand gesture that is proof of gang membership.

His lawyer responded to these charges by explaining that Barrios was a professional soccer player in Venezuela, and that he chose this tattoo because it resembles the logo for his favorite soccer team Real Madrid--a crown on top of a soccer ball.

She also explained that the hand gesture in his social media posts means "I Love You" in sign language.

His lawyer also submitted a police clearance from Venezuela showing that Barrios has no criminal record, letters about his steady employment as a soccer player and soccer coach, a declaration from the tattoo artist who rendered the tattoo, various online images of the Real Madrid logo, and an explanation of the "I Love You" hand gesture.  Barrios was then transferred out of maximum security.  

Barrios was waiting for his final hearing on April 17.  But on March 10 or 11, he was transferred from Otay Mesa to Texas without any notice to him or his family.  Then, on March 15, 2025, he was deported by plane to El Salvador.  His lawyer and his family have had no contact with him, and they know nothing about where he might be.

                                               Venezuelans Deported to El Salvador

All of this information comes from a sworn declaration of Barrios' lawyer that was filed in federal court on March 18.

The Fifth Amendment to the U.S. Constitution says: "No person shall . . . be deprived of life, liberty, or property, without due process of law."  Mr. Barrios was going to have his due process at his hearing before Judge Robinson on April 17.  

At that hearing, his lawyer would have presented her evidence that he was not a member of the Tren de Aragua gang and that he was not a criminal terrorist.  She would also have presented evidence that he had fled Venezuela to escape from torture and persecution by Maduro's authoritarian government, and therefore that he deserved asylum in the U.S. under the conditions set down in the U.S. Asylum Law (8 U.S. Code, Section 1158).  DHS officials could have presented their evidence and arguments as to why he should be deported.  Judge Robinson would then have decided the case after weighing the evidence and arguments presented to him.  That's due process of law.  

And that's one of the fundamental natural rights that is expressly declared in the Constitution as necessary for securing individual liberty.  If you can be deprived of your life, liberty, or property without due process of law, you are not a free human being.

Under the authoritarian dictatorship of Maduro in Venezuela, Mr. Barrios did not have that right.  He fled to the United States because he thought that America was dedicated to securing such rights, and that in America, he could be a free man.  He was wrong.  

He did not foresee that Donald Trump would become the Red Caesar, ruling as one man over an autocratic government, and that he would issue an executive decree on March 15, 2025, suspending the constitutional right to due process of law.

On that date--only six days ago--Trump signed his "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua".   In this executive order, Trump authorized the immediate deportation of any Venezuelan immigrants who were not naturalized or lawful permanent residents of the United States if any DHS officials identified them as members of Tren de Aragua (TdA), a Venezuelan gang that Trump had earlier identified as a Foreign Terrorist Organization.  As legal authority to do this, Trump appealed to his constitutional authority as president with authority to conduct the nation's foreign policy in time of war and to his legal authority under the Alien Enemies Act of 1798.

The Alien Enemies Act was originally one of the four laws enacted in 1798 by the Federalist Party in Congress that were known as the Alien and Sedition Acts.  These laws raised the residency requirements for citizenship from 5 to 14 years, and authorized the president to arrest, imprison, and deport "aliens" during time of war.  The Sedition Act made it a crime for American citizens to "print, utter, or publish . . . any false, scandalous, and malicious writing" about the government.  These laws were enacted by the Federalists against the opposition party--the Democratic-Republicans.  It was assumed that new citizens would typically support the Democratic-Republican Party, and so the Federalists wanted to reduce the number of new citizens.  In particular, the Federalists were afraid of Frenchmen in the United States because the Democratic-Republicans were thought to be supporters of the French Revolution at a time when the U.S. was in a quasi-war with France, and it was widely thought that the U.S. and France would soon be openly at war.  The Federalists also wanted to use the Sedition Act to punish editors of Democratic-Republican newspapers.

The intense controversy over these laws was one reason why the election of 1800 became one of the most dangerous elections in American history, which came close to provoking a civil war.  Thomas Jefferson and the Democratic-Republicans won the election, which marked the beginning of the decline of the Federalist Party.  (As I have said previously, it's good to be reminded of this election as showing that partisan polarization going to the edge of civil war is nothing new in American history.)

As a consequence of Jefferson's victory, three of the four Alien and Sedition Acts were repealed.  But the Alien Enemies Act was preserved, and it remains a statutory law today.  Here is section 21 of that law:

Whenever there is a declared war between the United States and any foreign nation or government or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.  The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

Originally, in the law of 1798, the law applied to "males of the age of fourteen years and upward."  In 1918, the word "males" was dropped.  Otherwise, the language of this law is the same today as it was in 1798.

Notice that this law is restricted to circumstances in which the U.S. is in a "declared war" with a foreign nation or government, or in which there has been some "invasion or predatory incursion" by a foreign nation or government.  A "declared war" requires a declaration of war from Congress, which is an enumerated power of Congress.  But an attack by a foreign nation or government might create an emergency even without a congressional declaration of war.

Notice what the law does not say.  It does not say that the President in the specified circumstances may suspend the right to due process of law.  Therefore, before the immigrants subject to this law can be detained or deported, they must have the right to a hearing before a judge where they can present evidence that they are not "alien enemies" of the United States.  That's what would have happened if Mr. Barrios had been permitted his hearing on April 17.

But if you interpret this law as implying the suspension of due process--because it is assumed that "all natives, citizens, denizens, or subjects of the hostile nation or government" who have not become naturalized citizens of the U.S. are "alien enemies" of the United States--then this law is unconstitutional because it violates the Fifth Amendment right to due process held by "all persons."

In all of American history, the Alien Enemies Act has been invoked only three times--in the War of 1812, World War I, and World War II.  In World War I and II, it was the law that authorized detentions and expulsions of German, Austro-Hungarian, Japanese, and Italian immigrants.

In his executive order of March 15, Trump declares that the TdA gang is "conducting irregular warfare and undertaking hostile actions against the United States," and that they are acting under the control of Nicolas Maduro's government in Venezuela.  Trump claims that this has created "a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States."

Trump then proclaims "that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies."  He orders that "pursuant to the Alien Enemies Act, the Attorney General and the Secretary of Homeland Security shall, consistent with applicable law, apprehend, restrain, secure, and remove every Alien Enemy described in section 1 of this proclamation."

This presidential proclamation is clearly illegal and unconstitutional.  It is illegal because it does not satisfy the conditions prescribed by the Alien Enemies Act: Venezuela is not at war with the U.S., and the TdA gang is not an agent of the Venezuelan government carrying out an invasion of the U.S.

It is unconstitutional because it denies the constitutional right of Venezuelan immigrants to due process of law by denying their right to have a hearing before a judge to determine whether they really are "alien enemies" of the U.S.

In his proclamation, Trump claims that TdA is an agent of the Venezuelan government.  But there is little evidence for this.  Trump does not even mention the fact that Venezuelan security forces have exchanged gunfire with TdA gang members.

Trump says that the gang had expanded in the Venezuelan region of Aragua when Tareck El Aissami was governor of that region, and then in 2017 Maduro appointed him as vice president.  But Trump says nothing about the fact that Aissami is no longer in the Maduro administration, which is prosecuting him on charges of corruption.

Within a few hours of Trump's proclamation on March 15, about 238 Venezuelan immigrants (including Mr. Barrios) were flown out of Texas to El Salvador, where the U.S. had made a deal to pay El Salvador $6 million dollars to imprison up to 300 Venezuelans deported from the U.S. for one year.  El Salvador's prisons are notorious for their brutality.

On the night of March 15th, Judge James E. Boasberg of the Federal District Court in Washington issued an order blocking the deportation of these Venezuelans.  When he was told that the planes were already in the air, he ordered that they must be told to turn around and return to the U.S.  DHS officials refused to obey his order.  Trump has said that this judge needs to be impeached, and that no judge has the right to obstruct a president's orders in cases like this.

Trump and his DHS officials have asserted that all of these Venezuelan deportees are clearly foreign terrorist members of the TdA gang.  But when the DHS officials are asked to present evidence of this to Judge Boasberg, what they say is laughable.  For example, Robert Cerna, an Acting Field Office Director of Enforcement and Removal Operations for ICE submitted a sworn affidavit, which includes this passage:

While it is true that many of the TdA members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time.  The lack of a criminal record does not indicate they pose a limited threat.  In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose.  It demonstrates that they are terrorists with regard to whom we lack a complete profile (sec. 9).

Notice what he is saying here: the lack of any specific evidence that someone is a terrorist demonstrates that he is a terrorist!

In the meantime, Mr. Barrios is languishing in a secret prison in El Salvador where he will be tortured and perhaps killed.

This one case of the deportation of Venezuelans by order of Trump clearly illustrates how the Red Caesar Plan works.  Trump will appeal to both statutory law and constitutional law to justify his autocratic power as the Red Caesar.  In this case, he interprets the Alien Enemies Act as giving him absolute power to deport immigrants that he identifies as "alien enemies."  And he interprets the Constitution--particularly, Article II as interpreted by the Unified Executive Theory--as giving him absolute power: "I have an Article II, where I have the right to do whatever I want as president."

When a federal judge rules that Trump's orders are illegal and unconstitutional because his interpretations of statutory law and constitutional law are mistaken, Trump will ignore the judge's ruling and claim that a President has the power to interpret the laws and the Constitution in any way he wants.  And if the Supreme Court rules against him, he will say what Andrew Jackson reputedly said in response to a Supreme Court ruling he didn't like: you have made your ruling, now enforce it.  

The joke, of course, is that federal courts cannot enforce their orders without help from the officers in the executive branch--such as U.S. Marshalls enforcing contempt of court rulings.  But a Red Caesar like Trump will order the executive officers not to enforce these court orders.

Notice how Trump as the Red Caesar has the absolute sovereignty that comes from combining the executive, legislative, and judicial powers in his hands.  Trump makes laws by signing executive decrees.  Trump executes those laws that he has made by ordering executive officials to carry them out according to his directions.  Trump judges the laws by interpreting them for himself and deciding how they apply to particular cases, and refusing to obey judicial orders that go against his will.

Here we see the foundational principle for the Red Caesar Plan: autocratic nihilism.  There is no law constraining the will of Caesar because the law is nothing more than the product of Caesar's will.  This overturns one of the fundamental principles of countervailance (the separation of powers with checks and balances)--that no man is permitted to be the judge in his own case.

Trump's sovereign will is the law.  As the source of the law, he himself cannot act unlawfully.  Whatever he does, he wills to do; and if he wills to do it, it is for that reason lawful.

This conforms to Curtis Yarvin's argument for a Filmerian monarchy exercising political sovereignty that is unlimited and undivided.  Yarvin and Michael Anton devised the Red Caesar Plan as the best way for Trump to claim absolute sovereignty.

That's the dark future we face as we enter into the postconstitutional order of Red Caesarism.

As I have said in my recent posts, we need to understand the grandiose narcissism of Trump's chimpanzee politics and how his despotic dominance can be challenged by the resistance to dominance coming from those few people with an ambition to rule and those many people who don't want to rule but who don't want to be exploited by the dominant rulers.

The particular case here--Trump's deportation of Mr. Barrios to an El Salvadorean prison where he will be tortured and killed by prison guards paid by the U.S. government--raises a stark question for the American people: Do they want to be ruled by a Red Caesar who has the power to take life, liberty, and property without due process of law?

This question points to deeper questions about Trump's nihilism.  Are the intellectual promoters of Trump's Red Caesarism--at the Claremont Institute and elsewhere--right in their nihilistic claim that there is no moral law constraining the will of Caesar, because all law is the arbitrary creation of his will?  Or is it possible that rights such as the right to due process are not just legal or constitutional rights but natural rights rooted in the moral law of nature in the state of nature?

Originally, the Claremont Institute was grounded in Harry Jaffa's teaching that America was dedicated to the principles of the Declaration of Independence and particularly to the Lockean understanding that the rights to life, liberty, and the pursuit of happiness are natural rights, that governments are established to secure those natural rights, and that any government that is destructive of those rights can be altered or abolished, and the people can institute new government that is more likely to secure those natural rights.

To Trump's claim that "I have the right to do whatever I want as president," Jaffa would have answered: No, you don't, because you have no right to violate the natural rights invoked by the Declaration of Independence and secured by the Constitution--natural rights such as every person's right not to be deprived of life, liberty, or property without due process of law.  But now the Claremont Institute has rejected Jaffa's teaching so that they can promote the nihilism of Red Caesarism.

In my next post, I will argue that Darwinian Lockean Liberalism would support Jaffa's moral naturalism against Trump's immoral nihilism.

Donald Trump Is the Red Caesar--The Claremont Institute's Straussian Plan for America

                                                                           Michael Anton

We can explain what Trump has been doing in the first two months of his second term if we recognize that he is executing a plan devised by some Straussian intellectuals associated with the Claremont Institute:  he is becoming the Red Caesar.

In this post, I will explain how this plan developed out of the thinking of Michael Anton.  And then, in my next post, I will show how Trump's invocation of the Alien Enemies Act for the quick deportation of some Venezuelan immigrants illustrates how he can become America's Red Caesar. 

THE RED CAESAR PLAN

As far as I know, the plan began in 2020 with the publication of Michael Anton's book The Stakes: America at the Point of No Return.  Actually, a podcast conversation between Anton and Curtis Yarvin in 2021 suggests that the idea of a Red Caesar might have originated with Yarvin.  I have written about Yarvin as an advocate for the neoreactionary authoritarianism of a Filmerian monarchy as superior to America's Lockean liberalism.

I have written previously about Anton as one of the leading Trump intellectuals associated with the Claremont Institute.  In the first Trump administration, Anton was the Deputy Assistant to the President for Strategic Communications on the National Security Council (2017-2018).  In Trump's second administration, Anton is now Director of Policy Planning at the U.S. State Department.

The Stakes was about the high stakes in the election of 2020--making it the most important election in over a hundred years.  Anton concluded the book by warning that while his "fondest political dream is for a restoration of the American constitutional order," the conflict between Blue America and Red America could lead to the total collapse of the constitutional order.  Then what?

He considers various possibilities.  One of them is Caesarism.  "Caesarism is a particular form of one-man rule: halfway, as it were, between monarchy and tyranny.  It is monarchical in that a single person rules.  It is tyrannical in that there is no appeal; Caesar's word replaces constitutionalism and even, in the final analysis, law" (341).  Caesarism, therefore, can be defined as "authoritarian one-man rule partially legitimized by necessity," where that necessity is the breakdown of the republican, constitutional order caused by the people becoming so corrupt that they lack the republican virtues required for liberty (342).

Anton explained that Caesarism has five kinds of benefits, which he saw in the history of ancient Rome's Caesars.  First, the benefits of Caesarism to Caesar are obvious--it satisfies his ambition for absolute power.

But there are also at least four benefits for a nation.  Caesarism can hold together a large nation and prevent it from breaking up.  In the case of the Roman Empire, it might have been broken up by factional conflict if Julius Caesar and is successors had not taken command.

Caesarism can also provide stability by preserving most of the formal institutions of the nation.

Caesarism can also calm factional conflict by subordinating all the factions to the rule of Caesar.

And it can preserve and even enhance the cultural and economic achievements of a great civilization, as was the case for Roman civilization under the Caesars.

Of course, Anton admitted, the great cost of Caesarism is the loss of liberty.  And yet when Caesarism comes, it's because liberty has already been lost (342-43).

But then we wonder how Caesarism is established.  As is characteristic of the Claremont Straussians, Anton's answer drew ideas from the ancient and modern political philosophers--principally, Machiavelli.  According to Machiavelli, a "principality" (one-man rule) is caused either by "the people" (the common people or the multitude) or by "the great" (the upper class).  The great ones are those few people who want to rule.  The people are the multitude of people who don't want to rule, but who don't want to be exploited by the rule of the great ones.  If the great ones can't resist the people, they will choose one of themselves to become the prince, who will suppress the people.  If the people can't resist the great ones, the people will choose one of the great to become the prince, who will defend the people against the great ones.

Anton concedes that this Machiavellian analysis fails to apply to the American situation today in one respect.  "In the present, divided America there is not one multitude but two: one blue, the other red.  Yet there's only one ruling class, to which the blue multitude is allied" (344).  

As I have indicated in my posts on Anton, this points to a problem for the "populist" rhetoric of Trump and the Claremont Straussians.  They depict a simple clash between The People and The Ruling Class.  But in fact, they can't claim to be on the side of The People if The People is divided into two groups--blue America and red America.  They have to argue that blue America is not the real America.  But in order to win the popular vote at the national level, they must appeal to both Americas.  Consequently, as I have indicated, Trump won the popular vote (by a slim margin) in 2024 only because he appealed to a multiethnic, multiracial, and multireligious coalition through a liberal rhetoric of pluralism.

In 2020, Anton foresaw, if only dimly, how Trump could come back to power in 2025 as the Red Caesar.  Anton considered the possibility of a Blue Caesar, but he thought that since the blue coalition had the upper hand in 2020, it was unlikely to see the need for Caesarism.  On the other hand, since red Americans were constantly under attack, they were more likely to turn to a Caesar to defend them.

If they were to do this, then Anton saw two formal mechanisms for a Caesar to come to power--"by military coup and by winning office legally and then refusing to give it up when his term ends, or maneuvering things in such a way that he's begged to stay" (345).  He thought that a military coup in America would be unlikely because the circumstances that made military coups frequent in ancient Rome did not hold for America.  Roman generals enjoyed great wealth and prestige from their conquests.  They could hold command for long periods.  They won the personal loyalty of their soldiers by distributing to them the spoils of war.  The people were accustomed to military rule.  Beginning in the early days of the Republic, there was even a procedure for appointing a military dictator for a limited term.  A few years before his death, Julius Caesar had himself appointed dictator perpetuo.  Nothing like this holds true for American generals.

So, the second route to Caesarism--being elected to office legally and then refusing to leave the office--is more likely.  But what about the constitutional amendment that limits a President to two terms?  Anton suggested: 

The instant you hear someone float the idea of repealing, or even "reforming," the Twenty-Second Amendment, you'll know that Caesarism has moved from theoretical possibility to someone's plan.  Lawful repeal through actual constitutional means would be hard--the Constitution is difficult to amend by design--but Caesars don't tend to respect constitutional principle.  The objection, which I half expect to hear offered seriously, that "the courts would never allow that!" is therefore irrelevant.  The mere possibility of Caesarism presupposes a degeneration of politics well below levels at which laws and courts are obeyed.  Caesar's contemptuous reply to the courts would echo Andrew Jackson's: you've made your ruling, now let's see you enforce it (345-46).

Remarkably, Trump has often suggested that he should run for a third term; and Steve Bannon has said that, of course, Trump will run again in 2028. 

So there it is--the Trump as Red Caesar Plan.  And yet anyone who has read Anton's book could object that he did not actually endorse such a plan.  After all, he remarked:  "Given all these and other obstacles, prospects for red Caesarism seem fanciful, the stuff of cheap political thrillers and big-budget summer blockbusters.  At any rate, I see and have seen no evidence whatsoever of anyone mounting any such effort anywhere" (350).

But remember that Anton is a Straussian, and Straussians are known for their claim that philosophers, fearing persecution for their unpopular ideas that shock the common people, must write esoterically, so that they hide their secret teaching from their common readers, while surreptitiously conveying their true teaching to their philosophic readers.  So, of course, Anton should say openly that he's not recommending or planning for a Red Caesar to seize one-man rule over America.  At the same time, however, by elaborating the many benefits of Caesarism, while arguing that the corruption of American politics has made Caesarism necessary, that's enough to insinuate to his Claremont Straussian readers that he really is endorsing Red Caesarism.

Sure enough, the Claremont Straussians got the secret message.  In his review of Anton's book in First Things, Nathan Pinkoski wrote: "What is Anton's ultimate intention?  In good Straussian fashion, what he teaches is not what he says, at least not outright.  With great moderation, he explicitly teaches us how to act prudently within the framework of the republican constitution; with great daring, he implicitly teaches us how to act prudently when the republican constitution is gone.  But the ultimate intention of The Stakes is to teach prudence and fortitude.  It is to prepare us for life in postconstitutional America" (Pinkowski 2020).

Charles Haywood writes frequently for the Claremont Institute.  He is also a self-proclaimed "warlord" who has founded a secretive network of far-right male fraternal lodges.  In his review of Anton's book for his blog, he writes that when Anton concludes that the Red Caesar is unlikely, "this seems like an error (or more likely disingenuous)."  He is excited by the prospect of a Red Caesar: "Me, I like, if not love, the idea of Red Caesar, the creation of an Augustan system. . . . Caesarism, and its time-legitimated successor, monarchy, is a natural, realism-based system, under which a civilization can flourish. (Maybe Elon Musk can be king and lead us to Mars.)"  Remarkably, then, Haywood saw in 2020 that Musk's project for colonizing Mars could become part of the Red Caesar Plan.  I have written about how Trump's Second Inaugural promoted America's "Manifest Destiny" to follow Musk in colonizing Mars.

Some Claremont Straussians--like Casey Wheatland--have claimed that Anton got his idea for the American Red Caesar from Leo Strauss himself, when Strauss pointed to Caesarism as the likely alternative to a failed republic in his "Restatement on Xenophon's Hiero" (Wheatland 2023).

What explains the support for Trump as the Red Caesar among so many of the Claremont Institute scholars of political philosophy?  As I have said previously, I believe Ross Douthat might have the best explanation: it's their "enthusiasm for a politics of crisis."  The Claremont Institute story of the American regime is a story of three regime crises.  First, there was the crisis of the American Revolution and the Constitutional Founding.  Second, there was the "crisis of the house divided" that led to the Civil War and Lincoln's triumphant "new birth of freedom" that was a re-founding of the regime.  Third, there was the crisis of corruption during the Progressive Era in which the Founding was overturned in favor of the Administrative State.  Now, we need a new transformative crisis in which Trump as the Red Caesar overturns the Administrative State and establishes the new American regime of one-man rule.

A crisis is turbulent, chaotic, violent, and risky.  It might turn out to be a disaster.  But we must take the risk to avoid the triumph of the evil ones who want to destroy America.  That was the message of Michael Anton's "Flight 93 Election" essay.

A crisis is alluring to politically ambitious people who see it as creating an opportunity for them to exercise some political influence in the halls of power during a transformative period of history.  Kesler told the Washington Post: "Trump was such an amateur that he didn't have contacts even with the establishment conservative think tanks in Washington, like Heritage and AEI.  That was an opportunity for us to have a little more influence as an outsider."  And, indeed, people like Anton have found positions in Trump's White House.  

Thomas Klingenstein is the chair of the Claremont Institute's board and its main funder.  Appearing on Steven Bannon's "War Room" show, Klingenstein said the Claremont Institute has been widely "recognized as the intellectual basis for Trump," making this "a great time for us. . . . Our budget is going way up.  The Washington Post is going to write a hit piece on us, and we take great pride in that. . . . It tells you that they think we're important, and we're not just a group of political philosophers."

That explains it all.  We're important, and we're not just a group of political philosophers.

The Trump supporters at the Claremont Institute think they can be important if they provide "the intellectual basis for Trump" that allows him to lead the country through a crisis in such a way that he can found a new American regime of Red Caesarism.  

In my next post, I will illustrate how Trump is doing that by looking at his invocation of the Alien Enemies Act.

REFERENCES

Anton, Michael. 2020. The Stakes: America at the Point of No Return. Washington, DC: Regnery Publishing.

Haywood, Charles. 2020. "The Stakes: America at the Point of No Return."  September 8. The Worthy House, theworthyhouse.com 

Pinkoski, Nathan. 2020. "Postconstitutional America." First Things. November.

Wheatland, Casey. 2023. "Founding Fathers and Red Caesar." The American Mind.  October 20.  

Trump's Grandiose Narcissism Explains His Competitive Authoritarianism

Donald Trump is not a protectionist.  He is not an isolationist.  He is not a nationalist.  He is not a conservative.  Terms like protectionism, isolationism, nationalism, and conservatism suggest some kind of social theory or doctrine.  But Trump doesn't do theory.

Sure, as I have indicated in my previous posts, Trump is attracted to the theory of the unitary executive.  But that's not because he's been persuaded that it's a correct theory.  He is attracted to that theory only because, and only so long as, it serves his real priority: the restless search for directing the public attention of the world to Donald Trump.

That explains why he sometimes rejects positions in the afternoon that he took in the morning.  Reversing himself so quickly surprises and shocks us so that we can't take our eyes off him.  And that's the point of it all.

That's why my wife and I need the Wall Street Journal to provide us with a "Trump Tracker" every morning.  This morning, it lists "45 Major Moves in 46 Days."

That's what you do if you're a grandiose narcissist like Trump.

Trump's grandiose narcissism also explains why Trump has decided to try in his second term to change the American regime from liberal democracy to competitive authoritarianism.  Again, this is not because he believes that competitive authoritarianism is in principle a better form of government, but because in the present circumstances of American political history, this form of government offers him the best prospect for keeping public attention constantly focused on himself.

First, I'll remind you of what I have said about grandiose narcissism as a personality disorder displayed by some authoritarian political leaders like Trump and by some other primates who strive for despotic dominance.  Then I'll explain what I mean by "competitive authoritarianism."

GRANDIOSE NARCISSISM

The Diagnostic and Statistical Manual of Mental Disorders describes nine diagnostic criteria for Narcissistic Personality Disorder (NPD):

A pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early childhood and present in a variety of contexts, as indicated by five (or more) of the following:

(1) has a grandiose sense of self-importance (e.g. exaggerates achievements and talents, expects to be recognized as superior without commensurate achievements)

(2) is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love

(3) believes that he or she is 'special' and unique and can only be understood by, or should associate with, other special or high-status people (or institutions)

(4) requires excessive admiration

(5) has a sense of entitlement, i.e., unreasonable expectations of especially favorable treatment or automatic compliance with his or her expectations

(6) is interpersonally exploitative, i.e., takes advantage of others to achieve his or her own ends

(7) lacks empathy: is unwilling to recognize or identify with the feelings and needs of others

(8) is often envious of others or believes that others are envious of him or her

(9) shows arrogant, haughty behaviors or attitudes.

Who does this remind you of? 

The narcissism of people like Trump can often give them the swagger and charismatic excitement that make them the center of attention in a way that can be translated into political success.   And, as Lincoln observed, many politically ambitious people like this will be satisfied in a liberal democracy to be elected as a congressman, a governor, or a president.  But this will not satisfy someone like Trump who thinks himself a "Towering Genius" like Napoleon who needed to become the Emperor to satisfy the grandiosity of his ambition.

COMPETITIVE AUTHORITARIANISM

As Steven Levitsky and Lucan Way have argued in the latest issue of Foreign Affairs, Trump's Napoleonic narcissism is driving him to overturn American liberal democracy and replace it with competitive authoritarianism (Levitsky and Way 2025).  "Competitive authoritarianism" is the term they have invented as a label for a distinctively hybrid regime that combines elements of democracy and authoritarianism, which has emerged around the world over the past 35 years since the end of the Cold War (Levitsky and Way 2002, 2010).

I have written about democracy and autocracy as the natural but not inevitable products of human political evolution.  What Levitsky and Way call competitive authoritarianism is a mixture of democratic competition and autocratic governance.

At one end of the political spectrum, a fully authoritarian regime either does not have multiparty elections for the executive and other offices of government, or it has elections, but they are not free and fair; and basic civil liberties (speech, press, association) are denied.

At the other end of the spectrum, a fully democratic regime has multiparty elections that are free and fair, most adults have the right to vote, basic civil liberties are protected, and the authority of elected governments is not restricted by unelected military or clerical powers.

Somewhere between these two extremes of the spectrum, a competitive authoritarian regime has multiparty elections, but they are not completely free and fair, because the incumbent's abuse of power tilts the electoral playing field against the opposition, and basic civil liberties are restricted to make it hard for the opposition to challenge the ruling party.

Under competitive authoritarianism, opposition forces can compete seriously for power.  And, occasionally, the opposition can win an election, and the incumbents lose.  But this regime is still not fully democratic, because the ruling party uses its power over the government to attack opponents and co-opt critics.

These three regime types are distinguished by the kind of countervailance--power checking power--that they allow.  A fully authoritarian regime allows little or no countervailance.  A fully democratic regime allows strong countervailance.  A competitive authoritarian regime allows weak countervailance.

For example, in a competitive authoritarian regime, the ruling party can politicize and weaponize the government bureaucracy by filling it with party loyalists who will use the power of the government to punish opponents and reward allies.  Levitsky and Way point out:  

One of the first moves undertaken by elected autocrats such a Nayib Bukele in El Salvador, Hugo Chavez in Venezuela, Viktor Orban in Hungary, Narendra Modi in India, and Recep Tayyip Erdogan in Turkey has been to purge professional civil servants from public agencies responsible for things such as investigating and prosecuting wrongdoing, regulating the media and the economy, and overseeing elections--and replace them with loyalists.  After Orban became prime minister in 2010, his government stripped public employees of key civil service protections, fired thousands, and replaced them with loyal members of the ruling Fidesz party.  Likewise, Poland's Law and Justice party weakened civil service laws by doing away with the competitive hiring process and filling the bureaucracy, the judiciary, and the military with partisan allies (Levitsky and Way 2025: 41).

But notice that of all of these examples of competitive authoritarian ruling parties, one of them--Poland's Law and Justice party--lost its majority power in Poland's parliamentary elections of 2023.  So, this illustrates the real political competition in these regimes because the ruling party can occasionally lose to the opposition, even though the competitive playing field is unfairly tilted to favor the ruling party.  In a fully authoritarian regime, the ruling party would never lose an election.

Notice also that the list of competitive authoritarians includes Viktor Orban, who has been Prime Minister of Hungary since 2010, the longest serving prime minister in the history of that country.  For Trump and the right-wing intellectuals advising him, Orban is the model of what Trump would like to become in the United States.

Trump failed to do this in his first term for various reasons.  He did not have enough experience in government to plan ahead what he needed to do.  He appointed some establishment Republicans who were not slavishly loyal to him.  And he did not fully control the Republican Party.  

But now, he has come into his second term with a plan for establishing presidential authoritarian government provided to him by the Heritage Foundation (Project 2025), the Claremont Institute, The Federalist Society, and others.  He has turned the Republican Party into the Trump Party, so that the Republican-controlled Congress will not restrain his authoritarianism.  And he is filling the Executive Branch with his personal loyalists who will be his compliant servants.

Levitsky and Way are right in predicting that even if Trump is successful in doing this, he will not be able to establish a fully authoritarian regime--a fascist or one-party dictatorship.  There will be mid-term congressional elections in 2026 and a presidential election in 2028.  And Trump's opponents could win one or both of those elections.  Because even if Trump establishes a competitive authoritarianism, it will be truly competitive, although the competition will not be fully free or fair.

And yet, as Levitsky and Way say, Trump's success in establishing an authoritarian regime will be limited in at least three ways.  First, American constitutional institutions are stronger than in other competitive authoritarian regimes.  For example, an independent judiciary, federalism, a bicameral legislature, and midterm elections are all absent in Orban's Hungary.

Second, Trump is not as popular as many of the successful elected autocrats have been.  Some of them have had approval ratings of over 80 percent.  Trump has never come close to that.  Until recently, Orban and his party have been very popular.  But now his popularity has fallen behind the opposition Tisza Party, which could win the parliamentary elections in 2026.

A third constraint on Trump is the countervailing power generated by American civil society.  American capitalism generates a larger and richer private sector than is the case in any other country, and that creates dispersed power centers outside the government that are difficult to fully capture or bully.

But then, of course, the richest American is the leader of the Trump takeover of the government--Elon Musk.  That raises an interesting question.  How can a grandiose narcissist share the spotlight of public attention with another grandiose narcissist?  The answer is obvious--he doesn't.

So, at some point, Trump will have to fire Musk.  And he probably will blame Musk for many of the bad decisions made in Trump's second term.

REFERENCES (FOR THIS AND THE PRECEDING THREE POSTS)

Arnhart, Larry. 2009. Darwinian Conservatism: A Disputed Question. Ed. Kenneth Blanchard. Exeter, UK: Imprint Academic.

Arnhart, Larry. 2012. "Biopolitical Science." In James Fleming and Sanford Levinson, eds., Evolution and Morality.  Nomos LII. New York: New York University Press.

Arnhart, Larry. 2016. Political Questions: Political Philosophy from Plato to Rawls. Long Grove, IL: Waveland Press.

Calabresi, Steven. 2021. "'A Shining City on a Hill': The Unitary Executive and the Deep State." The Balkinization Symposium on Skowronek, Dearborn, and King, Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive, July 18.

Calabresi, Steven, and Christopher Yoo. 2008. The Unitary Executive: Presidential Power from Washington to Bush. New Haven, CN: Yale University Press.

Chabot, Christine Kexel. 2020. "Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies." Notre Dame Law Review 96: 1-54.

Chabot, Christine Kexel. 2022. "Interring the Unitary Executive." Notre Dame Law Review 98: 129-209.

Gordon, Scott. 1999. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge, MA: Harvard University Press.

Hamilton, Alexander, James Madison, and John Jay. 1961. The Federalist. Ed. Jacob E. Cooke. Middletown, CN: Wesleyan University Press.

Herndon, William H. 1983. Herndon's Life of Lincoln. New York: Da Capo Press.

Levitsky, Steven, and Lucan Way. 2002. "The Rise of Competitive Authoritarianism." Journal of Democracy 13 (April): 51-65.

Levitsky, Steven, and Lucan Way. 2010. Competitive Authoritarianism: Hybrid Regimes After the Cold War. Cambridge: Cambridge University Press.

Levitsky, Steven, and Lucan Way. 2025. "The Path to American Authoritarianism." Foreign Affairs 104 (March/April): 36-51.

Lincoln, Abraham. 1953. The Collected Works of Abraham Lincoln. 8 vols. Ed. Roy Basler. New Brunswick, NJ: Rutgers University Press.

Lincoln, Abraham. 1989. Speeches and Writings. Ed. Don Fehrenbacher. New York: The Library of America. 

Nathan, Richard P. 1975. The Plot That Failed: Nixon and the Administrative Presidency. New York: John Wiley & Sons.

Roberts, Andrew. 2014. Napoleon: A Life. New York: Viking.

Shane, Scott. 2006. "Recent Flexing of Presidential Powers Had Personal Roots in Ford White House." New York Times. December 30.

Shugerman, Jed Handelsman. 2022. "Vesting." Stanford Law Review 74 (June): 1479-1570.

Shugerman, Jed Handelsman. 2023. "The Indecisions of 1798: Inconstant Originalism and Strategic Ambiguity." University of Pennsylvania Law Review 171: 753-867.

Skowronek, Stephen, John Dearborn, and Desmond King. 2021. Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive. New York: Oxford University Press.

Tillman, Seth Barrett. 2016. "Ex Parte Merryman: Myth, History, and Scholarship." Military Law Review 224: 482-540.

Wilson, Edmund. 1966. Patriotic Gore: Studies in the Literature of the American Civil War. New York: Oxford University Press.

The Unitary Executive Theory Feeds the Grandiose Narcissism of Trump's Despotic Dominance

 

           Napoleon Crowns Himself Emperor with Pope Pius VII Looking On, December 2, 1804

The biographical history of the unitary executive theory is the personal history of the American presidents.  According to Steven Calabresi and Christopher Yoo (2008), all of the presidents have believed in the theory of the unitary executive, because they have all claimed that Article II of the Constitution gives them the power to remove and direct all of those officials who exercise executive power.

But no president has ever interpreted the presidential power in Article II as expansively as Donald Trump has.  Hearing about the theory of the unitary executive from his legal advisors excited Trump because he could then declare: "I have an Article II, where I have the right to do whatever I want as president."

The right to do whatever he wants as president!  Nothing could be more exhilarating for a man like Trump, who is unique among all the presidents in the grandiosity of his grandiose narcissistic personality.  (I have written about Trump's grandiose narcissism compared with the personalities of other presidents and chimpanzees.)

Trump is interpreting Article II as the constitutional justification for overturning the Constitution by crowning himself Emperor, just as Napoleon did.  Trump has even repeated words attributed to Napoleon when he became Emperor: "He who saves his country violates no law."  To show that he identifies this remark as Napoleon's, Trump has posted it along with a famous painting of Napoleon by Jacques-Louis David.

                                       Trump Has Posted This Screenshot on "Truth Social"

As I have argued, the proponents of the unitary executive theory are mistaken in their interpretation of the Constitution.  But their biggest mistake has been in not anticipating how their theory would feed the Napoleonic ambition for dictatorship in someone like Trump.

Steven Calabresi is one of the leading advocates of the unitary executive theory who came to regret his support for Trump's election in 2016.  In 2020, he warned that Trump was showing the traits of a fascist dictator, and he voted for Biden.  In 2021, he recommended that Trump should be impeached for inciting the January 6 insurrectionary attack on the Capitol.  In 2024, Calabresi argued that under Section 3 of the 14th Amendment, Trump should be disqualified from running for president again because he had violated his oath of office by engaging in "insurrection or rebellion" against the Constitution.  But then, strangely, a few weeks later, he announced that he had changed his mind because the President was not an "officer" of the U.S. government under the 14th Amendment.  Trump should be allowed to run again, Calabresi advised, but the voters should reject him because of his fascist propensities.

In 2021, Calabresi wrote a response to Skowronek, Dearborn, and King's Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive.  They showed how Trump had used his interpretation of the unitary executive theory to move towards a presidential dictatorship unrestrained by the constitutional system of checks and balances.  Calabresi agreed that Trump's tyrannical ambition had threatened the constitutional order.  But still Calabresi insisted that this was no reason to reject the unitary executive theory.

We should not "remake" the Constitution because of a once in 232 years oddball-president like Trump.  And, liberals should realize that originalists who want a unitary executive like me also want a vigorous non-delegation doctrine; an Article III administrative law judiciary; and, above all else, a government of checks and balances.  We abhor fascist as well as socialist dictators, which is why, in 2020, I voted for Joe Biden (Calabresi 2021).

Calabresi is right in saying that Congress has delegated too much of its lawmaking power to the President and administrators, and that administrative law judges should be nominated by the President and confirmed by the Senate with tenure during good behavior.  But this does not solve the problem of Trump's dictatorial propensities animated by his belief that a unitary presidency means that since the president has complete control over the execution of congressional laws and court orders, the president can refuse to enforce those laws and court orders.

Calabresi is also right that Trump is "a once in 232 years oddball-president" because he's the only president who has interpreted the unitary presidency to mean that Article II allows him to become a Napoleonic dictator.  But Calabresi and the other proponents of the unitary executive theory could have predicted Trump's "oddball" presidency if they had listened to John Adams, Alexander Hamilton, Abraham Lincoln, and others who had warned about presidential demagogues with grandiose ambitions who would strive to become tyrants.

LINCOLN'S EGALITARIAN DOMINANCE

In 1838, in his "Young Men's Lyceum Address," delivered in Springfield, Illinois, Lincoln warned about the danger of someone like Trump who would thirst for the splendid glory that would come from becoming America's Caesaristic Dictator like Napoleon and thus destroy the American constitutional order.  The subject for his speech was "the perpetuation of our political institutions" that constitute our "political edifice of liberty and equal rights."  This had become an urgent question for Lincoln's generation--he was soon to turn 29 years old--because the generation of the American Revolution and Founding had passed away, and it was not clear that the new generation would preserve and pass on the political legacy that they had inherited.

Lincoln began by dismissing as unlikely any danger from some transatlantic military force. He insisted that all of the combined armies of Europe, Asia, and Africa under the command of a Napoleon could not succeed in conquering America.

The more likely danger to our political institutions must spring up amongst us.  "If destruction be our lot, we must ourselves be its author and finisher.  As a nation of freemen, we must live through all time, or die by suicide."

Lincoln thought he saw a foreboding sign of possible national suicide in the "increasing disregard for law which pervades the country; the growing disposition to substitute the wild and furious passions, in lieu of the sober judgments of Courts; and the worse than savage mobs, for the executive ministers of justice."  He then vividly described a half dozen examples of such mob violence from every part of the country, from New England to Louisiana to St. Louis.

In explaining how this "mobocratic spirit" threatens "the perpetuation of our political institutions," Lincoln sketched the political psychology of four distinct groups of Americans.  First, there's "the mob"--those many Americans who think that vigilante violence is justified if the legal institutions for law enforcement are too slow in punishing criminals.

Second, the "lawless in spirit" are those who obey the law only because they dread punishment, and therefore when they see that the lawless mobs go unpunished, the "lawless in spirit" become "lawless in practice."

Third, there are the "good men" who desire to abide by the laws, and as long as they enjoy the tranquility of a society ruled by law, they will fight in defense of their country.  But when these good men see their country become utterly lawless, so that there is no rule of law to protect their lives, their families, and their property, this weakens their attachment to their government; and they are willing to see the overthrow of their government.

Fourth, there are "the men of ambition and talents" who see the lawless violence in the country as an opportunity for them to seize power and thus satisfy their ambition for political glory.  Previously, during the revolutionary and founding period of America, these men satisfied their ambition for fame and glory by striving "to display before an admiring world, a practical demonstration of the truth of a proposition, which had hitherto been considered, at best no better, than problematical; namely, the capability of a people to govern themselves."  They succeeded, and their names have been immortalized.

But "this field of glory is harvested, and the crop is already appropriated.  But new reapers will arise, and they, too, will seek a field."  Men of ambition and talents will continue to spring up, and they will seek to gratify their ruling passion for distinction. 

The question then, is, can that gratification be found in supporting and maintaining an edifice that has been erected by others?  Most certainly it cannot.  Many great and good men sufficient qualified for any task they should undertake, may ever be found, whose ambition would aspire to nothing beyond a seat in Congress, a gubernatorial or a presidential chair; but such belong not to the family of the lion, or the tribe of the eagle.  What! think you these places would satisfy an Alexander, a Caesar, or a Napoleon?  Never!  Towering genius disdains a beaten path.  It seeks regions hitherto unexplored.  It see no distinction in adding story to story, upon the monuments of fame, erected to the memory of others.  It denies that it is glory enough to serve under any chief.  It scorns to tread in the footsteps of any predecessor, however illustrious.  It thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen.  Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us?  And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs.

Distinction will be his paramount object; and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.

Notice that Lincoln divides the "men of ambition and talents" into two groups.   In one group, "many great and good men" can satisfy their political ambition by serving as a congressman, a governor, or a president.  But in the other group, are those who will not be satisfied with filling high political offices in a constitutional republic, because they belong "to the family of the lion, or the tribe of the eagle," who show the "towering genius" of an Alexnder, a Caesar, or a Napoleon.  

These three men overthrew republican governments and claimed the despotic dominance of imperial power for themselves.  Alexander subjugated all of Greece, including Athens, to the Macedonian Empire.  Julius Caesar had himself declared dictator perpetuo of Rome, with all the power of the Roman state concentrated in his person, which meant the collapse of the Roman Republic and the rise of the Roman Empire.  Napoleon Bonaparte overthrew the French Republic in 1804 when he crowned himself the "Emperor of the French."  In speaking about "the family of the lion, or the tribe of the eagle," Lincoln was probably referring to Napoleon:  in designing the heraldic insignia and the official badge of the Empire, Napoleon first chose the lion, but then he changed his mind and chose an eagle with spread wings, because the eagle "affirms imperial dignity and recalls Charlemagne," while also recalling Ancient Rome (Roberts 2014: 347-48).

Napoleon's hereditary Empire was a plebiscitary dictatorship.  In the plebiscite on the establishment of the Empire, the official vote count was 3,572, 329 votes in favor to 2,579 against.

So, Lincoln was warning his audience about the danger to American political institutions of liberty coming from the imperial ambition of an American Napoleonic dictator.  And he advised them that the only way to avoid this danger was for the American People to feel a "reverence for the laws"--for the Declaration of Independence and the Constitution and the laws--that would become "the political religion of the nation," so that the People would never allow a man of Napoleonic ambition to claim dictatorial powers unconstrained by the rule of law.

But then some readers of Lincoln's Lyceum Speech have suspected that Edmund Wilson was right in observing "that Lincoln has projected himself into the role against which he is warning them" (Wilson 1962: 108).  After all, as I have indicated in some previous posts, Lincoln was a man of expansive ambition.  "His ambition was a little engine that knew no rest," as William Herndon said.  As a young state legislator in Illinois, he often became miserably depressed, even suicidal, because he had not yet achieved the greatness that he yearned for.  Joshua Speed--one of Lincoln's best friends--reported to Herndon:

In the deepest of his depression, he said one day he had done nothing to make any human being remember that he had lived; and that to connect his name with the events transpiring in his day and generation, and so impress himself upon them as to link his name with something that would redound to the interest of his fellow-men, was what he desired to live for (Herndon's Life, 172, 422-23).

22 years later, shortly after Lincoln had signed the Emancipation Proclamation, he reminded Speed of this earlier conversation about his ambition for doing something great so that he would be remembered forever, and he told Speed: "I believe that in this measure, my fondest hopes will be realized."

And, indeed, anyone who has ever visited the Lincoln Memorial in Washington, DC, with the imposing statue of Lincoln and the Gettysburg Address and Second Inaugural Address carved into the marble walls, will have to wonder whether Lincoln foresaw this--the mythic grandeur of the Lincoln story--as the only way to satisfy his restless ambition.  Does this mean that he was moved by the Napoleonic ambition for glory, that he belonged to "the family of the lion, or the tribe of the eagle," against which he warned his audience in 1838 in Springfield?

But while Napoleon's ambition could only be satisfied by crowning himself an Imperial Dictator and thus overturning the French Republic, we might argue that Lincoln's ambition did not require that he become a lawless dictator and thus overturn America's Constitutional Republic.  Rather, his ambition was "to link his name with something that would redound to the interest of his fellow-men," which he did by saving the Union, emancipating slaves, and securing for America a "new birth of freedom."

And yet, many historians and law professors have said that Lincoln really did become a presidential dictator in the Civil War by acting outside the laws to prosecute the war (Arnhart 2016: 254-262).  The most commonly noted example of Lincoln's assumption of dictatorial powers outside the law was his suspension of the writ of habeas corpus and his defying a judicial order from Chief Justice Roger Taney declaring that such suspension of the writ was unconstitutional.  Suspension of the writ of habeas corpus is in effect a suspension of the most basic rights of individuals because it allows the government to arrest and detain individuals without the government giving any legal justification for this to a court of law.

But there is a good argument for saying that Lincoln never became a dictator because he acted within the constitutional framework of government, so that he was subject to the checks and balances coming from the Congress, the courts, and popular elections.  We can see that this was true for his suspension of the writ of habeas corpus if we study the case carefully enough to see exactly what happened, particularly in the case of John Merryman that provoked Chief Justice Taney.

After the election of Lincoln on November 6, 1860, the Southern states began debating secession from the Union.  South Carolina was the first to secede on December 20, 1860.  When the war began with the attack of South Carolina on Fort Sumter on April 12, 1861, seven states had seceded.  Virginia seceded on April 17.

When the war started, the U.S. Congress was out of session; and the military situation made it too dangerous for the Congress to come back into session.  So Lincoln had to take command in the war without congressional authorization. 

Washington, DC, was threatened by Confederate armies, disloyal state militias, irregular combatants, and disloyal civilians.  To secure the Capital, Lincoln ordered Union troops to proceed to Washington through Maryland, which was a border state that was deeply divided over the war.  Mobs in Maryland had attacked Union troops.  Bridges and railway lines had been destroyed.  And telegraph lines to the Capital had been cut.  On April 27, 1861, Lincoln issued an order to General Winfield Scott, the Commanding General of the Army, delegating authority to suspend habeas corpus to protect the movement of troops through Maryland. 

John Merryman, a resident of Baltimore, was suspected by military authorities of being involved with a militia group that had destroyed some bridges and railway lines.  At about 2:00 A.M., on Saturday, May 25, 1861, federal military authorities arrested him in his home, and he was locked up at Fort McHenry.  The next day--Sunday, May 26, 1861--Merryman's lawyers presented his habeas corpus petition to Chief Justice Roger Taney at his home in Washington.  Later that same day, Taney issued an ex parte order directing General George Cadwalader, who had command over the military district that included Fort McHenry, to appear the next day before Taney in a Baltimore court room, to explain the legal basis for Merryman's military detention, and to produce John Merryman at that hearing (Ex parte Merryman 17 F. Cas. 144 [C.C.D. Md. 1861] [No. 9487] [Taney, C.J.]).

The next day--Monday, May 27--Taney appeared at the designated Baltimore court room.  Cadwalader did not attend the hearing.  Instead, he sent his aide, Colonel R. M. Lee, who presented a written response from Cadwalader, who made four points.  First, the arrest of Merryman had not been made with his knowledge.  Rather, General William Keim had ordered Col. Samuel Yohe to make the arrest.  Second, Merryman was charged with various acts of treason in supporting the present rebellion against the government.  Third, the president had duly authorized his commanders to suspend the writ of habeas corpus.  Fourth, he requested that the Chief Justice postpone further action on this case until Cadwalader could receive instructions from the President as to how he should proceed.

Since Cadwalader had not produced the body of Merryman as instructed in his order, Taney issued an attachment for contempt of court against Cadwalader, which was to be delivered the next day by a U.S. Marshal.  The next day, the marshal reported back to Taney that when he arrived at Fort McHenry, he sent in his name at the outer gate, but a messenger came back to say that there was no answer to his request, and so he was not permitted to enter the gate.

Taney told the marshal that he had the power to summon a posse comitatus to help him seize Cadwalader and return him for punishment by fine and imprisonment.  But Taney observed, "the power refusing obedience was so notoriously superior to any the marshal could command," the marshal was excused from doing anything more.

Taney then delivered his opinion orally--that the President did not have the constitutional power to suspend the writ of habeas corpus, and therefore that Merryman is entitled to be set at liberty.  Taney elaborated his opinion in writing for delivery to the President, which was filed on June 1, 1861.

Taney cited the one clause in the Constitution that allows for the suspension of the writ of habeas corpus: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (Art. I, section 9, clause 2).  Taney argued that this had always been understood as a power belonging to the Congress rather than the President.  And the fact that this clause appears in the Legislative Article I, along with other congressional powers, should make it clear that this is a congressional power.

Moreover, Taney insisted that since the Congress had not suspended the writ, and since the President has a constitutional duty to "take care that the laws be faithfully executed," it is the President's duty "to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the Executive arm."  And so the President should assist the court in enforcing the writ of habeas corpus in the case of Merryman so that he can be released from detention.

Taney then concluded:

In such a case, my duty was too plain to be mistaken.  I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome.  It is possible that the officer who has incurred this grave responsibility, may have misunderstood his instructions, and exceeded the authority intended to be given him.  I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and under seal, to the President of the United States.  It will then remain for that high officer in fulfilment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.

Lincoln's response to Taney came a month later in his Special Message to Congress of July 4, 1861.  This message was to a special session of Congress called by the President, the first meeting of the Congress since the start of the war in April.

Lincoln argued that the clause in the Constitution allowing the suspension of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it" does not specify that this power belongs only to the Congress.  And the fact that it's designed for violent emergencies--"rebellion or invasion"--that might prevent the Congress from meeting, as was the case in April, it should be evident that often only the President will be in a position to act quickly to suspend the writ if the public safety requires this.  Thus, the Constitution allows either the President or the Congress to suspend the writ if the public safety requires this in a time of rebellion or invasion.

Lincoln's argument to Congress was persuasive enough that the Congress did not act to revoke his suspension of the writ.  A year later, the Congress enacted a law for the congressional suspension of the writ.

It has been common for scholars to say that Lincoln ignored or defied a judicial order from Taney to release John Merryman, and that this may be the only time that any president has refused to obey a direct judicial order of this kind.  This then would be a clear case of a president acting as a dictator in assuming power beyond or against the Constitution and the laws.

But this is a mistake.  Yes, Lincoln and Taney did disagree in their interpretation of the constitutional clause on suspending the writ.  Lincoln thought the Constitution allowed either the President or the Congress to suspend the writ under the specified circumstances--when the "public safety" requires it in response to "rebellion or invasion."  While Taney thought this power was reserved only to the Congress.

And yet it is a mistake to say that Lincoln ignored or defied Taney's judicial order to release Merryman.  This is a mistake because Taney's written opinion was not a judicial order for Lincoln (or anyone else) to do anything.  As Taney's opinion makes clear--particularly, in the last paragraph--he was recommending that Lincoln reconsider his suspension of the writ in the light of Taney's objections.  Taney directed the court's clerk to transmit a copy of his opinion to the President, but he did not order the President to do anything (Tillman 2016).

Taney's opinion of June 1st and Lincoln's Message to Congress of July 4th were both widely published in newspapers, which stimulated a prolonged public debate over the constitutionality of Lincoln's suspension.  And throughout that debate, Lincoln insisted that he was acting within the bounds of the Constitution and the laws, and therefore he was not acting as a lawless dictator.  At no point did Lincoln say that he had the dictatorial power to ignore or defy a judicial order from the Chief Justice of the Supreme Court.  (See Lincoln 1953: vol. 4, 426-441, 531-532; vol. 6: 262-269, 302-303, 428-429; vol. 8; 52, 100; Lincoln 1989: 250-261, 268-269, 455, 467, 501, 635-636, 641).

Now we are waiting to see if Trump will do what Lincoln never did--openly defy the courts in assuming dictatorial powers outside the Constitution that give him despotic dominance.

I will take that up next in my fourth (and final!) post on Trump's unitary executive theory, which will include a list of references for all four posts.