Traditionalist conservatives and classical liberals need Charles Darwin. They need him because a Darwinian science of human nature supports Burkean conservatives and Lockean liberals in their realist view of human imperfectibility, and in their commitment to ordered liberty as rooted in natural desires, cultural traditions, and prudential judgments. Arnhart's email address is firstname.lastname@example.org.
Earlier this year, I wrote a post applying Aristotle's Rhetoric to Donald Trump's campaign rhetoric and showed that Trump makes the argument from the character of the speaker in claiming that the prudence of Trump as a wildly successful businessman makes him the best man to be president. This argument can be put into a syllogism:
Major premise: Because of stupid politicians, America no longer wins; and America will not win again until a successful businessman who knows how to win is elected president.
Minor premise: Donald Trump is unique in his business success and his prudence in knowing how to win, because he is a self-made multi-billionaire.
Conclusion: Therefore, Americans need to elect Trump president.
I challenged the minor premise by pointing to the evidence that Trump's business career shows many failures from his imprudent decisions, that he was saved from ruin by his father's life-long transfer of money to him, and so he is not the self-made billionaire that he claims to be.
As I indicated in that previous post, the best evidence for this comes in an investigative report published in The New York Times on October 2, 2018, which showed that Fred Trump started transferring money to Donald from the time he was 3 years old, and that Fred bailed out Donald every time that he faced financial ruin. (We now know that Mary Trump--Donald's niece--was one of the primary sources for the financial records collected by the New York Times reporters. I have written about Mary Trump's book.)
Now, two years later, The New York Times has done it again. Yesterday, they published another long investigative article that reveals "the hollowness, but also the wizardry, behind the self-made-billionaire image--honed through his star turn on 'The Apprentice'--that helped propel him to the White House and that still undergirds the loyalty of many in his base."
Amazingly, these reporters have over 20 years of Trump's federal tax fillings, which show that since the death of his father in 1999, he has continued his history of business failure. In many years, he lost more money that almost any other individual taxpayer in the United States. By claiming these losses on his federal tax returns, he has avoided paying any federal taxes in 10 of the last 15 years. And when he has paid federal taxes, his payments have often been low: in the year that he won the presidency, he paid $750 in federal income taxes.
In June of 2015, when he announced his presidential candidacy, he had lost over $100 million in the previous two years. It might be true, as many people have suspected, that he decided to run only to generate publicity that might promote the economic value of the Trump brand.
Now Trump is facing the prospect of another bankruptcy, and this time it would be a personal bankruptcy. He is personally responsible for loans and other debts totally $421 million, which will come due within four years. He is also being audited for a $72.9 million federal tax refund that he received in 2010. If he has to pay that back with interest, that would be over $100 million.
If Trump is reelected, we could have a sitting president in bankruptcy proceedings and with banks foreclosing on his properties. That would be personally humiliating for Trump. But even worse for the country would be the national debt crisis that has been deepened during Trump's presidency. During his campaign in 2016, he warned about the coming debt crisis as the national debt was coming close to $20 trillion. He promised that as president, he would balance the federal budget and pay off the national debt. But since his election, he has said nothing about this promise. Now the national federal debt is close to $27 trillion, which is more than the entire GDP of the U.S. economy for a year!
It is disturbing that in this election year, almost no one is speaking about the looming threat of a debt crisis. The only candidates saying anything about this are the Libertarian Party candidates--Jo Jorgenson and Spike Cohen.
Having argued in April (here and here) that the COVID-19 lockdowns are unconstitutional, I am pleased to see that a federal judge in Pennsylvania--William S. Strickman IV--agrees with me.
On September 14th, Judge Strickman issued his ruling in the case of Butler County v. Wolf in the U.S. District Court for the Western District of Pennsylvania. Strickman was appointed to the federal bench by Donald Trump and confirmed by the Senate just a year ago.
In this case, the plaintiffs were three groups of people in Pennsylvania--some politicians, some county governments, and some businesspeople--who challenged Governor Tom Wolf's orders for a COVID-19 lockdown as being unconstitutional in violating the First and Fourteenth Amendments. Strickman ruled for the plaintiffs in striking down the governor's lockdown as unconstitutional.
On September 23, Wolf filed his appeal of this case, which now moves to the U.S. District Court of Appeals for the Third District. This would be a good case to reach the U.S. Supreme Court.
On March 16, Trump recommended a lockdown of American economic and social life by announcing "The President's Coronavirus Guidelines for America." The first line of those guidelines was "Listen to and follow the directions of your State and Local Authorities." It was understood that neither the President nor the national government generally had the constitutional power to impose the lockdown that Trump was recommending. It was believed that the state governors had that power.
And, indeed, three days later--March 19--the governors of California, New York, and Pennsylvania issued executive orders closing down many sectors of their state economies. Governor Wolf announced the closure in Pennsylvania of all "non-life-sustaining" businesses. Four days later--March 23--Governor Wolf issued a "stay-at-home" order that in effect put most of the citizens of Pennsylvania under house arrest. Eventually, 43 of the state governors issued some version of these lockdown orders.
On May 7, the plaintiffs in this case filed their suit against Governor Wolf and Pennsylvania Secretary of Health Rachel Levine as having acted unconstitutionally in three parts of their lockdown orders--restrictions on the size of gatherings, the order closing "non-life-sustaining" businesses, and the ordering of Pennsylvanians to stay-at-home. They made three claims. First, that the restrictions on gatherings violated the right of assembly protected by the First Amendment. Second, that the business closure and stay-at-home orders violated the Due Process clause of the Fourteenth Amendment by depriving people of their life, liberty, or property without due process of law. Third, that the business closure distinction between "life-sustaining" and "non-life-sustaining" businesses violated the Equal Protection Clause of the Fourteenth Amendment. In his final opinion of September 14, Judge Strickman ruled in favor of all three claims made by the plaintiffs as to the unconstitutionality of Governor Wolf's lockdown in Pennsylvania.
Beginning with the first state lockdowns in March, there has been an ongoing debate in the federal courts and among some law professors about the constitutionality of the lockdowns. Since Strickman's thinking was influenced by that debate, I will briefly review some of the arguments in that debate before turning to Strickman's opinion.
MUST THE COURTS ALLOW SUSPENSION OF CONSTITUTIONAL RIGHTS IN AN EMERGENCY?
Strickman quotes from an article by Lindsay Wiley and Stephen Vladeck, which was one of the first law review articles on the legal debate over the lockdowns (see pp. 16-17 of Strickman's opinion). Wiley and Vladeck say that there is one central question in this debate: "Should constitutional constraints on government action be suspended in times of emergency (because emergencies are 'extraconstitutional'), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?" (Wiley and Vladeck 2020, 180).
They defend the latter position--that the courts can and should protect constitutional rights even in times of emergency. In making their case, a lot depends on their interpretation of the Supreme Court's decision in Jacobson v. Massachusetts, 197 U.S. 11(1905), which has been widely cited by federal judges upholding the suspension of constitutional rights in the pandemic emergency.
In 1902, Massachusetts was only one of 11 states that had compulsory vaccination laws. In response to a smallpox epidemic in Cambridge, Massachusetts, the city's Board of Health adopted a regulation making smallpox vaccination mandatory for adults over 21 years old, with a fine for those who refused. Henny Jacobson had had a mandatory vaccination as a child in Sweden. He had had such a bad reaction that he developed a life-long fear of vaccinations. When he refused the vaccination in Cambridge, he was fined. He argued that this compulsory vaccination violated his constitutional rights to life and liberty. The U.S. Supreme Court ruled, however, that this was a proper exercise of the police power of the state and local governments in protecting the public health. The justices claimed that the state legislature was the only body with the power to hear expert testimony about whether vaccination was effective or harmful, and to decide whether "the majority of the medical profession" or the "anti-vaccinationists" were in the right.
If there ever is a vaccine for the COVID-19 coronavirus, we might expect some public health leaders to recommend compulsory vaccination. And if so, we are likely to hear a lot about the Jacobson decision.
Justice Harlan, writing for the majority in Jacobson, noted that the defendant insisted that a compulsory vaccination law invaded his constitutional right to liberty, which is protected from infringement by state government by the 14th Amendment, because such a law was "hostile to the inherent right of every freeman to care for his own body and health in such a way as to him seems best." Harlan rejected this claim in the most often quoted passage of his opinion:
". . . the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle with recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. . . ." (197 U.S. 11, 26)
Harlan then quoted from Crowley v. Christensen, 137 U. S. 86, 89: "The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law."
Thus, "real liberty for all" must be restrained to prevent injury to others, and so the court could uphold the compulsory vaccination law of Massachusetts as a proper restraint on liberty to prevent the injury on the community that would be inflicted by unvaccinated people in the emergency of a smallpox epidemic.
But to conclude from this that the Jacobson decision means that constitutional rights are suspended in times of emergency, and that judges cannot question the constitutionality of the government's exercise of emergency powers in setting aside individual rights, ignores Harlan's repeated insistence that that is not the case.
Justice Harlan made it clear that the court would allow an exercise of the police power to control a small pox epidemic only as long as it was "justified by the necessities of the case."
"We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all, might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons." 197 U.S. 11, 28.
Moreover, "if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Id. at 31.
At the end of his opinion, Harlan chose to reiterate this point:
"Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe--perhaps to repeat a thought already sufficiently expressed, namely--that the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression." Id. at 38.
There are standards here for when the courts should strike down as unconstitutional the suspension of individual rights in times of emergency. The courts have a duty to review a state's exercise of their police powers in an emergency (1) when such actions are taken in "an arbitrary, unreasonable manner," (2) when the actions have "no real or substantial relation" to protecting the public health, public morals, or public safety, or (3) when the actions are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law." In those circumstances, the courts must interfere in these state actions "to prevent wrong and oppression."
From his reading of Harlan's opinion in Jacobson, Judge Stickman concludes that "under the plain language of Jacobson, a public health measure may violate the Constitution," and therefore, "the Constitution applies even in times of emergency" (pp. 13, 21).
Strickman observes that in Pennsylvania, the COVID-19 lockdown is based on executive decrees by the Governor that infringe on constitutional rights, and the state legislature has not exercised any effective constraint on the Governor's actions. Consequently, the judiciary remains the only constitutional actor that can enforce the constitutional system of checks and balances to secure constitutional rights against the arbitrary absolute rule of one person:
"There is no question that our founders abhorred the concept of one-person rule. They decried government by fiat. Absent a robust system of checks and balances, the guarantees of liberty set forth in the Constitution are just ink on parchment. There is no question that a global pandemic poses serious challenges for governments and for all Americans. But the response4 to a pandemic (or any emergency) cannot be permitted to undermine our system of constitutional liberties or the system of checks and balances protecting those liberties. Here, Defendants are statutorily permitted to act with little, if any, meaningful input form the legislature. For the judiciary to apply an overly deferential standard would remove the only meaningful check on the exercise of power" (pp. 20-21).
The only alternative to this would be to say that in any emergency like a pandemic, the constitutional system of limited government is suspended. Stickman rejects this because he believes that even in times of emergency the Constitution can and must be enforced. If that is so, then the question is whether the Governor's lockdown orders really do violate the Constitution--particularly, the First and Fourteenth Amendments.
The First Amendment protects the freedom of speech and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Some of the plaintiffs in the Butler County case had claimed that Governor Wolf's imposed limitations on "events and gatherings" of 25 persons for indoor gatherings and 250 persons for outdoor gatherings violated the right of public assembly. Specifically, the political plaintiffs complained that these limits on gatherings unconstitutionally violated their right to hold campaign rallies and other campaign events.
Strickman ruled that the Governor's orders for gathering limits showed at least two kinds of inconsistency that rendered those orders unconstitutional. First, the Governor said that he would allow large protest marches for the "Black Lives Matter" movement; and the Governor himself marched in one of those protests, although these marches violated his COVID-19 orders, which did not specify any exemptions for such protests. If the people of Pennsylvania have a constitutional right to march in a massive protest of the killing of George Floyd, why don't they also have a constitutional right to attend a large campaign rally?
The second inconsistency, Strickman noted, was "the imposition of a cap on the number of people that may gather for political, social, cultural, educational and other expressive gatherings, while permitting a larger number for commercial gatherings limited only by a percentage of the occupancy capacity of the facility," which was "not narrowly tailored and does not pass constitutional muster" (pp. 31-32).
Strickman also agrees with the argument of the plaintiffs that the Governor's orders closing "non-life sustaining" businesses and requiring Pennsylvanians to stay-at-home violated the Fourteenth Amendment. This Amendment declares: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The stay-at-home order violates the right to freedom of movement and travel. The business shutdown order violates the freedom to work for a living and the right to property. It also violates "equal protection of the laws" because some of the business activity that was prohibited was essentially the same as some of the business activity that was permitted.
Although the stay-at-home order was ultimately suspended, Strickman observes that this suspension is not a rescission, because the Governor may reinstate the stay-at-home requirements at any time. The currently applicable orders have no ending date, applying "until further notice."
That the Governor's lockdown was overbroad, unnecessary, and beyond the established authority of government in response to a pandemic is indicated by the fact that nothing like this had ever been done in American history--or even in world history. Moreover, there is no evidence that anyone engaged in any rational calculations of the costs and benefits of such an unprecedented lockdown to determine that such drastic means were rationally proportioned to the end of protecting public health.
Throughout history, governments have used quarantines to control pandemics, but Strickman notes that the lockdown of an entire population is not a quarantine. In the worst pandemic of American history--the Spanish Flu pandemic of 1918-1920, there were quarantines and some restrictions on large gatherings of people, but there were no lockdowns--no orders that everyone stay in the homes and no orders closing all "non-essential" businesses.
Remarkably, Strickman points out, prior to 2020, there were no guidelines from the CDC recommending lockdowns in response to a pandemic. In the 2017 CDC guidelines for a "Very High Severity" pandemic (comparable to the Spanish Flu), the guidelines provide only that "CDC recommends voluntary home isolation of ill persons," and "CDC might recommend voluntary home quarantine of exposed household members in areas where novel influenza circulates" (p. 44). Notice the word voluntary. And notice that nothing like statewide lockdowns is recommended here.
This raises the question that I have asked (here): When and how did the experts decide that a COVID-19 lockdown was justified? Here is Strickman's answer:
"The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. There were not recommendations made by the CDC. They were unheard of by the people of this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China--a nation unconstrained by concern for civil liberties and constitutional norms--started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. The lockdowns are, therefore, truly unprecedented from a legal perspective" (p. 44).
Now, of course, as Strickman concedes, the fact that some governmental action is new does not make it unconstitutional. But still the traditional requirements for "balancing" and "proportionality" demand some proof that the novel means are rationally proportioned to the end. Strickman suggests: "Broad population=wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important end. The draconian nature of a lockdown may rend this a high bar, indeed" (pp. 48-49).
I would suggest that if governmentally mandated lockdowns to slow or end a pandemic have never been attempted prior to this year, then there's no previous historical experience to provide the evidence to demonstrate the reasonable necessity for such measures to protect the public health. But now that we have had 7-9 months of experience with lockdowns by state governments in the United States and by national governments around the world, we should be able to analyze the recent historical data to see if the evidence supports lockdowns as rationally proportioned means for mitigating the harm of the pandemic.
For example, one should be able to compare the pandemic death rates for different states and different nations and see if those states and nations with the most severe lockdowns have had the lowest death rates. But in fact, some recent studies (here and here) have found little evidence that differences in lockdown policies have had any effect on the death rates from the pandemic. Christian Bjornskov, professor of economics at Aarhus University in Sweden, looks at the association between the intensity of lockdowns and coronavirus deaths in 24 European countries, and he concludes: "more severe lockdown policies have not been associated with lower mortality. In other words, the lockdowns have not worked as intended." If that is so, then we can say that lockdowns are not "reasonably necessary to achieve an important end."
Moreover, there is some evidence indicating that when the pandemic broke out, people spontaneously took action to avoid infection by reducing their social and economic activity, so that they engaged in a voluntary lockdown that did not require a governmentally mandated lockdown. Sweden did this by recommending that its citizens engage in a largely voluntary lockdown without governmental coercion. Pennsylvania and other states could have adopted this strategy, which does not violate any constitutional rights.
If Pennsylvania had done this, there would have been no need for the Governor to distinguish "life-sustaining" businesses that could remain open as opposed to "non-life sustaining" businesses that had to close. In a voluntary lockdown, people decide this spontaneously by how they engage in free-market activity--deciding what is necessary to their life and what is not in a pandemic.
Stickman points out that the Governor's orders never gave any definition of "life-sustaining" versus "non-life-sustaining" business. The Governor did make up a list of "life-sustaining" businesses, but he changed this list 10 times!
At the beginning of the lockdown, the Governor set up a waiver process by which businesses could file requests to have their businesses added to the list of "life-sustaining" businesses. But within a few weeks, the group of people assigned to review these waiver requests were so overwhelmed by the number of requests that the whole waiver process was ended.
The arbitrariness and capriciousness of the rules of lockdown led to gross violations of the "equal protection" standard of the 14th Amendment. So, for example, small stores selling appliances and furniture were forced to close; but Lowes, Home Depot, and Walmart were free to sell exactly the same goods. And thus, Strickman complains, "the largest retailers remained open to attract large crowds," even though the lockdown was supposed to prohibit large gathering where the virus could spread!
For all of these reasons, it seems to me, Judge Strickman has made a good case for overturning the Governors' COVID-19 lockdown orders as unconstitutional.
It is often said that when a country faces a great emergency, only the executive ruler can properly respond to the crisis; and to do so effectively, the executive must not be constrained by other branches of government or by the normal rule of law. Carl Schmitt took this as proving the failure of liberal legalism--the claim that political power could be limited by a system of checks and balances and by the rule of law. Such limits on power might work in ordinary times but not in times of crisis, which creates a "state of exception." In a crisis, we see who is truly sovereign, because "sovereign is he who decides on the state of exception." Schmitt was a German Nazi, and he thought that his view of politics was confirmed by the fall of the Weimar Republic and the rise of Adolf Hitler to dictatorial rule during the crisis of the early 1930s.
Recently, some legal scholars have defended this Schmittian view of sovereign executive power as applied to the American presidency. Eric Posner and Adrian Vermeule--in Terror in the Balance (2007) and in The Executive Unbound: After the Madisonian Republic (2010)--have argued that the Madisonian conception of the presidency as constrained by a legal system of checks and balances has been replaced by a Schmittian conception of the presidency as unconstrained by law, particularly in times of emergency.
If this were true, then we would expect that since the COVID-19 pandemic has become a global emergency, we should see that the governmental responses to the pandemic have allowed executive rulers to govern without any constraints by legislatures, courts, or the general rule of law. And, indeed, it has been said that the governmentally mandated lockdowns have created a crisis for the liberal constitutional democracies because the crisis favors the growing power of populist authoritarian rulers and the decay of democratic norms.
In March and early April, when the pandemic lockdowns began, the New York Times published articles with disturbing titles about the pandemic's threat to democracy. One was "For Autocrats and Others, Coronavirus is a Chance to Grab Even More Power." Another was "The Virus Comes for Democracy." When Hungary's Parliament approved legislation giving populist authoritarian Prime Minister Viktor Orban dictatorial powers to rule by decree in an endless state of emergency, many publications had headlines declaring "The End of Democracy."
Now that we have had over nine months of experience with the pandemic, we can begin to examine the historical record to see if it confirms the Schmittian view and denies the Madisonian view. Tom Ginsburg and Mila Versteeg have recently collected the data for 106 countries--the evidence for how their governments have handled the pandemic--and they conclude that the data largely support the Madisonian view over the Schmittian view: although in some countries their pandemic governance has been turned over to authoritarian executive governance, in most countries this has not been the case, because the power of the executive has been checked by the legislature, the courts, and subnational governments (Ginsburg and Versteeg 2020).
This sustains one of my main arguments on this blog--that the evolutionary progress in advancing the Lockean Liberal Enlightenment cannot be reversed by any move towards illiberal authoritarianism. We see here that despite its many recent critics, Francis Fukuyama's announcement in 1989 of the "end of history"--that liberal capitalist democracy has emerged as the best social order for satisfying human desires--is correct.
The coronavirus pandemic does remind us, however, of one fundamental problem for liberal constitutionalism. On the one hand, liberal constitutionalism is designed to limit the powers of government so that no ruler has the arbitrary absolute power that could deprive us of those individual liberties that a liberal constitution should secure. On the other hand, in a time of national emergency, we might allow the suspension of our constitutional rights so that a powerful executive ruler has a free hand to do whatever is necessary to save the country.
That's what we have seen over the past nine months. In response to the pandemic emergency, democratic governments around the world have violated the individual rights that citizens normally expect to be secure. Governments acting through the decrees of chief executives have mandated stay-at-home orders, the cessation of religious gatherings, closing schools, closing businesses, restricted travel, and curfews enforced by police and the military.
We must ask: In times of emergency, must the ruling executive have the prerogative powers of a dictator acting outside the law? Or is it possible in a constitutional democracy to allow some rulers to exercise emergency powers while constraining those powers in ways that preserve constitutional rights? (In my Political Questions [4th ed., pp. 254-62], I have pondered those questions in my account of John Locke's teaching about executive prerogative as applied to Abraham Lincoln's emergency powers in the Civil War.)
Ginsburg and Versteeg think that most democracies in the pandemic crisis have shown how the exercise of emergency powers can be limited by a constitutional system of checks and balances under the rule of law.
THE LEGAL GROUNDS FOR EMERGENCY POWERS
The legal grounds for emergency powers fall under three broad categories: constitutional authorization, statutory authorization, and extra-legal action.
Constitutional authorization. Over 90 percent of all the constitutions in force today contain provisions for declaring a state of emergency (Bjornskov and Voigt 2018). Such a declaration allows the government--usually the chief executive--to rule by decree and to suspend individual rights.
Emergency powers can be used to overturn democracy and establish a dictatorship. For example, after the Reichstag Fire in 1933--the burning of the building where the German parliament sat--Chancellor Adolf Hitler charged that this was part of a communist revolution to overthrow the government. In response to this emergency, the Reichstag Fire Decree issued by the President and the Enabling Act passed by parliament suspended many individual rights--including habeas corpus--and allowed Hitler to make laws on his own without parliamentary consent. So Hitler became the permanent dictator.
To prevent this abuse of emergency powers by the executive ruler, most constitutions with emergency provisions have some checks and balances. Most constitutions specify the necessary conditions for a state of emergency--such as war, threats to internal security, and national disaster. In many constitutions, the executive head of state has the right to declare a state of emergency; but in some the legislature must declare the emergency. In many constitutions, the declaration of emergency by the executive must be approved by the legislature. Once declared, a state of emergency usually has a set time period, and any extension beyond that set end requires legislative approval. In most cases, the constitution allows for the suspension of rights during the emergency; but in some cases, certain rights are protected from suspension. In many cases, the constitution cannot be amended during the emergency; and all decrees issued during the emergency become invalid after the emergency is ended.
Remarkably, while most constitutions around the world have some provisions for declaring an emergency, Ginsburg and Versteeg report that only 43% of those countries with a constitutional emergency regime have actually declared a state of emergency in response to the coronavirus pandemic.
The U.S. Constitution does not have any explicit provisions for extraordinary powers in an emergency. But there are some specific powers that can be used in an emergency. The most obvious example is 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, sec. 9, cl. 2). The specified conditions are "rebellion or invasion." The specified end is "public safety." The formal suspension of the writ has occurred only once in American history--when Abraham Lincoln suspended it in 1861 at the beginning of the Civil War, followed by a congressional statute in 1862 suspending the writ.
Law professor Michael Dorf (Cornell University) has argued that President Trump could have used this power to support a national COVID-19 lockdown: Trump could have suspended the writ of habeas corpus in response to the "invasion" of the U.S. by the coronavirus.
Statutory authorization. In the United States, the emergency powers of both the national government and the state governments come mostly from statutory authorization. Since 1976, when the U.S. Congress passed the National Emergencies Act, presidents have declared over 60 states of emergency, and at least 30 of these are still in effect (Thronson 2013). These states of emergency confer on the president vast powers for violating individual rights--such as seizing control of the nation's communications infrastructure, mobilizing military forces, and suspending the writ of habeas corpus. Although the National Emergencies Act requires Congress to vote every six months on whether a declared national emergency should continue, Congress has done this only once. President Trump has declared a state of emergency in response to the coronavirus pandemic.
In the United States, most of the emergency response to the pandemic has come from state governors acting through state laws that allow governors to assume broad emergency powers after declaring a state of emergency. This is also part of the "police power" of the state and local governments, which includes the power of acting to protect the public health.
Extra-Legal Action. In at least ten countries--China, Cuba, Cameroon, Belarus, Saudi Arabia, Sudan, Cambodia, Rwanda, Laos, and Tanzania--the pandemic response was entirely based on executive action, with no clear legal basis. Notably, these are all authoritarian regimes. There do not seem to be any examples in the democratic regimes of purely extra-legal action in response to the pandemic. Moreover, in most of the democratic countries, the pandemic orders of the executive rulers have been constrained by checks and balances.
CHECKS AND BALANCES
In most of the democracies, the use of emergency powers by executives has been limited by judicial oversight, legislative oversight, and subnational constraints.
Judicial oversight. In many countries, the courts have intervened to ensure that procedural requirements for emergency powers are followed. Sometimes the courts have enforced the constitutional requirements for emergency declarations and extensions of those declarations to be authorized by the legislature. In Kosovo, for example, the Constitutional Court ordered that executive decrees for a pandemic lockdown that would violate individual rights required legislative approval. In Israel, when the Prime Minister ordered the use of cellphone data to track infected people, the Supreme Court ruled that this could be done only with legislative authorization.
The pandemic lockdowns have violated or limited many fundamental rights--such as the freedom of movement and assembly, the freedom of religious worship, the right to work, and the right to property. In many countries, the courts have made judgments about the proper balancing of these substantive rights against the need for protecting the public health. The courts have invoked a rule of proportionality, by which the government must choose the least restrictive violations of fundamental rights necessary for advancing the public health. So, for example, the German Constitutional Court has ruled that the government cannot deny the freedom of assembly or the freedom of worship if people are gathering in ways that practice the proper social distancing. Similarly, in the U.S., a federal court held that Kentucky could not prohibit religious gatherings where social distancing measures were being taken.
Legislative oversight. In many countries, the pandemic response by the government has required legislative approval. In some countries, the legislature has set up special committees to oversee the government's actions. In most of the countries that drafted new legislation for the pandemic response, the legislation is only temporary--when the time expires, renewal requires legislative approval. The United Kingdom's COVID-19 statute grants special executive powers for only a 21-day period.
Subnational constraints. In federal states--like the United States, Germany, and Brazil--subnational units of government have adopted their own pandemic responses that often differ from the national policies. In the U.S., 43 of the state governors have adopted lockdown orders. And while President Trump once claimed that he had absolute authority over pandemic policies, the governors have disregarded that claim. And, in fact, Trump has had to concede that the state governors act on their own.
DEMOCRAC Y SURVIVES THE PANDEMIC
Some authoritarian regimes have used the coronavirus pandemic as a pretext for expanding their dictatorial powers. And some vulnerable democracies have shown some erosion in their democratic norms. The best example of the latter is Hungary, where Parliament has passed a law allowing Viktor Orban to rule by executive decree for the indefinite future.
But generally speaking the fear that the global pandemic would force a strengthening of authoritarian executive power and a weakening of democratic institutions around the world has proven unjustified. Most of the democratic regimes have found ways to grant some temporary emergency powers to executive rulers while constraining those powers through checks and balances and the rule of law.
This vindicates the Madisonian conception of limited executive power in a democratic republic, and denies the Schmittian conception of the sovereign executive as unbound by any legal constraints.
That this is true for the United States has become even clearer in recent weeks as the lockdowns ordered by the governors in some of the states have been challenged in federal courts as unconstitutional. In my next post, I will write about one of these cases in Pennsylvania.
Arnhart, Larry. 2015. Political Questions: Political Philosophy from Plato to Pinker. 4th Edition. Long Grove, IL: Waveland Press.
Bjornskov, Christian, and Stefan Voigt. 2018. "The Architecture of Emergency Constitutions." International Journal of Constitutional Law 16:101-127.
Ginsburg, Tom, and Mila Versteeg. 2020. "The Bound Executive: Emergency Powers During the Pandemic." Unpublished manuscript.
Posner, Eric, and Adrian Vermeule. 2007. Terror in the Balance: Security, Liberty, and the Court. Oxford: Oxford University Press.
Posner, Eric, and Addrian Vermeule. 2010. The Executive Unbound: After the Madisonian Republic. Oxford: Oxford University Press.
Thronson, Patrick. 2013. "Toward Comprehensive Reform of America's Emergency Law Regime." University of Michigan Journal of Law Reform 46: 737-787.
In September of 2016, Allan Lichtman was one of the few election forecasters who predicted that Donald Trump would defeat Hillary Clinton. Now, he is predicting that Trump will be defeated by Joe Biden in November. He announced his new prediction on August 5th in a video produced by the New York Times:
Although it has often been reported that Lichtman was the only expert forecaster who predicted Trump's win in 2016, there were at least three others who made the same prediction, although based on different forecasting models: Helmut Norpoth (political scientist at Stony Brook University), Ray Fair (economist at Yale University), and Alan Abramowitz (political scientist at Emory University). Moreover, the documentary film-maker Michael Moore also predicted Trump's victory.
Now, Abramowitz agrees with Lichtman in predicting a Biden win. By contrast, Norpoth and Moore are predicting that Trump will win again this year. Fair says he cannot make a prediction because his forecasting model "has nothing to say about the effects of pandemics."
This makes me wonder whether a study of the evolutionary history of American presidential elections can support a forecasting model that accurately predicts the election of the next president. And if this is so, what is the best model?
Lichtman has persuaded me that he has the best model, although I think it needs one modification. Once that modification is made, it is possible to predict the outcome of almost every presidential election since 1860, including the unusual elections of 2000, 2016, and now this year's election. This model for forecasting presidential elections based on American political history would be an important part of any biopolitical science of American politics.
12 KEYS TO THE WHITE HOUSE
Lichtman is a historian at American University. In 1980, he decided to study the history of every presidential election from 1860 to 1980, and to look for recurrent historical patterns that would predict whether the incumbent presidential party--the party that has controlled the White House--will win the presidential election. His idea was that voters in a presidential election are mostly judging the past performance of the incumbent party, and that what happens in the presidential campaign--campaign tactics, fluctuating polling, presidential debates, campaign fundraising, campaign advertising, and so on--don't really matter, because all that matters for the voters--the past performance of the incumbent party--has been determined long before the campaign began. Of course, this contradicts what most political commentators assume, which is that the outcome depends upon the day-to-day events of the presidential campaign.
From his study of the history, as laid out in his book Predicting the Next President: The Keys to the White House (Rowman and Littlefield, 2020 edition), Lichtman decided that there were 13 conditions that favor reelection of the incumbent party. These 13 conditions could be framed as 13 statements, so that when six or more of these statements are false, the incumbent party loses.
KEY 1 Incumbent party mandate: After the midterm elections, the incumbent party holds more seats in the U.S. House of Representatives than it did after the previous midterm elections.
KEY 2 Nomination contest: There is no serious contest for the incumbent-party nomination.
KEY 3 Incumbency: The incumbent-party candidate is the sitting president.
KEY 4 Third party: There is no significant third-party or independent campaign.
KEY 5 Short-term economy: The economy is not in recession during the election campaign.
KEY 6 Long-term economy: Real annual per capita economic growth during the term equals or exceeds mean growth during the two previous terms.
KEY 7 Policy change: The incumbent administration effects major changes in national policy.
KEY 8 Social unrest: There is no sustained social unrest during the term.
KEY 9 Scandal: The incumbent administration is untainted by major scandal.
KEY 10 Foreign or military failure: The incumbent administration suffers no major failure in foreign or military affairs.
KEY 11 Foreign or military success: The incumbent administration achieves a major success in foreign or military affairs.
KEY 12 Incumbent charisma: The incumbent-party candidate is charismatic or a national hero.
KEY 13 Challenger charisma: The challenging-party candidate is not charismatic or a national hero.
These thirteen keys fall into three categories. The first four are the political keys, because they have to do with the political conditions of the election. The next seven keys (5-11) are the performance keys, because they have to do with the success or failure of the incumbent part in governing. The last two keys are the personality keys, because they are about whether one or both of the candidates have the attractive personality of a charismatic person or national hero. Notice that of the twelve keys, only two are about the personal characteristics of the candidates: it's the incumbent party that is being judged, not the candidates.
Although Lichtman does not assign weights to the 13 keys, he does recognize that some of them have greater predictive power than others. The best single predictor is the contest key 2--whether the incumbent party agrees early and clearly on its nominee. This contest key calls thirty-four of the thirty-nine previous elections--a prediction rate of 87 percent. In only four of the twenty-seven elections in which the incumbent party had an uncontested nominee did that incumbent candidate lose--Herbert Hoover in 1932, Richard Nixon in 1960, George H. W. Bush in 1992, and John McCain in 2008 (pp. 25-26).
The second strongest predictor is the short-term economy key 5. In 80 percent of the cases where there was no recession during the election year, the incumbent-party candidate won. Even more remarkable is the loss rate: in the nine elections in which there was a recession during the fall campaign, the incumbent party has lost every time (pp. 10, 16, 32-33).
Although Lichtman generally plays down the importance of public opinion polls, he does admit that such polls can be important for judging the short-term economy key. What counts is the public perception that the economy is or is not in a recession, and polling might be necessary to determine that. This could be crucial this year. The American economy clearly fell into a massive recession in the spring as a result of the COVID shutdown. But beginning in the late summer, there has been some evidence of recovery. Trump would like to convince the voters that a dramatic economy recovery has begun only a few months after the downturn.
THE ELECTION OF 1864
Lichtman applies his keys model to every presidential election from 1860 to 2020. In all of the elections up to 1980, he shows how his 13 keys can retrospectively predict the outcome of each election, because he can explain that the incumbent-party candidate lost whenever 6 or more of the keys were forfeited. For the elections from 1984 to 2016, he can show that he was correct in prospectively predicting the outcome months before the election by applying his keys approach. Now he hopes to show that he has correctly predicted Biden's victory in November.
Consider, for example, how Lichtman explains the reelection of Abraham Lincoln in the presidential election of 1864. Lincoln was running as the sitting president of the incumbent Republican Party, and he had not faced any challenger for the nomination, so the incumbent party had keys 2 and 3. Although the Republicans had lost a few seats in the House in the 1862 mid-term elections, they still had a 55 percent majority, which was greater than their 48 percent of seats prior to 1860, so they had key 1 (incumbent-party mandate).
The Democrats nominated George B. McClellan, the former general-in-chief of the Union armies whom Lincoln had fired in 1862. McClellan was not a charismatic personality, so the Republicans had key 13 (challenger charisma). By contrast, most of us would assume today that the Republicans had the advantage of Lincoln's incumbent charisma (key 12). But Lichtman rightly notes that Lincoln was not known during his lifetime as a charismatic politician, but as a remarkably awkward-looking person in public. He became charismatic only after his assassination, when he became the epic martyr of American history. So in 1864, the Republicans lost key 12.
The Republicans also lost key 6 (long-term economy), because the economic performance during the Civil War was slower than it had been in the two previous presidential terms (1852-1860). But since the economy was improving in the election year of 1864, the Republicans had key 5 (short-term economy).
Obviously, in the midst of the Civil War, there was great social unrest, so the Republicans lost key 8. So without three keys (6, 8, and 12), the Republicans could not afford to lose three more keys without losing the presidential election.
Lincoln and the Republicans had been forced by the war to make some major changes in national policies--such as a national banking system, a nation-wide draft, and the Emancipation Proclamation--so the Republicans had key 7 (policy change). They also had key 9 (scandal), because the Lincoln Administration had avoided the taint of major scandals.
As one would expect in the only presidential election held during a civil war, the crucial keys for Lincoln and the Republicans were military. Could the Union armies achieve military success (key 11)? Or at least avoid any major military failure (key 10)?
In the spring and summer of 1864, the war appeared to have reached a stalemate; and consequently Lincoln's prospect for reelection appeared dim. Some Republicans were so dissatisfied with Lincoln's military leadership that they were recommending John C. Fremont--who had been the first Republican candidate for the presidency in 1856--to run again. If Fremont had run as a strong third-party candidate, and if there had not been any major Union victories on the battlefield, the Republicans would have lost three more keys (4, 10, and 11). With the loss of six keys, Lichtman's model would have predicted Lincoln's defeat.
But then, on September 3, the news arrived in Washington that General Sherman's army had taken Atlanta. And by October 19, General Sheridan had driven the rebels from Virginia's Shenandoah Valley. Now a Union victory in the war appeared likely. Fremont lost interest in running as a third party candidate.
Having lost only three keys, Lincoln defeated McClellan 55 percent to 45 percent.
LICHTMAN'S RECORD OF PREDICTIONS
In a similar way, Lichtman can use his keys system to explain the outcomes in all of the presidential elections from 1860 to 1980. Even more impressive than this historical retrospective, however, is that he seems to have predicted each presidential election from 1984 to the present. And sometimes he has predicted victory for a candidate who started the campaign far behind in the polls.
For example, in 1988, George H. W. Bush (the former Vice President under Reagan) was running against Michael Dukakis (the Governor of Massachusetts); and Bush in the spring and summer was far behind Dukakis in the polls. By the end of July, Dukakis was ahead by 17 percent in the Gallup Poll. But Lichtman saw that the incumbent Republican Party had lost only three keys. Their candidate was not the sitting president, and so they lost key 3. They had also lost key 7, because there had not been any major policy changes in Reagan's second term. And they lost key 12, because Bush did not have Reagan's charisma. With only three keys turned against Bush, Lichtman could predict his victory. And indeed Bush carried 40 states and 53.4 percent of the popular vote.
But then a greater challenge to Lichtman's forecasting model came in 2000. The incumbent-party candidate Democrat Al Gore (the former Vice President under Bill Clinton) was running against Republican George W. Bush (the Governor of Texas). Lichtman saw the Democrats as losing five keys--3 (incumbency), 7 (policy change), 9 (scandal), 11 (foreign or military success), and 12 (incumbent charisma). Since this fell one key short of the six keys threshold for defeat, he predicted that Gore would win, although perhaps with a small vote margin.
While Gore did win the popular vote--by about 544,000 votes--Bush won election by winning in the Electoral College with a narrow margin (271 votes to 266 votes for Gore). The electoral college vote was decided when Florida's 25 electoral votes went to Bush. The U.S. Supreme Court halted the recount of votes in Florida with Bush leading Gore by 537 votes out of almost 6 million votes counted.
Although it seemed that Lichtman had failed in his prediction, he has insisted that his prediction was correct, because he correctly predicted that Gore would be the popular vote winner! He had always assumed that his prediction of the popular vote winner would almost always coincide with the Electoral College outcome, because since 1860 there had been only one case when the winner of the popular vote lost the Electoral College tally--when Benjamin Harrison defeated Grover Cleveland in 1888.
Amazingly, this happened again in 2016, except that this time, Lichtman predicted Trump to be the winner, and Trump won the Electoral College while losing the popular vote to Clinton by almost three million votes.
This discrepancy between the popular vote and the Electoral College has created a crisis of legitimacy for the American presidency because it creates doubt that the presidential election shows the consent of the people. Lichtman thinks his keys model can handle this problem without any fundamental change in the 13 keys. But I think that he needs to add a new key 14.
This problem arises from the fact that many of the likely voters for the Democratic Party are highly concentrated in large urban areas in populous states in the northeast and west--such as New York and California--while the likely voters for the Republican Party are scattered widely over rural and small town areas in states in the Midwest, South, and Mountain West. Consequently, the Democratic candidate can win all the electoral votes of the states of New York and California with an extra margin of 5 to 6 million votes, which in effect become "wasted votes." But then the Republican Party has far fewer wasted votes. In 2016, not a single state gave Trump a margin of over one million votes. His margin in Michigan was only about 10,000 votes. So in any close election, the Democratic candidate can win the popular vote while losing the Electoral College count.
So what we need, I suggest, is one more key:
KEY 14 The Electoral College: The likely voters for the incumbent party are evenly distributed across the states so as to minimize wasted votes in the Electoral College system.
Adding that key to Lichtman's model would have allowed him to predict the Electoral College victories of Bush in 2000 and Trump in 2016, despite Gore and Clinton winning the popular vote.
In 2000, Lichtman saw that Gore, as the incumbent-party candidate, had 5 keys against him, one short of the threshold for defeat, and so Gore's win seemed predictable. If Lichtman had applied my key 14, he would have seen that the Democrats were likely to have a lot of wasted votes in states like New York and California, and in a close election, this could cause them to lose in the Electoral College. Losing key 14, Gore would have been at the 6 keys threshold for a loss. Therefore, Lichtman could have predicted Bush's win.
PREDICTING TRUMP'S WIN IN 2016
Having my key 14 would also have helped Lichtman in his prediction for 2016. In his interview with the Washington Post published on September 23, 2016, he predicted that Trump would win, because Clinton, as the incumbent-party candidate, had lost 6 of the keys to the White House--1, 3, 4, 7, 11, 12. One of those keys was in question, however--the third party key 4. Gary Johnson, the Libertarian Party candidate, was polling as high as 12 to 14 percent. If Johnson's final vote tally were to be as high as 5 percent, which seemed likely to Lichtman in September, that would pass the threshold for Clinton losing key 4. And yet Johnson actually received only about 3.2 percent of the vote; and so Lichtman should not have counted the third party key as lost to Clinton. In that case, with only 5 keys against her, he should have predicted Clinton to be the winner. But if he had had key 14, he could have seen Clinton as losing 6 keys; and he could have predicted her loss of the Electoral College count, even while winning the popular vote in a close election.
Michael Moore came closer than Lichtman in predicting the exact outcome of the 2016 election. Moore foresaw that Trump could win in the Electoral College by carrying Michigan, Ohio, Pennsylvania, and Wisconsin along with the states won by Mitt Romney in 2012.
In Predicting the Next President, Lichtman says that his 13 keys "focus on national concerns such as economic performance, policy initiatives, social unrest, presidential scandal, and successes and failures in foreign affairs," and thus "they predict only the national popular vote and not the vote within individual states," and therefore there was no way that he could have predicted Gore as the popular vote winner losing in the Electoral College in 2000 (p. xi). But if that is true, then his prediction in 2016 was mistaken, because he did not predict Clinton's winning of the popular vote.
In an interview on November 18, 2016, eight days after the election, Lichtman said that while he was not going to change his model, he had changed his interpretation of what it predicted; so that now he would predict the winner of the election in the Electoral College regardless of whether this was the popular vote winner.
In his 2020 edition of Predicting the Next President, Lichtman writes: "In 2016, I made the first modification of the keys system since its inception in 1981. I did not change any of the Keys themselves or the decision-rule that any six or more negative keys predict the defeat of the party holding the White House. Rather, in my final forecast for 2016, I predicted the winner of the presidency, e.g. the Electoral College, rather than the winner of the popular vote. In an interview with the Washington Post on September 23, 2016, I predicted that Donald Trump would win the presidency in November, after a sixth key turned against the incumbent Democrats" (191).
This passage is strange for three reasons. First, it contradicts the passage quoted above that his keys "predict only the national popular vote."
Second, in his 2016 interview with the Washington Post, he spoke of a "Trump victory," but he did not say that this would be a victory in the Electoral College that might allow Clinton to be the popular vote winner.
Third, in saying that his "modification of the keys system" does not change any of the keys themselves or the decision rule, he leaves the reader confused as to how his "modification" allows him to predict a winner in the Electoral College who loses the popular vote.
Wouldn't it be better for Lichtman to either admit that his keys predict only the popular vote winner and not the Electoral College winner, or to adopt my key 14 so that he can anticipate a discrepancy between the popular vote and the Electoral College?
PREDICTING TRUMP'S DEFEAT IN 2020
Consider now how my proposed system of 14 keys would apply to the 2020 election. First, we could judge that Trump as the incumbent-party candidate wins key 14, because his likely voters are distributed evenly enough across the states to minimize any wasted votes in the Electoral College system.
We might then be persuaded by Lichtman's judgment that Trump's party has lost 7 of the keys, and so he is likely to lose the election to Biden.
Trump has lost the incumbent-party mandate key 1, because after the 2018 mid-term elections, the incumbent Republican Party did not hold more seats in the House than it did after the 2014 mid-term elections. I have written about the importance of this here.
Trump has lost both of the economic keys (5 and 6), because of the economic decline both short-term and long-term that has come from the COVID economic shutdown that Trump initiated in March. I have written about that here and here.
He has lost the social unrest key 8, because of the mass street protests and violence that has spread around the country since May. I have written about this in my posts on nonviolent and violent resistance to perceived injustice here and here.
He has lost the foreign or military success key 11, because he has not achieved any major success in foreign or military affairs.
Since there have been many major scandals connected to Trump and his administration, he has lost key 9.
Finally, he has lost key 12, because although his grandiose showmanship appeals to his most fervent supporters, he lacks the charismatic personality that would appeal broadly to the whole electorate. This shows the fundamental weakness in Trump's governance that comes from his bad character--his lack of moral or intellectual virtues. I have written about that here, and here.
If this is true, then Biden is likely to beat Trump. And this will have nothing to do with Biden's campaign, because all that matters is the voters' judgment of the performance of the incumbent Republican party over the past four years.
REFORMING THE ELECTORAL COLLEGE?
We are left with some big questions about the American system of presidential election, which is suggested by the Electoral College key 14: Why should there ever be a discrepancy between the popular vote winner and the Electoral College winner? Is the Electoral College winner a better expression of popular consent than the popular vote by itself?
We could change this situation by abolishing the Electoral College, as has often been proposed. Or we could adopt the procedure for allocating Electoral College votes that is followed in Nebraska and Maine: two of the electoral votes go to the statewide popular vote winner and the others to the winners in each of the congressional districts. So, for example, Nebraska has 5 electoral votes (corresponding to Nebraska's two senators and three congressman). In 2008, John McCain won 4 of those electoral votes, because he won the popular vote statewide and in two of the congressional districts. Obama won one electoral vote, because he won in one of the congressional districts. If this procedure were followed in all the states, there would be almost no chance of any divergence between the popular vote winner and the winner in the Electoral College.
The second night of the Republican National Convention (Tuesday, August 25) began with a video with an image of the Declaration of Independence and a narrator reading its most famous passage: "We hold these truths to be self-evident, that all men are created equal, that they ae endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness."
The narrator then explained:
"Without life, there can be no liberty. Without liberty, there is no happiness. Without equality, there is no opportunity." [At this point in the video, there are pictures of Abraham Lincoln, Frederick Douglass, and Martin Luther King.]
"America has strived since its founding to promote equality under the law, to correct injustices, and to ensure opportunity for all. It is a work in progress, not always perfect."
"Some look at American opportunity and see only problems. They want equal outcome, not equal opportunity." [Here there are pictures of Charles Shumer, Nancy Pelosi, Kamala Harris, and Bernie Sanders.]
"They criticize without solutions, demand wealth without work. Their ways are historical failures evidenced by tyranny and poverty, a prevailing darkness in every country that it has been tried." [Here there are images of the 1989 Tiananman Square protests in Beijing, Fidel Castro, and Che Guevara,]
"The American dream inspired by American opportunity is the engine of entrepreneurship, the inspiration with the greatest intentions." [Here there are pictures of Donald Trump.]
". . . Tonight, we explore together America, land of opportunity."
Excerpts from this video were shown throughout the convention, and it set a persistent theme: the Republican Party is defending the principles of the American founding as stated in the Declaration of Independence--particularly, the principle of equality of opportunity--while the Democratic Party is attacking those principles and promoting the principles of socialist tyranny--particularly, the principle of equality of outcome.
The theme for the third day of the Convention was "Heroes of America." South Dakota Governor Kristi Noem was the first speaker. She warned that the founding principles of America were under attack, and that we must struggle to live up to those founding principles. As part of this attack on the Founding, she observed, the Democrats are tearing down all the monuments to our American heroes.
Although I did not notice any explicit reference at the Republican Convention to the "1619 Project" of the New York Times, this was certainly in the background, because the complaint that America was founded on slavery by American leaders who were themselves slaveholders is central to what the Republicans see as the attack on America. Just a few days ago, President Trump said that he would prohibit any federal funding to public schools that adopt material from the 1619 Project as part of their curriculum for teaching American history.
The Republicans see that America is "a work in progress, not always perfect," because equality of opportunity for all has never been perfectly achieved, but it is still worth striving for. By contrast, we are told, the Democrats see only the imperfection and not the progress, and they conclude that America must strive for a socialist equality of outcome, although this will bring tyranny and poverty.
So is it true that the Declaration of Independence rightly promised a government that would secure equality of opportunity for all Americans, and that while never perfectly attained, this American dream of equal opportunity has been the proper standard by which we can see all of American history as showing progressive improvement in striving to achieve human equality in the natural rights to life, liberty, and the pursuit of happiness?
Or has this been a failure--or only a partial success--because from the beginning, America was founded on slavery and white racism, which have denied full equality of rights for black Americans? If it has been a failure, does that come from the racial tribalism that is rooted in the propensity to xenophobia or in-group bias that is part of our evolved human nature? Do we see that racial tribalism today displayed in the violent street conflicts between "Black Lives Matter" protestors and their "Blue Lives Matter" opponents?
In her Pulitzer-Prize-winning article for the 1619 Project, Nikole Hannah-Jones wrote:
"The United States is a nation founded on both an ideal and a lie. Our Declaration of Independence, approved on July 4, 1776, proclaims that 'all men are created equal' and 'endowed by their Creator with certain unalienable rights.' But the white men who drafted those words did not believe them to be true for the hundreds of thousands of black people in their midst. 'Life, Liberty, and the pursuit of Happiness' did not apply to fully one-fifth of the country. Yet despite being violently denied the freedom and justice promised to all, black Americans believed fervently in the American creed. Through centuries of black resistance and protest, we have helped the country live up to its founding ideals. And not only for ourselves--black rights struggles paved the way for every other rights struggle, including women's and gay rights, immigrant and disability rights."
. . .
". . . in making the argument against British tyranny, one of the colonists' favorite rhetorical devices was to claim that they were the slaves--to Britain. For this duplicity, they faced burning criticism both at home and abroad. As Samuel Johnson, an English writer and Tory opposed to American independence, quipped, 'How is it that we hear the loudest yelps for liberty among the drivers of Negroes?'"
"Conveniently left out of our founding mythology is the fact that one of the primary reasons some of the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery. By 1776, Britain had grown deeply conflicted over its role in the barbaric institution that had reshaped the Western Hemisphere. In London there were growing calls to abolish the slave trade. This would have upended the economy of the colonies, in both the North and the South. The wealth and prominence that allowed Jefferson, at just 33, and the other founding fathers to believe they could successfully break off from one of the mightiest empires in the world came from the dizzying profits generated by chattel slavery. In other words, we may never have revolted against Britain if some of the founders had not understood that slavery empowered them to do so; nor if they had not believed that independence was required in order to ensure that slavery would continue. It is not incidental that 10 of this nation's first 12 presidents were enslavers, and some might argue that this nation was founded not as a democracy but as a slavocracy."
"Jefferson and the other founders were keenly aware of this hypocrisy. And so in Jefferson's original draft of the the Declaration of Independence, he tried to argue that it wasn't the colonists' fault. Instead, he blamed the king of England for forcing the institution of slavery on the unwilling colonists and called the trafficking in human beings a crime. Yet neither Jefferson nor most of the founders intended to abolish slavery, and in the end, they struck the passage."
Notice the contradiction in Hannah-Jones' claims here. She begins by saying that Jefferson and the other white men who drafted the words about human equality in the Declaration "did not believe them to be true for the hundreds of thousands of black people in their midst." But then she says they "were keenly aware" of their "hypocrisy" in affirming natural human equality while denying the application of this principle to black slaves. If the founders did not believe that black people were created equal to whites in their natural rights, then the founders could not have been guilty of hypocrisy, because hypocrisy here would mean refusing to recognize the human equality of black and white people that one knows to be true.
That Jefferson recognized the equality of blacks and whites, and thus the injustice of black enslavement, is evident in the passage in the original draft of the Declaration, to which Hannah-Jones refers, in which Jefferson condemned the slave trade as a "cruel war against human nature itself." I have written about this in a previous post. Here Jefferson repeated a charge that he had made in his Summary View of the Rights of British America (1774), where he complained that the efforts of Virginia and some other colonial legislatures to impede or stop the slave trade were vetoed by the King. He observed that stopping the slave trade would be the first step towards abolishing slavery: "The abolition of domestic slavery is the great object of desire in those colonies, where it was unhappily introduced in their infant state" (Jefferson 1984, 115).
In the same passage of the original draft of the Declaration where Jefferson condemns the King for the slave trade, he also condemns the King for inciting the slaves to rebel against their American masters: "he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he also obtruded them: thus paying off former crimes committed against the LIBERTIES of one people, with crimes which he urges them to commit against the LIVES of another."
Although this passage was struck out of the final draft of the Declaration, the condemnation of the King's inciting slave rebellion was introduced into the last of the 27 grievances against the King: "He has excited domestic insurrections among us, and has endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions."
The American colonists were threatened not only by the "domestic insurrections" of the slaves from whom they had stolen labor, but also by the attacks of Indians from whom they had stolen land. And, indeed, in the American Revolutionary War, the British stirred both the Indians and the slaves to fight against the rebels. But many slaves chose to fight for the rebels. American loyalists and rebels stole slaves from one another in the war. During the war, as many as 100,000 slaves gained their freedom. One might say that the American Revolution became the largest slave rebellion in American history.
Jefferson and the other leading American founders all agreed that slavery violated the principles of the Declaration of Independence, because slavery was wrong in denying the natural liberty and equality of the slaves, who had a natural right to overthrow the tyranny of their masters, just as the white American colonists had the right to overthrew the tyranny of the British. They also agreed that slavery would have to be abolished, but they disagreed about how and when that should happen.
In the 20 years after 1776, 6 of the original 13 states abolished slavery. In 1777, Vermont became the first to abolish slavery in its constitution. In 1780, Pennsylvania adopted a law mandating the gradual emancipation of slavery--through the emancipation of slave children once they reached adulthood. In 1781-1783, several Massachusetts court decisions found slavery incompatible with the state constitution (written by John Adams), which declared in 1780 that all men "are born free and equal."
But none of the Southern states succeeded in abolishing slavery. In 1785, Jefferson said that people in the North were "jealous of their own liberties, and just to those of others," while people in the South were "zealous for their own liberties, but trampling on those of others" (Letter to Chastellux, September 2, 1785; Jefferson 1984, 827).
In June of 1776, Jefferson was on a committee to draw up plans for revising the laws of Virginia. He proposed a plan for the gradual emancipation of slaves--the children of slaves would be freed at age 18 (for females) or 21 (for males), and then these newly emancipated blacks would be colonized somewhere outside of Virginia where they could live as a free and independent people.
Although Jefferson's plan for abolition was never adopted, in 1782, Virginia adopted a law that encouraged slaveholders to emancipate their slaves. And in 1784-1785, there were proposals for the general emancipation of slaves.
But then, the General Assembly of Virginia received at least 5 petitions signed by over 1,500 people across Virginia who opposed both the manumission of slaves by slaveholders and any general emancipation.
They made three arguments (Schmidt and Wilhelm 1973). First, abolishing slavery was said to deny the natural rights of slaveholders to life and property, which was contrary to the Declaration of Independence. Second, slavery was said to be supported by the Bible--both the Old Testament and the New Testament. Third, emancipation was said to be bad policy, because freed blacks would commit "rapes, murders, and outrages" and would generally misbehave.
These Virginia petitioners in the 1780s were proslavery in the strong sense that they were arguing for slavery as a "positive good," which would become more common in the South in the 1830s, when people like John C. Calhoun would take this position.
Those American founders who were slaveholders--like Jefferson, Madison, and Washington--were proslavery only in the weak sense, in that while they recognized the injustice of slavery as violating the principles of the Declaration of Independence, they saw no way that slavery could be immediately abolished without disastrous consequences for the South. They hoped that someday slavery could be abolished, and then the freed blacks could leave the United States and colonize some area in Africa or South America. White settlers could then be imported as hired laborers to take the place of the slaves.
Jefferson did not think that a multiracial society in which blacks and whites would be socially and politically equal was possible. In his Notes on the State of Virginia, he remarked:
"It will probably be asked, Why not retain and incorporate the blacks into the state, and thus save the expense of supplying, by importation of white settlers, the vacancies they will leave? Deep-rooted prejudices entertained by the whites; ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations, the real distinctions which nature has made; and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race" (1984, 264).
Did Jefferson himself share those "deep-rooted prejudices" of the whites? In 1791, while he was Secretary of State under President Washington, Jefferson received a letter from a free black man accusing him of just that. Benjamin Banneker was a polymath--a surveyor, a poet, and a student of mathematics and astronomy--who had just published an almanac. He sent Jefferson a long letter along with a copy of his almanac as evidence for black intelligence. He said that when Jefferson wrote the Declaration of Independence affirming the equal rights of human nature, he "clearly saw into the injustice of a state of slavery." But then he observed that Jefferson's selfish interests in slaveholding--"in detaining by fraud and violence so numerous a part of my brethren"--had allowed his moral judgment to be blinded by "narrow prejudices" (Basker 2012, 131).
Remarkably, Jefferson responded with a short letter of only five sentences, in which he said: "No body wishes more than I do to see such proofs as you exhibit, that nature has given to our black brethren, talents equal to those of the other colors of men, and that the appearance of a want of them is owing merely to the degraded condition of their existence." He passed over in silence Banneker's charge of "narrow prejudices."
We know now that when this correspondence occurred in 1791, Jefferson had taken his slave Sally Hemings as his concubine. He sired at least four children by her. After he started this sexual relationship with Sally (while he was in Paris, 1787-1789), Jefferson never again spoke about his plans for abolishing slavery. I have written about this in a previous post.
In his Notes on Virginia, Jefferson had written about the morally degrading effects of slavery--both for the master and for the slave. Do we see that in Jefferson himself?
Even if we see in Jefferson the moral flaws that delayed the abolition of slavery in the United States, we also see in Jefferson's Declaration of Independence the principles of human liberty and equality that demanded that abolition. Perhaps this shows us that America really is "a work in progress, not always perfect."
But how much progress have we achieved? The abolition of slavery through the Civil War and the Civil War constitutional amendments and then the breaking up of Jim Crow segregation through the Civil Rights Movement surely count as great progress. But when we look at the intense conflicts provoked by the Black Lives Matter movement, we must wonder whether we have failed to completely overcome the racial tribalism that Jefferson thought would always prevent full racial equality in a multiracial free society.
I have written about the evolution of racial/ethnic identity (here and here).
Basker, James G., ed. 2012. American Antislavery Writings. New York: The Library of America.
Jefferson, Thomas. 1984. Writings. Ed. Merrill D. Peterson. New York: The Library of America.
Schmidt, Fredrika Teute, and Barbara Ripel Wilhelm. 1973. "Early Proslavery Petitions in Virginia." William and Mary Quarterly 30: 133-146.