Does the Original Meaning of the 14th Amendment (Section 3) Disqualify Trump from Future Office?

If laws are moral ideas created by the human mind and expressed in language, one illustration is the constitutional laws that establish the American presidency.  Human minds have created the American presidency through the language of the Constitution, which determines the eligibility for the office (such as being at least 35 years old), the procedure for electing the president (the Electoral College), the four-year term for the office, the powers of the office, the terms for removing (impeaching) the President, and how someone is disqualified for the office.  The American people have invented and sustained the moral authority of the American president by consenting to the language of the Constitution and thus creating the presidency as a moral idea in their minds.  

Aristotle was right in saying that the uniquely human capacity for speech or rhetorical persuasion (logos) makes humans more political than the other political animals, because while other political animals can share their perceptions of pleasure and pain, humans can use speech to share their conceptions of the advantageous, the just, and the good.  Through speech, humans cooperate for common ends in ways that are more complex, more flexible, and more extensive than is possible for other animals.  Through speech, humans can deliberate about the common interest as the standard of justice.  A just political community can be judged to be one that serves the common interest of all or most of its members, as contrasted with an unjust political community that serves only the private interest of its ruling group.

This is a distinctly human power of the evolved human mind, because while other primates can recognize the social status of an alpha male or alpha female in a dominance hierarchy, they do not have the mental capacity for creating the moral idea of someone having the constitutional authority of a leader as prescribed by the language of a constitution.   This unique capacity of the human mind for creating moral rules expressed in language is an emergent evolutionary product of the 16 billion neurons in the human cerebral cortex.

We are now using that human mental capacity to debate whether the original meaning of the language of the 14th Amendment in Section Three disqualifies Donald Trump from future office.  

Since Trump began his attempt to overturn the 2020 presidential election, there has been a growing number of people who say that Trump should be disqualified from holding any public office under Section Three.  Now, we have a long paper by William Baude and Michael Stokes Paulsen, to be published in the University of Pennsylvania Law Review, that shows how the original meaning of Section Three justifies this conclusion.   Baude and Paulsen are two of the most prominent originalist constitutionalists who are leading members of the Federalist Society.  

Despite the fact that as President Trump allowed his judicial appointments to be dictated by the Federalist Society, many of the originalists are not supporting Trump's attack on the Constitution in trying to overturn the 2020 election.  Many of the judges appointed by Trump have rejected his legal arguments for claiming that the election was stolen from him.

In contrast to those originalists who have looked for the "original intent" of lawmakers, Paulsen and Baude look for the "original meaning" of the laws, which is often broader than what the framers of the law might have intended (8-14, 33, 41).  For most of those who wrote and voted for the 14th Amendment, the primary intent might have been to punish those who had supported the Confederacy in the Civil War and to overturn the social and political regime of the South as founded on slavery.  But the actual language of the 14th Amendment states broad moral principles that extend far beyond the original intentions of those who wrote and ratified the Amendment.

Here is what Section Three says:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  But Congress may by vote of two-thirds of each House, remove such disability."

I am persuaded by Baude and Paulsen in their four main arguments about the original meaning of this language.  First, Section Three is legally operative today.  Second, Section Three is legally self-executing in that it is an automatic legal disqualification.  Third, Section Three supersedes, qualifies, or satisfies prior constitutional provisions (such as bills of attainder, ex post facto laws, due process of law, and freedom of speech).  Fourth, Section Three's substantive disqualification is sweeping:  it applies to anyone who, having taken an oath to support the Constitution, has violated that oath by engaging in insurrection or rebellion against the Constitution, or has given aid or comfort to the enemies of the Constitution.

Baude and Paulsen can then apply this interpretation of Section Three to the case of Trump.  If the mob assault on the U.S. Capitol on January 6, 2021, was an "insurrection," and if Trump incited or "engaged" in that insurrection, then he violated his presidential oath to support the Constitution, and he was thereby disqualified from any future office.

In fact, majorities of both houses of Congress have determined that Trump was guilty of "incitement of insurrection" for the events of January 6th.  On January 25, 2021, a majority of the House of Representatives approved (232 to 197) this charge as an article of impeachment.  Later, a majority of the Senate voted (57 to 43) to convict Trump of this charge.  Even though this fell short of the two-thirds majority of the Senate required for impeachment, this could have been seen as a congressional declaration that Trump was disqualified from future office under Section Three of the 14th Amendment.

Now, some of the secretaries of state in the states have said that they are considering the possibility of refusing to put Trump's name on the ballots for the presidential primaries in 2024 because he is disqualified under Section Three.  If that happens, then Trump will surely file lawsuits that eventually will reach the U.S. Supreme Court.

Actually, this question has already reached the Supreme Court.  John Castro is a candidate for the Republican nomination for President, and he has filed a petition with the Court asking that the Court intervene in his federal lawsuits in 14 states that argue that Trump is disqualified under Article Three for being a candidate for the Republican nomination for President because he has engaged in insurrection against the Constitution.  He claims to have standing to bring this suit because he will suffer "a political competitive injury" if he has to compete with Trump for Republican primary votes.  John Castro v. Donald Trump has been distributed to the justices ahead of the upcoming term that begins October 2.  The Court will decide on or before October 9 whether to take up the case.

There have been a few cases in which courts have been asked to apply Section Three to January 6th insurrectionists.  For example, the state of New Mexico removed Couy Griffin from his office as elected commissioner for Otero County, New Mexico, because he had participated in the January 6 insurrection, and a group of New Mexico citizens had filed a quo warranto action against him seeking his removal from office under Section Three (Baud and Paulsen, 27-28).  A writ of quo warranto is a common law remedy that asks "by what warrant (or authority)" does someone hold a public office.

But even if one accepts the interpretation of Section Three by Baude and Paulsen, there are two fundamental questions that they do not answer--a practical question of prudence and a theoretical question of political philosophy.  The practical question is whether it would be prudent to declare Trump disqualified from any future public office.  Would the likely costs from the turbulent resistance of Trump's supporters exceed the likely benefits from denying Trump access to the ballot?

The imprudence of fully enforcing Article Three became clear even to the Congress that had originally voted for the 14th Amendment.  Section Three anticipated this by stipulating that "Congress may be vote of two-thirds of each House, remove such disability."  And, indeed, the Congress did this for a large number of Confederates who were willing to join the Republican Party and accept the expansion of rights of African Americans during Reconstruction.  One of the most prominent was General James Longstreet, who had served under General Robert E. Lee.  In 1874, Longstreet led the Metropolitan Police of New Orleans and African-American militia troops to battle the anti-Reconstructionist White League that had launched a violent uprising to overthrow the biracial Reconstruction government of Louisiana, which was a kind of precursor to the insurrection of January 6.

In 1872, the Congress passed the Amnesty Act, which removed the Section Three office-holding disqualifications from all but the most prominent Confederates.  At the same time, President Ulysses S. Grant pardoned all but 500 former top Confederate leaders.  Congress and Grant had concluded that the disqualification under Section Three was not helping Reconstruction, and it was making things worse by driving white Southerners to support the Ku Klux Kan in its violent resistance to Reconstruction.  Similarly, declaring Trump disqualified from public office might drive his supporters to the same kind of violent resistance.

There is also a theoretical question here that Baude and Paulsen do not answer.  How does one reconcile the right of the government established by the Constitution to suppress and punish insurrection or rebellion against the Constitution with the right to revolution in the Declaration of Independence?  When the American revolutionaries declared their independence from Great Britain, the British asserted their legal right to suppress that rebellion.  

The American Revolution was actually the first American Civil War because many Americans were Loyalists who regarded the American revolutionaries as traitorous rebels against the legally established government.  Some historians have estimated that as many as 15% to 20% of American colonists were Loyalists.  Similarly, there might be as many as 20% of Americans today who would say that disqualifying Trump from office is unjust.

When the American revolutionaries established their new state and national governments, those governments claimed the right to suppress insurrectionary or rebellious conduct.  Although the Constitution of 1787 was a peaceful coup d'état that overthrew the Articles of Confederation, the Constitution did not explicitly recognize a right to revolution.  On the contrary, it granted to the Congress the power "to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" (Art. 1, Sec. 8).  

In 1794, acting under the Insurrection Act of 1792, President George Washington personally led militia forces into western Pennsylvania to suppress an uprising against the national government provoked by resistance to a federal tax on whiskey distilleries.  The participants in this "Whiskey Rebellion" echoed the arguments of the American revolutionaries in complaining that the federal tax was "taxation without local representation," because the people of western Pennsylvania had not consented to this tax.

In 1796, in his "Farewell Address" to the nation, Washington stressed the sacred obligation to uphold the Constitution as established by the right of the people to make and consent to constitutional government:

The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all. The very idea of the power and the right of the People to establish Government presupposes the duty of every Individual to obey the established Government.

All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, controul counteract, or awe the regular deliberation and action of the Constituted authorities are distructive of this fundamental principle and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force—to put in the place of the delegated will of the Nation, the will of a party; often a small but artful and enterprizing minority of the Community; and, according to the alternate triumphs of different parties, to make the public administration the Mirror of the ill concerted and incongruous projects of faction, rather than the Organ of consistent and wholesome plans digested by common councils and modefied by mutual interests. However combinations or Associations of the above description may now & then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious and unprincipled men will be enabled to subvert the Power of the People, & to usurp for themselves the reins of Government; destroying afterwards the very engines which have lifted them to unjust dominion.

Here Washington foresaw people like Trump--"ambitious and unprincipled men" who can lead a "faction . . . to usurp for themselves the reins of Government."

In the months after Abraham Lincoln was elected President on November 6, 1860, the Southern States began to announce their secession from the Union and their formation of the Confederate States of America, beginning with South Carolina in December of 1860.  As indicated by the Declaration from South Carolina, they appealed to the Declaration of Independence and particularly the principle that "whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government."  This is close to the language of the Declaration of Independence, but it does not mention "the ends for which it was established"--that is, "to secure these rights" of "Life, Liberty, and the pursuit of Happiness" that belong to "all men" as "created equal."

They also argued that the National Government and the northern States had violated the Constitution by failing to fully enforce the Fugitive Slave clause (in Article 4) that required the return of those slaves who had run away into the Northern States.

For these reasons, the Confederates claimed a natural and constitutional right to refuse to accept the outcome of the presidential election of 1860 and to launch the violent insurrection that began with the attack on Fort Sumter in April of 1861.

Similarly, Trump has implicitly employed a syllogism from the Declaration of Independence to justify insurrection to overturn the presidential election of 2020:

Major premise:  The American people have the right to overthrow tyrannical government.

Minor premise:  The Democratic Party has been conspiring to steal elections so that they can rule over America tyrannically.

Conclusion:  The American people have the right to engage in a violent insurrection to stop this tyrannical conspiracy for stealing elections.

Trump's MAGA Republicans believe that this syllogism is true.  Most Americans, however, believe that the minor premise is false, and that the failure of Trump and his lawyers to present any convincing evidence for this premise was clear in the many lawsuits filed by Trump in state and federal courts that all failed because the judges could not see the evidence for it.

Similarly, while many Americans agreed with the Confederate claim to be justified in rebelling against the Union, most Americans disagreed.  That dispute was finally settled by war--or by what John Locke called "an appeal to Heaven."  

We must hope that our dispute today can be settled without war.  And we must decide whether applying Section Three of the 14th Amendment to Trump will help us avoid a new civil war, or whether doing that would make a war more likely.

Were the Capitol Hill Rioters Exercising Their Right to Revolution?

If it were true that the Democrats have been stealing American elections through fraudulent votes--most recently in the presidential election on November 3rd and the Senate elections in Georgia on January 5th--wouldn't that justify revolutionary violence to "stop the steal"?  

Wouldn't that justify the insurrection of January 6th on Capitol Hill?  

And wouldn't that justify President Trump in declaring martial law, mobilizing federal troops, and having some Republican-controlled state legislatures declare that he has been elected to a second term in a landslide victory? 

Wouldn't this revolutionary violence be a proper expression of what John Locke called "the executive power of the law of nature"--the power of the people to punish those who violate their natural rights?  (I have written about that here, here, and here.)

This all turns on a big if--if Trump's claims about a stolen election are true.  I have seen no evidence to support Trump's lies.  But I understand that if Trump and his supporters believe his lies, they should feel it their patriotic duty to engage in revolutionary violence to keep Trump in office and prevent Biden from being inaugurated president.

That they do believe those lies was indicated by what was said at the "Save America March" on the morning of January 6--not only what Trump said but also what was said by Rudy Giuliani and John Eastman.  (You can find a video and a transcript of this here.  A video of the entire rally can be found at CSPAN.)

Giuliani claimed that "this election was stolen in seven states," and that the Georgia Senate elections had been stolen the night before using the same techniques for fraudulent voting that had been employed on November 3.  He insisted that these stolen elections would have to be reversed "to save our republic," and that this would require "trial by combat."  To prove that their plan for the day was "perfectly legal," Giuliani introduced Eastman as "one of the preeminent constitutional scholars in the United States."

Eastman is a law professor at Chapman University's Fowler School of Law and the Founding Director of the Claremont Institute's Center for Constitutional Jurisprudence.  (In a previous post, I mentioned Eastman's attempt to get a Trump lawsuit before the U.S. Supreme Court.)  Speaking at the rally, Eastman said that he had proof that the Democrats had used Dominion voting machines to steal elections by putting ballots in a "secret folder" in a machine, so that those ballots could be converted to enough Biden ballots as necessary to win an election.  He claimed that this had been done the night before in Georgia, so that the Democrats could win both of the Senate elections and thus take control of the Senate.

Eastman then said: "And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government or not."  All fifty states have certified the presidential electors for the Electoral College, with a winning number for Biden.  But Eastman here was agreeing with Trump that the Constitution gives the Vice-President the power to refuse to accept these certifications of electors and to ask the state legislatures to review the elections in their states and consider whether Biden electors should be replaced by Trump electors.  If Pence did not do this, and if he thus allowed the stolen election to stand, Eastman declared, that would destroy the "very essence of our republican form of government."

Eastman's position has provoked angry criticism from some faculty members at Chapman University.  In response to this, Eastman just this morning issued a statement (published at the Claremont Institute's "American Mind" blog) on his decision to retire from Chapman's Law School.  He quotes the political science faculty at Chapman as criticizing him for making "false claims" about the 2020 presidential election that "have no basis in fact or law and seek to harm the democratic foundations of our constitutional republic."  He responds by insisting that all of his arguments are based solidly on both fact and law.  He makes two claims of law and two claims of fact.

First, as a matter of both fact and law, he claims that in many states partisan election officials and partisan judicial officials altered or ignored existing state laws governing the conduct of elections.  He says that this violates constitutional law, because Article II, section 1, clearly says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" for the Electoral College.  The Constitution thus allows each state legislature to appoint presidential electors in any "manner" that they choose.  The state legislature can even choose the electors themselves without having a popular vote, as happened in most states prior to 1828.  Once a legislature has determined by law the "manner" of selecting electors, it must surely be unconstitutional for any election officials or judges to alter those election laws.  But that's exactly what was done in some states, according to Eastman.

Moreover, as a matter of fact, Eastman says in his statement, some legislators have in fact written to Vice-President Pence asking him to delay the electoral vote count until the legislatures can review whether their electoral slate was legally certified.

Finally, Eastman asserts: "It is also a fact that a forensic analysis of the one voting machine courts have permitted to be inspected demonstrated not only that the machines are capable of switching votes, but they actually did switch votes in Antrim County, Michigan."

This final claim is dishonest.  Because Eastman does not tell his reader that this "forensic analysis" is very dubious and not at all "demonstrated."  He is referring to a report prepared by an organization called Allied Security Operations Group, which has been accused if making false claims about Michigan's election.  Nor does he tell his reader that Trump won Antrim County (with a population of 23,000) by more than 3,700 votes.  If this was a case of Democrats stealing votes, why did they steal the votes for Trump?

Eastman also fails to explain why his arguments of fact and law have been rejected by every court to which they have been presented--in over 60 lawsuits--even when the judges had been appointed by Trump or other Republican presidents.

Eastman denies that he participated in a riot: "I participated in a peaceful rally of nearly 1/2 million people, two miles away from the violence that occurred at the capital and which began even before the speeches were finished."

But if Eastman and other Trump supporters believe that the Democrats have been stealing elections and that this will destroy the American republican form of government and thus destroy America, why doesn't this justify violent revolutionary activity?  Why shouldn't we expect millions of Americans to show up next week at Biden's inauguration armed and ready to fight a "trial by battle"?

If this does not happen, there will be two possible explanations.  Either Trump and his supporters do not really believe his lies about a stolen election.  Or they do really believe them, but they're afraid they don't have enough force to prevail in a battle with federal police and national guardsmen.  

A recent memorandum from the Joint Chiefs of Staff of the Department of Defense would seem to support the second explanation.  This extraordinary memo was sent two days ago to all active duty and reserve troops of the United States.

The memo begins: "The American people have trusted the Armed Forces of the United States to protect them and our Constitution for almost 250 years.  As we have done throughout our history, the U.S. military will obey lawful orders from civilian leadership, support civil authorities to protect lives and property, ensure public safety in accordance with the law, and remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic."

They say that the riot on January 6 was a direct assault on the United States and the Constitutional process.  They pledge that all military service members will defend the Constitution against such violence.

They also pledge: "On January 20, 2021, in accordance with the Constitution, confirmed by the states and the courts, and certified by Congress, President-elect Biden will be inaugurated and will become our 46th Commander in Chief."

In other words, they reject the claim by Trump and Eastman that the election of Biden was fraudulent and unconstitutional; and therefore, they imply, they would refuse to obey any orders from Trump that would obstruct Biden's inauguration.  They also imply by this that there is no justification for revolutionary violence.

In saying that the American military has protected the country "for almost 250 years," they point back to the establishment of the Continental Army in 1774 by the Second Continental Congress.  In that case, the American military fought on the side of colonial revolutionaries who were traitors to Great Britain.  They thus endorse the right to revolution, even as they deny that there is any justification now to invoke that right in fighting to keep Trump in power.

There are reports that the Defense Department is investigating some military personnel who might have participated in the 1/6 riot.  This memo from the Joint Chiefs is a clear warning against joining any such revolutionary insurrection.

This raises some deep questions about whether and how the right to revolution as stated in the Declaration of Independence can be compatible with the constitutional order.  In the Dennis v. United States (1951) decision, the Supreme Court upheld the Smith Act of 1940, which declared it unlawful for any person "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government."  Under this law, leaders of the Communist Party USA were arrested and convicted for teaching Marxism, which advocated the revolutionary overthrow of capitalism.

The Court seemed to endorse a Hobbesian denial of the Lockean right to revolution: "That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion.  Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial government is without force where the existing structure of the government provides for peaceful and orderly change.  We reject any principle of governmental helplessness in the face of preparation for revolution, which principle carried to its logical conclusion, must lead to anarchy."

Does this mean that the Declaration of Independence--with its affirmation of the right to revolution--is unconstitutional, because no government could ever permit revolutionary change that would bring about its own abolition?  Or would the right to revolution be a constitutional right when it is exercised to overturn an unconstitutional presidential election?  

If Trump and Eastman were right in their assertion that Biden's election arose from an unconstitutional process, would that justify them in leading a revolutionary assault against Biden's presidency?

Trump's Syllogism from the Declaration of Independence Demands Insurrection

Donald Trump's demagogic rhetoric has succeeded in persuading his supporters because of his skillful use of two primary syllogisms--an electoral syllogism and a revolutionary syllogism.  The syllogistic character of his rhetoric is usually not clear because he leaves some steps in his syllogistic reasoning unstated, so that they have to be supplied by the listeners.  This is what Aristotle described in his Rhetoric as persuasion through enthymemes.

I have indicated in some previous posts (here and here) that Trump's main syllogism supporting his election in 2016 looked like this:

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.

Both of the premises are contestable.  The minor premise is demonstrably false.

Beginning in his 2016 campaign, Trump has also employed a revolutionary syllogism; and it's the persuasiveness of that syllogism with his supporters that led to the insurrection on Capitol Hill on January 6, which could motivate future insurrectionary violence as well.  When the majority of those in the House of Representatives recognized this, that led them to impeach Trump a second time.  Whether Trump is convicted in a Senate trial will depend upon whether two-thirds of the Senators can be persuaded to recognize this.

Trump's revolutionary syllogism follows the model of the syllogism around which the Declaration of Independence is organized.  In a previous post, I have said that the Declaration argues for this revolutionary syllogism:

Major premise:  The natural history of humanity shows that human beings have a natural right to overthrow tyrannical governments.

Minor premise:  The cultural history of the American colonies shows that the British King intends to exercise tyranny over the colonies.

Conclusion:  The 56 individuals signing the Declaration can rightly exercise their prudential judgment, acting as representatives of the American people, to affirm the conclusion that the American colonies have a right to revolt in separating from British rule.

This same structure--a theoretical major premise, a factual minor premise, and a practical conclusion for insurrectionary violence--can be seen in Trump's revolutionary syllogism:

Major premise:  The American people have the right to overthrow tyrannical government.

Minor premise:  The Democratic Party has been conspiring to steal elections so that they can rule over America tyrannically.

Conclusion:  The American people have the right to engage in a violent insurrection to stop this tyrannical conspiracy for stealing elections.

The insurrectionary conclusion follows logically from the premises.  I presume that most Americans accept the major premise.  The minor premise--the factual premise about the Democratic Party's fraudulent voting conspiracy--is the point of disagreement.  Most Americans deny that minor premise.  But a large number of Trump's supporters believe Trump's endorsement of that premise, and so they feel justified in becoming insurrectionists, as they did on January 6.

That Trump has indeed argued for this revolutionary syllogism becomes clear as soon as one reviews the history of what he has said to his supporters from 2016 to the present.  The best survey of that history that I have seen is the long article by Luke Mogelson for The New Yorker--"Among the Insurrectionists."

During his campaign in 2016, Trump predicted that while he would win by a landslide in the legal votes, the Democrats would steal the election for Hillary Clinton.  Roger Stone created a Web site called Stop the Steal.  After the election, Trump said that the Democrats had stolen enough votes to win the popular vote, although they had failed to win the Electoral College.

During his reelection campaign in 2020, Trump predicted that the Democrats would once again try to steal the election from him.  On the day of the election--November 3--shortly after midnight, Trump sent out the message: "We are up BIG, but they are trying to STEAL the Election."

On November 14, at the Million MAGA March, tens of thousands of Republicans went to Washington, D.C. and marched to the Supreme Court demanding that it overturn the election.  They believed Trump's claim that the Democrats had stolen a victory for Joe Biden both in the Electoral College and in the popular vote, despite the fact that Trump had actually won the election by a huge margin.  At the rally, Alex Jones, a leading pro-Trump conspiracy theorist, declared: "Down with the deep state!  The answer to their 1984 tyranny is 1776."

Trump's lawyers filed many lawsuits to reverse the electoral outcome.  One of his lawyers in an interview on Fox Business explained their strategy: "We're waiting for the United States Supreme Court, of which the President has nominated three Justices, to step in and do something."  All of their lawsuits failed, because they had no persuasive evidence of fraudulent voting, and they failed even when the judges were Trump appointees.  Once this failure in the courts became clear, congressman Louie Gohmert from Texas declared on TV: "You gotta go to the streets and be as violent as Antifa and BLM."

Nicholas Fuentes is the host of the popular "America First" program.  Many of the protesters at the Capitol Hill riot had royal-blue "AF" flags, the logo of "America First."  In December, Fuentes said: "Our Founding Fathers would get in the streets, and they would take this country back if necessary.  And that is what we must be prepared to do."

In December, the Arizona Republican Party reposted a tweet from Ali Alexander, an organizer of the Stop the Steal movement, that stated, "I am willing to give my life for this fight!"  The Republican National Committee the following to this retweet: "He is.  Are you?"

On December 20th, Trump retweeted a QAnon supporter who declared: "It was a rigged election, but they were busted.  Sting of the Century!  Justice is coming!"  QAnon conspiracy theorists believe that the entire world is coming under the tyrannical control of a small cabal of Democratic Party leaders like Hillary Clinton who are Satan-worshipping pedophiles.  They also believe that Donald Trump will expose their conspiracy and then have them all arrested and executed.  They predicted that he would do this shortly after being reelected in 2020.  Now they are predicting that he will have to declare martial law so that he can overturn the stolen election and arrest Biden and the others leading the conspiracy.

Trump has used one of the favorite phrases of the QAnon people--"the calm before the storm."  The Storm is the apocalyptic violence of Trump's revolution when he overturns the conspiratorial cabal and kills their leaders.  Many of the insurrectionists who broke into the Capitol Building to stop the certification of the presidential election of Biden apparently thought they were part of The Storm.

This was initiated by Trump when he invited his people to come to Washington on January 6 to "stop the steal."  At the rally that day, Trump warned: "We want to be so nice.  We want to be so respectful of everybody, including bad people.  We're going to have to fight much harder.  And Mike Pence is going to have to come through for us."  He went on to say: "After this, we're going to walk down, and I'll be there with you.  We're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women.  We're probably not going to be cheering so much for some of them--because you'll never take back our country with weakness.  You have to show strength."

People in the crowd responded by yelling "No weakness!" and "We're storming the Capitol!"  They marched to the Capitol.  But Trump did not keep his promise to march with them.  He drove back to the White House where he watched the assault on the Capitol on TV.

On the Mall, some of the people constructed a makeshift wooden gallows, with stairs and a rope.  Others carried ropes with nooses.  As they entered the Capitol Building, they shouted: "Storm!"  "Shoot the politicians!"  "Fight for Trump!"  "Hang Mike Pence!"

Advancing on five policemen guarding a side corridor, one group of people shouted: "Stand down."  "You're outnumbered.  There's a fucking million of us out here, and we are listening to Trump--your boss."  "We can take you out."

Some of the intruders were clearly hunting for politicians--shouting "Where the fuck are they?" and "Where the fuck is Nancy?"  Those who broke into Nancy Pelosi's office were angry that she was not there.

One woman--Ashli Babbitt--was fatally shot by a policeman.  In her final tweet the day before, she had declared, "The storm is here," the QAnon prophecy that the day was coming for Trump to expose and execute his enemies.

Some of the people yelled: "It's 1776!"

They believed Trump's revolutionary syllogism.

Passive Obedience or Active Resistance to the Red Caesar? Hume's Critique of Lockean Consent and Resistance

Proponents of the Red Caesar Plan (such as Curtis Yarvin and Michael Anton) has said that their ultimate goal is to move America away from John Locke's classical liberalism and towards Robert Filmer's reactionary authoritarianism.  They will achieve that goal when Trump rules America as the Red Caesar with the arbitrary power of an absolute monarch like that defended by Filmer: this Caesaristic Trump cannot be limited by the rule of law because he is the absolute sovereign, and whatever the sovereign wills is the law, and only what the sovereign wills is law.  Trump will rule as a tyrant, and, as Filmer argued, the people will be obligated not to resist his rule but to show passive obedience to him.

Locke challenged Filmer's teaching by arguing in his Two Treatises of Government for what today we would call classical liberalism.  In seventeenth-century England, Filmer was on the side of the Tories, while Locke was on the side of the Whigs.  

Locke's position can be summarized in five principles.  First, every person possesses the natural rights to life, liberty, property, and the pursuit of happiness--rights that first arose in the state of nature where human nature was formed.  Second, these natural rights are rooted in each person's self-ownership--his right over himself and his labor.  Third, the only just function of government is to protect those natural rights.  Fourth, government derives its limited authority from the consent of the governed.  Fifth, political rulers who become tyrants who infringe upon or fail to protect those natural rights may rightly be resisted and replaced.

If we agree with Filmer, then our proper response to Trump as the Red Caesar will be passive obedience.  If we agree with Locke, then our proper response will be active resistance.  Or is there perhaps some moderate middle ground between these two extremes?  

One way of thinking through this debate is to consider one of the best critiques of Locke's teaching--by David Hume in his Essays (Liberty Fund, 1985).

Hume saw the conflict between the Tories as the party of authority and obedience to rulers and the 
Whigs as the party of liberty and resistance to tyranny as a political battle in which the partisans of each faction refused to see the partial truth in each side: good government requires a tense balance between authority and liberty, so that each side moderates the other.  Extreme authoritarianism creates tyranny.  Extreme libertarianism creates anarchy.  The task of a philosopher is not to become a partisan but to mediate between the two extremes and promote compromise and accommodation.  Hume saw himself as a true philosopher, while identifying Locke as a partisan rather than a true philosopher (27-31, 40-41, 69-72, 465-66, 469-70, 486-87).

But if one reads Locke carefully in the light of Hume's critique, one can see that Locke is indeed a philosopher rather than a narrow partisan, and he agrees with Hume that good government requires a balance between authority and liberty.  And while Hume attacks Locke's doctrine of consent, Hume ends up closer to Locke's position that he realizes.

Remarkably, Hume accepts Locke's claim that in the original state of nature among hunter-gatherers, every adult was equally free from being ruled by anyone else; and therefore, nothing but their own consent could bring them together into a society and subject them to any authority.  "If this, then, be meant by the original contract, it cannot be denied," Hume observed, "that all government is, at first, founded on a contract, and that the most ancient rude combinations of mankind were formed chiefly by that principle" (468).

But even if government in its earliest and most primitive forms arose from "consent or rather the voluntary acquiescence of the people," it is not true, as Locke claims, that later fully developed governments as we see them today rest on no other foundation than the consent of the people.

Hume insists that "history and experience" should teach us that governments are not founded on popular consent:

I maintain, that human affairs will never admit of this consent; seldom of the appearance of it.  But that conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones, which were ever established in the world.  And that in the few cases, where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority (473-74).

When a new government is established by force through conquest by a foreign power or by usurpation when someone takes power in a society unlawfully, the people are commonly dissatisfied with it, but they obey from fear rather than feeling any moral obligation to obey.  If the new rulers are careful to guard against insurrection, then over time, the people become accustomed to regard the new rulers as the lawful government, even though originally they were usurpers or foreign conquerors.

The original establishment was formed by violence, and submitted to from necessity.  The subsequent administration is also supported by power, and acquiesced in by the people, not as a matter of choice, but of obligation.  They imagine not, that their consent gives their prince a title: But they willingly consent, because they think, that, from long possession, he has acquired a title, independent of their choice or inclination.

Should it be said, that, by living under the dominion of a prince, which one might leave, every individual has given a tacit consent to his authority, and promised him obedience; it may be answered, that such an implied consent can only have place, whee a man imagines, tht the matter depends on his choice.  But where he thinks (as all mankind do who are born under established governments) that by his birth he owes allegiance to a certain prince or certain form of government; it would be absurd to infer a consent or choice, which he expressly, in this case, renounces and disclaims.

Can we seriously say, that a poor peasant or artizan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?  We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her (475).

Anyone who has read Locke's Second Treatise will know that Locke actually agrees with almost everything Hume says here.  The one clear point of disagreement is that while Hume cannot take seriously "that a poor peasant or artizan has a free choice to leave his country," Locke argued for an open borders immigration policy for England to attract peasant and artisan migration from other European countries that were less free than England.  For example, Locke had seen in 1685, when King Louis XIV revoked the Edict of Nantes, which had granted some toleration of Calvinist Protestants in Catholic France in 1598, that this created an exodus of French Protestants, also called Huguenots, who were forced to migrate to England and elsewhere.  As I have argued, this continues today as people want to leave the less free countries and migrate to the freest countries (as measured by the Human Freedom Index).  People vote with their feet for freedom, and that's Lockean consent, or the principle of "love it or leave it."

Locke agrees with Hume's claim that most governments today originally arose from conquest or usurpation.  In his chapter "Of Conquest" (chapter 16), Locke recognizes that "in the noise of War, which makes so great a part of the History of Mankind, this Consent is little taken notice of: And therefore many have mistaken the force of Arms, for the consent of the People; and reckon Conquest as one of the Originals of Government" (ST, 175).  But a conquering power can never erect a new government without the consent of the people, because without their consent, the people will look for an opportunity to overthrow the conqueror, which they can do by an "appeal to Heaven"--that is, war (ST, 176).  Similarly, in his chapter on usurpation, Locke argues that the power of the usurper will not be secure until the people have consented to the lawfulness of his rule.

Now, it is true, as Hume says, that over time the people can become so accustomed or habituated to the rule of conquerors or usurpers that eventually, even though the people have not chosen the conquering or usurping ruler, "they willingly consent, because they think, that, from long possession, he has acquired a title."  Locke agrees with this because he recognizes that many times, maybe most of the time, the people consent to a ruler not by originally choosing him but by their customary acquiescence to his rule: "People are not so easily got out of their old Forms, as some are apt to suggest.  They are hardly to be prevailed with to amend the acknowledged Faults, in the Frame they have been accustomed to" (ST, 223).  The Declaration of Independence expresses the same Lockean thought about the power of customary acceptance of government:  "all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."

Hume's fundamental agreement with Locke is most clearly manifested in two ways.  What he says about government being founded on opinion coincides with what Locke says about government being founded on consent.  And Hume agrees with Locke in saying that the only remedy for tyranny is resistance.

At the beginning of his essay "Of the First Principles of Government," Hume observes:

Nothing appears more surprising to those, who consider human affairs with a philosophical eye, than the easiness with which the many are governed by the few; and the implicit submission, with which men resign their own sentiments and passions to those of their rulers.  When we enquire by what means this wonder is effected, we shall find, that, as FORCE is always on the side of the governed, the governors have nothing to support them but opinion.  It is therefore, on opinion only that government is founded; and this maxim extends to the most despotic and most military governments, as well as to the most free and most popular.  The soldan of EGYPT, or the emperor of ROME, might drive his harmless subjects, like brute beasts, against their sentiments and inclination: But he must, at least, have led his mamalukes, or praetorian bands, like men, by their opinion (32-33).

He then distinguishes two kinds of opinion.  The "opinion of INTEREST" is the sense of the government's general advantage.  "When this opinion prevails among the generality of a state, or among those who have the force in their hands, it gives great security to any government."

The "opinion of RIGHT" is either the "right to POWER" or the "right to PROPERTY."  The opinion that the government has a right to power is most commonly rooted in the attachment that a nation has to its ancient government because antiquity begets the opinion of right.  The opinion of the right to property is the sense that the governmental power of those with property is justified by their right to property.

What I see here is what some social scientists today call the theory of the minimum winning coalition.  No ruler can rule alone.  Even an absolute dictator needs a small coalition of powerful people who are loyal to him, and to win and maintain that loyalty, the dictator must buy them off with money and status.  Once a dictator is abandoned by his loyalists, he loses his power.  Strictly speaking, therefore, "one-man rule" is impossible.  But as long as he has the support of that small winning coalition, he can rule successfully even when he oppresses the great majority of the people under his rule.  The private interest of his small coalition of supporters is advanced at the expense of the public interest of the people at large.

A democratic leader differs from a dictatorial leader in that the democratic leader depends on a larger coalition of supporters.  Because of the large size of a winning democratic coalition, democratic leaders must persuade a large number of supporters that he will advance public policies that serve the general welfare of this big coalition.  But still this large democratic coalition is less than the whole community, and it does not have to be a majority of the citizens.  So, for example, the minimum winning coalition for a president of the United States is a majority in the Electoral College and at least one third of the Senate voting against impeachment.

To say that every government depends on the opinion of a minimum winning coalition supporting the rulers is to say that every government depends on consent, but that consenting coalition can be small in a dictatorship or large in a democracy.  However, as Machiavelli saw, even when the prince depends on a small coalition among the "great"--the ambitious few--he must avoid becoming hated by the many, because when the prince is hated by the multitude of the people this creates opportunities for conspiratorial plots to overthrow or kill him.  This is what Hume and Locke call "resistance" to the government.

Once Hume has attacked Locke's Whig doctrine of government by consent of the governed in his essay "Of the Original Contract," it is surprising that in the next essay "Of Passive Obedience," Hume endorses the Whig doctrine of resistance and criticizes the Tory doctrine of passive obedience.  While Hume agrees that "obedience is our duty in the common course of things," resistance is the only remedy "in extraordinary emergencies . . . when the public is in the highest danger, from violence and tyranny" (490).

Hume does not recognize that if resistance to a tyrannical government is withdrawal of consent because the people have never consented to government becoming tyrannical, that implies that government depends on the consent of the governed, just as Locke claimed (ST, 199-210).

As I have argued, the evolution of Lockean natural punishment of despots from foraging societies to the present show two kinds of resistance to despotic rule--violent and nonviolent.  And if Hume had studied carefully the history of the American colonies during his lifetime, he would have seen both kinds of resistance.  From 1761 to 1774, there was a "revolution in the minds of the people," as John Adams described it when the Americans engaged in nonviolent resistance to British rule over them, long before the violent resistance began at Lexington and Concord in 1774, which was formally declared in the Declaration of Independence a few months before Hume's death in 1776.  This was the American "Appeal to Heaven"--the appeal to the God of Battles.

We have to hope that Americans today will not have to resort to violent resistance to overthrow Trump's tyranny as the Red Caesar.

But in any case, we should be clear that in the first few months of his new term, Trump is showing all the traits of a tyrannical Red Caesar as described by Michael Anton.  Trump has chosen one of the two routes to Caesarism--being elected to office legally and then refusing to leave the office.  He has already said that he will suspend the 22nd Amendment to the Constitution that limits a president to two terms.  And Trump is clearly following the plan for the Red Caesar laid out by Anton, who explained:  "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."  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.

Trump's Caesarism clearly satisfies Locke's classic definition of tyranny.  "Tyranny is the exercise of power beyond right."  Because the tyrant "makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion" (ST, 199).

A nonviolent resistance movement against Trump's tyranny will have to break up his minimum winning coalition.  The crucial issue for Trump voters last November was high inflation attributed to "Bidenomics."  Now Trump's economic policies--particularly, higher tariffs--are going to drive prices up and create an economic recession.  So, while the "opinion of interest"--the belief of many Trump voters that Trump's election was in their economic self-interest--favored Trump in November, it is now becoming clear that the grandiose narcissism of Trump's tyrannical drive to economic ruin for America and even the whole world is not serving the self-interest of those voters.  

According to Michael Anton, one of the benefits of Caesarism is that it can preserve and even enhance the economic achievements of a great civilization.  But Trump's Caesarism is driving America to economic disaster.

Similarly, those Trump voters are discovering that Elon Musk's chaotic disruption of the "administrative state" is not in the self-interest of Americans who depend upon the services provided by federal administrative employees.

But ultimately the key to the success of a nonviolent resistance movement against Trump will probably be the "opinion of right":  Will most Americans decide that Trump does not have the moral or legal right to tyrannically violate their natural and constitutional rights to life, liberty, and property?  So, for example, will Americans agree that it is right that Trump suspend the individual right of due process of law in violation of court orders?

Anton has admitted that the great cost of Caesarism is the loss of liberty.  But he insists that when Caesarism comes to America, it's because liberty has already been lost, and the American people will show passive obedience to the Red Caesar because of the many benefits of his tyranny that outweigh the loss of liberty.  

Is that true?  Or will the American people show active resistance to Trump's Caesarism because it neither serves their interests nor secures their rights?

Moreover, we should remember that when Anton explains Caesarism as a tyrant's defense of the people against the ruling class, he admits that in Trump's America, the people are divided between Blue America and Red America.  So while Red America loves Trump.  Blue America hates him.

Another problem with Anton's analysis is that it's not clear that Trump is defending Red America against the ruling class.  At Trump's inauguration, in the prominent front row audience immediately behind Trump, the seats were filled by a half dozen tech CEO billionaires who are the richest human beings on the Earth.  And of course, one of them--Elon Musk--has been given tyrannical rule over the whole federal government.  If these are to become the new oligarchic rulers of America, then it seems that Trump's Caesarism is on the side of the ruling class.  And surely this is not what Red America voted for.

It's possible that we will soon see not only Blue America but also much of Red America united in active resistance to Trump's Red Caesar tyranny.

Trump and the History of Fascism: He Cannot Take Power by Majority Vote or by Force

The Roman Fasces, A Symbol of the Authority and Unity of the Ancient Roman State

\

                                 The January 6th Insurrectionists Storm the Capitol Building

Is Donald Trump a fascist?  If he is, does the history of fascism help us to predict whether he is likely to take power as a fascist ruler?

My answer to the first question is Yes.  My answer to the second question is that the history of fascism tells us that fascists cannot take power by majority vote or by force, because they need to be given power by conservative elites.  For Trump to become a fascist ruler, he would have to be put into power by the political and military elites.

THE CONCEPT OF FASCISM

Since he is one of the leading historians of fascism, Robert Paxton has often been asked whether he identifies Trump as a fascist.  Up to the end of Trump's term as president, Paxton said No.  But on January 6, 2021, as he watched the Trump-inspired insurrection on Capitol Hill, which was meant to overturn the election of 2020 and keep Trump in power, he changed his mind.  A few days after the insurrection, he wrote an essay for Newsweek explaining how that insurrection was the final piece of evidence pointing to Trump's character as a fascist.

We now have even more evidence for that conclusion coming from General Mark Milley, who was Chairman of the Joint Chiefs of Staff during Trump's presidency, and retired General John Kelly, who was Trump's Chief of Staff for almost a year and a half.  They have reported that Trump wanted to use the military against his political opponents and that he expressed his admiration for how Hitler had used his generals.  Both Milley and Kelly told Trump that their oath to uphold the Constitution would take precedence over their loyalty to the President.  And both concluded that Trump was a fascist.

Paxton's position in the debate over Trump's fascism is unusual.  There are two questions in this debate.  Is Trump a fascist?  And is it helpful to identify him as a fascist?  Most people in the debate either say yes to both questions or no to both.  As he told the New York Times, Paxton says yes to the first question but no to the second.  Yes, Trump is a fascist.  But no it doesn't help the debate to say that, because "fascist" is "a word that generates more heat than light."  

I agree that most of the time "fascist" is a sloppy epithet that we throw around to express our moral disgust with someone we disagree with strongly, and therefore using that word enflames emotions without clarifying the debate.  But when a historian of fascism like Paxton says that Trump is a fascist and explains the exact similarities and differences between Trump and fascists like Mussolini and Hitler, that illuminates the debate by showing how the history of fascism might explain and predict Trump's behavior.

Recently, Trump has said that he is planning to use military force against the "enemy within," which includes "bad people" like Nancy Pelosi and Adam Schiff.  This convinced John Kelly (Trump's Chief of Staff from July 2017 to December 2018) that he needed to speak out, and he was interviewed by the New York Times.  Kelly read aloud a definition of fascism:

"Well, looking at the definition of fascism:  It's a far-right authoritarian, ultranationalist political ideology and movement characterized by a dictatorial leader, centralized autocracy, militarism, forcible suppression of opposition, belief in a natural social hierarchy."

"Certainly, the former president is in the far-right area, he's certainly an authoritarian, admires people who are dictators--he has said that.  So he certainly falls into the general definition of fascist, for sure."

Much of the discussion among historians is about whether there really is a "general definition of fascist."  Some historians argue that since Benito Mussolini originated the term, it should apply only to the specific historical movement of Mussolini's Italian fascism.  In 1919, Mussolini coined the Italian fascismo from fascio--a bundle or sheaf--recalling the Latin fasces:  an axe encased in a bundle of rods carried in public processions to symbolize the authority and unity of the Roman state.

This explains why the Oxford English Dictionary identifies the primary definition of "fascism" as "a nationalist political movement that controlled the government of Italy from 1922 to 1943 under the leadership of Benito Mussolini."

But then the OED also provides a generic definition of "fascism": "an authoritarian and nationalistic system of government and social organization which emerged after the end of the First World War in 1918, and became a prominent force in European politics during the 1920s and 1930s, most notably in Italy and Germany; (later also) an extreme right-wing political ideology based on the principles underlying this system."

As Paxton indicates, there are two reasons for why it's hard to reach agreement on these or any other definitions of fascism.  First, it is hard to define fascism as an ideology because the fascists did not care very much about ideas or doctrines.  They were devoted more to action than thought--they were driven more by feelings than by reason.  That explains why there is no authoritative statement of their ideas comparable to say Marx's Communist Manifesto as a statement of communist doctrines.  Mussolini and Hitler did issue some programmatic statements of fascist ideas.  But then their actions often contradicted what they had promised to do, and they never felt compelled to justify their actions as consistent with their ideas.  By contrast, Marxist leaders like Lenin and Stalin had to make elaborate arguments for why their actions were in conformity with the texts of Marx and Engels.

The second reason for why it's so hard to define fascism is that fascism never had a fixed or static identity because it changed as it passed through five stages: (1) the initial creation of a fascist movement, (2) the rooting of the movement as a party in a political system, (3) the acquisition of ruling power by the fascist leader and his party, (4) the exercise of that ruling power, and (5) the long term development of fascist power towards radicalization or dissolution.  Fascism looks different at each of these stages.  And while every fascist movement reaches Stage One, only a few reach Stage Two.  And very few--maybe only in Fascist Italy and Nazi Germany--reach Stage Three by actually gaining ruling power.  (Most of what have been commonly assumed to be examples of fascists taking power--like Franco in Spain or Salazar in Portugal--are really examples of traditional authoritarianism rather than pure fascism.)

Paxton has explained this fascist history of five stages in an article--"The Five Stages of Fascism" (1998)--and he has elaborated this history and analysis in a book--The Anatomy of Fascism (2004).

Despite his reluctance to reduce fascism to a single definition, Paxton does think that from this history of fascist actions in five stages, one can deduce the ideas implicit in those actions, which he summarizes in one long "functional definition of fascism":

"Fascism may be defined as a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without ethical or legal restraints goals of internal cleansing and external expansion" (1998: 21; 2004: 218).

He also states this as nine "mobilizing passions" that "belong more to the realm of visceral feelings than to the realm of reasoned propositions":

(1) "a sense of overwhelming crisis beyond the reach of any traditional solutions;"

(2) "the primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it;"

(3) "the belief that one's group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external;"

(4) "dread of the group's decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences;"

(5) "the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary;"

(6) "the need for authority by natural chiefs (always male), culminating in a national chieftain who alone is capable of incarnating the group's historical destiny;"

(7) "the superiority of the leader's instincts over abstract and universal reason;"

(8) "the beauty of violence and the efficacy of will, when they are devoted to the group's success;"

(9) "the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess within a Darwinian struggle."

Do Trump and his MAGA party manifest most of these fascist passions?  You can answer this for yourself by watching the video of the recent Trump rally at Madison Square Garden and checking off the items on this list.

Okay, so you're not going to watch all six and a half hours of this!  But you can skip around it and see if it shows the "mobilizing passions" of fascism.

Now there are a few items in Paxton's definition and list of passions that don't show up here.  For example, Trump and his people don't express any interest in "external expansion"--they're not proposing to invade other countries.

We also might question whether there's any "collaboration with traditional elites" here, since the speakers repeatedly attack the "elites" in the Democratic Party.  But there is certainly a collaboration with some economic elites (such as Elon Musk) and some of the conservative elites in the Republican Party.

On the other hand, there are some distinctive traits of American Fascism here that are not prominent in Paxton's sketch of fascism.  While fascists like Mussolini and Hitler have been secular or perhaps pagan, American Fascists are often Christian Nationalists defending American Christians as the Chosen People of God against their godless enemies.  So, you'll notice that the Madison Square Garden rally begins with a prayer read by Tiffany Justice, one of the founders of "Moms for Liberty," who prays for God to intervene in support of Trump's election, and she thanks God for His miracle in saving Trump from being assassinated.  Later in the rally, David Rem holds up a cross at the podium and declares that Kamala Harris is the "Devil" and "the Antichrist."  Thus, we have the image of Trump as God's Chosen One fighting for America against the forces of demonic evil led by the Antichrist in the Last Battle as described in the book of Revelation.

Previously, I have written about the Christian Evangelicals who identify Trump as being the Messiah like Cyrus in the Old Testament.

NEITHER BY VOTE NOR BY FORCE

So, how do fascists come into ruling power (Stage Three)?  And does the history of fascists taking power help us to predict whether Trump's fascism could come into power in America?

It has been commonly assumed that fascists have come to power by force alone--through a coup d'etat.  Or, occasionally, you'll hear people say that fascists like Mussolini and Hitler took power through majority vote at the ballot box.  As Paxton and other historians have shown, both claims are false.

"Both Mussolini and Hitler were invited to take office as head of government by a head of state in the legitimate exercise of his official functions, on the advice of civilian and military counselors.  Both thus became heads of government in what appeared, at least on the surface, to be legitimate exercises of constitutional authority by King Victor Emmanuel III and President Hindenburg.  Both these appointments were made, it must be added at once, under conditions of extreme crisis, which the fascists had abetted."  We should see then that "no insurrectionary coup against an established state has ever so far brought fascists to power" (Paxton 1998: 17; 2004: 96-97).

The story that Mussolini's Fascists seized power over Italy through their "March on Rome" is fascist propaganda.  It is true that on October 28, 1922, about nine thousand Blackshirts marched to the gates of Rome.  But they were "poorly armed, wearing makeshift uniforms, short of food and water, and milling about in a discouraging rain" (Paxton 2004: 89).  Mussolini arrived in Rome from Milan on the morning of October 30, and he met with the King.  Although the King had plenty of soldiers who could have dispersed the Blackshirts, he foresaw that this would be bloody.  He decided, instead, to appoint Mussolini as Prime Minister.  Mussolini was bluffing, and his bluff worked.

The next day--October 31--with Mussolini already in office, ten thousand Blackshirts marched in a parade through Rome.  That evening, Mussolini had all of his Blackshirts sent out of town in fifty special trains.  The parade had established the myth that his Blackshirts had taken power by their own will and force.  October 28 became a national holiday and the first day of the Fascist New Year.

A year later, Hitler showed that he had been taken in by Mussolini's propaganda about the "March on Rome."  He attempted his own "march" on November 8, 1923.  During a nationalist rally in a Munich beer hall, he tried to kidnap the leaders of the Bavarian government and force them to launch a coup d'etat against the federal government in Berlin.  This "Beer Hall Putsch" was easily put down by police who fired on the Nazi marchers.  Hitler was arrested and imprisoned.  He learned the lesson that fascist political power could not be taken by force alone as long as the police and soldiers remained loyal to the government.

Hitler also learned that while he would have to work within the parliamentary party system, he could not come to power by winning a majority vote for his party.  The Nazis became the largest party in the German Reichstag in the parliamentary elections of July 31, 1932, when they won 37.2 percent of the vote.  But this dropped to 33.1 percent in the election of November 6, 1932.  Even when Hitler had become chancellor, and he could use his Storm Troopers to intimidate voters, the Nazi Party won only 43.9 percent of the vote in the elections of March 6, 1932.  By comparison, the Italian Fascist Party won 35 out of 535 seats in the parliamentary election of May 15, 1921.

Just as Mussolini had become the Italian Prime Minister by the appointment of the King, Hitler became the German Chancellor by the appointment of President Paul Hindenburg.  In both cases, conservative elites decided that appointing fascist leaders as the heads of government was the only way to form parliamentary majorities capable of vigorous governing without having to form coalitions with radical socialist and communist parties.

These conservatives saw this as the only way to resolve the unprecedented crises that they faced.  The first crisis was the social and political crisis created in the wake of World War One, which included the threat of a communist revolution in Western Europe sparked by the Russian Revolution.  The second crisis was the Great Global Depression that began in 1929.  By 1933, when Hitler became Chancellor, over 30% of the German workforce was unemployed.  Part of this was the "crisis of liberalism" insofar as it seemed that liberal democracy could not solve these problems.

On February 28, 1933, a fire set by a Dutch communist youth gutted the Reichstag building in Berlin.  This was generally believed to be the beginning of a communist coup.  This provoked President Hindenburg into using his emergency powers under Article 48 of the Weimar Constitution, and he issued a decree suspending the legal protection of personal liberties.  This allowed Hitler's Brownshirts to use violence against Jews and others suspected of left-wing activities.  Then, on March 24 of 1933, parliament passed an Enabling Act that delegated its legislative powers to the executive.  This allowed Hitler to rule by his own personal authority from 1933 to the end of the war.  He was free to use violence against the "enemies of the people."  Here we see the fatal flaw in the Weimar Constitution--its openness to unchecked executive prerogative powers.

So, what does this history suggest as to whether and how Trump's fascism could gain ruling power in America?  First, we should say that Trump has never won an election by majority vote, although he won in 2016 in the Electoral College.  Like Hitler, he seems to have about 35-40 percent of the voters as a solid base.  When he ran in 2016, he was not clearly identified as a fascist candidate.  But now, after the January 6th insurrection and his open threats to use military force against the "enemy within," his fascist propensities have become clear to many voters.  And that's why I am predicting that Harris will win this election.

But if he does win, perhaps only in the Electoral College, can't we predict that he will make himself a fascist dictator?  And even if he loses, can't we predict that Trump will say the election has been stolen again, as it was in 2020?  And won't he lead his MAGA movement into a violent insurrection to take power by force alone?  

Well, sure, we can imagine that he will try something like this.  But from what we have seen from his failure to overturn the election of 2020, we can predict, as I argued a few years ago, that Trump will not have the guts or the guns to launch a successful coup.  

In his last year in office, Trump's fascist advisors told him that he needed to declare martial law (under the Insurrection Act) and order the military to suppress the Black Lives Matter demonstrations and to overturn the election.  He did not act on their advice because he lacked the courage to try this, and because his generals had told him they would not obey his orders if they violated the Constitution.  There is no reason to believe that there will be any change in these circumstances after the election.

Here is where I disagree with Robert Kagan's argument that regardless of whether Trump wins or loses the election, his fascism will destroy liberal democracy in America.  As I explained in my response to Kagan, the "crisis" that America faces today is nowhere near as deep as the crisis faced by Italy and Germany between the wars.  There is no threat of Communist Revolution in America despite Trump's silly assertion that the Democrats are Communists.  There is no Great Depression in America.  The American economy is more prosperous than it has ever been.

And, most importantly, there is no "crisis of liberalism" in America today comparable to what may have happened in Italy and Germany in the 1920s and 1930s.  While I agree with Kagan's claim that Trump's fascism is rooted in an American tradition of illiberalism, the American liberal tradition is stronger today than it has ever been.  One sign of that is that Trump and his supporters must insist that of course Trump is not a fascist, and of course the theme of his campaign is "freedom."

Moreover, even Kagan recognizes that illiberal fascists like Trump are desperate to win this election because they recognize that America is experiencing a "demographic shift" that favors liberalism over illiberalism:  as America becomes ever more multiracial, multiethnic, multicultural, and religiously pluralistic, it becomes impossible for any single ethnoreligious group to dominate American politics and culture, and the appeal of liberalism as the only means of holding such a pluralistic society together will grow ever stronger.

In this election and its aftermath, we will see the confirmation of Francis Fukuyama's argument for the "end of history":  liberalism will prevail over fascism.

THE LIBERAL REFUTATION OF ILLIBERALISM: BY FORCE OF IDEAS AND ARMS

Remember the ninth "mobilizing passion" of fascism:  "the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess within a Darwinian struggle."

Lockean Liberals can accept that challenge and agree that liberalism must prevail over illiberalism through Darwinian cultural group selection in the war of ideas and arms.

Although ideas don't matter very much to fascism, particularly in its later stages when it takes political power, ideas do matter in the early creation of fascist movements.  I have written about the "Nazi philosophers"--from Plato and Fichte to Nietzsche and Heidegger.  And I have suggested the ways in which liberalism wins the intellectual war with illiberalism.  Indeed, the intellectual victory of liberalism has been so clear that even those who pose as antiliberals--Patrick Deneen, for example, turn out ultimately to be liberals.

Moreover, as Locke saw, there is a practical expression of the theoretical appeal of liberalism when people "vote with their feet" and choose to immigrate to those countries with more freedom, which is one form of cultural group selection.

But Locke also saw that the power of liberal ideas must ultimately be backed up with the power of liberal arms in the "Appeal to Heaven."  So, for example, the Declaration of Independence was not only a declaration of the "self-evident truths" of equal natural rights but also a declaration of war, in which the outcome would depend on the "popular Lockeanism" of the Americans fighting in the war.

Then, in 1861, the Confederate States of America declared themselves a nation conceived in the liberty of white men to enslave others and dedicated to the proposition that all men are not created equal; and they engaged in a great war testing whether that nation or any nation so conceived and so dedicated can long endure.  That nation did not endure because it was defeated by a Lockean liberal regime with a larger population of well-armed fighting men, including emancipated slaves, many of whom understood that they were fighting for the principles of the Declaration of Independence.  As the proslavery Southerner George Fitzhugh admitted, the Union defeat of the Confederacy was the victory of John Locke over Robert Filmer.

But that was not enough to ensure the "new birth of freedom."  The use of military force to suppress the fascist militias of the Klan in the Reconstruction Era and then in the Second Reconstruction (the Civil Rights Movement) to reform the Jim Crow South was required for overthrowing the illiberal tradition of the American South.  This included a Black tradition of armed self-defense and rebellion.  Ultimately, Lincoln's rhetoric of equal liberty defeated George Wallace's rhetoric of freedom as domination.

Similarly, in World War Two, we saw a test in war of the fascist "right of the chosen people to dominate others without restraint."  And with the defeat of Fascist Italy and Nazi Germany in war, we saw that there is a sense in which might does make right, when people in the state of nature exercise "the executive power of the law of nature" to resist and punish those who would dominate them.

REFERENCES

Kagan, Robert.  2024.  Rebellion: How Antiliberalism Is Tearing America Apart--Again.  New York: Knopf.

Paxton, Robert O.  1998.  "The Five Faces of Fascism."  The Journal of Modern History 70 (March): 1-23.

Paxton, Robert O.  2004.  The Anatomy of Fascism.  New York: Random House.

Paxton, Robert O.  2021. "I've Hesitated to Call Donald Trump a Fascist.  Until Now."  Newsweek, January 11.

Schmidt, Michael S.  2024.  "As Election Nears, Kelly Warns Trump Would Rule Like a Dictator."  The New York Times, October 22.

Zerofsky, Elisabeth. 2024. "Is It Fascism?  A Leading Historian Changes His MInd."  The New York Times, October 23.