The genius at the heart of the American Experiment is, today, its most vulnerable pillar – legitimacy.
In the American social contract, a sovereign people, endowed with inalienable rights, collectively cede power to a government, elected by the will of the majority, which governs within the limitations contained by the Constitution, federalism and the checks and balances between three co-equal branches of the national government.
The will of the people, expressed through elections, keeps the government accountable. Off-year elections provide valuable judgements on national priorities and policies, serving as an additional check to channel popular will into governing decisions, turning the self-interest of governing majorities into a limitation, as power adapts to a sovereign people, lest it be thrown out in the next election. While imperfectly practiced over 227 years, the design has been mostly successful, fostering an expectation of political stability amid competing priorities.
Consider these examples.
Slavery, succession and southern regionalism denied Democrats the White House for 24 years between 1860 and 1884.
The economic collapse of the Great Depression, WWII and the emerging Cold War kept Republicans out of the White House for 20 years between 1932 and 1952.
Frustrated by a SCOTUS that continually struck down his progressive New Deal legislation, FDR audaciously attempted to “pack” the Supreme Court in 1937, to assure that his priorities became law regardless of their constitutional basis. In the 1938 midterm elections, voters punished FDR, where Democrats lost 72 seats in the House and seven seats in the Senate.
When Eisenhower became president in 1953, after a 20 year drought, the Republican Party he led had been forced to come to terms with the universally popular social programs that survived FDR’s SCOTUS, most notably, Social Security.
At the same time, political legitimacy required a level of restraint and even courage, with national candidates putting country before self. In 1960, with strong evidence pointing to election fraud in Illinois, among other places, Richard Nixon chose to concede to John Kennedy rather than challenge the legitimacy of the election, triggering a national crisis in the middle of the Cold War.
It is thus ironic that the seeds of our current legitimacy crisis were born with the later President Nixon and Watergate.
While Nixon’s crimes in office are exhaustively documented, there was a narrative then, that persists today, that a liberal Democrat political Establishment, in collusion with a supportive, liberal media, sought to take Nixon down, regardless of his blowout win and mandate in 1972. Nixon’s resignation – in the face of certain impeachment and conviction by Congress – served to short-circuit a painful and public humiliation, and end the worst constitutional crisis of the 20th century. Oddly it echoed Nixon’s decision to forego a recount in 1960 – all in order to spare the nation a drawn out ordeal.
But the attack on Nixon’s legitimacy was not forgotten.
In 1992, Republicans questioned the legitimacy of the Clinton presidency from the start, when, in a three-way race, 57% of the American people chose another candidate. Despite gaining six points in 1996, Clinton remained a two-term, minority president.
This sense of illegitimacy and grievance, coupled with the stain of serial corruption, informed the GOP decision to impeach Clinton on two counts of perjury for lying under oath about a sexual affair with an intern.
However, unlike previous political crises, Republicans moved to impeach Clinton in contravention to the position of the majority of the American people, where a rolling average of 60 percent of Americans sought a lesser punishment.
The GOP impeached Clinton, on a virtual party line vote (5 Democrats joined the Republican majority), only six weeks after losing seats in the midterm elections, where the opposition party usually scores big. A further sign of public disaffection. After a Senate trial, five Republicans joined all 45 Democrats in voting against conviction. On the day of his acquittal, Clinton’s approval rating was 73 percent, showcasing the gulf between political Washington and the American people.
The impeachment, while legally and constitutionally valid, has never been seen as fully legitimate by the American people.
Only two years later, legitimacy came under further assault with the 2000 election and the Florida recount. While several newspapers conducted post-election recounts that showed a Bush victory under all counting rules, and the most important SCOTUS intervention in the election was a 7-2 decision, the liberal narrative of George W. Bush as an illegitimate president, placed in office by a conservative majority of the Supreme Court, persists as gospel to this day.
Al Gore’s decision to dispatch teams of lawyers to Florida, to keep counting until the count showed he had won, shared nothing with the grace of Nixon in 1960. However, Gore’s concession speech, after the final SCOTUS ruling, was one of the finest moments by an elected official in American history. Gore refused to sink the legitimacy of the election and the nation’s government, for his personal gain.
But as with Republicans and Bill Clinton, Democrats never embraced the legitimacy of the Bush presidency, and spent his eight years in office, determined to undermine 43 by all means possible, including unforgivable rhetorical bombs that were never justified by the facts. After Nancy Pelosi became speaker in 2007, articles of impeachment were routinely submitted by Democrat members.
Our current challenge with Illegitimacy came of age with the election of Barack Obama.
First, 44 came into office determined to delegitimize the opposition by constantly tying every GOP proposal to the Great Recession and his predecessor. The strategy was successful beyond expectation. In 2012, after four years of Obamanomics, voters blamed Bush for what were clear failures of Obama policies.
Second, Obama and Democrats insisted on passing the most significant expansion of the entitlement state since the Great Society – Obamacare – without a single Republican vote, over the objections of a consistent majority of the American people, and after a special election in MA, centered on the health are legislation gave Ted Kennedy’s senate seat to a Republican. While the program is an operational failure in practice, it has never enjoyed political legitimacy as it has never been supported by the public, which informs the reasons it is always under attack and remains an issue in 2016.
Third, Obama dismissed midterm elections as a public verdict on governing choices in the previous two years. While Bill Clinton had taken the 1994 pasting by the GOP to heart, promising a different governance that eventually produced Welfare Reform and Capital Gains tax cuts with bipartisan majorities, Obama ignored midterm results. After Republicans swept the midterms in 2014, and took back control of the Senate with an expanded majority in the House, Obama held an extraordinary press conference, dismissing the results as “his” voters had not gone to the polls. He followed that up within days by issuing the politically explosive Executive Amnesty, which continues to be litigated to this day, all in complete contravention of the sentiments of voters on illegal immigration in 2014.
Furious grass-roots, amplified by talk radio, who today blame the GOP for broken promises in the 2010 and 2014 campaigns, fail to recognize the historical presumption of GOP leadership that with a Congress unified with GOP control, Obama would have no choice but to deal with them, as Clinton had. No one expected that the President would disqualify the entire election and continue on his original path.
Fourth, there is the issue of delegitimizing the separation of powers. Obama has sought to intimidate SCOTUS before major rulings, Obamacare in particular, and he has had the bad form to call out SCOTUS decisions as political – standing in front of SCOTUS no less, at what is otherwise the ceremonial State of the Union.
Instead of cooperating and building coalitions in Congress, Obama has sought to unilaterally expand executive authority to an extraordinary level, where the core constitutionality of policies on immigration, labor relations and energy – among others – continue to be litigated in the courts. Indeed, the Obama administration was vigorously slapped by SCOTUS for his brazen use the Constitution’s appointments authority – Recess Appointments – when the President himself determined, in contravention to what the Senate itself had proclaimed, that the body was in Recess and he could therefore place officials in office without a vote. It was a breathtaking exercise in executive overreach that was overturned by SCOTUS.
Finally, there is the active politicization of the Executive branch. Starting with the IRS scandal, where the Obama administration actively sought to suppress the free speech rights of conservative groups, and ending with the FBI’s decision not to prosecute Hillary Clinton for obvious, multiple felonies, we see an abuse of power and a double standard in law that makes Nixon’s list of crimes look quaint in comparison.
Is it any wonder than only 19 percent of Americans trust the federal government?
Campaign 2016, which once held promise as an elixir to repair trust and restore credibility to government institutions, as well as reinforcing the legitimacy of the political process, has instead undermined if further.
The FBI’s absolution of Mrs. Clinton in the FBI scandal is only one component in a persona of deceit and duplicity that defines Hillary’s public life and its toxic impact on the body politic The felonious private sever escapade competes with the pay-for-play of the Clinton Foundation, that has not only enriched the Clinton’s with extraordinary wealth, but has created an unparalleled network of operators in the media, Wall Street and globally, that benefits from their power.
Mrs. Clinton and her supporters are neither constrained by nor accountable to the law, in any meaningful sense. Her ascendancy to the presidency would damage beyond repair the very concept of public service.
But for all of Clinton’s manifold failings and epic disqualifications, the greatest threat to our political legitimacy comes from Donald Trump.
Unlike any major party candidate in memory, Trump has systematically engaged in loose, inflammatory talk that seeks not simply to disqualify his opponent, but to create the stage to delegitimize the entire election if he does not win. Personal failings, campaign failings and plummeting poll standings are all blamed on a complicit media, corrupt polling firms and potentially wide-spread voter fraud undertaken by illegals through covert operatives of the Democrat party.
Legitimacy, as it turns out, is fragile.
The image of a US presidential inauguration, where the peaceful transfer of power has occurred for 227 years, is one of the most powerful symbols of the legitimacy of our Republic – that despite our differences, we come together as one people. Yet, in truth, legitimacy is little more than a pretense entirely dependent on all parties agreeing.
What if that changes as a result of this campaign?
What if, instead of a gracious concession speech on November 8th, Trump declares the entire process rigged in a fake vote against him? Will Hillary Clinton, who has boldly stated that Trump is completely unfit for the presidency, refuses to concede to him if she (improbably) loses?
We are at the abyss. Whether we fall in is entirely dependent on the decisions of just two people in 25 days.
the central tenets of our political construction are reflected in our sports, where umpires and referees ensure legitimate play, and winning and losing are determined by pre-set and universally understood rules. Jerry Jones cannot buy a touchdown to put his beloved Cowboys over the top.
Our political legitimacy, along with our broader cultural legitimacy has been fraying, and is now in danger.