In 1933 it was agreed that, given advancements in communication and transportation, the presidential inauguration could be moved up from March to January. A century later, I think the case can be made to further reduce the time available for lame duck mischief.
While obviously communication and transportation are trivial at this point, isn't there a pretty good case that an incoming President needs the transition period in order to assemble his team? Seems like it's genuinely hard to nail down your White House staffing and cabinet roles in a prospective way before the election.
Isn’t this a case where the rest of the world has a much quicker turnaround than we do? Does that lead to problems with insufficient time for electoral disputes?
This difficulty is in part because of both a seeming cultural aversion to American presidential candidates having "shadow cabinets" in the mode of parliamentary systems and the extent to which cabinet positions and other presidential-appointed positions operate as a fairly open patronage system for candidates (i.e. , candidates want to reserve the ability to reward people who supported them during their campaigns without regard to whether those people are immediately equipped for taking particular positions), all of which limits how much candidates can do to get their teams lined up in advance of being sworn in.
Isn’t this an advantage of a parliamentary system, which is part of the argument of the post? When the cabinet is all MPs of your party, there isn’t much assembling to do, right?
That assumes one party can form a government on its own, which is optimistic. But you're right, our transitions take an extraordinary amount of time, probably because, like many things, the problem was only theoretical until Trump.
Arguably it wasn’t *wholly* theoretical. The country enduring two and a half lame-duck months in 2008-2009, during the worst economic crisis in a lifetime, was not ideal, for instance.
Whether Linz is right that presidential systems are inherently unstable, can we agree that the presidential power of pardon is a wholly unnecessary loaded gun in the Constitution?
Giving the executive the ability to pardon his henchmen -- and perhaps himself, if he has already stacked the judiciary -- is a recipe for unscrupulous abuse of power.
And the evidence from parliamentary systems suggests that whenever election to the executive gives you automatic immunity, then criminals will strive for high office as a literal get-out-of-jail card.
So the pardon power is a second structural instability, independent of presidentialism. And tfg is deadset on using it.
But the list of presidents who have pardoned their associates in crime certainly include Bush I (cf. Iran-contra), and arguably includes Gerald Ford (pardoning the guy who gave you the job with the pardon power certainly produces an unsavory appearance). Probably includes Clinton for the pardon of Susan McDougal (though she had already served her full sentence by then). You might not think of them as criminals, but they still pardoned their henchmen.
It's a horrible temptation to misbehavior. If your administration has rot in it, then you'll be tempted to use it to hide the rot. I believe none of Obama's pardons can plausibly be linked to corruption in his administration, because there was none. He also kept the process at arms length, if I recall, via a panel of appointees.
"I don't know how you write a rule that says, 'pardons we like are okay; pardons we don't like shouldn't be allowed.'"
There's not a way to directly write that, but there are several possible approaches that would limit abuse of the power (all of which would require a constitutional amendment):
1) Create a pardon board (with some combination of staggered presidential appointments, congressional appointments, etc.) that reviews pardon requests first and refers on to the President only those the board thinks are meritorious. Variations on this approach are used by a bunch of states already.
2) The President retains absolute pardon power in the first instance, but Congress has some review role, whether positive (pardon only becomes effective if approved by some percentage of Congress, possibly less than a majority) or negative (pardon becomes effective only if *not* blocked by some percentage of Congress, possibly a supermajority).
3) Require 5+ years have passed since the conviction before a pardon can be granted. This avoids the problem of Presidents pardoning members of their own administration or at least forces them to successfully get reelected before they can pardon anyone convicted of crimes in their first term in office. I believe there are already a few states with minimum passage of time requirements for pardons.
4) Limit the pardon power to certain categories of crimes that are deemed less likely to be the kind of crimes federal officials are going to be committing or that are otherwise less concerning from a governing standpoint. (E.g., no pardons for espionage, treason, bribery, etc., but you can receive pardons for drug dealing, securities fraud, etc.).
"The overwhelming majority...though, are ones that I suspect are defensible and indeed merciful."
This is an argument that there should be some mechanism for leniency, not that it should reside in the executive.
Giving the president this power is an archaic and undemocratic vestige of royal prerogative. There is no reason to think that the president will do a better job in discerning where mercy is appropriate than a legislative body or a citizen panel. And it is harder to bribe many than few, cf Marc Rich.
>This is why in most other countries, prosecutorial power to decline a prosecution is subject to judicial oversight.<
Agreed. The fact that the prosecutorial power resides in the executive branch is a danger lurking deep within our constitution (one of several). I favor having DOJ governed by a board of overseers appointed by all three branches.
"...the president also controls the prosecutorial power."
Good point, and thanks for that.
The problem with presidential control over prosecutions has at least been recognized and mitigated to an extent by the creation of "independent prosecutors". Not a great fix, but at least an admission that the president's power over prosecutions should not be absolute.
A similar dodge for the pardon power would be the creation of independent boards of pardon. Again, not ideal, but possibly better than the status quo.
It's probably Murder Two in states where there is a distinction. Killing someone while only intending to seriously harm them is still murder, but Murder One generally requires both premeditation and the specific intent that they die.
If they die as a result of your assault, that's murder, even if that is you triggering a heart attack in someone you didn't know had a heart condition.
You alternate between asking insightful leading questions and asking really, profoundly stupid ones. Can you make more of an effort to drill down on the former?
People have been convicted of murder when they intentionally start a fire (arson) and thus accidentally kill a person. This includes a person who is incidentally in the building at the time of the start (not known by the arsonist) and even a firefighter who was definitely not in the building when it started but engages the fire inside or outside the building and dies.
Didn’t Sicknick die of a stroke the next day? Has anyone ever been successfully prosecuted for murder under such circumstances? Attack a person, then 24 hours later they have a stroke?
I think the attack led to his death, I’ve just never seen such a prosecution.
So for felony murder to apply, the predicate felony has to be one of a specified list of felonies. Arson is always one of them in every jurisdiction, but I don't know if the 1/6 rioters committed any of the felonies on the menu.
That said, a murder very well may have occurred, just not on the basis of "felony murder." You'd have to show that the rioter(s) who caused Sicknick's death acted with the intent to cause grievous bodily harm (or something like that).
We should get rid of primaries. Bring back meaningful conventions and behind-the-scenes deal-making. Virginia Republicans did that, nominated Glenn Youngkin, and he won the gubenatorial election.
Also give power back to Congressional committee chairs. Congressional leadership has too much power and running everything through leadership decreases opportunities for deal-making. Gingrich was wrong and made a horrible decision. I get that there were a bunch of old, corrupt Democratic committee chairs before 1995, but the solution is to install better people, not take all power for the Speaker. At least McCarthy is trying let the committees have more say in budget negotiations over the next few months, even if I don't believe he will be successful.
This makes sense but doesn’t the rise in the Speaker’s power date from the 1961 decisions to clip the Rules Committee’s ability to frustrate the party conference?
We’re home. On schedule. And alive, for certain (exhausted, sleep-deprived, irritable) values of alive.
Ended up having the kind of journey that will make an interesting story with a few years’ remove:
Made it to Shenzhen on one of the last HSR trains from Wuhan after our original tickets were canceled and we discovered why… we frantically rebooked the last train of the day and a private car to get us there from my wife’s small (only 250k) hometown.
Got across the border to HK via private car as soon as the land border reopened the morning of our (night) flight because no one could tell us how bad the border crossing backlog snd roads would be.
Sat in the airport waiting for luggage drop to open for six hours while constantly checking wind speed indicators and other flights for hints that we should bail and book a hotel, then our flight turned out to be one of the first released to take off.
Arrived in Taipei to be put in an hour-long holding pattern and then sprinted through their customs screening (for transiting fliers???) to barely catch our second leg… which in turn was one of the last US-bound flights to get out before the next typhoon sideswiped northern Taiwan the next day.
Landed in LAX and stepped out of the airport to catch our hotel shuttle only to have the whole area cordoned off due to a bomb threat or something, then trekked out on foot with all our luggage far enough away to be able to catch an Uber.
Went back to LAX the next day to find a wildly delayed flight due to lightning strikes at Denver’s airport.
Got to Denver and our flight out was also delayed while they waited for stragglers from the mess that had built up, so our original four-hour layover was still a four-hour layover even though we were two hours late.
Finally got to PHL and they lost one of our bags for about two hours… fortunately it was the one with the AirTag lol.
Holy shit, it’s been almost a week. I haven’t been this exhausted since the last time I took a complicated itinerary to China to save some $$$, and this is a reminder to not do that, doubly so with a 5-year old along.
Not too bad, nice moderate dry heat. It bounced off 103-4 in Wuhan while hovering above 92 at night and hellishly humid for a while when we were there.
This reminds me- if an occasion for getting Matt up here can be found, we need to organize a Philadelphia in Area get together for Slow Boring readers.
I think there’s something very frustrating about the way most people don’t care about process—and any kind of systemic reform is a sort of sore loser move, or penalizing someone.
Evidence that Matt's analysis was correct is that the MAGAs are doubling down on politicising the federal workforce, to inhibit it from checking a second Trump administration.
Another issue where the MAGA crowd screws itself with arguments designed specifically to rile their opponents. They could make a plausible bipartisan case for reigning in the “administrative state.”
The next 16 months are going to be a complete shitshow. The “system” allowed us to kick the can down the road. It got lucky with Nixon. His party urged him to resign, and he did it. Some sort of Honor Code still existed. Not so much with Trump. All systems require regular maintenance, periodic upgrades, and eventually become obsolete and require a new one. Failure to do any of that over the last 50 years is the real problem here. Whatever workaround that was in place to keep a demagogue from becoming and staying president failed.
Taking the thesis of this post (and the American Democracy is Doomed article) seriously, I think one of the most important implications is that mainstream liberals who are ordinarily inclined towards an ameliorative incrementalist approach should put serious work and thought into contingencies for what is to be done in the event that the system truly does collapse and key actors are not able to successfully patch it.
For the most part, people who take seriously the possibility of such a collapse seem to be those who are already fundamentally at odds with the current system. This is typically either survivalists in bunkers (who are of little concern) or political extremists who see a moment of crisis as the only possible opportunity to usher in their preferred system of Monarchy or Anarchy or White Nationalism or whatever else. Like the Bolsheviks, they hope that by organizing sufficiently ahead of time, they will be in the right place at the right time to decisively seize that opportunity while everyone else is paralyzed and unable to quickly coordinate through the collapse of normal order. Such groups have no hope of achieving their goals in ordinary times, but should such a collapse occur, their preparedness could be decisive.
As someone with mostly ameliorative incrementalist instincts, I do hope that we can muddle through and avert collapse through the ordinary course of good people doing good work on one problem after another, and with key leaders acting with wisdom in moments of crisis. But I do take seriously the prospect that this could prove insufficient. If so, and our political systems collapses, I hope that there are people who are otherwise aligned with the core principles of American democracy but have done enough contingency planning that they can effectively work together through a collapse and have a better chance at establishing the future than those who dream of a darker path.
History suggests that rather than truly going back to the drawing board, which is a much taller order than impeaching a president, we’ll eventually find some bandaid solution that keeps us lurching until the next crisis. We’ve done it for more than two centuries and somehow a whole Civil War wasn’t enough to persuade us to seriously rethink the whole thing.
On the one hand, if an opportunity to do so arose, it would be very high risk for everyone. On the other hand, the odds are so low that we could get either major amendments or an actual new constitutional convention, that they probably aren't even thinking about the risks. Probably the most anyone thinks about it is in terms of getting rid of the electoral college.
Absent a violent revolution or being occupied by a foreign power, most states don't change their system of government. You call it a bandaid solution; I call it muddling through. Same as we've always done, as you note.
I 100% agree with that. Ultimately even after being given the best constitutional design one could reasonably hope for, you're still muddling through. Good constitutional design helps but is no guarantee by any means. As Matt points out, elites in and out of the state can still muddle through a bad design, and on the flipside they can completely blow it in a good design.
Band aid is the wrong metaphor. Gradual reforms are more like the ship of Theseus. Directly electing senators or making slavery illegal aren’t “band aids”. That being said if the proposed small fixes are not adequate enough in quality or quantity the ship risks eventually sinking.
To be clear I think more significant reforms can happen and have at major moments in our history, I just don’t think they will in the near term. In the near term we’re likely to just get something that buys us some modest amount of time
We have an ideological cold war in a bipolar system in which each side views the other as an existential enemy, so one possible solution is to make it a multipolar system to encourage multi-partisan deal making. We could significantly expand the House and make congressional districts multimember, making it easier for independent and third party candidates to win and gerrymandering ineffective. Matthew also identified as a problem that unlike a parliamentary system the President is elected independently from Congress, but I believe that the Founders thought most Presidents would be elected by Congress (not anticipating the rise of political parties). With three or more major parties, it will become more likely that no Presidential candidate will get a majority of electoral votes, and will have to stitch together a coalition in Congress to be elected President. We also need to make the Senate work better than it does now, in which nothing can be enacted unless it can pass a Byrd Bath to get included in a reconciliation bill. The filibuster has to be reformed so that while the minority still gets plenty of time to debate, in the end the majority still gets to enact legislation. We also need to address the over representation of the rural white minority in the Senate. D.C. and Puerto Rico should be immediately admitted as states, and the territories such as the U.S. Virgin Islands, Mariana Islands, Guam and American Samoa encouraged to hold referendums on statehood. None of these reforms require an impossible to obtain constitutional amendment, and I believe they will also get people more invested in democracy, because they will have more choices than "the lesser of two evils" and Congress will actually work to deliver the change the majority votes for.
>>so one possible solution is to make it a multipolar system to encourage multi-partisan deal making<<
I wish it were the case that both sides in this political cold war were equally interested in rendering deal-making possible, because mutual desire in this regard is likely a prerequisite for the reforms needed to bring about multipolarity.
If the Democrats regain control of the House and retain control of the Senate and Presidency, and they reformed the filibuster, they could enact reforms like this, as well as other important reforms like a new voting rights act. I know that is unlikely, but its still more possible than amending the Constitution. We have seen states experimenting with election reforms to make the system more answerable to voters, such as ranked choice voting and jungle primaries, so reform can happen, but we need to talk about it before the system fails and we fall into authoritarianism or civil war.
The next time Democrats win the House, Senate, and presidency they will get bogged down in an internal fight over Medicare for All and open borders. This stuff will take a backseat.
Did you not watch the 2020 Democratic primary? Most likely the next time Democrats control those three branches of government Joe Biden won't be president, and whoever is won't be as moderating.
Is it? Election of the president by Congress was considered but discarded by the founders in favor of the Electoral College. When the election still ended up in the House in 1800, they passed the 12th amendment to try to avoid the same scenario happening again.
Well, maybe not "most" Presidents, but (i) in the absence of strong nationwide political parties and (ii) before there was a rock-hard norm of states awarding their Electoral College votes on a winner-take-all basis, surely it would have been obvious that it would be a not uncommon occurrence to end up with no one presidential candidate getting a majority of the Electoral College vote? The drafters of the Constitution can't have thought it would be the norm to have a universally acclaimed figure like Washington running each time, could they?
I'm sure they did not. I think that, not anticipating national political parties, what they expected to happen was that the electors would vote for leading statesmen of their state or region, then Congress would conduct votes on the three top candidates.
Our island territories are in danger of ceasing to exist as sea level rises due to climate change, so I think they have a strong incentive to vote to address that issue.
If you look at my first comment, I want a multiparty system. Puerto Rico has its own political parties, and if it elects congressional representatives who don't strictly align with either Republicans or Democrats, that's what I'm hoping to achieve.
Exactly. I'm ambivalent on the question of statehood for the territories (at minimum I think it isn't totally clear they actually want it, other than DC). It's important to remember though that what is helpful today may not be tomorrow. The existence of a bunch of low population states in the middle of the country is in large part a result of the Missouri Compromise, which at the time was arguably a good thing to the extent that it mitigated against the growth of slavery/power of the slave states. But 200 years later it has had the effect of creating some real issues of disproportionate representation in the Senate.
A problem we have is that a large part of the nation's diversity is located in our largest state, California, which has more people than the smallest 20, mostly white rural states, combined, but only two senators. Another way to address this would be to break California up into 3 or 4 states, giving it 6 more Senators than it has now.
Smallest states are a mix of D and R leaning and some of them (Alaska, Hawaii, RI, Delaware, Hawaii) are extremely diverse. Here's the smallest 10 by pop:
1. Wyoming – 578,803
2. Vermont – 645,570
3. Alaska – 732,673
4. North Dakota – 774,948
5. South Dakota – 895,376
6. Delaware – 1,003,384
7. Rhode Island – 1,095,610
8. Montana – 1,104,271
9. Maine – 1,372,247
10. New Hampshire – 1,388,992
By diversity, it sounds like you mean census-category diversity. In which case, I have good news for you, most of the low-population rural-ish states are growing from immigration and census-category-diversifying from a mix of international and domestic immigration. States like Nebraska and Kansas are about 15% immigrant in the young adult generation. Other low pop states are 5-15% immigrant (again, in the younger adult generations).
I don't know that it will mean very much for the political parties at the end of the day though. It remains to be seen whether 2nd generation Honduran Americans in Nebraska or 2nd generation Liberian-Americans in North Dakota will vote very differently from the people they grow up with
You think that they will be cool with the lowlands being inundated and having to move to mountaintops? That reminds me of Ben Shapiro's inane comment that people living on the Florida coastline can just sell their homes if the sea rises over their lots.
But your fixation on sea level rise is a straw man, which I understand is also somewhat of a response to the monolithic way in which this was posed: there are, obviously, adverse effects to rising sea level that go beyond “literally being under water.” Aggravated and consistent flooding, for instance, that makes it basically impossible to maintain a building on the coast - or encourages insurers to pull out of broadly affected areas.
And this is not just a problem on the coasts. Getting away from sea level rise as such, climate change more broadly is making living in a lot of places, coastal or not, much more precarious, and inane and kind of condescending responses like “have you no mountains?” don’t really help. I doubt if you went to, say, Barre, Vermont and told people there “just move up into the Green Mountains and you’ll be fine” that would be well-received.
So let's take a look at the period of the Biden administration thus far. There's been lots of sound and fury and we always seem to be on the verge of disaster (which is our typical state) but mostly it's been a period of strong economic growth, excellent legislation being passed, the worst of the Republicans being defeated in Nov. 2022, domestic peace (except for awful lone wolf killers) and justice being done to the Jan. 6 rioters (and maybe to Trump and his henchmen).
Maybe things will fall apart in November 2024. Like I said, we're always one step from disaster. But as unpleasant as our polarization is, from a bottom line point of view, maybe things are going pretty well.
>With three or more major parties, it will become more likely that no Presidential candidate will get a majority of electoral votes, and will have to stitch together a coalition in Congress to be elected President
In this instance, the states pick the President. Yes yes I know it says 'the House', but look a little closer- each state would only have 1 vote in this process. Even if a state has 20 House reps they only get 1 vote. So California and Wyoming each have 1 vote to choose the President (out of the top 3 vote getters). In that case a conservative is guaranteed to win almost every time, and it's just a question of how conservative they are
The majority of states are majority Republican in the House presently, and most of the time. This is what people are constantly complaining about with the Senate, right? That it favors rural red states?
There is no reason to think 26 states are immutably Republican, especially with the reforms I proposed to protect voting rights, end gerrymandering and encouraging third party and independent candidates. Texas is now a majority minority state that is turning purple, like Arizona and Georgia have. And if D.C. and Puerto Rico are granted statehood, it takes 27 states to elect a President in the House.
No. The system didn’t “work” by any reasonable definition of that verb. Rather, its failure was prevented from being catastrophic because Americans of good will from both parties saved the day.
The system works when people are systemically incentivized to “save the day” or better yet- when conditions are such that they won’t need to “save the day” in the first place. Neither happened. The failure to convict trump in the senate shows the failure of the system. There is nothing preventing trump from returning to power, even as a convicted felon (!) and even if he does lose the elections there is nothing to prevent a more competent demagogue from using his playbook.
Of course. But a system that *consistently* requires self-sacrificing heroes to survive won’t last long. The point is to disincentivize bad actions and make them more difficult and incentivize good actions and make them easier. Also, it is to try to make sure sufficiently decent and competent people world the levers of power in the first place.
Agreed that the conditions can be made more suitable for democratically elected leaders to do the "right thing"; similarly, you can eliminate opportunities for interference. Congress quietly reforming the electoral count act was a step in the right direction.
But I feel uncomfortable with creating automatic triggers that bar people from office. If convicted felons can't run, the easiest way to beat your opponents is to convict them of something. Democracy may not always produce optimal outcomes (by some measures), but I'd be very nervous about trying to do an end run around it.
Our system allowed trump to become president. It also allowed, nay incentivized (!) ,republicans to let him gett away with it and be eligible for reelection.
You're using the term 'our system' overly broadly. What happened is that American political parties lost their subtle, indirect power to steer who would win their party's nominations, due to the Internet weakening traditional media companies, Internet-enabled small donations, and Citizens United. We had a system that worked great for 70 years, it's just that technology made it obsolete. I have faith that eventually we'll settle on a new strong party system that limits who can run for party nomination
What was the actual mechanism for Trump to remain president? Jan. 6 was bad for many reasons, but there never appeared to be a credible path forward for him.
You're making the same mistake the original poster made: taking the absolute result "the right guy becomes president" as the sole thing the system is designed to safeguard. This is my fault, since I used an analogy—the shoe bomber—that really is binary: either the plane crashes or it doesn't. But many other bad things happened as a result of Trump's—and his enablers'—lies and plotting. The most obvious one is January 6, which resulted in two people dying and many people going to prison; that can't be considered a good result, and it's directly traceable to to Trump, Giuliani, Sidney Powell, John Eastman, etc: the farther they brought things, the farther the crowd was willing to go. But also, the result of the whole saga has been to make the system *less* stress-resistant in the future, not more. Republican primary voters, the media establishment, etc. have decided they tolerate or even embrace Trump's actions; that's not a good precedent. True-blue Republicans like Liz Cheney have been drummed out of the party solely for calling out Trump on his lies; that's like a suspension bridge losing some of its cables. You can read story after story about fanatical young conservatives, supported by intellectual infrastructure like the Claremont Institute, who believe that democracy in America is totally illegitimate and that a right-wing coup would be a positive development.
Basically, Trump taking things as far as he did convinced many supporters (and made many opportunists in media and politics pretend to be convinced) that the normal order should be abandoned, and they acted like it. Enough people pushed back at various levels that, at the electoral vote level, nothing came of it, and that's to the system's credit. But in the process many people were hurt, and maybe more importantly the system-ruiners have been strengthened and the system-protectors, weakened. "The system"—that is, individuals and institutions—is supposed to stop things getting that far, but a lot of people and groups did the wrong thing and not the right thing, and here we are.
Oh sure, and I'm all for procedural changes to limit the potential for mischief, even if it's futile. And I'm glad a good number of those involved are facing the consequences for their actions. But I also think a major part of the way forward has to be turning down the temperature on all things politics. You can (and generally should) make stronger systems to keep people from breaking through, but it would be even better to have fewer of them wanting to overturn things in the first place.
That's true! But I take it that systems are in place both to help cement those sorts of norms and to provide formal safeguards against them being broken (e.g. the First Amendment both affirms that the values of the US are anti-censorship and makes censorship literally illegal). To the extent our electoral system just *relies* on the norms of democratic continuity, rather than cementing and enforcing them, it's pretty vulnerable to bad actors, and that's not a problem that fixes itself.
I recall thinking at the time that the better approach to considering Pence's interactions with the military on Jan 6 was that he was doing so not as the Vice President, but as President of the Senate. Part of the military - acting under direction form the Secretary of the Army, who had authority to do so in the chain of command - was going to be active on the Capitol. *Of course*, given the separation of powers and the comity of the different branches of the government, this (that is the use of the military at the Capitol) would only happen after consultation with (and agreement from) Pelosi as Speaker of the House or Representatives and Pence as President of the Senate.
In the days after, and the indications around eg use of the military by Trump (or nuclear weapons, or whatever), that could easily be viewed as respecting the dual roles of the Presidency and the Congress. Yes, Trump was commander-in-chief, but the use of nuclear weapons would involve a declaration of war, which is something reserved to Congress, and the possible uses of nuclear weapons at the time would almost certainly involve the commission of war crimes, something that everyone in the military is forbidden by law (and the serious criminal penalties) from taking part in. Nothing wrong with a representative of Congress pointing this out.
That all seems correct, but if we are working around these flaws the prosecutions look even more risky. They aren't necessary to deter future bad behavior, just the opposite, since staying in office is a way to avoid prosecution but if ppl are acting technically unconstitutionally to save the system the threat of prosecution could make things much worse.
I mean, if Trump can be prosecuted for asking the GA governor to behave illegally could Pelosi be prosecuted for asking the military to violate the constitution? Maybe not in this case, but you can easily imagine it going further next time and suddenly people who were working in good faith to save the system start to fear they'll end up in prison if they lose and they become part of the problem.
I think it's somewhat instructive to look to how Jefferson dealt with the Alien and Sedetion acts. Adams essentially started throwing his political enemies/critics into prison to stay in power but Jefferson didn't try and pursue some kind of punishment and that worked out pretty well imo.
I do not see Jan 6 as very much related to the Linz problem. There have been various periods of non-trifecta government or a Congress/President divide with out that posing much of a problem.
And the reason given for US exceptionalism does not seen to be the absence of "ideologically" aligned parties. We still don't have ideologically aligned parties. Most issues are just historically coded Red tribe Blue tribe. There is a tincture of redistribution for the rich among Republicans but most issues are just pure tribe.
But is “tribe” that different from ideology? The Republican and Democratic agendas aren’t randomly distributed; they’re in line with the agendas of right- and left-wing parties, respectively, the world over. That’s different from, say, the pre-Civil War era, when Northern Democrats and Northern Whigs shared some common interests that Southern Democrats and Southern Whigs didn’t share, even with their fellow party members.
I think tribalism is different from ideology. I see a lot of people for whom partisan politics seems to their moral schema, and ideology seems subject to whatever the day requires. Ideology, to me, points to a belief that stands outside the vicissitudes of today’s news cycle.
They may well be different, but for the purposes of Linz’s thesis I’m not sure those differences matter much. As I understand Matt’s summary of Linz, constitutional hardball is disincentivized when political factions are formed among many different axes, not just party. When the parties are perfectly sorted (so that the farthest-left Republican is to the right of the farthest-right Democrat, there’s little upside to compromise and cooperation, and I think that’s true whether or not the sorting is properly “ideological” or more cultural.
With the benefit of hindsight the only person in a position of leadership who comes out of this sorry fiasco looking good was Nancy Pelosi. Who is now retired. Thank god I still have a British passport... oh wait the UK political system is also in chaos! Tell me again post-Brexit and post-Boris and post-Liz-Truss how great parliamentary democracy is supposed to be again? :)
In 1933 it was agreed that, given advancements in communication and transportation, the presidential inauguration could be moved up from March to January. A century later, I think the case can be made to further reduce the time available for lame duck mischief.
While obviously communication and transportation are trivial at this point, isn't there a pretty good case that an incoming President needs the transition period in order to assemble his team? Seems like it's genuinely hard to nail down your White House staffing and cabinet roles in a prospective way before the election.
You also need time in case there actually are *genuine* electoral disputes that require recounts etc., as there were in 2000.
Isn’t this a case where the rest of the world has a much quicker turnaround than we do? Does that lead to problems with insufficient time for electoral disputes?
This difficulty is in part because of both a seeming cultural aversion to American presidential candidates having "shadow cabinets" in the mode of parliamentary systems and the extent to which cabinet positions and other presidential-appointed positions operate as a fairly open patronage system for candidates (i.e. , candidates want to reserve the ability to reward people who supported them during their campaigns without regard to whether those people are immediately equipped for taking particular positions), all of which limits how much candidates can do to get their teams lined up in advance of being sworn in.
Isn’t this an advantage of a parliamentary system, which is part of the argument of the post? When the cabinet is all MPs of your party, there isn’t much assembling to do, right?
That assumes one party can form a government on its own, which is optimistic. But you're right, our transitions take an extraordinary amount of time, probably because, like many things, the problem was only theoretical until Trump.
Arguably it wasn’t *wholly* theoretical. The country enduring two and a half lame-duck months in 2008-2009, during the worst economic crisis in a lifetime, was not ideal, for instance.
True, although at least the Bush administration was reasonably constructive during the interim.
Whether Linz is right that presidential systems are inherently unstable, can we agree that the presidential power of pardon is a wholly unnecessary loaded gun in the Constitution?
Giving the executive the ability to pardon his henchmen -- and perhaps himself, if he has already stacked the judiciary -- is a recipe for unscrupulous abuse of power.
And the evidence from parliamentary systems suggests that whenever election to the executive gives you automatic immunity, then criminals will strive for high office as a literal get-out-of-jail card.
So the pardon power is a second structural instability, independent of presidentialism. And tfg is deadset on using it.
Solutions:
(1) Strictly limit the President's pardon power; or
(2) Don't elect criminals as President, especially those with henchmen who need pardoning.
But the list of presidents who have pardoned their associates in crime certainly include Bush I (cf. Iran-contra), and arguably includes Gerald Ford (pardoning the guy who gave you the job with the pardon power certainly produces an unsavory appearance). Probably includes Clinton for the pardon of Susan McDougal (though she had already served her full sentence by then). You might not think of them as criminals, but they still pardoned their henchmen.
It's a horrible temptation to misbehavior. If your administration has rot in it, then you'll be tempted to use it to hide the rot. I believe none of Obama's pardons can plausibly be linked to corruption in his administration, because there was none. He also kept the process at arms length, if I recall, via a panel of appointees.
Sure, there are some bad cases there.
The overwhelming majority of presidential pardons, though, are ones that I suspect are defensible and indeed merciful.
I don't know how you write a rule that says, "pardons we like are okay; pardons we don't like shouldn't be allowed."
At some point, we have to count on disapproval from the public and those who write the histories to do the work for us in controlling the latter.
"I don't know how you write a rule that says, 'pardons we like are okay; pardons we don't like shouldn't be allowed.'"
There's not a way to directly write that, but there are several possible approaches that would limit abuse of the power (all of which would require a constitutional amendment):
1) Create a pardon board (with some combination of staggered presidential appointments, congressional appointments, etc.) that reviews pardon requests first and refers on to the President only those the board thinks are meritorious. Variations on this approach are used by a bunch of states already.
2) The President retains absolute pardon power in the first instance, but Congress has some review role, whether positive (pardon only becomes effective if approved by some percentage of Congress, possibly less than a majority) or negative (pardon becomes effective only if *not* blocked by some percentage of Congress, possibly a supermajority).
3) Require 5+ years have passed since the conviction before a pardon can be granted. This avoids the problem of Presidents pardoning members of their own administration or at least forces them to successfully get reelected before they can pardon anyone convicted of crimes in their first term in office. I believe there are already a few states with minimum passage of time requirements for pardons.
4) Limit the pardon power to certain categories of crimes that are deemed less likely to be the kind of crimes federal officials are going to be committing or that are otherwise less concerning from a governing standpoint. (E.g., no pardons for espionage, treason, bribery, etc., but you can receive pardons for drug dealing, securities fraud, etc.).
These sound good.
"These sound good."
Okay, you're pardoned.
"The overwhelming majority...though, are ones that I suspect are defensible and indeed merciful."
This is an argument that there should be some mechanism for leniency, not that it should reside in the executive.
Giving the president this power is an archaic and undemocratic vestige of royal prerogative. There is no reason to think that the president will do a better job in discerning where mercy is appropriate than a legislative body or a citizen panel. And it is harder to bribe many than few, cf Marc Rich.
>This is why in most other countries, prosecutorial power to decline a prosecution is subject to judicial oversight.<
Agreed. The fact that the prosecutorial power resides in the executive branch is a danger lurking deep within our constitution (one of several). I favor having DOJ governed by a board of overseers appointed by all three branches.
"...the president also controls the prosecutorial power."
Good point, and thanks for that.
The problem with presidential control over prosecutions has at least been recognized and mitigated to an extent by the creation of "independent prosecutors". Not a great fix, but at least an admission that the president's power over prosecutions should not be absolute.
A similar dodge for the pardon power would be the creation of independent boards of pardon. Again, not ideal, but possibly better than the status quo.
"The day’s events led to several deaths, including the murder of a Capitol Police officer."
That was believed to be true at the time but no longer. Maybe a footnote would be appropriate?
No, I think it's pretty accurate that Sicknick's death is directly attributable to the assaults on him by the mob.
Even if true, is that murder?
It's probably Murder Two in states where there is a distinction. Killing someone while only intending to seriously harm them is still murder, but Murder One generally requires both premeditation and the specific intent that they die.
If they die as a result of your assault, that's murder, even if that is you triggering a heart attack in someone you didn't know had a heart condition.
Has anyone been charged with murdering him?
Last I heard, which was admittedly last year, they couldn't identify which one of several people was responsible.
You alternate between asking insightful leading questions and asking really, profoundly stupid ones. Can you make more of an effort to drill down on the former?
People have been convicted of murder when they intentionally start a fire (arson) and thus accidentally kill a person. This includes a person who is incidentally in the building at the time of the start (not known by the arsonist) and even a firefighter who was definitely not in the building when it started but engages the fire inside or outside the building and dies.
Sicknick was murdered.
https://www.isenberg-hewitt.com/blog/2020/07/arson-and-felony-murder-charges-how-they-relate/
Didn’t Sicknick die of a stroke the next day? Has anyone ever been successfully prosecuted for murder under such circumstances? Attack a person, then 24 hours later they have a stroke?
I think the attack led to his death, I’ve just never seen such a prosecution.
So for felony murder to apply, the predicate felony has to be one of a specified list of felonies. Arson is always one of them in every jurisdiction, but I don't know if the 1/6 rioters committed any of the felonies on the menu.
That said, a murder very well may have occurred, just not on the basis of "felony murder." You'd have to show that the rioter(s) who caused Sicknick's death acted with the intent to cause grievous bodily harm (or something like that).
"He died *with* the assault, not *from* the assault."
We should get rid of primaries. Bring back meaningful conventions and behind-the-scenes deal-making. Virginia Republicans did that, nominated Glenn Youngkin, and he won the gubenatorial election.
Also give power back to Congressional committee chairs. Congressional leadership has too much power and running everything through leadership decreases opportunities for deal-making. Gingrich was wrong and made a horrible decision. I get that there were a bunch of old, corrupt Democratic committee chairs before 1995, but the solution is to install better people, not take all power for the Speaker. At least McCarthy is trying let the committees have more say in budget negotiations over the next few months, even if I don't believe he will be successful.
This makes sense but doesn’t the rise in the Speaker’s power date from the 1961 decisions to clip the Rules Committee’s ability to frustrate the party conference?
We’re home. On schedule. And alive, for certain (exhausted, sleep-deprived, irritable) values of alive.
Ended up having the kind of journey that will make an interesting story with a few years’ remove:
Made it to Shenzhen on one of the last HSR trains from Wuhan after our original tickets were canceled and we discovered why… we frantically rebooked the last train of the day and a private car to get us there from my wife’s small (only 250k) hometown.
Got across the border to HK via private car as soon as the land border reopened the morning of our (night) flight because no one could tell us how bad the border crossing backlog snd roads would be.
Sat in the airport waiting for luggage drop to open for six hours while constantly checking wind speed indicators and other flights for hints that we should bail and book a hotel, then our flight turned out to be one of the first released to take off.
Arrived in Taipei to be put in an hour-long holding pattern and then sprinted through their customs screening (for transiting fliers???) to barely catch our second leg… which in turn was one of the last US-bound flights to get out before the next typhoon sideswiped northern Taiwan the next day.
Landed in LAX and stepped out of the airport to catch our hotel shuttle only to have the whole area cordoned off due to a bomb threat or something, then trekked out on foot with all our luggage far enough away to be able to catch an Uber.
Went back to LAX the next day to find a wildly delayed flight due to lightning strikes at Denver’s airport.
Got to Denver and our flight out was also delayed while they waited for stragglers from the mess that had built up, so our original four-hour layover was still a four-hour layover even though we were two hours late.
Finally got to PHL and they lost one of our bags for about two hours… fortunately it was the one with the AirTag lol.
Holy shit, it’s been almost a week. I haven’t been this exhausted since the last time I took a complicated itinerary to China to save some $$$, and this is a reminder to not do that, doubly so with a 5-year old along.
Glad you are back in the Philly area. It’s really hot!
Not too bad, nice moderate dry heat. It bounced off 103-4 in Wuhan while hovering above 92 at night and hellishly humid for a while when we were there.
This reminds me- if an occasion for getting Matt up here can be found, we need to organize a Philadelphia in Area get together for Slow Boring readers.
Several of us have hinted at that but our host seems to shoot right around us in setting these things up.
I think there’s something very frustrating about the way most people don’t care about process—and any kind of systemic reform is a sort of sore loser move, or penalizing someone.
Evidence that Matt's analysis was correct is that the MAGAs are doubling down on politicising the federal workforce, to inhibit it from checking a second Trump administration.
https://abcnews.go.com/US/wireStory/recruiting-underway-trump-wrecking-ball-shrink-government-fire-102636802
Another issue where the MAGA crowd screws itself with arguments designed specifically to rile their opponents. They could make a plausible bipartisan case for reigning in the “administrative state.”
The next 16 months are going to be a complete shitshow. The “system” allowed us to kick the can down the road. It got lucky with Nixon. His party urged him to resign, and he did it. Some sort of Honor Code still existed. Not so much with Trump. All systems require regular maintenance, periodic upgrades, and eventually become obsolete and require a new one. Failure to do any of that over the last 50 years is the real problem here. Whatever workaround that was in place to keep a demagogue from becoming and staying president failed.
Taking the thesis of this post (and the American Democracy is Doomed article) seriously, I think one of the most important implications is that mainstream liberals who are ordinarily inclined towards an ameliorative incrementalist approach should put serious work and thought into contingencies for what is to be done in the event that the system truly does collapse and key actors are not able to successfully patch it.
For the most part, people who take seriously the possibility of such a collapse seem to be those who are already fundamentally at odds with the current system. This is typically either survivalists in bunkers (who are of little concern) or political extremists who see a moment of crisis as the only possible opportunity to usher in their preferred system of Monarchy or Anarchy or White Nationalism or whatever else. Like the Bolsheviks, they hope that by organizing sufficiently ahead of time, they will be in the right place at the right time to decisively seize that opportunity while everyone else is paralyzed and unable to quickly coordinate through the collapse of normal order. Such groups have no hope of achieving their goals in ordinary times, but should such a collapse occur, their preparedness could be decisive.
As someone with mostly ameliorative incrementalist instincts, I do hope that we can muddle through and avert collapse through the ordinary course of good people doing good work on one problem after another, and with key leaders acting with wisdom in moments of crisis. But I do take seriously the prospect that this could prove insufficient. If so, and our political systems collapses, I hope that there are people who are otherwise aligned with the core principles of American democracy but have done enough contingency planning that they can effectively work together through a collapse and have a better chance at establishing the future than those who dream of a darker path.
History suggests that rather than truly going back to the drawing board, which is a much taller order than impeaching a president, we’ll eventually find some bandaid solution that keeps us lurching until the next crisis. We’ve done it for more than two centuries and somehow a whole Civil War wasn’t enough to persuade us to seriously rethink the whole thing.
It seems to me that both sides (probably accurately) perceive the risks of trying to rethink the whole thing as greater than any potential reward.
On the one hand, if an opportunity to do so arose, it would be very high risk for everyone. On the other hand, the odds are so low that we could get either major amendments or an actual new constitutional convention, that they probably aren't even thinking about the risks. Probably the most anyone thinks about it is in terms of getting rid of the electoral college.
Absent a violent revolution or being occupied by a foreign power, most states don't change their system of government. You call it a bandaid solution; I call it muddling through. Same as we've always done, as you note.
You may enjoy https://endofsafety.substack.com/p/prototypes-of-liberty
I did enjoy it. Very thoughtful. It did include one howler, however: "Human lives are too high a price for quiet heating systems." Ha, I say, sir: ha!
Please pray for your countrymen (me) living in New York
I 100% agree with that. Ultimately even after being given the best constitutional design one could reasonably hope for, you're still muddling through. Good constitutional design helps but is no guarantee by any means. As Matt points out, elites in and out of the state can still muddle through a bad design, and on the flipside they can completely blow it in a good design.
Band aid is the wrong metaphor. Gradual reforms are more like the ship of Theseus. Directly electing senators or making slavery illegal aren’t “band aids”. That being said if the proposed small fixes are not adequate enough in quality or quantity the ship risks eventually sinking.
To be clear I think more significant reforms can happen and have at major moments in our history, I just don’t think they will in the near term. In the near term we’re likely to just get something that buys us some modest amount of time
We have an ideological cold war in a bipolar system in which each side views the other as an existential enemy, so one possible solution is to make it a multipolar system to encourage multi-partisan deal making. We could significantly expand the House and make congressional districts multimember, making it easier for independent and third party candidates to win and gerrymandering ineffective. Matthew also identified as a problem that unlike a parliamentary system the President is elected independently from Congress, but I believe that the Founders thought most Presidents would be elected by Congress (not anticipating the rise of political parties). With three or more major parties, it will become more likely that no Presidential candidate will get a majority of electoral votes, and will have to stitch together a coalition in Congress to be elected President. We also need to make the Senate work better than it does now, in which nothing can be enacted unless it can pass a Byrd Bath to get included in a reconciliation bill. The filibuster has to be reformed so that while the minority still gets plenty of time to debate, in the end the majority still gets to enact legislation. We also need to address the over representation of the rural white minority in the Senate. D.C. and Puerto Rico should be immediately admitted as states, and the territories such as the U.S. Virgin Islands, Mariana Islands, Guam and American Samoa encouraged to hold referendums on statehood. None of these reforms require an impossible to obtain constitutional amendment, and I believe they will also get people more invested in democracy, because they will have more choices than "the lesser of two evils" and Congress will actually work to deliver the change the majority votes for.
>>so one possible solution is to make it a multipolar system to encourage multi-partisan deal making<<
I wish it were the case that both sides in this political cold war were equally interested in rendering deal-making possible, because mutual desire in this regard is likely a prerequisite for the reforms needed to bring about multipolarity.
If the Democrats regain control of the House and retain control of the Senate and Presidency, and they reformed the filibuster, they could enact reforms like this, as well as other important reforms like a new voting rights act. I know that is unlikely, but its still more possible than amending the Constitution. We have seen states experimenting with election reforms to make the system more answerable to voters, such as ranked choice voting and jungle primaries, so reform can happen, but we need to talk about it before the system fails and we fall into authoritarianism or civil war.
The next time Democrats win the House, Senate, and presidency they will get bogged down in an internal fight over Medicare for All and open borders. This stuff will take a backseat.
Turn off Fox News. They just paid an $800 million defamation judgment for deliberately lying.
Did you not watch the 2020 Democratic primary? Most likely the next time Democrats control those three branches of government Joe Biden won't be president, and whoever is won't be as moderating.
There is a chance the Democrats will control all three branches with Biden as President in 2025, what with the GOP ticket headed by a convicted felon.
"I believe that the Founders thought most Presidents would be elected by Congress"
An interesting point that is completely undiscussed, but which, now you've mentioned it, seems obvious in retrospect.
Is it? Election of the president by Congress was considered but discarded by the founders in favor of the Electoral College. When the election still ended up in the House in 1800, they passed the 12th amendment to try to avoid the same scenario happening again.
Well, maybe not "most" Presidents, but (i) in the absence of strong nationwide political parties and (ii) before there was a rock-hard norm of states awarding their Electoral College votes on a winner-take-all basis, surely it would have been obvious that it would be a not uncommon occurrence to end up with no one presidential candidate getting a majority of the Electoral College vote? The drafters of the Constitution can't have thought it would be the norm to have a universally acclaimed figure like Washington running each time, could they?
I'm sure they did not. I think that, not anticipating national political parties, what they expected to happen was that the electors would vote for leading statesmen of their state or region, then Congress would conduct votes on the three top candidates.
"We also need to address the over representation of the rural white minority in the Senate. D.C. and Puerto Rico"
Would it also be a problem if the rural minority was non-white?
With the exception of DC, I don't see any particular reason any of these places would vote with Democrats btw.
Our island territories are in danger of ceasing to exist as sea level rises due to climate change, so I think they have a strong incentive to vote to address that issue.
That doesn't mean they are single issue voters that will blindly follow the Democrats cycle after cycle
If you look at my first comment, I want a multiparty system. Puerto Rico has its own political parties, and if it elects congressional representatives who don't strictly align with either Republicans or Democrats, that's what I'm hoping to achieve.
Exactly. I'm ambivalent on the question of statehood for the territories (at minimum I think it isn't totally clear they actually want it, other than DC). It's important to remember though that what is helpful today may not be tomorrow. The existence of a bunch of low population states in the middle of the country is in large part a result of the Missouri Compromise, which at the time was arguably a good thing to the extent that it mitigated against the growth of slavery/power of the slave states. But 200 years later it has had the effect of creating some real issues of disproportionate representation in the Senate.
A problem we have is that a large part of the nation's diversity is located in our largest state, California, which has more people than the smallest 20, mostly white rural states, combined, but only two senators. Another way to address this would be to break California up into 3 or 4 states, giving it 6 more Senators than it has now.
Smallest states are a mix of D and R leaning and some of them (Alaska, Hawaii, RI, Delaware, Hawaii) are extremely diverse. Here's the smallest 10 by pop:
1. Wyoming – 578,803
2. Vermont – 645,570
3. Alaska – 732,673
4. North Dakota – 774,948
5. South Dakota – 895,376
6. Delaware – 1,003,384
7. Rhode Island – 1,095,610
8. Montana – 1,104,271
9. Maine – 1,372,247
10. New Hampshire – 1,388,992
By diversity, it sounds like you mean census-category diversity. In which case, I have good news for you, most of the low-population rural-ish states are growing from immigration and census-category-diversifying from a mix of international and domestic immigration. States like Nebraska and Kansas are about 15% immigrant in the young adult generation. Other low pop states are 5-15% immigrant (again, in the younger adult generations).
I don't know that it will mean very much for the political parties at the end of the day though. It remains to be seen whether 2nd generation Honduran Americans in Nebraska or 2nd generation Liberian-Americans in North Dakota will vote very differently from the people they grow up with
Puerto Rico and Guam have mountains. How much do you believe sea level will rise?
You think that they will be cool with the lowlands being inundated and having to move to mountaintops? That reminds me of Ben Shapiro's inane comment that people living on the Florida coastline can just sell their homes if the sea rises over their lots.
Again: How much do you believe sea level will rise?
This article from The Guardian does a decent job laying out some of the scenarios over the near and long term for sea level rise: https://amp.theguardian.com/environment/2023/jun/26/its-absolutely-guaranteed-the-best-and-worst-case-scenarios-for-sea-level-rise. The upshot is that because of thermal effects, even if we stopped emitting carbon tomorrow sea level rise would continue indefinitely.
But your fixation on sea level rise is a straw man, which I understand is also somewhat of a response to the monolithic way in which this was posed: there are, obviously, adverse effects to rising sea level that go beyond “literally being under water.” Aggravated and consistent flooding, for instance, that makes it basically impossible to maintain a building on the coast - or encourages insurers to pull out of broadly affected areas.
And this is not just a problem on the coasts. Getting away from sea level rise as such, climate change more broadly is making living in a lot of places, coastal or not, much more precarious, and inane and kind of condescending responses like “have you no mountains?” don’t really help. I doubt if you went to, say, Barre, Vermont and told people there “just move up into the Green Mountains and you’ll be fine” that would be well-received.
I have no fixation on sea level rise, nor have I ever invited anyone to move to the mountains for any reason.
So let's take a look at the period of the Biden administration thus far. There's been lots of sound and fury and we always seem to be on the verge of disaster (which is our typical state) but mostly it's been a period of strong economic growth, excellent legislation being passed, the worst of the Republicans being defeated in Nov. 2022, domestic peace (except for awful lone wolf killers) and justice being done to the Jan. 6 rioters (and maybe to Trump and his henchmen).
Maybe things will fall apart in November 2024. Like I said, we're always one step from disaster. But as unpleasant as our polarization is, from a bottom line point of view, maybe things are going pretty well.
So the system worked after all?
>With three or more major parties, it will become more likely that no Presidential candidate will get a majority of electoral votes, and will have to stitch together a coalition in Congress to be elected President
In this instance, the states pick the President. Yes yes I know it says 'the House', but look a little closer- each state would only have 1 vote in this process. Even if a state has 20 House reps they only get 1 vote. So California and Wyoming each have 1 vote to choose the President (out of the top 3 vote getters). In that case a conservative is guaranteed to win almost every time, and it's just a question of how conservative they are
No, less than half the states are red, and that is before adding D.C. and Puerto Rico as states.
The majority of states are majority Republican in the House presently, and most of the time. This is what people are constantly complaining about with the Senate, right? That it favors rural red states?
https://en.wikipedia.org/wiki/List_of_current_members_of_the_United_States_House_of_Representatives#Partisan_mix_of_the_House_by_state
There is no reason to think 26 states are immutably Republican, especially with the reforms I proposed to protect voting rights, end gerrymandering and encouraging third party and independent candidates. Texas is now a majority minority state that is turning purple, like Arizona and Georgia have. And if D.C. and Puerto Rico are granted statehood, it takes 27 states to elect a President in the House.
"What happened is that the system did not work". Au contraire. The system did work. Who's president?
No. The system didn’t “work” by any reasonable definition of that verb. Rather, its failure was prevented from being catastrophic because Americans of good will from both parties saved the day.
How can it be any other way though? Won't all systems break down if people fail to observe them?
The system works when people are systemically incentivized to “save the day” or better yet- when conditions are such that they won’t need to “save the day” in the first place. Neither happened. The failure to convict trump in the senate shows the failure of the system. There is nothing preventing trump from returning to power, even as a convicted felon (!) and even if he does lose the elections there is nothing to prevent a more competent demagogue from using his playbook.
"The failure to convict trump in the senate shows the failure of the system."
That's a pretty broad definition of "the system." It's pretty clear that the Republican party and its members failed the nation in the Senate trial.
The system is composed of people who make moral choices every day.
Of course. But a system that *consistently* requires self-sacrificing heroes to survive won’t last long. The point is to disincentivize bad actions and make them more difficult and incentivize good actions and make them easier. Also, it is to try to make sure sufficiently decent and competent people world the levers of power in the first place.
Agreed that the conditions can be made more suitable for democratically elected leaders to do the "right thing"; similarly, you can eliminate opportunities for interference. Congress quietly reforming the electoral count act was a step in the right direction.
But I feel uncomfortable with creating automatic triggers that bar people from office. If convicted felons can't run, the easiest way to beat your opponents is to convict them of something. Democracy may not always produce optimal outcomes (by some measures), but I'd be very nervous about trying to do an end run around it.
The solution is to make it difficult to convict someone, which it is…
It can't be any other way—agreed. Our system broke down in January, 2021. The breakdown was prevented from being catastrophic, is all.
The President, not "our system", called out a mob to attack the Capitol.
Our system allowed trump to become president. It also allowed, nay incentivized (!) ,republicans to let him gett away with it and be eligible for reelection.
You're using the term 'our system' overly broadly. What happened is that American political parties lost their subtle, indirect power to steer who would win their party's nominations, due to the Internet weakening traditional media companies, Internet-enabled small donations, and Citizens United. We had a system that worked great for 70 years, it's just that technology made it obsolete. I have faith that eventually we'll settle on a new strong party system that limits who can run for party nomination
https://www.amazon.com/Party-Decides-Presidential-Nominations-American/dp/0226112373
We're supposed to have peaceful transitions of power. We didn't. If that's "work" in your big, fine. It's not in mine.
It should be designed better, to prevent catastrophe further up the chain.
The shoe bomber’s plane landed fine; does it follow the security apparatus worked fine?
What was the actual mechanism for Trump to remain president? Jan. 6 was bad for many reasons, but there never appeared to be a credible path forward for him.
You're making the same mistake the original poster made: taking the absolute result "the right guy becomes president" as the sole thing the system is designed to safeguard. This is my fault, since I used an analogy—the shoe bomber—that really is binary: either the plane crashes or it doesn't. But many other bad things happened as a result of Trump's—and his enablers'—lies and plotting. The most obvious one is January 6, which resulted in two people dying and many people going to prison; that can't be considered a good result, and it's directly traceable to to Trump, Giuliani, Sidney Powell, John Eastman, etc: the farther they brought things, the farther the crowd was willing to go. But also, the result of the whole saga has been to make the system *less* stress-resistant in the future, not more. Republican primary voters, the media establishment, etc. have decided they tolerate or even embrace Trump's actions; that's not a good precedent. True-blue Republicans like Liz Cheney have been drummed out of the party solely for calling out Trump on his lies; that's like a suspension bridge losing some of its cables. You can read story after story about fanatical young conservatives, supported by intellectual infrastructure like the Claremont Institute, who believe that democracy in America is totally illegitimate and that a right-wing coup would be a positive development.
Basically, Trump taking things as far as he did convinced many supporters (and made many opportunists in media and politics pretend to be convinced) that the normal order should be abandoned, and they acted like it. Enough people pushed back at various levels that, at the electoral vote level, nothing came of it, and that's to the system's credit. But in the process many people were hurt, and maybe more importantly the system-ruiners have been strengthened and the system-protectors, weakened. "The system"—that is, individuals and institutions—is supposed to stop things getting that far, but a lot of people and groups did the wrong thing and not the right thing, and here we are.
Oh sure, and I'm all for procedural changes to limit the potential for mischief, even if it's futile. And I'm glad a good number of those involved are facing the consequences for their actions. But I also think a major part of the way forward has to be turning down the temperature on all things politics. You can (and generally should) make stronger systems to keep people from breaking through, but it would be even better to have fewer of them wanting to overturn things in the first place.
That's true! But I take it that systems are in place both to help cement those sorts of norms and to provide formal safeguards against them being broken (e.g. the First Amendment both affirms that the values of the US are anti-censorship and makes censorship literally illegal). To the extent our electoral system just *relies* on the norms of democratic continuity, rather than cementing and enforcing them, it's pretty vulnerable to bad actors, and that's not a problem that fixes itself.
Let’s see how 2024 goes.
I recall thinking at the time that the better approach to considering Pence's interactions with the military on Jan 6 was that he was doing so not as the Vice President, but as President of the Senate. Part of the military - acting under direction form the Secretary of the Army, who had authority to do so in the chain of command - was going to be active on the Capitol. *Of course*, given the separation of powers and the comity of the different branches of the government, this (that is the use of the military at the Capitol) would only happen after consultation with (and agreement from) Pelosi as Speaker of the House or Representatives and Pence as President of the Senate.
In the days after, and the indications around eg use of the military by Trump (or nuclear weapons, or whatever), that could easily be viewed as respecting the dual roles of the Presidency and the Congress. Yes, Trump was commander-in-chief, but the use of nuclear weapons would involve a declaration of war, which is something reserved to Congress, and the possible uses of nuclear weapons at the time would almost certainly involve the commission of war crimes, something that everyone in the military is forbidden by law (and the serious criminal penalties) from taking part in. Nothing wrong with a representative of Congress pointing this out.
That all seems correct, but if we are working around these flaws the prosecutions look even more risky. They aren't necessary to deter future bad behavior, just the opposite, since staying in office is a way to avoid prosecution but if ppl are acting technically unconstitutionally to save the system the threat of prosecution could make things much worse.
I mean, if Trump can be prosecuted for asking the GA governor to behave illegally could Pelosi be prosecuted for asking the military to violate the constitution? Maybe not in this case, but you can easily imagine it going further next time and suddenly people who were working in good faith to save the system start to fear they'll end up in prison if they lose and they become part of the problem.
I think it's somewhat instructive to look to how Jefferson dealt with the Alien and Sedetion acts. Adams essentially started throwing his political enemies/critics into prison to stay in power but Jefferson didn't try and pursue some kind of punishment and that worked out pretty well imo.
Did Adams break any laws, though? I hate to cavil about analogies but without any lawbreaking by Adams the case doesn’t seem apposite.
I do not see Jan 6 as very much related to the Linz problem. There have been various periods of non-trifecta government or a Congress/President divide with out that posing much of a problem.
And the reason given for US exceptionalism does not seen to be the absence of "ideologically" aligned parties. We still don't have ideologically aligned parties. Most issues are just historically coded Red tribe Blue tribe. There is a tincture of redistribution for the rich among Republicans but most issues are just pure tribe.
But is “tribe” that different from ideology? The Republican and Democratic agendas aren’t randomly distributed; they’re in line with the agendas of right- and left-wing parties, respectively, the world over. That’s different from, say, the pre-Civil War era, when Northern Democrats and Northern Whigs shared some common interests that Southern Democrats and Southern Whigs didn’t share, even with their fellow party members.
I think tribalism is different from ideology. I see a lot of people for whom partisan politics seems to their moral schema, and ideology seems subject to whatever the day requires. Ideology, to me, points to a belief that stands outside the vicissitudes of today’s news cycle.
They may well be different, but for the purposes of Linz’s thesis I’m not sure those differences matter much. As I understand Matt’s summary of Linz, constitutional hardball is disincentivized when political factions are formed among many different axes, not just party. When the parties are perfectly sorted (so that the farthest-left Republican is to the right of the farthest-right Democrat, there’s little upside to compromise and cooperation, and I think that’s true whether or not the sorting is properly “ideological” or more cultural.
Well said, Thomas.
With the benefit of hindsight the only person in a position of leadership who comes out of this sorry fiasco looking good was Nancy Pelosi. Who is now retired. Thank god I still have a British passport... oh wait the UK political system is also in chaos! Tell me again post-Brexit and post-Boris and post-Liz-Truss how great parliamentary democracy is supposed to be again? :)