When at Times the Mob Is Swayed

by Burt Neuborne

  Like Hitler, Trump aggressively uses our nation’s political and economic power to favor selected American corporate interests at the expense of foreign competitors and the environment, even at the price of international conflict, massive inefficiency, and irreversible pollution.

  Hitler seized the coal-producing Ruhr. Trump has showered benefits on the nation’s carbon-based-energy producers, vitiating years of careful protection of the environment, opening the coastline to energy drilling, and eliminating protection of huge swaths of public land from commercial exploitation.

  Hitler’s version of fascism shifted immense power—both political and financial—to the leaders of German industry. In fact, Hitler governed Germany largely through corporate executives. Trump has also presided over a massive empowerment—and enrichment—of corporate America. Under Trump, large corporations exercise immense political power while receiving huge economic windfalls and freedom from regulations designed to protect consumers and the labor force.

  Hitler despised the German labor movement, eventually destroying it and imprisoning its leaders. Trump also detests strong unions, seeking to undermine any effort to interfere with the prerogatives of management.

  Hitler’s foreign policy rejected international cooperation in favor of military and economic coercion, culminating in the annexation of the Sudetenland, the phony Hitler-Stalin nonaggression pact, the invasion of Czechoslovakia, and the horrors of global war. Like Hitler, Trump is deeply hostile to multinational cooperation, withdrawing from the Trans-Pacific Partnership, the Paris Agreement on climate change, and the nuclear agreement with Iran, threatening to withdraw from the North American Free Trade Agreement, abandoning our Kurdish allies in Syria, and even going so far as to question the value of NATO, our post–World War II military alliance with European democracies against Soviet expansionism.

  Instead, Trump has abused his national security powers to impose tariffs on goods from China, Japan, Europe, Canada, and Mexico. Predictably, each nation has retaliated by imposing reciprocal tariffs on goods produced in the United States, creating massive dislocations in affected industries.

  Hitler attacked the legitimacy of democracy itself, purging the voting rolls, challenging the integrity of the electoral process, and questioning the ability of democratic government to solve Germany’s problems. He sabotaged the March 1933 legislative elections, barring opposition candidates and unleashing mob violence in the streets, a tactic he repeatedly used to eliminate political opposition. In the end, Hitler turned Germany into a mobocracy, governed by fear and violence.

  Trump has also attacked the democratic process, declining to agree to be bound by the outcome of the 2016 elections when he thought he might lose, supporting a massive purge of the voting rolls allegedly designed to avoid (nonexistent) fraud, championing measures that make it harder to vote, tolerating—if not fomenting—massive Russian interference in the 2016 presidential election, encouraging mob violence at rallies, darkly hinting at violence if Democrats hold power, and constantly casting doubt on the legitimacy of elections unless he wins.

  Trump may even have mimicked Hitler in attacking democracy frontally by criminally colluding with Russia in influencing the outcome of the 2016 presidential election and then committing felonies by seeking to cover up his crimes.

  Hitler politicized and eventually destroyed the vaunted German justice system. Trump also seeks to turn the American justice system into his personal playground. He fired James Comey, a Republican appointed in 2013 as FBI director by President Obama, for refusing to swear an oath of personal loyalty to the president; excoriated and then sacked Jeff Sessions, his handpicked attorney general, for failing to suppress the criminal investigation into the Trump’s possible collusion with Russia in influencing the 2016 elections; repeatedly threatened to dismiss Robert Mueller, the special counsel carrying out the investigation; and called again and again for the jailing of Hillary Clinton, his 2016 opponent, leading crowds in chants of “lock her up.”

  Like Hitler, Trump threatens the judicially enforced rule of law, bitterly attacking American judges who rule against him, slyly praising Andrew Jackson for defying the Supreme Court, and abusing the pardon power by pardoning an Arizona sheriff found guilty of criminal contempt of court for disobeying federal court orders to cease violating the Constitution.

  Hitler imposed an oath of personal loyalty on all German judges. Many of Trump’s judicial nominees similarly appear to have been selected not for their legal acumen, but for their strongly pro-Trump political views.

  Hitler demanded—and was granted—deference from his judges. Trump’s already gotten enough deference from five Republican justices to uphold a largely Muslim travel ban that is the epitome of racial and religious bigotry.

  Like Hitler, Trump glorifies the military, staffing his administration with layers of retired generals (who eventually were fired or resigned), relaxing control over the use of lethal force by the military and the police, and demanding a massive increase in military spending. But there is one difference. At least Hitler served with some distinction in World War I. Trump, a cowardly phony, parlayed questionable medical claims about alleged bone spurs in his heel into five consecutive medical exemptions from the Vietnam-era draft, forcing some poor kid to fight and maybe even die in his place. Isn’t it lucky that Trump’s chronic bone spurs miraculously healed once the draft ended, just in time for him to take up golf and tennis?

  Like Hitler, Trump openly derides the nation’s great cities, especially the people of color and immigrants who make up a significant portion of urban America, repeatedly targeting his racist message to his predominantly white political base in the overrepresented rural “heartland.”

  Like Hitler, Trump has intensified a disturbing trend that predated his administration of governing unilaterally, largely through executive orders or proclamations. Trump imposed his predominantly Muslim travel ban unilaterally, without legislative cooperation or discussion with immigration officials. Trump’s tariffs almost all flow from unilateral decisions that go far beyond any statutory authorization. He announced his ban on transgender participation in the military in a tweet, not even bothering with an executive order. He has aggressively unraveled environmental and health care safety nets by unilateral executive action. Until blocked by two lower federal courts, he tried to unilaterally end the protection for Dreamers, incorrectly branding President Obama’s unilateral efforts to shield them from deportation as unlawful.

  Like Hitler, Trump claims the power to overrule Congress and govern all by himself. In 1933, Hitler used the pretext of the Reichstag fire to declare a national emergency and seize the power to govern unilaterally. The German judiciary did nothing to stop him. German democracy never recovered. When Congress refused to give Trump funds for his border wall even after he threw a tantrum and shut down the government, Trump, like Hitler, declared a phony national emergency and claimed the power to ignore Congress.

  Don’t count on the Supreme Court to stop him. Five justices gave the game away on the President’s unilateral travel ban. They just might do the same thing on the border wall.

  Hitler disdained clear lines of political authority, preferring to set power centers against each other, with Hitler eventually intervening to resolve disputes. Trump also resists orderly lines of governing authority, fostering a chaotic set of competing institutional and personal power centers vying for Trump’s approval.

  Finally, Hitler propounded a misogynistic, stereotypical view of women, valuing them exclusively as wives and mothers while excluding them from full participation in German political and economic life. Trump may be the most openly misogynist figure ever to hold high political office in the United States, crassly treating women as sexual objects, using nondisclosure agreements and violating campaign finance laws to shield his sexual misbehavior from public knowledge, attacking women who come forward to accuse men of abusive behavior, undermining reproductive freedom, and opposing efforts by women to achieve ec
onomic equality.

  What are we to make of such parallels? Possibly very little.

  As I’ve suggested, they may simply reflect the inherent nature of populist politics. When you scratch a successful populist movement, like Mussolini’s Italy, Perón’s Argentina, or Huey Long’s Louisiana, there’s always a charismatic leader, a disaffected mass, an adroit use of communications media, economic insecurity, racial or religious fault lines, xenophobia, a turn to violence, and a search for scapegoats.

  Even if all that Trump is doing is marching to that populist drum, he is unleashing forces that imperil the fragile fabric of a multicultural democracy. But I think there’s more. The parallels—especially the links between Lügenpresse and “fake news,” and promises to restore German greatness and “Make America Great Again”—are just too close to be coincidental. I’m pretty sure that Trump’s bedside study of Hitler’s speeches—especially the use of personal invective, white racism, and xenophobia—has shaped the way Trump seeks to gain political power in our time. I don’t for a moment believe that Trump admires what Hitler eventually did with his power, but he damn well admires—and is successfully copying—the way that Hitler got it.

  And that’s the problem. Hitler wasn’t Hitler until he succeeded in talking enough Germans into giving him unchecked power. Then it was too late. That’s why Trump is so dangerous. If he talks enough Americans into trading the values of toleration and democracy for a Trumpist potion of white supremacy, misogyny, militarism, and xenophobia, it’s impossible to predict what might happen next. That’s why repair of both sets of constitutional brakes is so important.

  The brakes may have to withstand a runaway train the likes of which this country has never seen.

  3

  Would You Buy This House?

  Repairing the Cracks in Democracy’s Foundation

  On November 9, 1989, when the Berlin Wall finally came down and the Soviet empire imploded, democracy emerged as the victor in a bitter, three-cornered struggle for worldwide supremacy with Nazi fascism and Soviet communism. At that luminous moment, savoring victory in the Cold War and watching jubilant German crowds dismantling the hated wall, democracy seemed the best of all possible political systems in the best of all possible worlds.

  Worldwide, the number of countries aspiring to democratic rule peaked at historic levels. In the United States, academics and politicians across the political spectrum competed in delivering smug, self-congratulatory orations celebrating the merits of American democracy. I confess that I delivered more than my share.

  After the well-earned burst of democratic triumphalism, reality should have set in. Many of us realized that the task of defending democracy against totalitarianisms of the left or right had been the easy part of the job, precisely because the worst version of democratic governance was—and is—clearly preferable to the best version of government that the Nazis or the Soviets could provide. Understandably, in our zeal to defend democracy against totalitarian challenges from the left and right, we had tended to downplay and even ignore democracy’s warts. Once democracy became the only plausible game in town, though, the really hard work should have begun—the job of building and operating versions of democracy that would earn the confidence and commitment of a free people.

  Sadly, the United States—indeed, the entire democratic world—has not done a good job of it. Wherever you look, there is an uneasy feeling that democracy is struggling, failing to fulfill its promise of providing governance that is responsive to the people, supportive of human dignity, and both fair and effective in dealing with society’s needs. Instead, throughout the democratic world, including the United States, many millions of voters are disillusioned with a political system that appears to cater to the rich and powerful, responds primarily to organized special interests, ignores the common good, and routinely generates seemingly unbridgeable partisan divides.

  I suspect that at the core of the decision by millions of Americans to elect a deeply flawed man as distrusted and disliked as Donald Trump to be our forty-fifth president was a misguided hope that he would sweep away the detritus of what many perceived as a floundering democracy and replace it with something better. However foolish it was to view a snake-oil salesman as a quick fix for a flawed democracy, when millions of ordinary folks begin to lose confidence in their democracy’s ability to cope fairly and effectively with the nation’s difficult problems, it’s all too easy for a charismatic phony to persuade them to give up and to start over with him.

  Don’t get me wrong. I remain convinced that even a flawed democracy is preferable to totalitarianisms of the left or right, or to currently trendy alternatives like (1) Putin’s version of populist authoritarianism (which may well be Trump’s preferred mode as well), where a popular, powerful autocrat rules for extended periods of time pursuant to a series of rigged elections until being overthrown; (2) Adam Smith’s free-market anarchy (often favored by the rich and powerful), where government, even when fairly elected, is rendered so weak that, to quote Thucydides, the rich “do what they will” and the poor “suffer what they must”; or (3) self-appointed deliberative assemblies (often favored by leftist elites), where self-selected so-called experts (like the vanguard of the proletariat) purport to speak for everyone else.

  We cannot, however, continue to close our eyes and ignore American democracy’s very real shortcomings. By failing to confront the weaknesses in our democratic system, we sentence ourselves to a parade of demagogic charlatans who will feast on our political discontent. In the end, the only enduring way to resist once and future Trumps of the left or right is to confront the unsightly cracks in the foundation of American democracy and be willing to get our hands dirty in repairing them. Especially the widening cracks in the Founders’ self-regulating electoral braking system.

  Some stuff probably can’t be fixed, at least not without an entirely new Constitution. As I’ve lamented, not even a constitutional amendment can cure the radically unrepresentative United States Senate, where Wyoming has a sixty-five-to-one apportionment advantage over California. I have two long-shot solutions for the Senate, but don’t bet your house on either one. First, the Senate rules could be amended to provide for weighted voting, giving each state an equal number of senators, but weighting the impact of their respective votes to reflect the number of people they represent. So, Wyoming’s two senators would cast votes worth 600,000 units and California’s two senators would cast votes worth 40 million units. It would take votes representing a majority of the population to enact legislation or confirm Supreme Court justices.

  Changing the Senate voting rules would be relatively easy. It would take a simple majority of the Senate. In 2016, Republicans changed the Senate rules governing the confirmation of Supreme Court justices by a simple majority vote, just as the Democrats had earlier changed the filibuster rules governing Senate confirmation of Presidential appointments to executive positions and the lower federal courts. The real problem is whether such a change, which would leave California with much more actual voting power in the Senate than Wyoming, would violate the constitutional mandate to give each state “equal suffrage” in the Senate.

  The strongest legal argument in favor of such a change is the longtime existence of supermajority rules, such as the filibuster, that give forty-one senators voting against something a greater proportional vote than fifty-nine senators voting in favor. If, so the argument goes, filibusters do not violate “equal suffrage,” neither would weighted voting. The problem is that filibusters don’t permanently alter voting power on a state-by-state basis. A senator from the same state can be both helped or hurt by a filibuster. My weighted voting proposal is a one-way street. I award it an A for academic ingenuity, and a D for practical significance.

  A more defensible long shot would be the enactment of a congressional statute providing that when the population of an extremely populous state reaches a multiple of the population of the least populous state (let’s say twenty to one), the lar
ger state is automatically given the option, exercisable by the state legislature, to divide into two or more states, with the boundary between the two new states to be drawn by the state legislature.

  Under current population figures, that would give California, Florida, Texas, New York, Pennsylvania, and Illinois, each with a population exceeding twelve million (twenty times the current population of Wyoming), the option of doubling the number of senators representing their radically underrepresented populations. If the ratio was set at ten to one, nineteen states would qualify for division. As I’ve noted, the ratio at the Founding between Delaware, the least populous state, and Virginia, the most populous, was approximately six and a half to one if you exclude non-voting enslaved people, or twelve to one if you include them. So all such a statute would do is bring us closer to the Founders’ understanding of the malapportioned Senate.

  Unlike my weighted voting scheme, there is no constitutional objection to congressional consent to granting states an option to go forth and multiply. Vermont, Kentucky, Tennessee, Maine, and West Virginia were all formed from the territory of an existing state. All that is needed is state permission and congressional assent. Nothing prevents Congress from granting a blanket permission designed to enhance the democratic legitimacy of the Senate. That would leave it up to the state legislatures. Why would they turn down two more Senate seats?

  Once a state was divided, the resulting two new states could agree to enter into regional compacts maintaining uniform bi-state programs, so the only thing that would change would be a doubling of the residents’ voting power in the Senate. If the Democrats win the presidency and control of both houses of Congress in 2020, the enabling legislation could be enacted on January 21, 2020—turning the United States Senate into something roughly resembling a representative organ again.