The Probability of Despotism Is Not Zero
A disquieting Wall Street Journal column reminds us of what classical liberals and libertarians have been repeating: the state, however useful it may be, is very dangerous. With hindsight, it is surprising how so few people have taken these voices seriously, perhaps because the lobster has been boiled quite slowly. The problem is not unique to the United States but may be especially dangerous here given the enormous extent of the President’s power. Congress can be happily gridlocked; the president will not be (except possibly in his own mind, which doesn’t reduce the danger).
The WSJ columnist focuses on the Insurrection Act, last amended after the Civil War, and which Donald Trump thought of invoking during his first term (William A. Galston, “Donald Trump’s Insurrection Act Gambit,” Wall Street Journal, November 15, 2023). The columnist writes about that law:
Its scope, which is both broad and vague, gives the president enormous discretionary power. Key terms—insurrection, rebellion and domestic violence—aren’t defined. As an analysis by the Brennan Center shows, the president alone may decide whether these prerequisites for deploying the military have been met, and the Supreme Court has said it has no authority to review the president’s decision.
To be sure, a 1932 Supreme Court decision held that courts may review the lawfulness or constitutionality of acts the military performs after it has been deployed, but in the swirl of events basic liberties may be curtailed well before the judiciary can step in.
Consider this scenario: After a divisive campaign, a presidential candidate opposed by half the country is inaugurated, and a massive protest breaks out in Washington. While observers and authorities report that the demonstrators are mostly peaceful, the new president disagrees, federalizes the National Guards of Maryland, Virginia and the District of Columbia, and deploys them with orders to suppress the protests.
Other scenarios are possible. Trump has shown that he has no clear idea of the desirable limits to government power. The packing of the large police bureaucracies in DC with yes-men, as his myrmidons are now planning for a possible second term, would give him much more power than most Americans can imagine.
To those of us (I am not casting the first stone) who have been tempted to side with “the people” against the conceited and legislation-happy establishment, the surprise has a second dimension: the next blow to individual liberty may well come not from these people but from the mob excited by a demagogue. Lots of ordinary people, particularly in America, have kept a sense of liberty and decency. But a large number have been applauding a despot-to-be who has no political philosophy, no intelligence of this world, and is nothing but a rabble-rouser narcissist.
One-third of American voters think that the 2020 election was stolen just because he says so. He once boasted that he could shoot somebody on Fifth Avenue and his followers would remain loyal to him (it is worth watching the 15-second video). He hopes that his future Department of Justice and FBI would too. Fortunately, he has lately been meeting some resistance from the judicial institutions of this country, but he understands that his interest is to politicize them further.
This phenomenon of the betrayal of liberty by the common people for the comfort of following demagogues (after the betrayal of the establishment for the purpose of maintaining their control) reminds us of a remark by James Buchanan in a slightly different but related context (“Afraid to Be Free: Dependency As Desideratum,” Public Choice ):
The thirst or desire for freedom, and responsibility, is perhaps not nearly so universal as so many post-Enlightenment philosophers have assumed.
In his contemporaneous book, Why I, Too, Am Not a Conservative, Buchanan showed more faith (the word is his) in the future of liberalism.
Neither Donald Trump nor Joe Biden ever tried, or thought of trying, or could probably try to think of trying, to abolish or seriously limit laws such as the Insurrection Act. They share the intuition that tyranny dwells on the other side of an arbitrary political-partisan line. Other “democratic” states in the world face similar dangers in different institutional contexts, but many would arguably follow America in despotism. (I put “democracy” in scare quotes because many seem to confuse it with competitive authoritarianism.) Not much imagination is necessary to see what could happen next.
Institutions, which are sets of formal or informal rules, have their logic. Studying that logic has been a major enterprise of political economy. Without the idea of constraining Leviathan, prospects are dark. History is replete with examples, often in sophisticated societies.
The reader interested in this topic might enjoy my review of the collection of articles assembled by Cass Sunstein in Can It Happen Here? Authoritarianism in America (2018): “You Didn’t See It Coming,” Regulation, Winter 2018-2019, pp. 54-57. Having just reread it, I found a paragraph that, if I had not written it, I would wish I had; please pardon my self-congratulation. About the chapter by New York University law professor Stephen Holmes, I wrote:
Holmes exemplifies the statist elite suddenly surprised that the vast power they advocated for, and granted to, the state is being used by politicians not of their own tribe. They don’t realize that tyranny, not nirvana, is what happens when people put all their hopes in government, as Anthony de Jasay argues (notably in his 1985 book The State). How can these elites complain so much about government’s actions and yet not question its power? They had taken over the government and were pushing their brand of soft fascism when Trump displaced them.