Monday, February 17, 2020

Presidents' Day Questions for Ralph Hancock

[Cross-posted to By Common Consent]

Ralph Hancock, a political theorist at Brigham Young University, is a fairly notorious figure in certain tiny Mormon slivers of the internet, which I happen to partake of regularly. I never took a class from him when I was a student at BYU, but I've interacted with him, in person and online, dozens of times over the decades; we're friendly, if not necessarily good friends. Recently, Hancock made waves with a piece he published in Utah's Deseret News (a Mormon Church-owned newspaper), arguing, in reference to the recent impeachment vote, that Utah Republican Senator Mike Lee, who voted, along with every other Republican save one, to find President Trump not guilty of the impeachment charges, had acted like a true statesman; Mitt Romney, the only Republican senator to voted to convict Trump, had not. This is a position I disagree with, to no one's surprise. So this President's Day, I'd like to pose some questions for Ralph--not with any illusion that anyone's mind will be changed by voicing such questions, but because I honestly want to understand just what it is he's claiming about American statesmanship circa 2020, and why.

Ralph's short piece spends most of its length setting up a philosophical argument regarding the place and the nature of partisanship in our odd political moment, in which we (or, depending on what kind of right-wing or left-wing critique of American voting practices you prefer, "we" in scare quotes) govern ourselves through a pluralistic democratic arrangement wherein certain civic republican ideals and standards are nonetheless at least ritually given a place (the senators taking an oath to judge impartially, and not in accordance with political pressures, during an impeachment trial, for example). Ralph thinks Romney's speech explaining his impeachment vote demonstrates a poor understanding of the place of partisanship today, thus making his appeals to conscience and ethical and religious principles an annoying distraction. (He's made this argument similar to this about Romney before, charging him with failing to recognize that the "foundation" of civic virtues like "decency" and "civility"--which Romney condemned Trump for lacking, as he obviously does--are more "vulgar" virtues like "courage and loyalty," which Trump, in Ralph's view, has plenty of.) The key paragraph in this section, I think, is this one:

To take political responsibility is to reckon with the inevitable fact of partisanship. Anyone really interested in making a difference for the better for our country must recognize the need to have political friends and to beware of enemies. To recognize the reality of allies and adversaries is not to debase political action but simply to reckon with the actual partisan situation. The question is whether Sen. Romney has frivolously spent his political capital (in Utah, especially) or wisely traded it in order to make some powerful new friends in the national political arena....[I]t is hard not to question the otherworldly “profile in courage” of a political gesture that results in immediate celebrity among the great and powerful, if not among the more vulgar in Washington or in Utah.

I'd like to understand whether Ralph, who has insisted multiple times over the years that he is a strong advocate for "original constitutionalism," sees this as a necessary correction to Madison's (I agree flawed, but important and admirable all the same) claim that a properly constituted "extended republic" could effectively sideline the problem of parties (or "factions," as he put it), or whether he actually does hold with Madison, and instead simply believes that "reality of...the actual partisan situation" today requires fighting fire with fire. I'd love to learn it was the former, and thus be able to count Ralph, whatever our other political disagreements, as an advocate for pushing our system in a parliamentary direction wherein partisan divides are treated more honestly and responsibly. My suspicion, however, is that it's the latter, in which case the long theoretical case he makes in the first four paragraphs seems like so much throat-clearing.

Either way, the meat of condemnation of Romney's vote, and his praise of Lee's, comes immediately after this:

Senator Lee deftly framed his decision in the context of the larger partisan conflict over the design and purpose of our constitutional republic. For decades...progressives have worked to overcome the limitations of federalism and the separation of powers by transferring more and more power to unelected “experts” forming a virtual fourth branch of government, the bureaucracy. Trump’s alleged constitutional offense, from the standpoint of progressive or “living” constitutionalism, consists precisely in overriding the authority of expert bodies or the prevailing “inter-agency consensus.” Lee is a frank partisan of the original Constitution and a critique of its progressive reinterpretation. True solicitude for the constitution thus dictates, he concludes, not righteous indignation at the president’s use of executive power, but the defense of his Article II powers against the increasing arrogance of the fourth branch.

I would really like to understand better some of the assumptions Ralph is making here--assumptions which operate, I should note, without ever mentioning any details of the allegations about President Trump made in the articles of impeachment, thus obliging readers of Ralph's column to assume that the truth or falsehood of those allegations is irrelevant. Leaving entirely aside larger historical and theoretical debates over constitutional interpretation and the definition of "progressivism" being used here, the crucial leap I see here is the idea that the "experts" who expressed the "inter-agency consensus" against Trump's bribing or threatening or pushing of President Zelensky (presumably this is a reference to the testimony of Ambassador Gordon Sondland, Ambassador Marie Yovanovitch, Lt. Col. Alexander Vidman, and multiple others), actually constitute a unified body that seeks to operate as a "fourth branch of government," outside of the will of the executive or legislative branches That these individuals and others were actually operating within the reach of the executive branch--hence Trump's ability to fire them--complicates this assumption somewhat, especially in light of the centrality which Ralph grants to partisanship as a necessity of proper statesmanship.

While it is true that conservative stereotype of the progressive interpretation of the U.S. Constitution has involved the progressive empowerment of various agencies, boards, and other institutions within the executive branch, I have never heard it said that President Woodrow Wilson or other progressive bogeymen of the conservative imagination were empowering such agencies in order to limit presidential discretion by way of "expert consensus." On the contrary, the conservative knock against them has long been that these agencies and experts centralized power in the office of the presidency. So in what way, exactly, can executive appointees hypothetically undermining the actions of a president via expressing their critical judgment against him in impeachment testimony be understood as following through on a progressive agenda to centralize power?

I think I can imagine one way, but only one. If Ralph is a complete adherent to the theory of presidential power laid out by Attorney General William Barr, then presidential power must be understood as something that belongs not to the executive branch, but to a single person, wholly and entirely. The executive branch, under this (I think frankly ahistorical, and others agree) interpretation, then the people around the president must be understood as his partisan tools, nothing more or less. Thus, any Republican appointee of President Trump who dissents from or really is just in any way critical of Trump's actions has failed to follow their partisan role within the constitutional structure of the executive branch, and must be understood as acting independently, in alignment with those progressive forces, hiding behind their civil service protections, acting as an unelected, undemocratic force.

If this is correct, then Ralph is arguing--or at least as best as I can construct the argument--that if ours is to be a responsible constitutional democracy, it must firmly resist any kind of intra-party dissent within the executive branch, because absolute partisan unity is central to the executive (that is, the President of the United States) governing--including, I suppose, making phone calls--the way he or she chooses to, and giving the presidency wide freedom in what they choose to do holds off or at least hampers the development of an elite body of undemocratic, unelected others.  Hence, Lee is acting a statesman in voting in support of the president, and Romney, invoking an "impartial" ideal to justify his vote against the president which fails to reckon with the necessity of an executive being free from push-back from his own partisan tools, is not. Have I got this right, Ralph?

I think there are huge historical and theoretical problems with this, and I say that as someone who is entirely willing to dump on Madison, praise parliamentarianism, and join in rolling my eyes at obviously partisan individuals and organizations cloaking what they do in civic republican language. But that's not what Ralph has done here; I think he's made a different kind argument, one that I would really like to understand better, because not only does it not seem to fit the "original constitutionalism" Ralph has so long praised, but it doesn't even seem to entirely fit the conservative complaint against progressivism which so many adherents of "original constitutionalism" have long put forward. Yes, I know; Occam's Razor suggests that Ralph doesn't actually believe any of this; that's it's all motivated reasoning, same as my response, and that his column and my response here is all just so many pointless words tossed around. But noentheless I'd love to be humored, at least a little bit. Ideally I'd love to hear from Ralph himself, but if anyone would like to explain to me what I've misunderstood about his claims, I can't think of a better way to honor Presidents' Day than to argue about it all.

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