Biden's "Soul of the Nation" Speech, Take 2

[This is a rewritten version of a post of mine from two weeks ago, which this morning appears on the website Current. My thanks to Eric Miller for editing and focusing my ramblings down, kind of in the way I hoped to do for Biden's necessary but definitely-not-first-rate speech.]

President Biden never used the word fascism in his “Soul of the Nation” speech in Philadelphia on September 1. But considering the outrage many supporters of Donald Trump expressed at the speech, particularly focusing on its (poorly chosen) staging and imagery, perhaps he might as well have. At a fundraiser he had already expressed his opinion that “the entire philosophy” motivating Trump and those Biden called “MAGA Republicans” is “like semi-fascism,” and considering the way Trump’s cult of personality operates, that label, as John Fea recently pointed out, makes a certain amount of sense. As for those who denounced the speech as divisive and confused (some of them saying so even before the speech was actually given), they likely would have responded that way no matter what terminology Biden had used to describe the authoritarian threat posed by Trump and his followers.

My own guess is that Biden avoided formally using the word “fascism” because of the recent short seminar he convened to discuss threats to democracy, which no doubt included many reminders of the complex crosscurrents in American history. But given the unfortunately rambling nature of Biden’s speech, the suspicion of some of Biden’s opponents that he simply forgot to use an f-word he clearly believes applies to them is plausible. 

What isn’t plausible, though, is dismissing Biden’s specific accusations, whatever label they did or did not invoke, as logically incoherent. On the contrary, they build upon each other well.

Biden made three key claims: (1) “MAGA Republicans do not respect the Constitution.” (2) “They do not believe in the rule of law.” (3) “They do not recognize the will of the people.” 

Given the social media-induced ignorance of our moment, the substantive accuracy of the events and actions to which these claims refer could be endlessly contested. And it’s true that Biden’s unnecessarily partisan praise for various Democratic legislative priorities probably incentivized such contestation. Still, in terms of political theory, his claims fit together well. They effectively situate Biden’s own position regarding these threats to our democracy. 

First, consider the matter of “respecting the Constitution.” Biden’s critics are quick to turn this accusation against him, most recently for his constitutionally debatable student loan forgiveness order, insisting that Biden’s actions show a presumptuous level of Constitutional disregard. In response, one can point to the anti-democratic stance Trump and his supporters regularly took when asserting that while president Trump could legitimately claim near-total executive authority. 

But maybe it’s best to back up a pace or two and pose another question: What does it mean to “respect” the Constitution, anyway? 

It can’t simply mean adhering to its specific text. In his 1816 letter to Samuel Kercheval, Thomas Jefferson himself mocked those who “look at Constitutions with sanctimonious reverence, and deem them, like the ark of the covenant, too sacred to be touched.” Jefferson suggested instead that “laws and institutions must go hand in hand with the progress of the human mind.” In today’s words, that might be called a “living” or a “progressive” understanding of the Constitution. Presumably the overwhelming majority of MAGA Republicans would denounce such a position, while many in President Biden’s party would embrace it. But if you accept that interpretations of the Constitution can and should change, what are the grounds for a charge of disrespect?

Thinkers like Sheldon Wolin provide some guidance here. Wolin saw government constitutions in what might be called “performative” terms, as repositories of the democratic tension between, on the one hand, a contractual basis for the ordering of the people who live in a particular place and have some kind of imagined community with each other (i.e., a demos), and, on the other, the practices, rituals, and norms that appropriately embody the operational details of that contract. This means that our understanding of what counts as an acceptable constitutional performance—from issuing executive orders to accepting the certification of Electoral College votes—is not necessarily identical with the legal specifics of the contract itself. Which is why saying that something is “legal but unconstitutional”—or the reverse—is not at all incoherent. It also is why getting hung up on fine constitutional distinctions when confronted with a chief executive and party leader whose performance is explicitly contemptuous of the law is missing the forest for the trees.

Far from “believing in the rule of law,” consider how cavalier Trump has always been about following the rules. This is not just clearly evidenced by his entire career as a liar and a grifter but has been explicitly demonstrated most recently by everything the FBI has compiled about his theft of classified documents, which is just the latest controversy du jour for him. It’s true that cynicism about the fungibility of the law once lawyers get involved is hard to avoid. But that frustration should not be allowed to mask the Nixon-level “when the president does it, it is not illegal” hubris that was on display throughout the Trump administration and that—with Trump’s talk of pardoning insurrectionists and presidential reinstatement—he continues to traffic in. Biden’s claims were, if anything, not emphatic enough in calling out the MAGA Republican core. To actually not think that today, post-January 6, a portion of the Trumpist Republican party has become accepting of a degree of outright criminality, as Representative Liz Cheney and other (not nearly enough) Republicans have warned, defies comprehension. One can take issue with the pathologies that an over-reliance on the law produces and yet not drink so much “own-the-libs” Kool-Aid as to forget that the admittedly bourgeois, procedural ends the law often serves—in this case, the smooth transfer of power—are extremely valuable and worth preserving.

Obviously election laws are key here, which is where “recognizing the will of the people” comes in. Yes, the Electoral College, both in its original design and its subsequent jerry-rigging over the centuries, is a frustrating mess, and certainly not anything that can be said to represent the people’s will, at least not since aristocratic notions of a republican common good, vouchsafed by local state-appointed elites, were surpassed by the democratic appeal of pluralistic party politics in the first decades of the nineteenth century. But nonetheless, given the Electoral College’s current place in America’s electoral system, citizens with any respect for the representative process—something Trump, with his frivolous lawsuits and harassing post-election phone calls to election officials and state governors, purposefully tried to suppress—should be obliged to acknowledge the political checks and balances that have been woven, however imperfectly, into its procedures. In January 2021, 147 Republicans did not, to their shame; that many apparently feel the same today is reason enough for Biden’s speech. 

You don’t need a carefully constructed definition of fascism with an accompanying media campaign to follow the thread of Biden’s accusations against Donald Trump and his most deluded followers. There have always been, and always will be, those who take issue with aspects of America’s still imperfect representative democracy from a variety of ideological directions. But a movement of millions challenging the legitimacy of American elections in such Constitutionally disrespectful, legally dismissive, and democratically destructive ways is something that, thankfully, we have not often had to face. We are facing it now. However stumblingly President Biden sometimes makes his points, he’s not wrong at all.