But our Constitution has at least one radical feature: It isn’t designed for a society with economic inequality.
.. Our Constitution was not built for a country with so much wealth concentrated at the very top nor for the threats that invariably accompany it: oligarchs and populist demagogues.
.. From the ancient Greeks to the American founders, statesmen and political philosophers were obsessed with the problem of economic inequality. Unequal societies were subject to constant strife — even revolution. The rich would tyrannize the poor, and the poor would revolt against the rich.
.. The solution was to build economic class right into the structure of government. In England, for example, the structure of government balanced lords and commoners. In ancient Rome, there was the patrician Senate for the wealthy, and the Tribune of the Plebeians for everyone else. We can think of these as class-warfare constitutions: Each class has a share in governing, and a check on the other. Those checks prevent oligarchy on the one hand and a tyranny founded on populist demagogy on the other.
.. Our founding charter doesn’t have structural checks and balances between economic classes: not between rich and poor, and certainly not between corporate interests and ordinary workers. This was a radical change in the history of constitutional government.
And it wasn’t an oversight. The founding generation knew how to write class-warfare constitutions — they even debated such proposals during the summer of 1787. But they ultimately chose a framework for government that didn’t pit class against class.
.. James Madison’s notes from the secret debates at the Philadelphia Convention show that the delegates had a hard time agreeing on how they would design such a class-based system. But part of the reason was political: They knew the American people wouldn’t agree to that kind of government.
.. Many in the founding generation believed America was exceptional because of the extraordinary degree of economic equality within the political community as they defined it.
.. Equality of property, he believed, was crucial for sustaining a republic. During the Constitutional Convention, South Carolinan Charles Pinckney said America had “a greater equality than is to be found among the people of any other country.” As long as the new nation could expand west, he thought, it would be possible to have a citizenry of independent yeoman farmers.
.. Starting more than a century ago, amid the first Gilded Age, Americans confronted rising inequality, rapid industrial change, a communications and transportation revolution and the emergence of monopolies. Populists and progressives responded by pushing for reforms that would tame the great concentrations of wealth and power that were corrupting government.
On the economic side, they invented antitrust laws and public utilities regulation, established an income tax, and fought for minimum wages. On the political side, they passed campaign finance regulations and amended the Constitution so the people would get to elect senators directly. They did these things because they knew that our republican form of government could not survive in an economically unequal society. As Theodore Roosevelt wrote, “There can be no real political democracy unless there is something approaching an economic democracy.”
Why Trump Can’t Pardon Arpaio
If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.
.. But if the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of stopping or deterring invasions of the right to liberty.
.. It has long been recognized that the greatest threat of tyranny derives from the executive branch, where the commander in chief sits, overseeing not just the military but a vast and growing network of law enforcement and regulatory agencies. Indeed, the Articles of Confederation didn’t even provide for an executive, for fear of what dangerous power he might exercise.
.. The Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.
Say No to Sheriff Joe Arpaio, Mr. Trump
The Constitution gives the president nearly unlimited power to grant clemency to people convicted of federal offenses, so Mr. Trump can pardon Mr. Arpaio. But Mr. Arpaio was an elected official who defied a federal court’s order that he stop violating people’s constitutional rights. He was found in contempt of that court. By pardoning him, Mr. Trump would show his contempt for the American court system and its only means of enforcing the law, since he would be sending a message to other officials that they may flout court orders also.
.. (Both also spent years promoting the lie that President Barack Obama was born outside the United States.).. Both men built their brands by exploiting racial resentments of white Americans. While Mr. Trump was beginning his revanchist run for the White House on the backs of Mexican “rapists,” Mr. Arpaio was terrorizing brown-skinned people across southern Arizona, sweeping them up in “saturation patrols” and holding them in what he referred to as a “concentration camp” for months at a time... It was this behavior that a federal judge in 2011 found to be unconstitutional and ordered Mr. Arpaio to stop. He refused, placing himself above the law and the Constitution that he had sworn to uphold... would also go against longstanding Justice Department policy, which calls for a waiting period of at least five years before the consideration of a pardon application and some expression of regret or remorse by the applicant. Mr. Arpaio shows no sign of remorse; to the contrary, he sees himself as the victim. “If they can go after me, they can go after anyone in this country,” he told Fox News on Wednesday. He’s right — in a nation based on the rule of law, anyone who ignores a court order, or otherwise breaks the law, may be prosecuted and convicted... What’s remarkable here is that Mr. Trump is weighing mercy for a public official who did not just violate the law, but who remains proud of doing so. The law-and-order president is cheering on an unrepentant lawbreaker. Perhaps that’s because Mr. Arpaio has always represented what Mr. Trump aspires to be: a thuggish autocrat who enforces the law as he pleases, without accountability or personal consequence.
‘Get Tough or Shut Up’: The Malicious Spirit Loose in the Land
We’ve certainly seen it on the left. Google’s recent decision to fire an employee for wrongthink is all too indicative of a progressive political culture that’s not content merely to disagree with dissenters. People in error have to be called out, investigated, shamed, and punished. The deeper you move into the ideological cocoon, the less tolerance there is for debate.
.. Bloomberg’s Megan McArdle, a sharp thinker not prone to hyperbole, wrote yesterday decrying the rise of online mobs and Internet shaming. The goal of the mob isn’t to rebut bad arguments but to destroy careers and permanently ruin reputations. She said this:
I find myself in more and more conversations that sound as if we’re living in one of the later-stage Communist regimes. Not the ones that shot people, but the ones that discovered you didn’t need to shoot dissidents, as long as you could make them pariahs — no job, no apartment, no one willing to be seen talking to them in public.
.. And often the goal isn’t so much to win the argument as it is to hurt the other person, to deter them from ever speaking about politics again.
.. But I fear that our culture is less durable than our Constitution.
.. Indeed, our culture has failed our Constitution before, most recently through the malice and groupthink of the Jim Crow South. An entire region built a system from the ground up that stood in direct defiance of not just our nation’s Founding documents but also of the Civil War–era constitutional amendments that were designed to remake the land.
.. the law of group polarization applies. I’ve written about this concept before, but it can’t be emphasized enough. Essentially, the law holds that “in a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments.” Put more simply, when like-minded people gather, their views tend to grow more extreme. Absent moderating forces, they reinforce and amplify shared views.
.. Our nation thrives in the midst of disagreement. It withers, however, in the face of unrelenting cruelty, and I fear that for now, cruelty is winning the day.