The Sunshine the Constitution Craves: Alec Baldwin, Meryl Streep, Protesters, and Boycotters Should Not Stop Now

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Posted in: Constitutional Law

There are some who have been pleading for “unity” during this week when Donald Trump ascends to the United States Presidency. Whether they are sincerely concerned about the current climate of “divisiveness” or support Trump, what they are really suggesting is that this should be a no-protest week.  Yet, this is not a point that furthers core United States constitutional values. Instead, the ridicule, protests, and boycotts mirror precisely what our thriving constitutional order demands.

To be sure, the opponents to the rising political order in Washington are exercising protected speech and so this entire discussion could be limited to First Amendment principles, but in this column I will focus instead on the way in which the Framers constructed representation, because it lays the groundwork for the importance of the protests nationwide. That framework needs these lively and very public responses to Trump. They shine sunlight on a leader who to date prefers private meetings and unilateral twitter volleys.

The Structure of U.S. Representation

There is a mythology that has waxed and waned in the United States over the years that the “people rule.” They don’t. The Framers, and especially the most influential and intelligent–James Madison and James Wilson–adamantly opposed the direct democracy that would have handed the people the power to make governing decisions. While the people are the ultimate source of authority, they do not themselves make public policy during the term of representation. The people’s role can be broken down into two elements.

First, the people choose our elected representatives including the president (though their role is mediated here by the Electoral College) and members of Congress; that is their moment of greatest power. But once the votes are counted and a winner named and installed in office, that winner has the capacity to rule without obtaining permission from the people on any particular issue. There was consideration of a people’s “right to instruct” representatives during the Constitutional Convention, but it went nowhere. Instead, the Constitution creates a situation where during the term of representation, the people have delegated all of their governance power to the president and Congress. That is an extraordinary hand-off of power. It means a voter is largely impotent when it comes to directing public policy or law; no voter can place a call to the President and order him to reverse a decision. Still, this is not the full sum of the people’s power during the term of representation.

Second, the people have a right to judge and communicate with their elected representatives. Through various mechanisms that have matured with time, the system creates a two-way communication process that requires a certain amount of transparency in government while it gives the people the place and power to praise, vent, and criticize.  No elected representative can avoid this dialogue altogether, and any who try find that the people just become louder and more insistent. You may ask: what is the purpose of this dialogue? It is to check leaders whose policies disappoint or offend and to encourage those whose policies are viewed as positive. Although the people cannot instruct their elected leaders, they can judge them, and this power to judge the powerful has become a core American value and entitlement. Without the people’s commentary in word or act, the power handed to the president and the Congress following an election is unchecked and inherently dangerous.

Unity Does Not Mandate Uniformity

The message behind the calls for “unity” on the week of Trump’s inauguration have been a demand to silence the protesters, to reverse the boycotters led by John Lewis, and to ignore the dissenting artists, whether actors, writers, or comedians.  That so-called “unity” is in fact a demand for uniformity. In turn, uniformity is what destroys the success of the United States constitutional scheme. Uniformity means elected representatives with all their power don’t have anyone second-guessing their plans, policies, or preferences, as the voters stand politely to the side. They aren’t forced to second-guess themselves, but rather they are permitted to float in a lovely bubble made of self-reflection.  When you live in such a safe bubble, the people are little more than an inconsequential annoyance, and the ones who disagree with you worthy of being ignored.

There can be plenty of old-fashioned American “unity” though with no uniformity. Everyone who is protesting the Trump presidency or his cabinet picks or his policies is united in a system with the Trump supporters themselves that encourages all to speak and to criticize or praise whoever is in power.  The way this two-way system works is that the more power you have, the more you will attract and in fact deserve searing analysis and the more you will need to learn to listen. So long as we are united in this system of election followed by healthy and lively dialogue, the Constitution’s system and the people’s role in particular are preserved.

Think about the alternatives. Were the great civil rights leader Rep. John Lewis, who played Donald Trump like a fiddle this week in the context of this constitutional symphony, to abandon his boycott, he would be ditching the checking function that is his job as a voter and as a member of a competing branch of government. Were the many protesters in Washington to suddenly throw up their hands and declare this a week when we all must at least appear to agree, they would undercut what makes elected representatives with all their potentially corruptible power accountable. And if Saturday Night Live, Alec Baldwin, Meryl Streep, or any other artist were to agree to sing kumbaya this week of all weeks instead of skewering the rising power in Washington, they would be letting the whole system down. So protesters, boycotters, and subversive commentators, stay the course this week.

Trump’s signal failure in this great constitutional system so far is his adolescent choice of lobbing random and thoughtless tweet attacks at anyone who criticizes him and his equally immature handling of his first press conference in months.  For this constitutional system to work to the greater good, there must be a dialogue–a public, dialectical dialogue–between the temporarily governing and the governed, and that requires two actions for each participant: speak and listen. Or, better yet, listen and then speak.  It is not good enough for a president-elect to grant a series of audiences with hand-chosen individuals summoned to his New York city castle. That is not a public dialogue.. It is the making of a monarchy.

Trump does not seem able to listen to critics, but rather prefers to hold his hands over his ears while pelting out lame “gotcha” insults. The necessary dialogue that makes our constitutional system great demands louder and more insistent dialogue right back at him.  The latter is the people’s duty, not merely a privilege.

  • ingeborg oppenheimer

    just want to say that i like the new format – giving readers the opportunity to go easily to past articles that they may have missed.

  • KD

    Well stated. The irony, rather, the hypocrisy, is that had he lost the election, Trump would be leading his hoard with a barrage of insulting and demeaning tweets of how “crooked Hillary” somehow stole the election from him, while thousands of his faithful would be demonstrating the inauguration with signs and shouts of “Lock her up”.

    But if there is any “good” to come of the election, it is that perhaps there will now (hopefully) be a more thorough investigation into Russian involvement in the outcome of the election, and ties between Trump and his inner circle and Putin and his. It will be up to the press and persistent journalists to keep the searchlight on this extremely important and distressing issue which must be viewed as an existential threat to our democracy and our national security. We definitely will not see it come from our own intelligence and security apparatus once Trump assumes what appears at this point to be unfettered power, and installs those under his complete control to take over any ongoing investigations already started (albeit a little too late.)

    One must wonder why it wasn’t more obvious to the press if not the voting public, at least by the time it reached the point Guiliani was pre-announcing on Fox news of the impending email leaks as being the next trick “up their sleeves”. The connection between Guiliani and others in the Trump campaign, and Russia is, or at least should be, one of what will likely be many of the next big stories to come out of this historical American travesty. It will then be up to American voters to decide during the midterms, what to do with the informationas we certainly can’t expect a Trump administration to do anything about it once journalists start pulling harder on the thread.

    Of course, in 2 years, much of the damage caused by an unrestrained Trump presidency and an unchecked congress will be irrevocable. We are indeed navigating blindly through uncharted swamp the likes of which this great nation has never seen. Perhaps this will energize those who sat out the election out of frustration or disappointment over Sanders, or simply “took a chance” on Trump, even though he did not align with their own morals and values. The bigger question for this country is exactly whose moral values does he align with?

  • Forseti

    Marcia
    You have not defined our citizen rights totally or correctly. We have the right of recall. Nor do you chastise the stupidity of those that call for a popular vote which would enable a very few states to determine the national direction. We are a Nation of Sovereign States joined in a National Union. We are a representative republic. A States obligation to the Union, the United States of America, in exchange for participation and protection is to adhere to the Constitution and Federal Law.

    Nor do you criticize the thoughtless that suggest California secede from the U.S. Goodbye Tourism, and hello to the realities of separatism: Military, etc. This to a state that is already bankrupt financially, morally, and ethically. One that just discovered a billion dollar + ‘accounting error’ adding to their two billion dollar deficit.

    In your criticisms of Trump and innuendoes you seem to over look the problem with the justice system that creates law rather than enforce law. You seem to ignore the overreach of President Obama in his executive orders and his blatant failure to uphold law. With any other president, these could be impeachable offenses. You seem to overlook his propensity for absolute government control over our wealth, our health, and our property. A true communist direction by any definition.

    So rather than define the problems of the past where we have clear vision, you seem to peer into your cloudy crystal ball and tell us the future of a Trump Presidency. Shame on you. We know what Obama did and is, we have yet to see what Trump can do.

  • Forseti

    The problem with articles such as yours, you impose a ‘Plato’s Cave’ implementation of sorts. You tell people what to believe rather than make them think by asking questions. Of course all the fake news is and misinformation such as you have presented is like the shadows on the wall of Plato’s Cave. As a ‘respected’ academic, your obligation to society is to enable them to think and draw intelligent conclusions. You just cast shadows, your thoughts, on the wall for people to see as if it were universal truth and prevent them from intellectual thought and defining their own reality. As a learned academic, you should do better.

  • Uma Devi

    Being in a democracy ..these type of violent fluctuations are predictable..good or bad..This is the beauty of democracy..Going through history we can find Trumps emerging from democracy…remember..Hitler was elected..No military Coupe there..Then being in a democracy ..what you American can do is to see to that ..he rule country through democratic dictum’s..Make him obey the rules of the land..Believe it or not..all your presidents were ..till now..like people who wash their face with oil..instead of water..At least he is washing his face..not with oil..unfortunately with acid..

  • Victor Grunden

    I have no problem with protests or private individuals having government records kept from prying eyes. I do have a problem with people who choose to enter public life yet want the government keeping confirmed information from the public. The American form of government depends upon an informed citizenry on election day when they have the most direct power. When protesters follow leaders that ask the government to keep records sealed and/or have to be paid, one must question the legitimacy of such protesters questioning the legitimacy of a duly elected office holder. Public safety laws also limit the right to “safely and legally assemble”. Presidential inaugurations are not akin to a sleepy Southern town with a host of public ordinances.

  • XaurreauX

    In other words, we’re screwed.

  • G.N.M.

    I am truly enjoying the whining and protesting the liberals are engaging in after Mr. Trump became president. It’s just fun. They curse, swear, litter, complain, scream, rant, rave and engage in violence. It just goes to show what they really are.
    Personally, I don’t like Trump very much. I just hoped that Hillary wouldn’t win. Being a conservative in California, my vote was worthless any way. Thank God for the wisdom of the Founders any the clever design of the Electoral College.

    Rave on.