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.