The Fourth Turning Is Here (part 3)

February 1, 2024

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Neil Howe believes that today’s social turmoil is shaping up to be another once-in-a-lifetime Crisis, similar to the most dramatic turning points in American history. Although the current cultural and political divisions are part of his story, he is cautious about trying to say which side should or will win. He does not expect a total victory of either one. “In a democratic society, one tribe never fully dominates the other without incorporating key elements of the other’s program within its own.”

While I agree with that, I will strike a somewhat more partisan note. One thing that stood out for me as I read the historical parts of the book is that the three last “saecula”—Howe’s term for the long cycles of American history—have all culminated in victories for democracy. The Revolutionary Saeculum ended with the victory of democracy over monarchy and British colonialism. The Civil War Saeculum ended with the victory of democracy over slavery. The Great Power Saeculum ended with the victory of democracy over fascism. Democracy is always a work in progress, and none of these turning points perfected it. But I think we should at least hope that our current Millennial Saeculum leaves democracy stronger than ever before.

Today’s battle for democracy

If that is our hope, then the next question is which side in today’s political struggle better represents our democratic values and institutions. Once we pose the question that way, the answer seems obvious: Surely it is not the party dominated by Donald Trump and the MAGA movement.

Trump’s own autocratic tendencies are obvious to many observers. He places himself above the law, claiming immunity from prosecution for any acts committed as president. He expresses his admiration for dictators like Vladimir Putin and Viktor Orban. He wants to replace thousands of Civil Service employees with people selected less for their expertise than for their personal loyalty to him. Having failed to change the results of the 2020 election by legal means, he led an effort to resort to illegal means, with substantial support from both Republican leaders and the party base. The Mueller Report had already accused him of obstructing its investigation into Russian interference in the 2016 election. Now he continues to obstruct, delay and attack any court that tries to hold him accountable.

In addition to using undemocratic means to gain or maintain domestic power, MAGA Republicans have been impeding US support for democracy in the world. They are currently obstructing military aid to Ukraine as it defends itself against Russian invasion. They are less committed to international cooperation among democratic nations through NATO, the United Nations, and international agreements like the Paris Climate Accord. Their global stance is reminiscent of the isolationism that prevailed before the United States joined the war effort against Nazi Germany. As columnist Max Boot wrote this week:

Every president but one since Franklin D. Roosevelt has believed that the United States should exercise preeminent international influence for its own good and that of the world. Trump is the lone exception. He is committed to an “America First” agenda — the same label embraced by the Nazi sympathizers and isolationists of the pre-Pearl Harbor period. He has nothing but scorn for the twin pillars of postwar U.S. foreign policy: free-trade pacts and security alliances.

MAGA economic policies also seem more appropriate for an earlier, pre-Crisis time. They include propping up the private sector with additional tax cuts, while depriving the public sector of needed tax revenue and opposing public sector investments for the common good. In some cases, these policies are throwbacks to the previous Unraveling era, especially the 1920s. Then too, tariffs and trade wars hampered the global economy, and restrictive immigration laws tried to hold back the ethnic diversification of the population. Howe points out that since the American-born population is reproducing too slowly to replace itself, we depend on immigration to grow the population and boost the economy. Immigration is one area where compromise is needed, with some balance between facilitating legal immigration and blocking illegal immigration. Currently, Trump and his followers prefer chaos to compromise, in the hope that it will benefit them politically. In general, MAGA policies are less likely to leave the nation greater and stronger than poorer and weaker.

Framing the current Crisis as a crisis of democracy highlights the absurdity—but also the critical importance—of this year’s presidential campaign. One of our major parties is preparing to nominate the man who is least likely to uphold democratic institutions at home and abroad.

Where the generations will stand

Donald Trump is a member of the Boom generation, the generation of the Prophet type which is supposed to provide the moral leadership in a time of Crisis. But he is noted for neither his personal morality nor his civic virtue. Writers like Tim Alberta (The Kingdom, the Power and the Glory) have marveled that so many evangelical Christians have hitched their wagon to a leader who flouts so many moral norms. If Trump is a prophet at all, he is a false prophet or Prophet of Doom. His message is that the country is going rapidly to hell, and he alone can save us. Contrast that with FDR’s positive, hopeful message that we have nothing to fear if we all pull together.

Where are the progressive leaders of the Boom generation? Here’s an interesting fact: Both Republican Boomer presidents, George W. Bush and Donald Trump, lost the popular vote to their Democratic Boomer opponents—Al Gore in 2000 and Hillary Clinton in 2016. Both elections were controversial, since five Republican-appointed Supreme Court justices intervened in the 2000 election, and the Russians interfered with the 2016 election. While the presidency has been narrowly out of reach for them lately, Boomer Democrats do hold the position of Senate Majority Leader (Chuck Schumer) and governorships in fifteen states.

I do not know whether any particular Boomer will emerge as a “Gray Champion” like Franklin Roosevelt. I do expect aging Boomers to keep raising questions of values and ideals, trying to formulate broad goals for the nation. They will probably move from asserting individual values like self-expression, personal growth and sexual freedom; to placing more emphasis on civic virtues like voting rights, honest debate and the rule of law. Expect to hear a lot about democratic values being on the ballot in the upcoming election.

As members of Generation X assume their midlife leadership roles, they will bring a lot of practical skills to the collective tasks at hand. As an especially right-leaning generation thus far, they will need to ask serious questions about what values and goals they serve. Hopefully, Trump’s fall from power will soon be complete, either by electoral defeat, criminal conviction, removal from office, or ineligibility to run again. Having been slavishly devoted to its one strongman, the MAGA movement may then disintegrate. Many Generation Xers may then rethink their loyalties, turning from the politics of grievance and resentment to something more constructive. Alienated and lonely young men may then reconnect with their communities and learn how to fight for society instead of against it.

As members of the Millennial Generation complete their transition to adulthood, their first civic obligation will be to vote in large numbers. In later life, they will assume leadership during the High era that hopefully follows the current Crisis, as the G.I. Generation did after World War II. But for now, they will provide masses of followers for whatever leader can set the national agenda. The leader to inspire them will almost certainly be someone less selfish, narcissistic, and belligerent than Donald Trump. This generation craves teamwork, order, security, competence and civility. They are ready and willing to make sacrifices for causes they believe in. Although they are not currently wild about our aging Silent-Generation president, they are ready to join some team, and I don’t think the MAGA team will suit them.

When the national mood changes, it often changes with dizzying speed. Who predicted the emergence of a “counterculture” in the 1960s, the Reagan Revolution of the 1980s, the Global Financial Crisis of 2008, or the MAGA movement of 2016? We live in “interesting times,” in the words of the Chinese curse. Fasten your seatbelts, and prepare to be astonished at how fast the country can turn

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Posted by Ed Steffes

Trump Disqualification Will Test Supreme Court

December 21, 2023

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This week the Colorado Supreme Court disqualified Donald Trump from running in the state’s presidential primary. It based its decision on Section Three of the Fourteenth Amendment, which states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

The Fourteenth Amendment, which was ratified in 1868, included this provision in order to prevent Confederate leaders from returning to office after the Civil War. No state has ever used it to disqualify a presidential candidate, but then, no candidate has ever run for president while fending off charges that he tried to obstruct the certification of the previous election.

Having read the opinions of the four-justice majority and the three dissenters, I see the decision as legally strong but politically troubling. Legally strong because it is very thorough and carefully reasoned; politically troubling because it gives Donald Trump another reason to claim that courts are meddling in the 2024 election and potentially thwarting the will of the voters.

The case creates quite a dilemma for the U.S. Supreme Court, assuming it considers Trump’s appeal. If the justices let the Colorado decision stand and other states follow Colorado’s lead, the disqualifications could indeed determine the outcome of the election and outrage Trump supporters. Maybe they will even try another insurrection. But if the justices overrule Colorado, they better come up with an argument as well reasoned as the original decision. A weak argument that only the Republican appointees to the Court find persuasive would be another embarrassment the Court does not need right now. (It won’t help if three of the justices voting to overrule were appointed by the candidate appealing the decision.) More importantly, if the justices are so eager to keep Trump on the ballot that they eviscerate this section of the Fourteenth Amendment, they may weaken the country’s defenses against would-be dictators, now or in the future. This is a high-stakes case that requires all the wisdom the Court can muster.

Here is a closer look at the issues.

The Colorado case

Six Republican and independent voters sued the Colorado Secretary of State to keep Donald Trump off the ballot, with the assistance of Citizens for Responsibility and Ethics. A civil proceeding to adjudicate the issue began on October 30 and included five days of testimony.

In November, Denver District Judge Sarah B. Wallace ruled that Trump had, in the words of the Fourteenth Amendment, “engaged in insurrection.” Nevertheless, she allowed him to remain on the ballot on the grounds that the presidency is not an “office” for purposes of Section Three. That raised a lot of eyebrows among constitutional lawyers.

The majority decision

In a four-to-three decision, the Colorado Supreme Court ruled that the finding of insurrection should stand, but that the exclusion of the presidency from the concept of “office” was a reversible error. The majority pointed out that the Constitution itself refers to the presidency as an “Office” twenty-five times. They also argued that the exclusion leads to an absurd conclusion:

President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land.

Even the three dissenters agreed with that part of the decision.

The majority also argued that under our Constitution, the state’s authority to conduct presidential elections must include the authority to enforce the constitutional qualifications for office. Here they cite an opinion written by Neil Gorsuch when he was an appellate judge.

As then-Judge Gorsuch recognized in Hassan, it is “a state’s legitimate interest in protecting the integrity and practical function of the political process” that “permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

The justices analyzed Colorado’s Election Code and concluded that “the General Assembly has given Colorado courts the authority to assess presidential qualifications….”

The majority acknowledged that Congress has never enacted legislation to enforce Section Three. But they took the same position regarding this section that the courts have taken with other sections of the Fourteenth Amendment; namely, that Congressional action is permitted by the Constitution but “not required to give effect to the constitutional provision.” (In technical legal language, they regarded the section as “self-executing.”) The lack of specific enforcement procedures mandated by Congress leaves states with the responsibility to enforce the insurrection disqualification as best they can.

Colorado has an expedited procedure for litigating election disputes that has been used many times. The majority justified using this expedited procedure for the insurrection issue as well, given the need to resolve disputes in a timely manner. “Looming elections trigger a cascade of deadlines under both state and federal law that cannot accommodate protracted litigation schedules, particularly when the dispute concerns a candidate’s access to the ballot.”

Although five days of testimony is a short time, especially when compared to a complex criminal case, the district court benefitted from one of the most painstaking investigations ever conducted by Congress, carried out by the House of Representatives’ Select Committee to Investigate the January 6th Attack on the U.S. Capitol. The court’s majority made a case for the admissibility of the committee’s report in a procedure of this kind.

The decision carefully examined the terms “insurrection” and “engaged in,” concurring with the district court’s conclusion that Donald Trump’s behavior fit reasonable definitions of those terms. The justices considered the criteria by which a high court can overrule a lower court’s finding of fact. They saw neither any clear error nor abuse of discretion in the lower court’s judgment.

The dissents

Justice Berkenkotter did not agree that the Colorado Election Code authorizes the court to disqualify a candidate on the grounds of insurrection. Berkenkotter acknowledged that state legislatures can grant that authority, but denied that the Colorado General Assembly had actually done so. Justice Boatright said that the expedited procedures set up to handle other election cases are not good enough for insurrection cases. Section Three “presents uniquely complex questions that exceed the adjudicative competence of…expedited procedures.” Since these disagreements concern the majority’s interpretation of state law rather than constitutional law, they are unlikely to be a sufficient basis for a reversal by the Supreme Court.

Justice Samour’s dissent raised a constitutional issue that may provide more fertile ground for reversal. Samour did not agree that Section Three of the Fourteenth Amendment is self-executing, but that it requires enabling legislation by Congress to specify the procedures by which a candidate may be disqualified for engaging in an insurrection. In the absence of Congressional guidance, Trump should be charged under the federal insurrection statute if he is to be disqualified. Otherwise, he may be denied his Fourteenth-Amendment right to due process.

I have heard some constitutional scholars, such as Laurence Tribe, disagree with that reasoning. A disqualification is not the same thing as a criminal conviction, since it does not deprive a person of life, liberty or property. This decision does not require proof beyond a reasonable doubt, but only clear and convincing evidence. If the states are to enforce the insurrection standard at all in the short time before a ballot is printed, they must be allowed some discretion.

Who’s for democracy?

The typical Republican response to the Colorado decision, voiced not only by Trump supporters but by other Republican candidates for president, is that the courts should take a hike and leave election decisions to the voters. That view of unencumbered democracy may be very appealing, but it is too simple. (It is also rather hypocritical coming from a candidate who rejected the verdict of the voters in the last election.)

Of course, we want the voters to decide elections, but they must do so within the law. When disputes arise about what is legal, it falls to courts to sort it out. Many voters might prefer Barack Obama to either Biden or Trump next year, but federal law disqualifies him from serving another term. And, like it or not, the Constitution disqualifies insurrectionists from holding public office. It’s the law of the land, which the voters and the courts ignore at their peril. Without the rule of law, we cannot have democracy, just chaos or tyranny. The level of hostility toward judges being expressed by Trump and his followers is alarming, and is another reason to question Trump’s fitness to lead a democratic society.

I fully expect the Supreme Court to overturn the Colorado decision, but I hope the justices in the majority avoid doing too much damage to the Fourteenth Amendment or to states’ ability to enforce it. I imagine they will find fault with the decision on some procedural grounds. What they cannot do is hold their own trial and reach their own finding of fact. Nor can they declare Section Three unconstitutional, since it’s in the Constitution. What they may try to do is add some procedural rules and claim that they are somehow implied by the existing text or the historical context in which it was written.

What if the justices were to say that “having engaged in insurrection” really means “having been convicted of engaging in insurrection”? That would raise the bar for disqualification considerably, maybe forcing the states to leave dangerous candidates on the ballot while their lawyers use one delaying tactic after another to evade legal accountability. In other words, very much like the situation we were in before Colorado acted. If we make the insurrection clause too hard to apply, we may not have it when we really need it.

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Posted by Ed Steffes

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