On this day which falls between the Martin Luther King, Jr. holiday and the 47th anniversary of Roe v. Wade – and which also marks the official beginning of the impeachment trial of President Trump – I offer a few reflections on important principles that connect these important American events.
Beginning with the latter, at the heart of the American project – a republican democracy – is an enduring truth that the sovereign power in the United States resides in the American people. The preamble to the Constitution begins famously with the words, “We the People….” Having sought to shed the weight of a tyrannical power that was discerned to be deleterious to the good of the colonies – after repeated and unfruitful objections – it was critical to the nascent republic to clearly locate the sovereign power of the government in the people. In a true sense, the people are the source of all power in the United States and the wellbeing of the people is the good that is to be served through our elected leaders of government.
In legal philosophy, specifically historical jurisprudence, scholars seek to discern a particular spirit or character of a given people, from which the law flows. German scholars call this the volksgiest, or spirit of the people. There is no principle more central to the volksgeist of the United States, than the sovereign power of the nation residing in the people. Everything else in our republican democracy relates to this central principle, including the role of law and the exercise of power by elected officials. Historically, from the time of the Code of Hammurabi, through Scripture, Greek philosophy, the middle ages, and into the modern period, law was seen as an instrument to further the wellbeing and good of the community. Law is rightly measured according to this goal. This is true of the United States as well and even more so, as “we the people” are the source of all authority, including the law.
With the above context in mind, I want to move to the first two examples of the betrayal of the American spirit, and they both involve President Trump – positively and negatively. Many politicians, citizens, and media experts missed the populist wave that was manifested in the United States, most robustly in the election of Donald Trump. The New York Times in its post mortem election analysis confessed to having completely missed this mood, especially in the Midwestern rust belt states. Yes, they did. I hosted a law school friend for dinner in Wisconsin just days before the election, who upon seeing all of the Trump signs in Northwestern Wisconsin presciently, despite the polls, predicted that Trump would win the (expletive omitted) election.
A law school colleague of mine in speaking to my jurisprudence class last fall said that populism is a reaction to elites who may occupy influence and power in the various sectors of a given society. Populism may have good or bad manifestations, but it is, he argued, a reaction to elitism that can be seen in politics, entertainment, law, finance, and the media. There is a sense that those in power have forgotten about the protagonist of the American dream, the people, and thus, the inevitable reaction. Populism flows from this dynamic, whether here in the U.S. or globally.
From this foundation, I would argue that the spirit of the American people and its attendant good was not served by many who held power and influence in the various sectors of American society noted above. Thus, the revolt and the election of Donald Trump. Whatever you think of President Trump, his style and the means that he employs, he tapped into this deep disaffection felt by many Americans and was able to speak to it in a preternatural way. The reaction to his presidency – understandable in some sense, but also extreme – has reinforced the instinctive notions of those who voted for him. Every comment by a Hollywood elite, every biased news story, and the extreme political rhetoric in opposition to him, make the prospects that he will be elected to a second term more likely.
Now to the second example involving President Trump and the betrayal of the American spirit – his actions regarding military aid, Ukraine, and the Biden’s. Notwithstanding the fact that impeachment trial in the Senate has just begun, I believe a strong documentary (albeit mostly circumstantial) case was made in the House of Representatives that a “quid pro quo” was in fact communicated to the President of Ukraine by the Trump Administration: military aid and an oval office meeting in exchange for the public promise of an investigation of the Bidens. One can debate whether it is germane that the act was never consummated – the announcement of the investigation did not occur, nor was the aid ultimately withheld.
There are other peripheral issues that can be bandied about as well, but here is the crux of the matter for me and I hope for all Americans. The President of the United States took an action that very likely was intended to advance his own political interests over the good of the nation and its people. This should be of great concern to all and I believe is a betrayal of the American spirit and collective good – which all authority in our nation exists to serve. Use of presidential power in this manner is precisely the type of behavior that was of concern to the framers of the Constitution. Notwithstanding this, legitimate questions can be raised as to whether this constitutes an impeachable offense, whether it matters that there was no underlying crime in the president’s actions, and whether the record is too thin and/or too lacking of direct evidence to warrant the grave action of impeaching and removing from office, a sitting president. These are all questions that the Senate of the United States will face in the coming days.
I will briefly take up the final two examples of the betrayal of the American spirit and will expand on each of these in future blog posts. First, slavery, segregation and continued racism and racial inequity constitute a persistent and troubling betrayal of the American spirit. The Letter from the Birmingham Jail by Dr. Martin Luther King, Jr. is one of most profound pieces of literature penned by an American. I assign this to my law students in nearly every course I teach. Dr. King, in trying to persuade his fellow Christian pastors that it is time to unite and act against the injustice of segregation, employs logic, Scripture, and natural law in powerfully making his case. Racial injustice which at times in our nation’s history has been regrettably sanctioned in law, offends two essential foundations of law: the right to equality before the law and the freedom to pursue (happiness) a life of human flourishing. Evidence abounds today, including in my state of residence (Minnesota), that this equality before the law and justice are consistently thwarted for African Americans as well as for other minorities. This betrays our good as a nation.
Lastly, and not least in importance, the unborn are another portion of our society who do not enjoy the right to life enshrined in the Declaration of Independence, and as our founders articulated well, is endowed by our Creator and thus to be respected in law. Like African Americans, the unborn do not enjoy equality in law and justice and thus our American spirit and collective good are likewise betrayed. I believe that abortion is a preeminent issue of justice in our nation because of the following: the gravity of the act of taking a life; the vulnerability of the victim; the scope of abortions in the United States; the deleterious effects on individuals and society; and its corrosive effect on the legitimacy of law.
I have long thought that the issues of racial injustice and abortion are intimately connected. Both constitute the denial of the essence and dignity of life and its potential for flourishing and fulfillment. Both are a stain on the history of our country and the good of the republic. Both issues also require more than rhetoric, but a spirit of compassion and solidarity as a well as commitment to delve into important attendant issues of poverty, broader issues of inequity and the importance of education, including moral education. As we mark the Martin Luther King, Jr. holiday and another anniversary of Roe v. Wade, I maintain hope that the words of Martin Luther King Jr. would be realized in our lifetime: “the arc of the moral universe is long, but it bends towards justice.”