Why Fascism Won’t Come To America

Why Fascism Won’t Come To America

Harvard professor Cass Sunstein is the editor of a new collection of essays, 'Can It Happen Here?: Authoritarianism in America.' If you were looking for intellectuals to confirm your worst fears about Trump, this does the opposite.
Kyle Sammin
By

The American public has become increasingly deranged. Or, at least, the segment of it that writes about politics has. There has always been streak of paranoia in that segment of society, but beginning with the so-called Clinton Derangement Syndrome and continuing with greater madness in each successive presidency, people are increasingly inclined to go off the deep end in their political ravings.

With the election of Trump, the paranoid style of politics threatens to subsume more normal opposition from the Left as members of the “Resistance” act as though the very foundations of the republic are threatened by Trump’s elevation to the presidency.

In Can It Happen Here?: Authoritarianism in America, Harvard Law School professor Cass Sunstein assembles a collection of essays examining whether American constitutional democracy can be undermined or even destroyed by such a president. The answers by scholars and politicos should give the reader relief. While the opinions vary wildly, by far the most convincing essays are those that agree with Sunstein that no, Trump will not bring about the demise of the American republic.

What’s Good in This Book

One of the best essays comes from economist Tyler Cowen. Although he declines to state categorically that a totalitarian government could never arise here, Cowen believes it could not happen in the version of America we live in today. His thesis makes a virtue out of what otherwise might be a criticism of the state in stating that the federal bureaucracy is simply too big to fail.

“My argument is pretty simple,” Cowen writes, “American fascism cannot happen anymore because the American government is too large and unwieldy. It is simply too hard for the fascists, or for that matter other radical groups, to seize control of. No matter who is elected, the fascists cannot control the bureaucracy, they cannot control the judiciary, they cannot control semi-independent institutions such as the Federal Reserve, and they cannot control what is sometimes called ‘the deep state.’ The net result is they simply can’t control enough of the modern state to steer it in a fascist direction.”

The separation of powers angle is one that Sunstein echoes in his own contribution to the book. As Sunstein notes, the Founding Fathers foresaw the possibility that one power-hungry officeholder might try to convert the republic they created into an absolute monarchy or dictatorship. The whole structure of the Constitution is an effort to avoid this problem.

It has worked remarkably well for more than two centuries. The genius in separation of powers is that instead of relying on the election of good people with self-restraint, it uses politicians’ ambition against them, dividing power among three branches of government in the hopes that each branch would jealousy guard that which was granted it. There has been considerable decay in this ideal since the New Deal, as Congress increasingly grants the executive the power to write rules which, although they are not laws, carry the force of law. Similarly, administrative law judges, although they are not members of the independent judiciary, are granted the power to decide disputes (subject to appeal to the real courts).

These deviations aside, though, the distribution of power in the U.S. government remains a source of strength against would-be tyrants. We have seen often in the Trump administration’s first year that Congress and the courts do not always go along with the president’s wishes. More importantly, there is nothing he can do about it when they disagree with him. Three co-equal branches of government means that it is difficult for any one party, let alone one man, to rule all of them. When your party controls the White House, you might rail against “gridlock”; when you’re on the outside, take some time to remember the wisdom of the Founders’ vision.

Cowen’s point about the immovable bureaucracy is different from separation of powers, in that it is unintentional; none of the Founding Fathers envisaged a semi-permanent caste of government workers who would have the power to mire political initiatives like quicksand. The federal government they imagined would never have enough employees to do so, nor did they predict the civil service reforms of the late nineteenth century that insulated executive branch workers from control by the people’s elected representatives.

For all that, it is no less effective as a wrench in the machinery of tyranny. The president appoints the top-level employees at federal agencies and departments, but the mid- and low-level workers are all hired without regard to politics. They are not allowed to impose their own political opinions on how their section of the executive branch may be run, not legally, but they certainly can slow things down just by being less efficient. Further, if we ever elected an actual fascist who ordered bureaucrats to commit illegal acts, the workers would be well within their rights to refuse.

How many would do so is an open question, and their resistance is more likely to be exercised against the Right than the Left, owing to the partisan tilt of the average bureaucrat. And as history has shown, many are content to be “just following orders,” even when those orders are blatantly unconstitutional. Martha Minow, another Harvard Law professor, makes that point in her essay, which focuses on Japanese internment during the Second World War.

That incident serves as a powerful counterpoint to Cowen’s and Sunstein’s optimism. Not only did government employees go along with President Franklin Roosevelt’s direction to jail people without trial based on their ethnicity, but the courts upheld the order in a 6-3 decision in Korematsu v. United States. As in the Cherokee removal cases a century earlier, members of a disfavored group followed the law and trusted courts to protect them; the executive rode roughshod over them anyway. Should another group become subject to the same widespread hatred and distrust, it is not unimaginable that courts and bureaucrats would close their eyes to injustice and unconstitutionality, especially in the time of an emergency like the one that dominated people’s minds after the attacks on Pearl Harbor.

What’s Bad in This Book

The essays in Can It Happen Here? vary in quality, with many of the less convincing attempts being those that answer in the affirmative. One essay by Tom Ginsburg and Aziz Huq, and another by Noah Feldman, draw comparisons between modern-day tramplers of human rights and those who could, possibly, guide the American government down a similar path.

Viktor Orbán, the prime minister of Hungary, figures large in both essays. Orbán came to power in Hungary in 1998 at the head of a party dedicated to liberal democracy. In his first term he largely stuck to that program, a welcome relief to Hungarians after decades of communist rule. After a spell in opposition, Orbán returned to power in 2010 with a program that increasingly moved away from liberty and toward a quasi-fascist hard-right program that he openly described as an “illiberal state.” Far from the idealistic reformer of the post-Soviet age, Orbán now rules a state that tilts toward Putinesque visions of dominance reinforced occasionally by the rubber stamp of somewhat unfair elections.

But Ginsburg, Huq, and Feldman miss the point in comparing Hungary’s situation to our own. Geoffrey Stone’s essay—comparing a would-be American tyrant’s rise to that of French Emperor Napoleon III’s—does the same. Historical analogues are useful in understanding the present, but comparing one country to another or one time to another will never perfectly predict the future.

Liberal democracy failed in nineteenth-century France and is weakening in twenty-first-century Hungary because those places, whatever their constitutions said, had little or no popular tradition of liberal democracy in their national consciousness. Napoleon III could make himself emperor like his uncle before him because the French people had seen democracy fail before. Many likely saw it as no more preordained than monarchy, and focused on the individual man and his policies more than the method by which he sought to achieve them.

Hungary and the rest of the former Warsaw Pact is similar in having known liberal democracy only in that brief golden twilight between the fall of communism and the rise of things equally illiberal. Democracy and liberty still do well in many ex-communist states, but their status will remain precarious until a critical mass of people become firmly wedded to the idea of liberal democracy over and above the policy proposals of any one candidate for office.

America is different, and exceptionally so. Our predecessors had a head start in that they lived in colonies founded by Great Britain. While Britain was by no means a democracy in those days, it was the most democratic of any of the eighteenth-century European nations, with the possible exception of Poland-Lithuania (which had no colonies and was conquered by illiberal powers before the century’s end). Britons also had a clearer sense of their natural rights than most Europeans did, owing to the enactment of the Magna Carta in 1215 and the 1689 Bill of Rights that followed their ouster of a king bent on absolutism.

Added to that was America’s good luck to be led by a generation of leaders who practiced what they preached. Our system of government may have been devised to divide power and resist tyranny, but had we elected a would-be tyrant in those early years, the task of preserving the Constitution might have seemed less important to a people who had not grown up with it.

Instead, we had George Washington, a man popular enough to become a dictator like Napoleon or Toussaint Louverture, but who instead denied himself powers not granted him and retired peacefully after two terms in office. With the weight of two centuries of liberal democracy, our national character has evolved to resist tyrants, even those who promise things we might like. Foreign analogies are interesting, but the shoe will never quite fit.

Some essays in this book are too tremulous about the threat posed by a limited and often incompetent Trump administration. Others seem to miss the point completely. (The chapter on Russian interference with our elections by Samantha Power is more an exercise in political axe-grinding and conspiracy theory than an assessment of the possibility of fascism in America.) But citizens worried about the fate of our republic should, by and large, take comfort from this book. As most of the better essays here suggest, our republican form of government is here to stay, no matter what you think of the man in the White House.

Kyle Sammin is a lawyer and writer from Pennsylvania. Read some of his other writing at kylesammin.com, or follow him on Twitter @KyleSammin.

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