The Guardians: Does "The Resistance" Actually Want More Democracy, or Less?

Roundup
tags: liberalism, populism, Demagoguery, Legal theory

It is one of the virtues of an extraordinarily vicious presidency that it has led some to openly confess their preference for elite rule. Even those who vigorously promoted elements of aristocracy—or oligarchy—once used to feign devotion to a democratic creed. Now, alongside the regular suggestion that Donald Trump threatens democracy, some are willing to say he proves its bankruptcy. “Voters know in the abstract what they ought to know,” conceded Jason Brennan, the author of Against Democracy, after the last presidential election. “They just don’t actually know the things they think they should.” When the people chose Trump, Brennan concluded, it proved the need for “epistocracy,” a kind of update to the ancient Greek philosopher Plato’s contention that the wise should rule.

Like many members of the self-anointed “Resistance,” Eric A. Posner was shaken by Trump’s election. Best known as a skeptic of international law who agreed that George W. Bush was justified in pushing its boundaries in the War on Terrorism, Posner became an unexpected ally of those decrying Trump’s propensity to smash norms. Having made his reputation as a scourge of progressives, the legal scholar became a leading critic of the miscreant in chief. But Posner’s new history, The Demagogue’s Playbook, reveals he has not so much changed his mind as found a propitious moment to defend his belief that elites should control politics and that American traditions of dethroning them suggest what happens when democracy goes too far. For Posner, too, Plato was right: Democracy unleashes the base passions, and it is therefore to be expected that in the resulting disorder and tumult, people will turn to a tyrant for a modicum of order.

The Demagogue’s Playbook tells how politicians throughout the history of the United States have drawn on democratic legitimation while upending the elitist designs of the American founders and the normal functioning of the government. “For Plato,” Posner writes, “pretty much any popular leader in a democracy was a demagogue.” While he acknowledges that America should remain, in some sense, a place where the people rule, he still insists that our experience with Trump makes clear the eternal worth of Plato’s insight—and the need to save elite control from democracy. His attempt to do so, however, shows the reverse is true: What the Trump era proves is that we need more democracy in America, not less.

Aleading law professor at the University of Chicago, Posner is a gifted scholar. The son of Richard Posner, the founder of the law and economics school that sought to wreck the premises of the redistributive and regulatory state, Posner fils spent most of his early career building a withering attack on international law. In part, he chose the topic because there were few other fields of law for him to turn the family’s demolition business on. In part, he did so because criticizing appeals to global norms before and during the War on Terrorism allowed him to make his own contribution to the American right.

Together with some like-minded colleagues at the University of Chicago, especially his frequent coauthor Adrian Vermeule, Posner cultivated the reputation of a generational bad boy. He collaborated with Vermeule on a defense of their friend John Yoo’s torture memos that appeared in The Wall Street Journal in 2004. Associating himself with the early years of the Bush administration, Posner also defended coercive interrogation, a broader category overlapping with torture, as a necessary tactic in some circumstances. Apparently, for Posner, the War on Terrorism and its associated costs were not all that objectionable; he certainly did not argue that they were the fruits of demagogy.

Posner and Vermeule also worked to rehabilitate Carl Schmitt, the notorious Nazi jurist. They coined “tyrannophobia” to describe the notion that if one temptation in governance is to allow too much authority in one place, another is to fear its concentration so much as to incur even higher costs. (Vermeule impishly titled one of his more notorious papers “Optimal Abuse of Power.”) As their last major act together before Trump’s election, they penned the 2011 book The Executive Unbound, which claimed that the American presidency had outgrown the founders’ attempts to impose checks and balances against it. Public opinion, they maintained, was now nearly the sole force that kept America’s national leaders from transgression—and this was a good thing, too, because of the beneficial role a competent administrative state plays relative to dysfunctional legislatures and ignorant judiciaries. In the fun and games of intellectual strife before Trump, no one anticipated that someone like him was coming to inherit the power the authors defended.

Read entire article at The Nation