//  5/1/17  //  Commentary

“In a speech today Mr. Adrian Karel, Party Minister for Industry, stated that Britain's industrial prospects are brighter than at any time since the last war.  Mr. Karel went on to say that it is the duty to every man in this country to seize the initiative and make Britain great again.”

~  Alan Moore & David Lloyd, V for Vendetta (1988)

Since Donald J. Trump first declared his candidacy for President, the wall between reality and dystopia has grown gossamer thin. With a national leader who (literally) talks like a comic book villain, it’s no coincidence that copies of Orwell’s 1984 recently sold out on Amazon. Trump’s crude and thuggish brand of nationalism, linked to calls for “America First” and fears of “American Carnage,” has unmistakable authoritarian overtones. And he has fueled those fears by trashing the free press, federal judges, norms of presidential conduct, and anyone who dares stand against him (whether by criticizing his official acts, competing against his TV show, or negatively reviewing his restaurants).

It’s against this background that we consider Trump’s reinvigoration of “Loyalty Day.”

First observed in 1921 as a response to socialists, Loyalty Day has been observed on May 1 every year since the mid-1950s, typically by presidential proclamation.  As the Washington Post reports: “Ordinarily, the proclamations are non-partisan and talk generally of upholding American values and advancing freedom. President Barack Obama in 2016 called for making American society ‘more just and more equal.’ President George W. Bush in 2008 urged Americans to ‘aid our family, friends, and fellow citizens all across this broad and welcoming land’ and to learn more about U.S. history.”

Trump, however, has taken a different approach. His order warns that “The loyalty of our citizenry sends a clear signal to our allies and enemies that the United States will never yield from our way of life.” And it goes on to describe in more detail than is customary just how Trump understands “loyalty” in America.

Disloyalty stands in the way of Making America Great Again. Disloyalty is dangerous.

While some have suggested that it’s silly to criticize Trump—since Loyalty Day has a long history—those criticisms are misplaced. Trump has used this occasion to issue a very different kind of proclamation. He has done so in an extraordinary context, one that lends his vision of loyalty a discrete and disturbing character. And it’s hardly unprecedented for power-hungry leaders to repurpose existing traditions with an eye to delegitimizing dissent. “Loyalty Day,” with its menacing name, is ready-made for that purpose. 

As usual, Trump’s order doesn’t lack for irony. For instance, Trump recently described the constitutional system of checks and balances—a.k.a. “limited government”—as “an archaic system . . . really a bad thing for the country.” And as you might recall, Trump has shown zero concern for the “inherent dignity” of Muslims, lawful immigrants, undocumented migrants, women, disabled and transgendered persons, and many other vulnerable groups. Indeed, Trump has affirmatively sought to undermine “individual liberties” like freedom of speech, which Reince Preibus suggested this weekend should be limited by stricter federal libel laws.  Picking up on Trump’s unconcealed disdain for anyone he deems an enemy, his supporters—domestic and Russian—continue to brutalize and demean political opponents on Twitter, on national blogs and newspapers, and at the campaign-style rallies that Trump keeps holding.

But ultimately, Trump’s proclamation is concerning for a more fundamental reason: it is itself disloyal to the idea of America as a haven for immigrants, a pluralistic society, and a nation of political, religious, and cultural difference. This country was born in dissent and has persisted in charged disagreements for over two centuries—united not by loyalty to any single principle, but rather to the essential project of the Constitution, creating a “more perfect union.”

The harmony of America The Beautiful is a harmony of dissonance, not a chorus of sameness. Stirring fear and animosity targeting “the other”—while purporting to define true believers in the American project—claws at the heart of a United States of America. And that is the unmistakable context of Trump’s proclamation, when considered alongside his many other public statements and official acts.  

As Abraham Lincoln explained in circumstances fraught with death and destruction, “We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.”

This lesson holds true in our own time.   

In his abandonment of that vision, here and elsewhere, Trump is the most anti-Lincoln president we’ve ever had. If there were a deep pit in the earth corresponding to a kind of inverse Mt. Rushmore, Trump would belong at its nadir, flanked by Joseph McCarthy and Richard Nixon.

The ugly history of loyalty oaths lies along a road on which this proclamation takes a frightening first step, one wrapped in a false version of the American flag.  And there is no better response to that demand for loyalty than that offered by Justice Jackson in West Virginia Board of Education v. Barnette (1943). While the final sentence of this paragraph is the most famous, the full text speaks across history with prophetic force:

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

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On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

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Gerstein Harrow LLP