//  10/26/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on How To Save A Constitutional Democracyan important new book by Aziz Huq and Tom Ginsburg.

Thomas Ginsburg and Aziz Huq’s How to Save a Constitutional Democracy is a brilliant and terrifying read. It’s not terrifying because it’s in any way alarmist; the book’s tone throughout is measured and sober and precise. But in the United States, in 2018, it’s impossible to read the authors’ methodical examination of the arc of democratic decline across the globe without experiencing repeated, almost constant, pinpricks of recognition. Consider this sentence, regarding the propensity of populist leaders to violate both formal and informal norms: “By demonstrating that they are in some sense above the ordinary law (which, by stipulation, is corrupt and contemptible), populists manifest a charismatic power to transcend the system they seek to discredit.” Or this one: “[I]f populists tend to be more corrupt and less outcome-focused than other candidates or elected officials, they have good reason to frame their campaigns not around substantive policy issues, but around the emotional questions of belonging and exclusion, of loyalty and betrayal, and of insiders and outsiders[.]”

I’ve written previously about the function, power, and legal significance of presidential rhetoric (including touching on the topic in previous Take Care pieces, here and here). But this book left me thinking about a distinct aspect of presidential speech: its power to create and define the political community.

Modern American presidents have mostly been expansive in their efforts to do that: they have largely attempted, even if imperfectly, to draw relatively broad boundaries around the members of the polity. That’s not true about the charismatic populists who play leading roles in the stories of democratic decline the book tells. Drawing on the work of political theorist Jan-Werner Müller, Ginsburg and Huq identify as a key feature of populist leaders their tendency to assert a “‘moralized antipluralism,’ based on a belief that ‘they, and they alone, represent the people.’” This often entails defining “the people” in contrast to other groups—political and cultural elites; immigrants; political opponents; members of religious or racial minorities. In this light, a 2016 campaign statement by Donald Trump that “the only important thing is the unification of the people—because the other people don’t mean anything,” takes on a decidedly ominous cast. And of course, there have been countless similar statements since. 

It’s impossible to reflect on President Trump’s rhetoric without also considering his preferred medium of communication—twitter. And the book’s discussion of populist rhetoric made me wonder whether there’s something meaningful about the selection of twitter that I hadn’t spent much time reflecting on: that it is a medium that allows the speaker to address an identified group of “followers,” who self-select into the political community and then become stand-ins for the entirety of it.

More than just self-selecting in, they can be literally expelled from the community by the President, through his decision to block them, which is the subject of a lawsuit currently pending before the Second Circuit. The blocked plaintiffs prevailed in the district court, which found that when the President blocks users in response to their criticisms of him or his policies (the Administration has conceded that this is the reason for the blocking), he violates the First Amendment by engaging in impermissible viewpoint discrimination. 

After the Administration’s loss in the district court, it seemed to me all but certain that the Administration would capitulate—that attorneys in the Department of Justice or the White House Counsel’s Office would persuade the President that continuing to fight this suit was a poor use of DOJ resources, and in addition risked establishing precedent that would be adverse to the institutional interests of the presidency. So I was confident that rather than continuing to fight this case, the President would eventually agree to stop blocking critics. 

When DOJ announced that it would be appealing this case to the Second Circuit, I assumed that no one had been able to focus the President’s attention on the issue long enough to make the case that the appeal should be abandoned—not that it reflected the considered choice of the President and his advisors.  

But this book has made me wonder whether at issue in the case is a principle the President very much deems worth fighting for—the right to render literal what scholars like Huq and Ginsburg have described in more conceptual terms—the power to identify, demarcate, and constrict the boundaries of the political community. In that regard, what the courts do with this case may have implications well beyond First Amendment doctrine. 

Symposium on June Medical Services v Gee

10/4/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. SCOTUS has granted review of the constitutionality of that law.

Take Care

Versus Trump: An Impeachment Primer...

10/3/19  //  In-Depth Analysis

Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

June Medical And The End of Reproductive Justice

10/2/19  //  In-Depth Analysis

While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence

Leah Litman

Michigan Law School