Can It Happen Here? Authoritarianism in America

350 Pages·2018·1.87 MB·English

by  Cass R. Sunstein

Table of Contents
Cover
Title Page
Contents
Introduction
The Dictator’s Handbook, US Edition by Eric A. Posner
Constitutional Rot by Jack M. Balkin
Could Fascism Come to America? by Tyler Cowen
Lessons from the American Founding by Cass R. Sunstein
Beyond Elections: Foreign Interference with American Democracy by
Samantha Power
Paradoxes of the Deep State by Jack Goldsmith
How We Lost Constitutional Democracy by Tom Ginsburg and Aziz Huq
On “It Can’t Happen Here” by Noah Feldman
Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic
Within Liberal Democracies by Karen Stenner and Jonathan Haidt
States of Emergency by Bruce Ackerman
Another Road to Serfdom: Cascading Intolerance by Timur Kuran
The Resistible Rise of Louis Bonaparte by Jon Elster
Could Mass Detentions Without Process Happen Here? by Martha Minow
The Commonsense Presidency by Duncan J. Watts
Law and the Slow-Motion Emergency by David A. Strauss
How Democracies Perish by Stephen Holmes
“It Can’t Happen Here”: The Lessons of History by Geoffrey R. Stone
Acknowledgments
Contributor Biographies
Notes
Index
About the Author
Copyright
About the Publisher

Contents
Cover
Title Page
Introduction
The Dictator’s Handbook, US Edition
by Eric A. Posner
Constitutional Rot
by Jack M. Balkin
Could Fascism Come to America?
by Tyler Cowen
Lessons from the American Founding
by Cass R. Sunstein
Beyond Elections: Foreign Interference with American Democracy
by Samantha Power
Paradoxes of the Deep State
by Jack Goldsmith
How We Lost Constitutional Democracy
by Tom Ginsburg and Aziz Huq
On “It Can’t Happen Here”
by Noah Feldman
Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic Within
Liberal Democracies
by Karen Stenner and Jonathan Haidt
States of Emergency
by Bruce Ackerman
Another Road to Serfdom: Cascading Intolerance
by Timur Kuran
The Resistible Rise of Louis Bonaparte
by Jon Elster
Could Mass Detentions Without Process Happen Here?
by Martha Minow
The Commonsense Presidency
by Duncan J. Watts
Law and the Slow-Motion Emergency
by David A. Strauss
How Democracies Perish
by Stephen Holmes
“It Can’t Happen Here”: The Lessons of History
by Geoffrey R. Stone
Acknowledgments
Contributor Biographies
Notes
Index
About the Author
Copyright
About the Publisher
Introduction
Cass R. Sunstein
The United States is living under a military dictatorship. No one dares to call it
that—but that’s what it is. Here’s what happened.
A year ago, a terrorist organization launched a successful attack in Chicago.
Two thousand people were killed. President Donald Trump declared a national
emergency and imposed martial law. With overwhelming popular support, he
ramped up existing surveillance policies. The government is now monitoring all
emails and telephone calls. Americans know that they are being monitored. Most
of them don’t mind.
In President Trump’s words, “Privacy just isn’t smart.”
Harkening back to the late 1800s, the Trump administration made “sedition”
a crime. Sedition includes “disloyalty to the United States,” which includes
“actions that demonstrate sympathy to our nation’s enemies.” Under the
sedition laws, thousands of people have been arrested. No one knows exactly
how many.
Muslim-Americans must register with the authorities, and if they engage in
“suspicious behavior,” the authorities will pay them a visit. Preventive detention
has become routine. No one knows how many people have been detained. There
is a lot of private violence against people who are thought to be “disloyal.” As a
precautionary measure, tens of millions of people are displaying American flags
on their automobiles and homes.
It’s not easy to leave the country. If you do, beware: it’s tough to get back in.
If you aren’t an American citizen, good luck.
Since the Chicago attack, Congress has capitulated to the president’s
demands and enacted the laws he favors. The federal judiciary has upheld his
programs. So far, the press remains free, at least as a formal matter. But the
most popular news outlets enthusiastically embrace President Trump’s
programs. They are careful not to criticize him.
The majority of Americans dismiss the president’s critics as sources of “fake
news.” The Department of Justice is starting to investigate some sources of fake
news for possible sedition. Whether or not the investigations result in
prosecution, the dissenting news outlets are increasingly marginal. In terms of
impact, they’re failing, and their economic situation is increasingly dire.
In a recent speech to a joint session of Congress, President Trump declared
that the war on Islamic terrorism “had no beginning and has no end.”
Sure, I made all that up, and it’s just a story; it’s hardly likely. (Some of the
chapters here will defend that view.) But if you find anything in the narrative
even close to imaginable, we could try a few others. North Korea attacked
Guam, and the president claimed “emergency powers.” China did something
frightening and horrific, and the president claimed, “We are now at war.” The
economy took a horrific downturn, and the president contended that he must “do
whatever needs to be done to protect the country.” Better yet: a catastrophe or a
threat took a form that we cannot even imagine, producing something like the
situation just described.
Fiction writers, like Sinclair Lewis, Philip K. Dick, and Philip Roth, have
ventured alternative histories of the United States, in which some kind of
authoritarianism ends up triumphant. Maybe Germany won World War II.
Maybe the United States fell under the spell of an authoritarian ruler. If you like
alternative history (and I confess that I love it), it’s probably for one of two
reasons. First, a tale of what-might-have-been can tell us something important
and even profound about ourselves. It seizes on some feature of our national
character—small or large, hidden or overt—or some inclination that some
people have, and it shows what might have happened if that feature or tendency
had somehow flowered. Roth’s book The Plot Against America is a masterpiece
in that vein.
What-might-have-beens warn us: inside every human heart, there’s a fascist
waiting to come out. George Orwell’s Nineteen Eighty-Four remains the best
analysis of that point, and it might well be true. After the attacks of 9/11, a lot of
people discovered something like that, and their political party didn’t matter.
Second, what-might-have-beens make an intriguing claim about a nation’s
history: with a little push or shove—with an illness here, a death there, a single
act of cowardice or courage, a coincidence around the corner—our world could
have ended up a whole lot different. If Adolf Hitler had been smarter, maybe
most of Europe would have ended up under the Nazis. Without Franklin Delano
Roosevelt, the United States might have gone in all sorts of different directions
in the 1930s and ’40s. In 1936, Lawrence Dennis wrote a book titled The
Coming American Fascism. It’s not a warning. It’s hopeful and optimistic.
With some twists and turns in the future, maybe Islamic terrorists will turn
significant parts of the world in their preferred directions. Submission, by Michel
Houellebecq, is all about that. It’s not optimistic, but its arresting narrative arc
makes the tale something other than totally implausible.
Houellebecq’s focus is unusual. Since the 1930s, the question whether it can
happen here typically asks about the rise of fascism. But that’s a failure of
imagination. Things can go wrong in a thousand different ways. Actually, they
have. If the United States did not have the history it has had, speculative writers
would spin tales that would defy belief, including the enslavement of millions of
people in the American South; lynching countless people because of their skin
color; decades of racial segregation; denial of the vote to women (until 1920, no
less); the internment of more than 100,000 Japanese Americans on the West
Coast—and also (less bad, but not good) the rise of McCarthyism in the 1950s
and Nixon’s grotesque abuses in the 1970s.
This is not a book about Donald Trump, not by any means, but there is no
question that many people, including some of the authors here, think that
Trump’s words and deeds have put the can-it-happen-here question on the table.
Several of the essays engage his election and his presidency. Some of the authors
fear that an election of a left-wing extremist could create its own form of “it.”
But the discussions here reach well beyond President Trump, left-wing
extremists, and any other contemporary figure. They are focused on big and
enduring questions. For example:
Is a powerful central government a threat to liberty—or a safeguard against
it?
If a president wants to be a dictator, what steps would he take?
Can populism produce authoritarianism?
What’s the Deep State, and should we worry about it?
How robust is freedom of speech?
Can we rely on our courts?
Does the American Constitution solve the problem?
What can we learn from history?
If some of the chapters are a bit academic, well, that should be taken as a
tribute to the seriousness of the topic, and to the importance of confronting it
with more than a quick glance at politics, law, and history.
So: Can it happen here? My own summary of this book: Absolutely. It has
happened before. It will happen again. To many Americans, something like it is
happening now.
That’s mysterious, I know. Read on.
The Dictator’s Handbook, US Edition
Eric A. Posner1
Tyrannophobia, the fear of the dictator, is as old as the American republic.2 The
founders worried about being governed by a Caesar or Cromwell, and ever since,
as regular as the election cycle, Americans have accused the serving president of
harboring dictatorial ambitions.
Although none of the forty-five men who have occupied the presidency so far
have succeeded in their supposed dictatorial goals, the public’s tyrannophobia
has never been stronger. George W. Bush and Barack Obama, for example, were
both routinely compared to Hitler based on their alleged dictatorial behavior and
ambition.
With the presidency of Donald Trump, tyrannophobia has reached a fever
pitch. Even before taking office, Trump was labeled a dictator. The accusations
no longer come from the wings but have taken center stage. Journalists,
politicians, academics, and other people with centrist, establishment credentials
genuinely fear that Trump will inaugurate authoritarian rule in the United States.
Their fears are based on Trump’s statements and actions during the campaign:
Trump has flouted the norms of American elections and governance at every turn, including calling for
the jailing of an opposing candidate, encouraging violence against protesters, endorsing the torture of
prisoners, suggesting he might not respect the results of the election, falsely claiming that millions of
illegal votes were cast, failing to resolve unprecedented conflicts of interest or to even disclose his tax
returns, and attacking a federal judge based on his ethnicity (and that’s of course a highly incomplete
list).3
While it’s possible that this was all bombast, the stakes are high, and we
should take seriously the claim that Trump seeks some level of authoritarian
rule, whether or not “dictatorship” in its scariest sense is on the table. Is it
possible that he can succeed? Can it happen here?
To answer this question, let’s assume that Trump does seek to become a
dictator in the fullest sense. The problem he faces is that powerful institutions
stand between him and the scepter. He would need to subvert these institutions
in order to seize the prize. It’s worthwhile, if only as an exercise, to imagine how
this subversion might work.