During an interview with Alan Dershowitz on Fox regarding the impeachment of US President Donald Trump, host Sean Hannity asked the professor about Trump’s words encouraging his listeners to march to the Capitol: “Soon you will be marching peacefully and patriotically to make your voice heard.”
Dershowitz gave the following response:
“This has happened 100 times in the Capitol. Labor leaders, suffragettes, civil rights leaders have all made similar speeches, go to Congress. Protest, show we have strength, fight back. That’s typical. That’s quintessential American political rhetoric protected by the First Amendment to the Constitution.
“Don’t destroy our constitution to put President Trump out of office five or six days early. It’s an abomination to the Constitution and it shows enormous disrespect for the United States of America and its citizens.”
Professor Dershowitz makes a strong point, but if the aim of impeachment is to harm President Trump and his supporters, why should an abominable act toward the constitution stand in the way? It might do so if there were respect for the constitution on the part of those pushing the impeachment; however, for decades politicians and judges have been eroding the protections and constraints of the constitution.
Dershowitz is asking for discipline to maintain a universal good, but the more normal human attitude is to do what is necessary to obtain one’s immediate goals.
Ultimately, there are basic questions to be asked: Do Americans want a constitution? Do they want constraints on what they do when in power? Do they even understand the nature of constitutional law that limits what particular laws and regulations can be implemented?
Prior to law there must be an agreement to have law. This is the essence of the social-contract theory of government. Prior to law, people live in the state of nature, each defending his own life and property, and that of his family.
Even if the natural law coming from God exists in the state of nature, as it does for John Locke, there still will be predators and violence. Life is insecure because one must always be on the lookout, one must depend on his own resources for protection, and when he is violated must determine what price to exact from the perpetrator, if he has the capacity to do so.
To gain a more secure life, people join together in a civil society. They agree to give up some of their own freedom of action in return for protection from the government, whose obligation it is to protect the lives and property of the citizens.
This agreement is the social contract. It does not in itself specify the form of government or the laws. It is preliminary to law but is a necessary foundation to have law. The people are obligated to the government, and hence to the law, because of the contract, and the government is obligated to obey and enforce the law.
The situation is summarized well by Solon, the creator of the first Athenian constitution in the 6th century BC. To the question, “What makes an orderly and well-constituted state?” Solon answers, “When the people obey the rulers and the rulers obey the laws.”
The problem is that rulers want to rule and don’t like their hands tied by constitutional rules. Good government limits its desires according to the rules, tyrannical government bends and breaks the rules.
As discussed by Alexis de Tocqueville in Democracy in America, democracy does not protect the people from tyranny; rather, a majority desire for tyranny is more oppressive than that of a lone tyrant. Actions may be taken according to the democratic mechanisms of a constitution, but lie outside the power constitutionally granted to the government. A majority may simply decide not to be constrained by the rules.
On January 6, the world witnessed a riot in which people stormed the US Capitol. The act was uniformly condemned by politicians of both political parties, and rightly so.
However, there has been little self-examination on the part of politicians for their complicity in creating conditions fostering such rioting. During the last few years there has been rioting in many cities across the US, including Washington, DC. Mayors and governors have ordered the police to stand back and allow the rioters to loot, burn, and injure innocent parties.
As government officials, they have ignored their first responsibility under the social contract. But they have this responsibility only if they accept that they are subject to the basic edict of the social contract and its manifestation if the constitution. Otherwise, if the electorate approves, they are free to act in each instance in the manner which they deem most appropriate for their own ambitions.
The US constitution today is little more than a document to which, with exceptions such as Clarence Thomas, lawyers pay lip service and then interpret in any manner whatsoever that agrees with their predilections, with little heed to the actual intent of the words.
Why should the common man respect the constitution given the disrespect shown in the highest reaches of government? Recall Solon: It is the obligation of the government to obey the law. If it does not, then in effect there is no law beyond the will of those with power.
Can respect for law, not for particular laws, but for the concept of law itself, be restored? It appears to be difficult.
The US political system wreaks of the desire for power. Locke would have a small government, one in which the spoils are not so large. We Americans have a huge government and the stakes are enormous.
Moreover, a disdain for law seems to have been imparted by the educational system to large numbers of young people over the last-quarter century or more. People take sides on issues, generally falling into left and right, but seem to have no regard for the foundation of civil society, that being an agreement to be governed by law, not human caprice.
The idea is simply to gain power, by whatever means necessary, and force one’s social and economic perspectives down the throats of those who disagree.
If respect for law is not restored, can the nation go on? Of course.
Few societies have followed Solon’s advice. Laws have simply implemented the will of the powerful. Might may not make right, but it can make laws with sufficient police backing. This contradicts the founding of the US, which was to a great extent based on the thinking of John Locke, the constitution being the manifestation of law under the social contract. But how many students today have any idea of this?
To those who understand the benefits of liberty and law (not caprice), this is a tremendous loss. But to those who have no such understanding, they will merely live unknowingly in a more typical society. They may march in large numbers to vent their rage, but that rage is channeled by those controlling the levers of power and communication (think of George Orwell’s Nineteen Eighty-Four).
Dershowitz’ complaint that the impeachment of President Trump is an abomination to the constitution is likely to fall on mostly deaf ears. People who hate Donald Trump, many since the moment he was elected, want to hurt him.
He has been banned from large social media and there are reports that actions are being taken against his business interests. Impeachment is joined with suppression of speech, against not only Trump but also his supporters. This is the kind of directed rage that Orwell so understood, and is being taken on the part of both government and private enterprise.
As a true liberal, Dershowitz is no doubt horrified by what he is witnessing. “Abomination” is a strong word. But he must ponder the question of whether Americans desire a constitution, which to a great extent enshrines liberalism in the Bill of Rights. If they do not, then we can expect such abomination to continue.