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Monday, June 4, 2018


I remarked several days ago that there were two things on my mind that seemed to call for blog posts, one about which my thoughts were clear, the other not.  I have blogged about the first – the deep state.  Now Todd Gitlin’s reminder of C. Wright Mills’ observation that an independent civil service is necessary for a liberal democracy has prodded me to address the second.  The topic, in a word, is norms.

The assaults by Trump on the Justice Department, his calls for the prosecution of Hillary Clinton, his egregious and seemingly endless efforts to monetize the office of the Presidency, and of course his bullying tweets, have all provoked a wide-ranging discussion among the commentariat about Trump’s violations of long-established norms of public conduct and decorum, norms that are not codified in federal law but which are appealed to as universally acknowledged constraints on the actions of public officials.  Now, I am constitutionally sympathetic to any attack on Trump, but this appeal to norms has made me uncomfortable.  For some time now I have been trying to articulate to myself just precisely what causes this discomfort, and although I am not at all satisfied by what I have told myself during my early morning walks, I am going to try to put my thoughts in some order in hopes of stimulating a discussion in this space.

The problem, in a nutshell, is this:  For virtually my entire adult life, reaching back now more than sixty years, I have been calling out and condemning the hypocrisy of public officials who wrap themselves in the flag and congratulate themselves on their embrace of the ideals of “The American Experiment,” all the while spying on Martin Luther King, buying the nomination of JFK with ten dollar bills passed out in the West Virginia Democratic primary, overthrowing governments, covertly or overtly in the Old and New Worlds, torturing captives, lying the country into wars, gerrymandering Congressional districts, and generally violating every principle of justice and humanity ever articulated.  Over time, the invocation of norms has come to trigger a gag reaction in me.

And yet, and yet. 

Do I really reject the very idea of an impartial system of justice that protects the rights of the accused and imposes standards of evidence and due process in legal proceedings?  Oh, I am well aware of the ways in which ostensibly impartial laws are crafted to protect the interests of the wealthy.  Do not tell me that the rule of law is a bourgeois mystification of the class interests of capital.  I have written books about that.

And yet, and yet.

Would I want to live in a society, even a socialist society, that dispensed with blind justice and instead dissolved all questions of law into debates over public policy?  Do I imagine that once the excitement of the transformational moment had passed, routinized revolutionary fervor would serve as a satisfactory substitute for a public spirited commitment to norms of fairness, objectivity, and due process?

The answer is no.  A liberal democracy does indeed need an independent civil service, a liberal socialist democracy more than any other.

And so I am left with my problem.  How can I embrace the current condemnation of the violation of norms while at the same time insisting in calling to account those norm celebrators who were themselves, in better days, violators of those same norms?  How on earth do you put an essay in a tweet, let alone on a bumper sticker?


Anonymous said...

I hear you loud and clear. On a related note, here's something I've been reminding myself of these last few months: Beginning in early 2017, a lot of left-of-center commentary focused on how the 45th president was undermining the family-values, anti-Russia, pro-CIA and FBI, "free-trade" bulwarks of the conservative establishment. The point, it seemed to me, was initially to show how 45 was betraying conventional Republican positions. It was intended to create divisions in the Rights' coalition. But NOW, when left-of-center commentary points out these now routine violations, it can come across as some sort of defense of, or nostalgia for, these same "values" and conventions, as opposed to an expose of 45's nihilism and narcissism.

David Palmeter said...

The important thing is the norms, not those who are condemning their violation.

If Mitch McConnell were today to accuse Trump of violating, say, the norm of respecting the integrity of the investigatory and law-enforcement processes, I would join him. But that doesn't mean I agree with him on anything else, let alone that I embrace him (a repugnant thought).

In 1973, when Barry Goldwater said that Richard Nixon should go, I agreed with. That's probably the only thing I ever agreed with him on. I sure as hell didn't embrace him.

Dean said...

"The important thing is the norms, not those who are condemning their violation." The priority here seems right, but to mix metaphors, its pure division of dancer and dance uncomfortably echoes Obama's "look forward, not backwards."

s. wallerstein said...

Business as usual (with the traditional norms) was far from ideal, full of inconsistencies, pharasaism and hypocrisy, but things could get worse and they did.

"The worst is not
So long as we can say, "This is the worst".

Shakespeare. King Lear

Ed Barreras said...

When you mention “an impartial system of justice that protects the rights of the accused and imposes standards of evidence and due process in legal proceedings,” it seems to me you’re not talking about norms but the law, plain and simple. The problem we face is that, arguably, the president’s obligation to follow what — for everyone else but him — is simply the law, amounts to a norm. So the DOJ policy states that the president can’t pardon himself, but is this a law or a norm? As the head of the DOJ, can’t the president just strike that policy? Obstruction of justice is illegal, but can the president obstruct justice? Can he issue fresh pardons with the dawning of each day and thereby act with impunity? One hopes the Supreme Court will give correct answers to these questions, should it come to that, and that the legislature will make sure the executives by their decisions.

When Obama refused to entertain the notion of legal consequences for Bush and Cheney vis-a-vis their torture regime, he was upholding a norm. That norm dictates that presidents don’t go after their predecessors; patricians cannot be seen to suffer indignities. This angered a lot of people on the Left. But I imagine that Obama, in his defense, would argue that even if he had wanted to prosecute Bush and Cheney, the consequences of doing so would have been too dire. How would half the country have reacted to seeing the former president hauled away to the pokey? Republicans would likely have portrayed such an action as a coup, and our relatively congenial republican system would have devolved into a fight to the death between the two parties.

Of course, there are situations when all out war is called for, congeniality be damned. But there are no set of norms we can appeal to to determine when we’ve reached that point.

Clearly the current occupant of the White House has decided that norms don’t apply to him as long as he has 34 collaborators in the Senate. Things are about to get much worse. And should the GOP prevail in the next two elections, we are likely facing a decades-long reign of T***pism. I don’t care what sins the FBI or DOJ or CIA committed in the past. Turning those institutions over to a narcissistic madman will make it ten times worse.

Ed Barreras said...

*end of 1st paragraph above should read, “and that the legislature will make sure the executive abides by their decisions.”

Dean said...

I don't believe that Trump is the only POTUS (among many, many other high-level officials) who has decided that norms or law do not apply to him. But beyond that, the norms/law distinction is not a clear one. I, too, at first thought the professor's statement about due process seemed more legal than normative, but then I recognized that due process is a norm we hope to achieve via legal means. It's one thing to prohibit speeding, another to demand "due process."

I'm also unsure about the notion that "all out war" does not implicate norms. International legal norms inform representations of casus belli, and they smell more like politics or policy than law to me.

Ed Barreras said...


I suppose you’re right about the norm/law distinction not being clear, and perhaps too about due process being more normative than strictly legal. This isn’t my area of expertise.

When I mentioned “all out war” I meant parlaimentary warfare as much as the real thing. This is the kind of warfare that results from the erosion of norms — like what Mitch McConnell is currently waging against the opposing party, for example. Word just came down that he’s cancelling the traditional August recess for the Senate, so as to prevent vulnerable Dems from campaigning. Surely that counts as an erosion of a norm, just as did his abolishing the filibuster rule for Supreme Court nominees, and his depriving Obama’s nominee so much as a hearing. How far will this go? If the current occupant of the White House decides not to abide by court rulings — Marbury v Madison is precedent, after all, and not written in the constitution — will his collaborators let him get away with it?

A lot of people on the Left wish for a Democratic Party that could be as ruthless as the Republicans. Like the Professor they tend to look suspiciously on talk of norms, thinking such talk serves only to maintain the one-party-with-two-factions status quo. And I guess it’s understandable why the Democrats haven’t been as ruthless, given that Republicans, as representives for the ruling class, tend to set the agenda even when they’re not in power. But hopefully, now that the ruling party is actively trying to crush all opposition, that will change. If the Democrats ever regain power they need to crush the right wing, not appease it.

Dean said...

There is much here to chew on. I'm not disposed at the moment to chew, but I'll respond quickly to the notion of looking suspiciously on norms. I happen to disagree. I think norms are all we have, and that laws count for almost nothing. My untested hypothesis is that people generally respect norms and ignore (or are entirely unaware of) laws. We only defer to laws when we're desperate. (By "laws" I mean laws on the books, black letter stuff, not principles, such as due process.)

I'm not sure Democrats are not also representatives for the ruling class. Remember that bipartisan policies are hearty and alive. Everybody loves making war.

DDA said...

Two slightly differently takes on norms.
washington post article

fivethirtyeight piece

Ed Barreras said...

I think it’s useful to see the Republicans as directly representing the ruling class with the Democrats serving in an administrative role. Their job is to execute the ruling class’s agenda in the most prudent way possible, which usually involves making concessions to the workers.

blogoogle571 said...

Here's an example of another norm being violated by the Trump administration:

The Justice Department will not defend the constitutionality of the ACA in a case brought by a number of Republican states.

This practically unheard of. Sometimes Justice Department lawyers have to hold their noses to defend a federal law. It's their job. I note that the career lawyers working on the case have withdrawn.