By D.A. Kirk
This story originally appeared on TrigTent.com
This wasn’t the future I envisioned when I joined with liberals, progressives, and libertarians in resisting the post-9/11 authoritarianism that gave birth to warrantless wiretapping, indefinite detention, and the rapid militarization of law enforcement. It would take time for the nation to come to terms with the trauma it had suffered. I understood that. But I also had no doubt that cooler heads would prevail, Democrats would pull the nation back towards the center, and the neoconservative movement would be forced to either temper its ambitions or go extinct.
The first few years of the 21st century weren’t kind to constitutionalists, civil rights leaders, and other anti-authoritarian activists. The threat of radical Islamic terrorism provided lawmakers with a custom-fitted excuse to expand the power and reach of government at nearly every conceivable level. As this was all being done for ostensibly patriotic reasons, it was almost impossible to convince even moderate Republicans to push back against the threat posed by the neoconservative wing of their party. And if you dared to try, you’d be labeled “unpatriotic,” a “terrorist sympathizer,” or worse.
Of course, terrorism wasn’t the only issue that the government used to justify the constitutionally questionable — and, dare I say, ethically dubious — practices that went on during the Bush years. For instance, concerns were raised about civil asset forfeiture laws when it was discovered that police departments were seizing cash from drivers during roadside stops even when there was no evidence of any criminal wrongdoing. This wasn’t a new issue, but it was an issue that was supposed to be resolved by the Civil Asset Forfeiture Reform Act of 2000. Instead, the shakedowns continued, thanks in large part to the extreme costs associated with fighting those forfeitures. Why bother shelling out $10,000 for a lawyer to recover the $5,000 that the police wrongfully seized from you? Thankfully, the Supreme Court did step in on this issue earlier this year, delivering a rare but significant victory for reformists. It remains to be seen whether their decision will prove to be the final nail in the coffin for what has come to be called “policing for profit.”
When President Obama took office in 2008, it felt as though the tides might be turning against the authoritarian mentality that had gripped the Republican establishment. But much of the “hope and change” that Obama had promised just never materialized. He did make some progress on issues like mass incarceration, but his administration was surprisingly aggressive in prosecuting whistleblowers. He also signed off on a law that gave the NSA permission to conduct warrantless surveillance of phone calls between Americans and foreigners so long as the Americans participating in those calls weren’t the targets of the surveillance. And while he may not have expanded executive power to the degree that President Bush had, he did expand it nonetheless.
“What we’ve been witnessing is a tit-for-tat contest between two power-hungry parties that have both demonstrated a willingness to bypass the safeguards designed to protect the system from unscrupulous politicians.”
President Trump’s leadership has only made matters worse. He talks like an authoritarian, walks like an authoritarian, and behaves like an authoritarian. He is no less shy about trying to use executive power to circumvent Congress than either of his two predecessors, as evidenced by his decision to sell weapons to Saudi Arabia without congressional approval. Rather than doing the hard work of hammering out a comprehensive immigration reform deal with Democrats, he implemented a child separation policy that was needlessly cruel and went around Congress yet again to secure funding for a border wall. He appears to be quite the fan of asset forfeiture as well; he once threatened to “destroy” the career of a Texas state senator who wanted to reform the state’s asset forfeiture program so that police couldn’t seize assets from citizens who hadn’t been convicted of a crime. And even if he has legitimate gripes with certain media outlets — and honestly, I think he does — his characterization of the press as the “enemy of the people” is the kind of rhetoric one would expect from a tyrant, not the duly elected president of the United States.
It wasn’t all that long ago that Democrats presented themselves as the antidote to authoritarian governance. These days, however, some of them are singing a very different tune. At a CNN Equality Town Hall in October, former presidential contender Beto O’Rourke proposed stripping religious institutions of their tax-exempt status if they oppose gay marriage, and the progressive audience in attendance roared with approval. His comments came just a few months after the San Antonio City Council decided to punish Chick-fil-A for its past opposition to gay marriage and donations to conservative organizations by banning the restaurant chain from the San Antonio International Airport. Not surprisingly, a number of legal experts believe that the city council’s discriminatory action likely constitutes a violation of the First Amendment.
Numerous Democratic presidential candidates who are still in the race have said they’d entertain the idea of “packing” the Supreme Court, a highly controversial move which even Republicans have refused to consider. Cory Booker, Pete Buttigieg, Amy Klobuchar, Elizabeth Warren, Andrew Yang, and Tom Steyer all told the Washington Post that they are open to the idea. Senators Kirsten Gillibrand and Kamala Harris, both of whom exited the race earlier this year, said the same. The last time this idea was put to the test was when President Franklin D. Roosevelt proposed a plan to pack the Supreme Court with justices who were sympathetic to his New Deal programs. But the public, the press, and even many members of his own party recognized the plan for what it was: a shameless power grab.
That attempted power grab failed miserably, and I suspect the results would be the same if either party were to try to pull a similar stunt in this political climate. Justice Ruth Bader Ginsburg appears to agree. “If anything would make the court look partisan,” she told NPR in an interview this past July, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
“As a voter, I’m much less concerned with the advancement of either party’s agenda than I am with the preservation of the built-in limits on federal power.”
For their part, GOP members of Congress have shown no signs of abandoning their own authoritarian inclinations. In February, the Senate passed the Combating BDS Act of 2019 with the support of every Republican except for Rand Paul, who opposed the legislation on constitutional grounds. He was joined by twenty-two Democrats who expressed similar concerns. The purpose of the legislation, which has yet to be brought to a vote in the House, is to provide legal cover to the more than two dozen states that have implemented what are known as anti-BDS laws.
The Boycott, Divestment, and Sanctions (BDS) movement has been around for more than a decade. It encourages various types of boycotts of Israel — academic, economic, cultural, and so forth — in the hopes that such boycotts will force the country to, among other things, cease its occupation of Palestinian territories and grant Palestinian refugees the “right to return” to their ancestral homes in Israel. Anti-BDS laws are laws designed to punish businesses that have followed the BDS movement’s lead and chosen not to do business with Israel.
These laws, however, have run into passionate opposition from free speech advocates, and for a very good reason; boycotts carried out for political purposes have long enjoyed protection under the First Amendment, thanks to the Supreme Court’s ruling in a 1982 case pertaining to the NAACP’s boycott of white-owned businesses in Claiborne County, Mississippi.
In Texas, contractors had been required to sign a pledge not to boycott Israel until speech pathologist Bahia Amawi filed a lawsuit against the state. Amawi’s contract with the Pflugerville Independent School District was terminated after she refused to sign the pledge. Thankfully, she won her case. Texas amended their anti-BDS law, but that, too, is now tied up in court after the same judge who presided over Amawi’s case allowed a new lawsuit against the amended version of the law to proceed. Last year, Arizona and Kansas were also dealt defeats by federal judges after their own anti-BDS laws were challenged by the ACLU.
The growing popularity of authoritarianism isn’t a partisan issue. What we’ve been witnessing for the better part of the last twenty years is a tit-for-tat contest between two power-hungry parties that have both demonstrated a willingness to bypass the safeguards designed to protect the system from unscrupulous politicians. Neither party seems to have much respect for rules, rights, or traditions these days — except, of course, when they’re not the party in power. And that, I believe, may be the single biggest threat to American democracy we’re facing today.
Horseshoe theory attempts to explain this phenomenon by arguing that the closer each side gets to the fringes of mainstream politics, the more they begin to resemble each other. From an ideological standpoint, this is a tough position to defend. You won’t find many conservative activists who support an assault weapons ban, nor will you find many progressive figures who support President Trump’s decision to pull the United States out of the Paris Agreement on climate change. When it comes to policy, the left and right have very little in common.
From a behavioral standpoint, however, you can see the similarities. Take the battle over presidential appointments and nominations. When Republican obstructionists stubbornly refused to confirm scores of President Obama’s judicial and executive branch nominees, Harry Reid and the Democrats scrapped the filibuster, but the rule change did not apply to Supreme Court nominations. Republicans took things a step further when they enacted the same rule change to confirm Neil Gorsuch to the Supreme Court. Now some Democrats are threatening to pack the Supreme Court in response to the Republican response to Harry Reid’s response to Republican obstructionism.
See the pattern?
As a voter, I’m much less concerned with the advancement of either party’s agenda than I am with the preservation of the built-in limits on federal power. We cannot trust Republican or Democratic leaders to restrain and police themselves; even those who may seek to tamp down the escalating struggle for political dominance could, and probably would, fold under the pressure being brought to bear by some of the more vocal forces within each party.
With that in mind, it’s my sincerest wish that the upcoming decade will bring with it the demise of authoritarianism in every space it inhabits — the halls of Congress, social media websites, political talk radio, and so on and so forth. Our system is strong, but it isn’t invincible. It can’t withstand the authoritarian impulses of the ruling class for much longer. To keep it intact, we need to eschew the win-at-all-costs attitudes of political actors who publicly bemoan abuses of power while privately yearning for the opportunity to commit similar abuses in pursuit of their own ends. We need to reacquaint ourselves with the basic principles that undergird the checks and balances that our democratic institutions depend upon for their survival. And perhaps most importantly, we need to remember what it means to be a constitutional republic, to be a nation in which power is shared among many rather than consolidated in the hands of a few. Authoritarianism should have no home here in these United States, and now is the time to make that clear to every politician asking for our votes in 2020.