Norms in the Age of Trump: Civility, Family Separation and the Supreme Court

The Trump presidency (and campaign) has unleashed an assault on many of the norms that are central to American political life. Norms against literal dick-measuring contests during presidential elections, norms against electing candidates who brag about committing sexual assault, norms that stipulate that candidates release their tax returns, norms against inciting violence against protestors, and so on and so forth.

This has provoked backlash across the ideological spectrum. But some centrists, moderate democrats, and never-Trump conservatives, seem to be uniquely motivated by a concern with Trump’s disregard for the established norms of The Republic —rather than by a rejection of his policies (except insofar as his policies violate established public norms). Indeed, many of these critics, while ostensibly ‘liberal’, appear to be advancing a quintessentially conservative approach to politics: a Burkean insistence on the preservation of the political status quo (which, to be fair, is not necessarily very Burkean in and of itself) and an emphasis on a hyperreal-Sorkinesque notion of how politics “Should Be Done.”

These pundits, observers, and commentators have been awfully quick to unfairly equate Trump’s egregious violations of core democratic and moral norms with calls for nonviolent confrontation of Trump officials (a la Maxine Waters) and for democrats to play political hardball with the Supreme Court. These Very Serious People find the violation of these norms to be inherently appalling.

This is wrongheaded. “Two wrongs don’t make a right,” isn’t a political philosophy or a sound strategy. While upholding certain core moral and political norms are imperative for the maintenance of any democratic system, other norms are tied to specific political dynamics—and consequently only properly function in a given set of social circumstances. Upholding these types of norms amidst changing or radically different circumstances is not noble, but foolish and ultimately counterproductive.

Certain violations of norms ought to be quickly repudiated with condemnation and public sanction.  It would have been inane, ridiculous and immoral to abandon the norm against sexual assault when Trump violated it. This line of questioning is relevant because the norms implicated in the debates surrounding Maxine Waters and the Supreme Court are wholly different from the norms against sexual assault in the way they function.

<> Some norms emerge as the crystallization or codification of prior deontological moral commitments or rules. Sexual assault is wrong independent of context. It emerges from prior values or social mores.

<> Other norms promote instrumentally beneficial or prosocial behavior. They are institutions which structure incentive systems or otherwise influence behavior to bring about desired ends. For example, the norm against writing policy without expert-input. Or liberal democratic norms that protect against democratic backsliding and authoritarianism (granted, political theorists are divided as to whether these norms flow from moral principles or are instrumentally beneficial). These norms usually promote behavior which is usually desirable independent of social context.

<>Finally, there are norms that promote instrumentally beneficial cooperative behavior in a certain circumstance or a certain context such as when there are collective action problems (n-person prisoner’s dilemmas, stag hunt games, etc). In the prisoner’s dilemma game, credible norm adherence can help a pareto efficient equilibrium obtain.

This taxonomy is, admittedly, reductive but ultimately illustrative of how, that norms differ in how they operate and how certain norms are reliant on the existence of certain circumstances to properly function. The central claim of this piece is that the norms invoked by the current political debate fall into the third category.

Certain norms are circumstance-dependent. In international treaty law, states can invoke the doctrine of clausula rebus sic stantibus[1], which allows states to terminate treaties if there is a fundamental change in the circumstances that constituted, “an essential basis of the consent of the parties to be bound by the treaty.”[2] Independent of whether you believe that international law is effective or relevant, international law was designed to enforce a system of informal and formal social agreements, making it an apt analog for the enforcement of domestic norms—in the domestic case, mechanisms to hold powerful public figures accountable are rare unless there is widespread social mobilization while, similarly, international law operates against the backdrop of a quasi-anarchic system in which enforcement rests sometimes solely on nations and leaders feeling normatively compelled to comply with international norms and rules. [3]

A core lesson about norm dynamics can be drawn from the way international law has been designed: things that don’t bend, break. Norms must be rigid enough in the short-term to ensure enforcement, but must be able to be flexible enough in long-term to remain effective amidst changing socio-political circumstances. The current outrage over Maxine Waters’ comments and suggestions that Democrats play dirty in the Senate fails to grasp the implication of this lesson. Circumstances, essential to the norm in question, have changed.

Undemocratic behavior or justified strategy. In the United States, many norms govern the legislative process, that, in general, promote win-win cooperative equilibria that make our democracy function better. In particular, norms that govern the selection of Supreme Court justices exist to preserve the legitimacy of the court by excising a degree of partisanship from the nomination process. If you dislike authoritarianism and democratic backsliding, this is generally a good thing. However, this desired outcome only obtains if both parties cooperate.

Adherence to this norm is, or rather was, sustained through electoral accountability and the threat of retaliation, setting an ultimately destructive precedent that will be used against you when you lose political power. In February 2016, Mitch McConnell decided that pursuing conservative objectives was more important than maintaining these principles, choosing to ignore President Obama’s nomination of  Merrick Garland. McConnell and his entourage of Senate Republicans justified their decision on the basis that 2016 an election year and that Obama was a lame-duck president. McConnell, in a stroke of political genius, used a 1992 speech made by Joe Biden, to appeal to an imaginary principle, the ‘Biden rule’ that stipulated that you cannot nominate a Supreme Court Justice in an election year. This, of course, is ridiculous given the historical frequency of  similar late-term Supreme Court nominations. But you’re fooling yourself if you ever believed that McConnell was earnestly committed to principle over politics. Massive demographic change threatened long-term Republican interests and an uncertain general election was beginning to take shape. Rather than concede to Garland and abandon conservative jurisprudential priorities for perhaps several decades, McConnell gambled on the election. And it paid off. While they had to dismantle Senate norms even further by triggering the ‘nuclear option’ on Supreme Court, Gorsuch’s elevation to the highest court on the land ultimately delivered exactly what McConnell had hoped it would.

With the recent resignation of Justice Kennedy, McConnell was granted a unique opportunity to establish conservative dominance over the court for the next couple of decades. Accordingly, McConnell has since announced his intention to confirm a nominee almost immediately in, you guessed it, an election year. In fact, the very fact that it is an election year, means that the President and the Senate Majority Leader can leverage the midterms to coax wishy-washy Republicans and vulnerable Democrats to vote to confirm Trump’s nominee lest they face the electoral consequences in November. McConnell played politics with the Court and won, big time.

Yet, Very Serious People, have urged Democrats to uphold the pretense of nonpartisan respectability in considering Trump’s presumptive nominee. They insist that Democrats uphold a norm in circumstances that no longer merit its adherence. Again, the purpose of this norm, is to ensure a cooperative equilibrium by making it electorally or politically costly to not cooperate. Unilaterally upholding the norm makes no sense for an individual actor as if they cooperated and their counterpart defected, they would lose the Court, as is happening in the status quo). To wit, the fundamental basis of consent in this case is mutual and reciprocal commitment.  A fundamental basis which has clearly changed. Republicans face a long-term political crisis and fear little backlash from feckless rule-worshipping Democrats. They have no need to fear retaliation (nothing to lose), every reason to take advantage of the situation given the changing political environment (and everything to gain). To boot, their electorate seems more interested in “trolling the libs” than caring about legislative norms.

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The norm against polluting the Supreme Court nomination process with partisan politics is as dead as the fake ‘Biden rule’ McConnell created in 2016 and killed this year. Democrats need to adopt a tit-for-tat strategy in order to re-establish it (or at least as to not get screwed as much as they are right now). Game theory wise, a tit-for-tat strategy is the best option as it is the most likely to generate long-run cooperative outcomes under conditions of strategic interaction—as Robert Axelrod’s 1984 magnum opus “Evolution of Cooperation” demonstrated. Democrats should not embrace a radical strategy of court-packing (eroding the legitimacy of the court would be bad for preventing authoritarianism and would have dire consequences in terms of adherence to the countless Supreme Court decisions that advance liberal priorities), but they should at least start playing real real dirty like their craftier Republican counterparts.

Incivility or Appropriate Response. Regarding those who cry “incivility!” at Maxine Waters, we see another case of norm-worship gone awry. The social norms that govern tolerance of differing ideas exist to promote the constructive discourse necessary for the existence of a pluralistic polity. Ideas and concepts have been crafted in a crucible of debate and contestation that are formed by social institutions like academia, civil society, and the media. Indeed, if we cannot willingly and freely engage with ideas and opinions that differ from our own, we cannot be certain in the rightness of our beliefs. This does not mean, however that there are no boundaries to legitimate debate.

The norms that govern discourse and how we ought to approach different opinions are premised on the existence of certain circumstances. They hold when participants in a dialogue engage with each other’s ideas in good faith, have a relatively equal ability to participate, advance reasonable positions, and refrain from denying personhood or dignity to others. In the latter case, such ideas and opinions that reject another individual’s standing to participate in a dialogue violate the very norms of discourse and free speech that would be extended to them. How can these norms encourage constructive dialogue if one perspective is inherently inimical to that dialogue?

If these conditions do not hold, it doesn’t mean that offending perspectives should be suppressed, for it might not be prudent to do so. It does mean, however that individuals should be able to reserve the right to not extend those norms of civility in those cases. Karl Popper’s The Open Society and its Enemies has been butchered and misinterpreted throughout the recent brouhaha over free speech, but the argument he actually makes is quite insightful:

I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. (Note 4, Chapter 7)

Popper agrees with the major principles of international law in emphasizing the importance of the context to which a norm is tied. When those circumstances change, those perspectives are no longer entitled to the privileges of that norm but may be extended them anyway for instrumental reasons. In the case of Trump’s child separation policy (which prompted Waters call for non-violent confrontation), it is clear that the administration’s actions do not deserve our adherence to an ethic of tolerance. There has been a fundamental change in circumstances. The administration and its supporters were never interested in facilitating real dialogue. Policy, especially policy masterminded by Stephen Miller, is more reflective of a strong desire to “troll the libs,” that informed moral policymaking. Circumstances have changed. The social context is different—the injustice being perpetrated in the status quo is a supervening imperative.  It is perverse to maintain performative “civility” in the face of grossly immoral policy. It is a separate question entirely as to whether the confrontation of administration officials is wise or will accomplish the goals it seeks out to achieve, however the core notion that demonstrably immoral policy is not entitled to the full benefits of civility, rings true and clear.[4] For the record, this uncompromising incivil opposition to family-separation, ultimately forced the Trump administration’s hand—and they quickly switched from zealously defending  the policy (see Sessions, see Miller) to blaming Congress for it.

 

[1] Article 62, Vienna Convention on the Law of Treaties.

[2] Ibid.

[3] Franck, Thomas M., The Power of Legitimacy among Nations. Oxford University Press, 1990.

[4] Obviously, this does not means all political norms ought to be abandoned.

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