Notes from Away: The Office and the Man
Thursday, January 19, 2017 10:54 AM
Public sentiment is everything — he who molds public sentiment is greater than he who makes statutes. — A. Lincoln
Stephen Harder is an international lawyer and resident of Rockport, who teaches law for part of each year in China.
We Americans are not a servile people.
We did not, this last November, anoint a new master, some deus ex machina to descend into our midst to rule us, or bless us, to determine our passive fate by scribbling it on the back of a playing card.
Not Trump, not Obama, not Bush, not Clinton — none of them will, or could, “do” anything to us, and none of them could, or did, or will, “protect” us from some fearsome fate — not unless an entire country is complicit, or engaged, in the doing or the protecting.
The American president (the man, and I expect during my lifetime, the woman) who temporarily holds the office, though, is a voice — the voice of the American spirit and the American democratic political will: in economic crisis, in military action, in giving words to grief after natural disaster or man-made disaster at gay night club, or black church or Connecticut elementary school.
The president’s demeanor, his choice of words, his choice of advisors, whom he invites to the White House, to whom he awards the country’s honors, his expressed attitudes to the world and to his own fellow citizens — all these say something about our country to all of us, and say something about all Americans to the world. For those who were made distraught by the last election, this aspect of the new president’s persona is the most upsetting.
But elections make no laws. Speeches and YouTube videos, and appearances on late-night television and late-night tweets — however elevated or crude, or hip or lame — have no legal or constitutional force. Thanks to the genius of our founders, and many wars, and generations of hard work, we still live in a constitutional republic, with separation of powers, and fundamental rights of conscience and speech and association, protected by an independent judiciary. We still live in a country of laws, not of men.
The powers of the office of the presidency (regardless of the man or woman who occupies it) are constrained by our system of government in multiple ways. Should the president nominate an unfit person to run the Federal Reserve or the Defense Department or to be a Supreme Court justice, the Senate can refuse to confirm. Yes, the president’s party, at present, controls a thin two-seat majority, but the votes of a Cruz, Rubio, Paul, or McCain are hardly assured, not to mention the votes and public positions of Maine’s own Senators Collins and King.
In extreme situations, the Congress also has the constitutional power to remove any member of the executive or judicial branch, including of course the president himself, by impeachment in the House and trial in the Senate.
Our hundreds of federal judges, defending our constitutional rights, serve for life. There is no reason to think they change their principles or professional ethics on Election Day.
Existing federal rules protecting workplace safety, the environment, and equality of treatment in employment and housing and schooling cannot be changed without months or years of hearings and debate and fact-finding by government agencies. The tens of thousands of civil servants in those agencies do not change, or change their sense of duty, when a new president is elected.
And then, crucially, there are the states — those “laboratories of democracy” in Justice Brandeis’s phrase. These sovereign states are free to tax and spend and affirm individual rights and promote social goals, independent of prevailing policy in Washington. A reinvigorated federalism may be one result of this election. And participation in local government is intrinsically ennobling.
There has been too little real political persuasion in recent years, and too little informed public debate.
Politics has its ironies. My bet, and my prayer, is that the disruption of established protocols of speech and behavior and information that will occur under our new president will reinvigorate serious political discussion, cause us to re-evaluate long-accepted positions and first principles, refocus attention on the constitutional prerogatives of the Congress (especially in foreign affairs) and the individual states, engender more critical scrutiny of government power by a less complacent press, and re-energize local governance.
But laws have their authors, and those authors and their constituents have their sentiments, and sentiments, as Lincoln remarked, can change. Each of us can shape the sentiments of our community. By our words and our actions.
Perhaps many of us were hoping, this last election, to be saved or justified from above, and now we realize we have work to do, down here where we live.
That work, as President Kennedy said at his inaugural, speaking for all Americans, as all presidents should, “must truly be our own.”