17th August 2022
Now, there’s a title.
As Vice President, Richard Cheney was a supporter of the notion of “executive privilege” – the notion that the executive can do things which it otherwise would not be allowed to do because they have the constitutional privilege to do so.
This is not a view a liberal constitutionalist blog such as this one supports.
But this blogpost is not about Vice President Cheney, but about Representative Elizabeth Cheney.
She is the Republican congresswoman who, notwithstanding party pressures, has taken a lead in condemning the unconstitutional behaviour of President Donald Trump.
And she has now paid for that politically, losing the primary for her party’s nomination in her state.
Liz Cheney defeated in Wyoming primary https://t.co/Hnrf1htv1y pic.twitter.com/WpEM2LsBAt
— The Hill (@thehill) August 17, 2022
But, we may not have heard the last of her politically, because today brought this news:
#BREAKING: Cheney says she’s "thinking about" running for president https://t.co/GHPqYWPa3l pic.twitter.com/aNv1yBkasf
— The Hill (@thehill) August 17, 2022
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Constitutionalism is the idea that there are certain fundamental political rules and principles that should be complied with, regardless of any personal or partisan benefit.
This is my own defintion, formed over thirty years of being fascinated with constitutional issues.
(There are other definitions – and, if you have one which is better than mine, then tell me and I shall adopt it instead.)
Cheney and a handful of other Republicans have placed constitutional rules and principles ahead of their own personal and partisan advantages.
Those conservative constitutionalists must be commended for doing so.
Perhaps if Cheney is elected President, she may be as great an advocate of executive privilege as her father, the former Vice President.
(It is easy to be liberal when you do not have executive power.)
But even her father was a constitutionalist, though a conservative one.
And constitutionalism and liberalism are not the same thing.
Conservative constitutionalism exists, and it is crucial.
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That Cheney keeps on going in the face of hostility if not hatred from Trump supporters in her own party shows there is hope for constitutionalism in the United States.
Because for constitutionalism to be viable, there has to be both conservative constitutionalists and liberal constitutionalists.
For if constitutionalism is seen as the preserve of only liberals – an entirely liberal project – then it cannot claim to be a thing that is regardless of partisan advantage.
So while there are still conservative constitutionalists there is the possibility of constitutionalism being reasserted in American politics.
But.
If all the political careers of the surviving non-Trumpite Republicans end in failure, then constitutionalism itself becomes partisan.
And as constitutionalism cannot be partisan, it will – like Douglas Adams’ God – promptly vanish in a puff of logic.
So let us hope the political careers of American conservative constitutionalists have not come to an end.
Else: brace, brace.
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I struggle with the concepts of conservative and liberal constitutionalists. It strikes me that there are constitutionalists and non-constitutionalists.
Your definition of constitutionalists is a very good one. Politicians that don’t believe so, are, therefore, non-constitutionalists, rather than split the factions into conservatives and liberals.
We see similar issues in the UK – those that believe in the rule of law and be bound by constitutional norms, and those that don’t .
Thank you for your very interesting thoughts on the events across the pond. Earlier today I listened to Ms Cheney’s concession speech and it was obvious, that she was signalling a run for the White House – she included quotes/references to two previous presidents: Two!
I share your interest in constitutions ever seeing the diagrams of the various constitutional arrangements of the Roman, Athenian and Spartan Republics in my school history books. Later on there were the pre- and post-revolutionary French set-up, later still the Weimar constitution and so on. (For anyone interested in the diagrams, they can be found in the Penguin History Atlas. And I still think they are very good.)
Rep. Cheney’s loss is unfortunate but not unexpected. It would be unexpected (and odd) if she had won her primary: Wyoming is the sort of place that sues other US states to try to force them to allow the continued use of Wyoming coal, and the R primary voters there are deep in Party rather than constitutional questions. Perhaps a rough analogy might be the current Tory leadership race; the rhetoric there (and, presumably, the programme) is, like much of the reactionary-authoritarian rhetoric in the US, not particularly aligned with actual issues so much as emotional button-pushing issues for the pool of eligible voters (Tories). Wyoming wasn’t so much about Mr Trump as it was an example of Party loyalty; Rep. Cheney was punished for not being with the team, not for being anti-Trump, with the latter being the symbol for the Party.
Could we have somewhere a DAG lexicon so that words like ‘liberal’ and ‘constitutionalism’ – in his terms only – are defined?
I would list the previous Speaker of the House of Commons as a liberal constitutionalist.
One very timely observation on the US constitution – about a week or so ago – left me somewhat stunned. Sever Republicans, including Senator Mike Lee, has insisted that the United States is a Republic, not a democracy, that the word democracy is not used even once in the US Constitution and that – and I’m quoting – “democracy isn’t the objective” of America’s political system.
https://www.theguardian.com/us-news/2020/oct/08/republican-us-senator-mike-lee-democracy
I accept that this is a bit of a leap, but it seems to me that the constitution was intended by the Framers to prevent exactly this sort of rhetoric.
As I understand, the Founding Father’s had a clear difference in mind between a Republic and a Democracy and they wanted a Republic. In the classicist sense – Roman Republic vs Athenian Democracy.
Athenian Democracy as direct democracy vs a highly constrained electorate with a many restrictions on power, most in the hands of the gerontocracy (the Senate) a few sops to the plebs (the Tribunes).
In theory, this should have prevented Trump, whose populist rise has some uncanny echoes with Caesar (fortunately without the strategic ability).
Presumablt the Republicans no longer read classics or perhaps they fancy themselves as Augustus.
Didn’t Jed Bartlett, greatest of all liberal US Presidents, say exactly the same thing? :-)
This is, of course, an utterly specious argument. ‘Republic’ and ‘democracy’ are not mutually exclusive terms. It’s an argument put forward by people who recognise that society is evolving in directions of which they don’t approve and they want to stop the people they disagree with from voting.
Those comments were from 2020, Sproggit – and he was roundly (and correctly) criticised for fundamentally not understanding what the words mean.
Given the US Oath of allegiance requires declarants to update and defend the US constitution (full text here https://en.m.wikipedia.org/wiki/Oath_of_Allegiance_(United_States) is it going too far to describe a non-constitutionalist as an enemy of the (US) state?
The US constitution does have its faults (eg possible gridlock where not all of the Presidency and both Houses are not controlled by the same party) but having the written constitution at least allows everyone to test behavior against it.
Contrast the UK (unwritten) constitution where ultimately yoy can do what you like if you can get it past the House of Commons. This means you have to rely on the good sense of MPs whose oath of office is very different to the US Oath of Alliegence.
Constitutional reform is in the air here in the UK, mostly around the possibility of Proportional Representation a written constitution is also possible. I would like to see that written constitution include an Oath for members of the House of Lords to uphold that (written) Constitution as their primary obligation.
I’m not a fan of a second elected chamber: we have one of those already- and just look at it!
Constitutionalism, and also an attitude of constitutionality.
It is extraordinary how the Republican Party seems to be in thrall to a populist demagogue like Trump.
As Benjamin Franklin is reputed to have said to Elizabeth Willing Powel towards the end of the US Constitutional Convention : “A republic, if you can keep it.”
“It is extraordinary how the Republican Party seems to be in thrall to a populist demagogue like Trump.”
It is – and it is worth breaking down the elements that led to this.
1. Smart analysis. There are 4 voting blocs in the United States: Republicans, Democrats, Undecideds and non-Voters. Trump realised that the number of people so disillusioned with politics that they were non-Voters turned out to be a larger group that the Undecideds. By appealing to them, he put extra pieces on the board to which the establishment candidates were completely blind.
2. Deflection. Rather than telling people that he could do wonderful things for them or that the Republicans were better than Democrats, Trump had a different story: he told people that the reason they had cr4ppy lives, with cr4ppy pay at cr4ppy jobs, was because they were being put upon by “the man”. He cast himself as an outsider ready to tear down the establishment and set things right.
3. Attack. He attacked elements of the establishment – like the Mainstream Media – at every opportunity he got. When asked why he continued to claim “Fake News!”, he explained, “So that when you guys run pieces critical of me, nobody will believe you.
4. Shamelessness. Trump displays all the hallmarks of a malignant narcissist – he is a street fighter and no scheme is too low if it will get him the result that he wants. His opponents – Republicans he primaries and both Clinton and Biden all tried to be politicians and policy-based leaders. The game had already moved on by that point.
5. Powerful friends. Russia. Cambridge Analytica. Facebook. Fox News. Trump weaponised lies and drew a willing army of sycophants and foot soldiers to his ranks in the process.
6. Feelgood. A lot of Trump’s legislative achievements in office were outrageously cynical. He got a $2 Trillion tax cut in 2017 that was temporary for voters [ran out during a theoretical second term] and permanent for companies. He made a noise about populist things.
7. and last… Trump has shown that his media savvy and his willingness to fight in the gutter means that he can call down the wrath of his base on anyone who dares stand up to him. So now you have a field of GOP Senators and Representatives who are literally too frightened of him – because they love their power too, of course – to defy him. As with the guy who tried to invade an FBI field office just this week, there are people in the base who are literally willing to die for him. The GOP establishment are terrified.
Hi Daid,
It might seem trivial (though I don’t think it is), but your (otherwise excellent) definition of Constitutionalism must specify that the ‘rules and principles’ are “written and accepted”. Lawyers tend to forget, until reminded in court, that ‘rules and principles’ may include unwritten, informal ‘rules and principles’.
Kind regards,
Richard
In the course of this interview Congressman Adam Kinzinger, the other Republican on the Jan. 6th. Committee, describes, in all but name, the Good Chap theory of constitutional government.
You may be interested in this blog series from “a southern US journalist who is fed up with the lack of common sense”: https://www.youtube.com/watch?v=dM4C4iqDlCw (this particular video is 5 minutes). We do need to listen to our cousins across the water when we are discussing the US constitution!
May I suggest that Constitutionalism presupposes that a Constitution exists and to that extent Constitutionalism ≡ The Rule of Law.
Whether and to what extent one has freedom to interpret a Constitution arguably is the liberal dilemma.
I’ve watched Liz Cheney throughout the Jan 6 Committee public hearings and also watched her concession speech that you reference for this blog.
Certainly throughout she has been an implacable seeker of the truth and trenchant effective critic of Trump and his criminal enterprise.
She seems to have had a Damascene conversion from her past total support of Trump (in 2016 she famously labelled Hilary Clinton as the greatest internal threat the US has ever faced) and she now realised that it was and still is Trump that is that threat due to his complete amorality.
However I’m not convinced that describing her stance as being because she is a supporter of the US Constitution is the right way to describe it.
Yes she is outraged by Trump’s bottomless lying and corruption but a supporter of constitutional rights?
As a current article in Mother Jones notes “Back in the Obama era Cheney formed a dark-money outfit called Keep America Safe, which sought to paint Obama as weak on security. One of the group’s first ads bashed Attorney General Eric Holder for hiring attorneys who had once defended Guantanamo detainees. The spot referred to the lawyers as the “Al Qaeda 7” and asked, “Whose values do they share?” as b-roll of someone who looked like Osama bin Laden played in the background”
Seems like she thinks some of the constitutional rights are not applicable to all.
Then there is her staunch support of the recent Supreme Court ruling overturning Roe – a ruling which is based on the conservative religious majority rescinding a past SC court ruling that there is constitutional right of individual persons to privacy about choices their bodies. As Justice Thomas explicitly stated in a addition to the majority opinion the basis of this new striking down abortion rights ruling is applicable to other religious conservative targets – GLBT rights being the top of that list.