Long before the United States came to be, Cicero warned of the need to refresh the colors of a constitutional system in each generation. This caution was taken to heart by Benjamin Franklin, who famously pronounced that the work of the 1789 convention produced “a republic, if you can keep it.”
A democratic republic depends upon the people’s uncoerced and informed selection of representatives to sort through our competing views regarding the formation of policy and, thereafter, its enforcement in law. As important as the republican constitutional structure is, its success turns principally upon the genuine belief that all are created equal. Human equality safeguards public political and civil rights, and it encourages private behavior that manifests mutual respect in the keeping of promises and our treating each other with dignity.
The Civil War ended in 1865, but it took a century and more to deal with its many insidious effects. The term “systemic racism” is used to describe these pernicious effects, but the terminology is too benign to convey its harm. Imagine, if you will, having suffered an unexplained, grievous wrong, but every avenue intended to secure redress for all citizens is foreclosed and there is literally no one willing to listen, let alone correct matters. Worse, the very harm suffered is traceable to the actions and policies of those given the duty “to serve and protect.”
Gross misuse of authority against black Americans has been long present in and outside our cities. Until a few years ago, the abuse was often hidden. The widespread use of cell phones with cameras removed the shroud from this shameful behavior. In fairness, the tiny lens also reveals how inherently dangerous policing is and how the vast majority of officers stay within their assigned tasks.
But then, race-based (mis)treatment extends well beyond the police. A black male who survives being stopped for “driving while black” and does not succumb to the intimidation of local gangs still faces a lifetime of disadvantage facilitated by an under-resourced, outdated and, in many cases, still effectively segregated public educational system, which itself leads to disproportionate levels of minority unemployment. These prolonged deprivations may explain, in part, the frustration behind the protests’ ugly looting but, of course, few would say that it justifies the recent violent and life-endangering lawbreaking.
The brazen lawlessness in the streets of the past two weeks is coupled with the equally brazen claims by President Trump that he has a national police force at his beck and call, in disregard of legislated boundaries for the deployment of the nation’s military against its own citizens. This is a prescription for dictatorship, not democracy. Nationally destructive tantrums by presidents or protesters do not advance the cause of human freedom. Former Secretary of State Madeleine Albright has catalogued Trump’s exaggerated claims of authority in her book, “Facism: A Warning.” And the president’s exaggerations are made worse by the pseudo-journalistic irresponsibility of social media platforms. As Albright writes: “This is the first rule of deception: repeated often enough, almost any statement, story or smear can start to sound plausible.” She adds: “The internet should be an ally of freedom and a gateway to knowledge; in some cases, it is neither.”
Her book is not new — it was published in 2018 — but it deserves to be newly read before this fall’s general election. Independents, like myself, should ponder Albright’s message especially, because a mob chanting a silly slogan such as “defund the police” plays right into the hands of an authoritarian president. In cost-benefit terms, suppressing violent anarchy in the streets is important, but even property damage in the hundreds of millions of dollars is still a lesser cost than executive disregard of constitutional provisions that form the very structure of the American republic.
Evangelicals and Catholics helped to put Trump in office in 2016 and, after luxuriating in his unidimensional judicial appointments and willingness to make an anti-abortion statement, Trump no doubt will be looking for their support again. But the constitutional protection of religious freedom does not depend upon any person’s reelection. It is wrong for Trump to suggest otherwise, and it is wrong for prelates to make partisan endorsements portraying the president as the embodiment of good vanquishing evil, as Archbishop Vigano did last week.
Our Founders made religious freedom and, especially, the equality principle two of the primary foundations of the American democratic republic. Some will insist that these principles can only mean that all lives matter, not only black lives. Yet, let us be honest: Even in the most denigrating moments in our lives, we likely have never been thrown to the curb with the boot of deadly, usurped authority on our necks. Nor have our lives been repeatedly subjected to a presumption of doubt or unworthiness because of race.
We face a triple threat today: a viral pandemic of unknown origin and treatment, systemic racism that calls for serious resource reallocation, and an authoritarian president with little understanding or respect for the constitutional limits on the presidency. The virus is killing the body, racism is crushing the soul — and both, tragically, supply the fertile soil of anxiety and uncertainty that is congenial to a president interested solely in his popularity and the exercise of raw power.
Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.