Political Science (Fiction)

The Precedent of Peaceful Transition

By David Read

Well before the recent death of Supreme Court Justice Antonin Scalia, there were many who suggested that, should a Supreme Court vacancy arise in President Obama's final year in office, a constitutional crisis would result. That the current majority of congressional Republicans would not accept any nominee Obama might send to the judiciary committee does not constitute a particularly daring prediction. While this developing stand-off may well be a deviation from the norms of governance in place just a generation ago (recall that the Democrats had the numbers to filibuster the nomination of Clarence Thomas in the Senate, but did not do so), it does not really rise to the level of a constitutional crisis. South Carolina's succession in 1860 was a constitutional crisis. The disputed Florida election results in 2000: now that was a legitimate constitutional crisis.

There is, however, another sort of constitutional crisis that, though it happens every year, in various countries throughout the world, has yet to afflict the United States of America. I am talking were about the failure to have a peaceful transition of power. More specifically, it would be a scenario wherein a sitting President refused to accept the results of an election. Our remarkable track record of peaceful transitions of power, now at 212 years and counting, is something that we really take for granted.

We celebrate Abraham Lincoln for saving the Union and for the Emancipation Proclamation. We honor Franklin Delano Roosevelt for the New Deal and the successful conduct of World War II. Along with these two guys, George Washington always appears on any short list of great Presidents. What did he do to deserve such high esteem? Quite simply, he established the extraordinary precedent of quietly leaving office once his term was over.

Think about it. A U.S. President is the most powerful person in the world. If you hold this office, you control the greatest army and navy ever assembled. You are treated like a demigod as you travel the world in five-star luxury. Captains of industry and Hollywood celebrities alike queue up to pay fealty to you. You get to decide which of your friends and allies get those sweet ambassadorial jobs. You get to order investigations against pretty much anyone who has slighted you in the past. Why would anybody walk away from a sweet gig like this?

For peaceful transition of power to work, people have to accept losses voluntarily. The question then is, under what specific conditions do people voluntarily accept loses? Well, for one, there has to be a certain level of comfort available. That outgoing President who is forced to put on a show magnanimity on Inauguration Day gets to go on to a life of million-dollar speaking engagements, and continues to live a life a luxury. The ex-President is still treated like a demigod, and gets to look forward to a life of ceremonial banquets, the gala opening of the Presidential Library, and continued fealty from celebrities and billionaires. The sweet gig continues, without most of the stress and headaches that accompanied the office.

Think of the analogous situation in a relatively poor African country with a largely extractive economy. In an extractive economy the primary source of wealth is the extraction of minerals (petroleum, gold, diamonds, etc.), which are then sent for processing or manufacturing elsewhere. In such an economy, control of the wealth is contingent on control of the land, and on massive capital investment. Thus, extractive economies are not known for their entrepreneurial cultures, or for an equitable distribution of wealth. In such an economy, peaceful transition of power entails giving up control of the only source of wealth, and of all of the patronage jobs, to one's political enemies.

After you've left office, you might have a corruption trial in your future. All of the money that you plundered from the state coffers will be forcibly repatriated. All of your family members, who once had high-paying government ministry jobs, will likewise be subject to criminal prosecution. All of the military and police officers who earned their positions through their loyal service to you will be demoted or fired. The people these military and police officers use to arrest and torture will have their turn to wear the badges and uniforms. Chances are, they will be looking for some payback. All of your loyal patronage army will find themselves unemployed, forced to go back to their families and attempt to struggle at an existence in subsistence farming. Indeed, in such a situation. Ignoring the results of an election that does not go your way is the only prudent and rational thing to do.

Some of the best recent research on the peaceful transition of power has come from Adam Przeworski at New York University. He argues that though peaceful transfer of power is hard to establish, once it becomes entrenched, it seems to "stick." That is, after a few examples of a leader relinquishing power without subsequently being persecuted and imprisoned, other leaders gain confidence that they can let go of power without facing dire consequences. In light of this, President Gerald Ford's controversial pardon of Richard Nixon can be seen as an important contribution to America's tradition of voluntary surrender of the office of the President.

On Inauguration Day, the outgoing President has to stand there and smile as the new guy, oftentimes his ideological and/or personal enemy, takes over his old job and, as is often the case, immediately sets to work undoing all of the hard-won accomplishments of the previous four to eight years.

On one level Przeworski's theory bodes well for the continuation of peaceful transition of power in the US. Unless wingnuts like this one get their way, and Obama is tried for treason upon leaving office, fear of retribution at the hands of their political rivals shouldn't keep future Presidents from voluntarily leaving office at the end of their term. However, his theory also rests on the establishment of a tradition, and the continued respect for that tradition. Many political pundits have remarked that we are now in the midst of the breakdown of long-standing traditions of political protocol. Politics in the United States do appear to have gotten nastier as of late. To find historical examples of such violations of norms as are commonplace now, we have to go back as far as Nixon's c. 1972 dirty tricks campaign, and perhaps even as far back as the time that Representative Preston Brooks of South Carolina strode into the Senate chamber and nearly beat Senator Charles Sumner to death with a cane.

Let's explore a couple of scenarios in which our 212-year-old tradition might come to an unfortunate end. I am by no means certain what a Donald Trump presidency would be like, but it if his past behavior is any guide, we could expect crony capitalism and whole heap of dodgy business deals. Let's take the man at his word and assume that he would not let standard political conventions, judicial opposition, and constitutional niceties get in the way of getting the job done. A corrupt and constitutionally impious Trump Administration would be the impetus for angry newspaper editorials, strident criticism, disorderly protests, and multiple Congressional investigations. Mr. Trump has demonstrated a tendency to take the normal slings and arrows of political discourse rather personally. Chief among President Donald Trump's tormentors would likely be Senator Elizabeth Warren. Exactly why Elizabeth Warren is not running for President in 2016 I do not know. However, the election of Donald Trump would likely be sufficient to goad her into action in 2020. I do not know how that would play out, but should Trump get defeated in a humiliating landslide, I do not see him going gently into that good night. So far this year, Trump has not accepted the validity of any election results that did not declare him to be the winner.

On Inauguration Day, the outgoing President has to stand there and smile as the new guy, oftentimes his ideological and/or personal enemy, takes over his old job and immediately sets to work undoing all of the hard-won accomplishments of the previous four to eight years

How about another scenario, one in which Ted Cruz in sworn into office in January, 2017? Matthew Ygelsias at Vox.com seems to be correct in asserting that the current hard left turn evinced by the enthusiastic embrace of the insurgent candidacy of Bernie Sanders is not a passing fad, but an enduring new direction for the Democratic electorate. If so, we can expect more militancy, demands for radical reforms, and an unapologetic embrace of socialism. One suspects that after a few years of the unlawful surveillance, harassment, and criminal prosecutions that progressive activists could expect to suffer under a Ted Cruz regime, they would be in no mood to campaign for anyone as conciliatory and compromised by their links to the establishment as, say, Vermont Senator Bernie Sanders. Perhaps a coalition of radical youth, urban intelligentsia, African-Americans, and organized labor would form around the possible Presidential ambitions of someone like filmmaker Michael Moore. Don't laugh. In the 1980s, we knew Donald Trump only as the punch-line to numerous snarky stories in Spy.  

Let's give Ted Cruz the benefit of the doubt and assume that he really believes the extremist theology of he speaks. Perhaps it is not just a cynical attempt to suck up to rural Christian fundamentalist voters. Suppose for a minute that he actually sincerely believes in the "dominionist" gibberish that his father Rafael Cruz is constantly yammering on about. If he really does believe in Christian supremacy, that the righteous have moral obligation to seize control of the government and rule according to theocratic principles, can you then envision him placidly yielding control of the government to a Godless Communist like Michael Moore?

If you cannot wait until 2020 for a bona fide constitutional crisis, there is another scenario that could play out in November 2016. Though not as viscerally dramatic as a sitting President refusing to yield power to the President-elect, it would have equally destructive consequences. What if Hillary Clinton flames out, perhaps through a criminal indictment, and Bernie Sanders becomes the nominee in 2016? Additionally, lets us suppose that Sanders defeats Republican nominee Donald Trump on November 8. Will Trump turn out be the disaster for "down ballot" Republican candidates that many "establishment" Republicans have predicted? In such a case, the Democrats might reasonably expect to get somewhere toward the high range of what is deemed possible for a Democratic Senate majority in 2017: something in the region of 53 to 55 seats. How would you expect the good citizens of Texas to react to having a "Democratic Socialist" in the White House, accompanied by a not insubstantial Democratic majority in the Senate? Would you expect them to go home, lick their wounds, and begin planning for a reversal of fortune in the subsequent midterm elections? Or, would you expect them to go Texas crazy?

In the 1845, when the Republic of Texas was persuaded to join the United States of America, they were able to cut a pretty sweet deal for themselves. Among the provisions in the resolution that admitted Texas into the Union is one that allows the State of Texas to divide itself into as many as five separate states. Each of these states, of course, would have two US Senators. Whether or not this provision is rendered invalid by Article IV Section 3 of the United States Constitution is, like the recent controversy over the exact meaning of the "natural-born citizen" clause, something that has not been decided by the courts. It is easy to envision that, faced with a President Bernie Sanders and a Democratic majority of 53 Democratic Senators, the Texas Republicans would be tempted to use this trick. Instead of being the minority party with 47 seats, they would instead be enjoying a 55 to 53 majority. Of course, this would be bitterly contested in the courts, and would eventually be adjudicated by a SCOTUS with, most likely, only eight sitting judges. Do not expect the losing party in this situation to respectfully accept the results.

Of course, failure to continue our tradition of peaceful transition of power is what is called a "low-probability, high-cost event." But given sufficient passage of time, low-probability events become almost unavoidable. Though we are fortunate enough to have enjoyed un unbroken streak of 44 peaceful transitions, we always stand at the abyss of chaos, anarchy and violence. One of these days, we are going to take a great leap forward.

Published February 29th, 2016

David Read is a lapsed Political Science Ph.D. candidate who currently resides in Chicago.