NewYorkUniversity
LawReview
The Law Review Blog

The Illusion of Permanence: Post-Trump America, Rome, and the Challenges of Restoration

Adam Littlestone-Luria

November 15, 2021

On January 6, hundreds of rioters flooded the Capitol building, stirred into action by President Trump’s rhetoric and by his lies.The breach shocked the country. Even for many apologists who had minimized Trump’s threat during the four years of his presidency, it cast the fragility of our democracy into sharp relief. For the first time in American history, the peaceful transfer of power—perhaps the most fundamental hallmark of a functioning democratic order—had been interrupted by violence. 

Well-functioning political systems depend not simply on a sense of legitimacy, rightness, or fairness, but also on a widespread illusion of permanence. People comply with the basic structure of institutions and norms in large part because they think that the system is not going anywhere. They translate dissatisfaction into reform, rather than revolution, because their imagination is restricted by the sense that the basic structure will inevitably endure. Long-lasting republics—from the U.S. to Ancient Rome—have relied on this constrained imagination. Rome’s example shows that, when the illusion of permanence breaks, democracy may be in danger. 

Can anything recreate a sense of political permanence? Reformers, activists, and lawyers are certainly trying. But as we consider proposals, we must not only evaluate them from the perspective of morality, fairness, or even their impacts on the legitimacy of the political system. Rather, we should also consider whether or not they can contribute to the all-important process of “re-enchantment”—recreating a broadly shared belief in the system and its stable future.

The American Founders were well aware of the fragility of their novel experiment. And it was only with the passage of years that the fledgling republic built a sense of its own continuity and stability. When Benjamin Franklin was asked by a group of inquisitive citizens what kind of government the delegates to the Constitutional Convention had framed, he famously replied: “A republic, if you can keep it.” During the early years of the new experiment, the new nation’s leaders confronted a citizenry not yet acculturated to the new system. In 1794, settlers in western Pennsylvania turned to rebellion in protest of taxes on locally distilled whiskey, and a portion of western North Carolina tried to split off as an independent republic allied with Spain.

But George Washington’s presidency started to lay the groundwork for a stable and enduring politics. His decision to step down after two terms set into motion a cycle of succession—a harmony that was tested almost at once in the rancorous election of 1800. After the Electoral College tipped against the incumbent President John Adams, a climate of crisis and fear of disunion gripped the Capitol grounds. But Adams and Jefferson, the two protagonists in the drama of the moment, chose to place the needs of the fledgling republic ahead of personal or partisan interests. They set precedent for a system that could endure.

Only after the Civil War, however, did the modern illusion of permanence truly begin to take hold. Secession showed that sectional strife could trigger disunion that was strong enough to rip the country in half. But since that rebellion failed, no political crisis has truly threatened the integrity of the mirage. A congressionally appointed special commission helped the country navigate the disputed Hayes-Tilden election in 1876-77, as four states failed to resolve disputes about which candidate should receive their electoral votes. Democrats who had the power to create a real constitutional crisis chose to let victory slip through their fingers. They chose to preserve the broader system instead of grasping at momentary advantage. Nixon conceded peacefully in 1960 in spite of rumors of vote tampering in Illinois and Texas by Kennedy acolytes. After Watergate, Republicans and Democrats came together to condemn dishonesty and electoral malfeasance, embarking on a bipartisan program of law- and norm-making under Presidents Ford and Carter instead of opting for partisan division. And Gore bowed to defeat after the Supreme Court ruled against him, although he could have pursued his legal challenges further. He recognized the need for the country to move forward. By the early 21st century, after navigating political strife so many times without mishap, it was very easy to believe in the illusion. How could a democracy whose institutions had proved their resilience time after time possibly fall to internal strife?

The last four years cut through this complacent confidence. As the Trump presidency came to a close at the end of 2020, legal scholars and politicians called for reforms to rein in the presidency. In September, Professors Bob Bauer (White House Counsel under the Obama administration) and Jack Goldsmith (who served as an assistant attorney general under President George W. Bush) joined forces to publish After Trump: Reconstructing the Presidency (2020). They laid out a program of more than 50 legislative and executive changes drafted to prevent future presidents from exploiting loopholes that the Trump administration had revealed. Members of Congress joined the chorus, and observers hoped that Bauer’s close personal connections to Biden and his incoming team might make this suite of reforms a central priority for the new administration.

For a brief moment at the end of Trump’s catastrophic presidency, Congressional leaders in both parties reacted with shock and horror, shaken from their complacency by the immediacy of the danger. Democrats proposed a pair of bills, the Protecting Our Democracy Act and H.R. 1 (the “For the People Act”), designed to address a sweep of questionable practices from the Trump era. These initiatives took a back seat to the second impeachment, the vaccination drive, and Biden’s initial push for substantive economic legislation. But now, voices calling for law and norm reform are getting louder again.

But can reforms to laws and norms restrain democratic decay? The example of the Roman Republic suggests that once the illusion of political permanence is exposed as a mirage, institutional tinkering might not be enough. In the 80s BCE in Rome, Sulla, a victorious politician and military leader, instituted a reform program after a bout of vicious internecine strife that nearly tore the society apart. He was granted broad powers, and he set out to remake the Republic’s political system with reinforced legal and normative guardrails. As divisions healed, Sulla sought to prevent a recurrence of the kind of discord that his society had finally managed to restrain.

But fifty years before the Sullan reforms, ambitious power players had already introduced violence into the system. Populist reformers and traditionalists clashed, leaving blood in the streets and breaking a tradition of peace in domestic politics. The decades between this first violence and the Sullan experiment were punctuated by bouts of conflict, as politicians turned violence into a tool. Within a few years after Sulla’s framework was passed into law, it was already fraying. When the illusion of the system’s permanence and power was first pierced, other opportunists were ready to bend or break it again for their own advancement. Thirty years later, Caesar was crossing the Rubicon. Five years after that, the Republic was gone forever.

When President Biden stepped onto the stage at his inauguration, a fearful majority breathed a collective sigh of relief. In the chilly January sun, Biden told the nation that “democracy has prevailed.” Viewers throughout the country responded with an outpouring of renewed pride and confidence in the edifice of American democracy. Since then, the Biden administration has sought to stage a stellar performance of normal governance, working to recapture the centuries-strong magic of America’s constitutional order. He has refilled the government with competent and dedicated public servants, working to resurrect the government after its near-demise under Trump. Currently, he is trying to make good on his campaign promise to work with Republicans, having just signed his “Bipartisan Infrastructure Framework” into law. 

The core theory of the case for the Biden administration is that this performance of normalcy is the key. They appear to be operating under the assumption that it should stand at the center of the attempted reconstruction in the aftermath of the Trump years. Recently, however, some have argued that he is struggling to reign in the ensuing chaos. In the last decades of the Roman Republic, there was also a temporary resurgence of normalcy. Between Sulla’s reforms and Caesar’s final takeover, Rome had Cicero. The famous orator and statesman served as consul (their chief executive officer) in 63 BCE, restoring a façade of traditional republicanism for a brief spell. Just as the temporary restoration in the 60s in Rome was not enough to fend off the end, for America, new laws and norms might not be enough. 

The Biden administration’s showmanship has its limits. Since the capitol insurrection, divisions have continued to worsen. In the immediate aftermath of January 6, it seemed possible that Republicans and Democrats might come together to denounce the antidemocratic excess. Even Senate Minority Leader Mitch McConnell and House Minority Leader Kevin McCarthy seemed ready to condemn President Trump and to decry the violence of his most extreme supporters. But then McCarthy headed to Mar a Lago to, as some described it, “kiss the ring,” and he has revisited Trump’s court in exile since, convinced that a dialogue with the former President is essential to his party’s fortunes (and to his own future as Speaker of the House).

Sixty percent of Republicans still believe the “big lie” that the election was stolen, as wealthy Trump allies spend millions promoting wild conspiracy theories. Ashli Babbitt, one of the insurrectionists who died in the attack, is quickly being made over as a martyr—part of a broader effort by opportunistic Republican leaders to re-mythologize the insurrection. For millions, the insurrection may live in their historical memory as a moment of patriotic glory. The conservative movement has lost its ability to resist extremism as it grows within.  Only two years ago, the Republican conference had the will to strip Representative Steve King of his committee assignments. But now they tolerate radicals like Marjorie Taylor Greene. And instead of listening to reason and compromise, the Republican caucus in the House evicted Liz Cheney from leadership, expelling one of the only voices calling for reasoned reconstruction from her position of prominence within the conservative movement. But even under the pressures of the moment, Democrats and institutionally-minded Republicans have struggled to find common ground, hobbled by decades of antipathy and disagreement. A recent poll showed that 37% of Americans might be willing to secede from the Union (up from 23.9% in 2014), with the number creeping up to an alarming 66% among Republicans in the South. 

So what can we do to recreate a sense of lasting permanence? Some of the current efforts revolve around accountability. Prosecutors have been circling the former President and his allies, looking for hooks that will create direct legal liability. Commentators and experts debate the merits of prosecuting Trump. Some argue that the costs of pursuing the former President outweigh any benefits, while others believe that it is essential to create clear precedent that the presidency is not a “get out of jail free” card. On the other hand, there are strong incentives for the Biden administration just to move on—not to spend political capital going after the former President when the pandemic, the economic recovery, the “build back better” agenda, and the 2022 midterms loom so large. 

But perhaps determined prosecution is necessary to foster the sense that the United States is governed by a true rule of law. The illusion of permanence may depend on a widespread perception that legal structures stand above individual people. At the same time, however, in the current polarized climate, prosecutions may do more to perpetuate division, driving the two partisan camps further apart. Efforts to institute a commission to examine the events of January 6 also belong in this accountability category. Democrats are organizing a probe, and perhaps Representative Cheney’s appointment to this select House panel will help to grant some cross-partisan legitimacy to the effort. But this may be a fool’s hope. Only one other Republican (the often-outspoken Adam Kinzinger) voted for the panel, and Leader McCarthy made veiled threats that Cheney may face consequences for her participation. Republicans in the Senate had already voted down a bipartisan commission.

While accountability efforts may be essential to reconstructing the illusion of permanence, they may flounder in the current moment. With public perception so polarized, it may be difficult to make any of them read as more than political “witch-hunts.”  Other reformers focus on rebuilding and reinforcing democracy institutions. Democrats in Congress are promoting three major bills—H.R. 1, H.R. 4, and the Protecting Our Democracy Act—each designed to address different perceived weaknesses. H.R. 1 (the “For the People Act”) was first introduced in 2019 as a messaging bill, designed to stand as a symbol of the Party’s pro-democracy values. It included a wide variety of reforms in three domains: voting and election laws, campaign finance, and ethics. 

Before its defeat in the Senate, the bill became a sort of talisman on the far- and center-left. Commentators argued that the bill’s provisions were necessary in order to “restore our democracy” and “expand access for all Americans”—a counter to nationwide efforts to stop racial minority groups from accessing the ballot. H.R. 4 (the “John Lewis Voting Rights Act”) is designed as a direct response to Shelby County v. Holder, which struck down the regime instantiated by Section V of the Voting Rights Act of 1965. It would force states to get “pre-clearance” from the Department of Justice before making changes to voting laws. 

Democratic Senator Joe Manchin has long been skeptical of H.R. 1, far before the Republican minority defeated the bill with a filibuster. But after the bill failed in the Senate, he introduced a compromise of his own, drawing on both H.R. 1 and H.R. 4 and including measures designed to appeal to conservatives such as voter ID. Progressive leaders such as Stacy Abrams and Barack Obama leapt on board at once, sensing an opportunity—a faint hope that Manchin might abandon his skepticism about filibuster reform if he failed to attract ten Republican colleagues to vote for his compromise. Republicans swiftly rejected the bill.

At least partially inspired by the recent book by Bauer and Goldsmith, various members of Congress and activists have proposed reforms to address abuses of presidential power; checks and balances, accountability, and transparency; and foreign interference in elections. Representative Adam Schiff introduced the Protecting Our Democracy Act in order to turn these proposals into law—a bill designed primarily to reconstruct guardrails on executive power. The bill would restrict abuses of the pardon power, create remedies for emoluments violations, limit presidential discretion over spending, curtail presidential emergency power, protect whistleblowers and inspectors general, make it easier to punish Hatch Act violations, and address the influence of foreign money. Such reforms might address some of the specific abuses of the Trump presidency, but they would only work to restore the illusion of permanence if they had strong cross-partisan support.

One truly bipartisan effort comes from Senators Klobuchar and Collins. They have introduced the “Invest in Our Democracy Act”—a bill that would provide cybersecurity training to help local election officials defend against foreign interference. Some commentators have argued that this kind of targeted election legislation offers a better alternative than an all-or-nothing approach of a bill like H.R. 1. Perhaps moving one step at a time, and garnering bipartisan support for lean reforms, is more likely to make reformers’ ideas into actual law. In a similar vein, many critics who have attacked some of the more sweeping proposals, such as H.R. 1, heartily endorse reforms to the Electoral Count Act. The law was originally enacted in 1887, in response to the contentious Hayes-Tilden election, and while it dealt with specific problems stemming from that election, it left far too much room for viciously motivated actors to argue that Congress, the Vice President, or both have discretion to decide selectively, not merely to take on a ministerial role. As a consequence, reform of this legislation has become a priority for many across the ideological spectrum.

This spirit of compromise and stepwise progress may be essential to any effort toward rebuilding a nationwide sense of continuity and stability in the political system. As with accountability efforts, any attempt to reform democracy institutions will inevitably encounter today’s climate of extreme and ever-increasing polarization. It is all too easy to cast any ambitious reform as a thinly veiled partisan power grab. But an approach grounded in modesty and moderation faces its own difficulties. The Trump era and the Capitol insurrection shook the foundations of belief in the vitality of our democracy. Can anything recreate the sense of political permanence that is so essential to the health of any political project?

In Rome, the Republic recovered a semblance of equilibrium in the decades between the first civic violence and the ultimate fall. But once the illusion broke, ambitious opportunists were all too ready to exploit the climate of instability. Each generation weakened the illusion further, until participatory politics finally perished for good after Caesar crossed the Rubicon. The first Emperor Augustus’ res publica restituta (“restored Republic”) was little more than a thin veneer, trying (and failing) to cloak autocracy. After the Civil War, Americans did manage to pick up the pieces—to glue the fragments of a divided nation back into a lasting whole. Perhaps, as years pass, the illusion will consolidate again for the next political generation. With a fortified voting system and repeated displays of our (re)commitment to democratic values, both at home and abroad, we might even succeed in convincing ourselves that the system is strong enough to last. It is possible that belief may be enough to save us.

Nonetheless, the specter of impermanence will continue to haunt us for years to come. In forty years, we may be living in a republic that has truly been restored. But just as likely, our illusion may have melted into the wind.