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Constitutional Leadership and Responsibility

Steven B. Smith—

The second impeachment trial of Donald Trump ended in an acquittal by a vote of 57-43. Democrats could take some comfort in the fact that it was the largest bipartisan vote in any impeachment trial, although it was a virtually foregone conclusion that they would fail to reach the two-thirds majority necessary for a conviction. Yet Republicans could scarcely claim a victory. Trump’s lawyers failed miserably in their effort to absolve him of responsibility for the events of January 6, 2021 and even the House minority leader offered an eviscerating depiction of Trump’s recklessness in inciting mob violence before shamefully voting to acquit.

The single charge brought against Trump was “incitement of insurrection” but the real crime behind this was Trump’s willingness to use any means necessary to hang on to political power.  Having lost the popular vote and the Electoral College, he was willing to resort to extreme, extra-constitutional measures first to challenge the vote and then to try to void the outcome.  The challenge was not only to the result of a particular election but to the entire system of constitutional government that he had sworn to “preserve, protect, and defend.”

Constitutional leadership has always been confronted with a paradox.  We expect our leaders to act with boldness, decisiveness, and action, even show a willingness to go it alone.  Yet constitutions also impose forms and rules, checks upon power, and limits on executive initiative.  Traditionally executive power was deemed necessary for handling emergency situations that by definition stand outside normal politics.  John Locke called this the “prerogative” power, the ability of the executive to act outside the law.  The question confronted by the American founders was how to legalize or constitutionalize this power? How can one both lead but also accept the limitations of constitutional restraint?

Constitutional statecraft is uniquely limited in scope. It is not above the law. The constitutional statesman is not only externally constrained by the institutions of elections, the separation of powers, and an independent judiciary but needs to be internally restrained by an awareness that not everything is permitted in pursuit of his or her goals.  The quality of self-restraint is something like Odysseus having himself bound at the mast.   At the core of this style of leadership stands the quality of what the great German sociologist Max Weber called an “ethic of responsibility.”  

A supreme example of this ethic of responsibility—extremely relevant for our own moment—was Abraham Lincoln’ commitment to the importance of elections even during wartime.  As late as the summer of 1864, Lincoln fully expected to be a one-term president.  The course of the war was not going as well as he had hoped and he was being challenged even by some within his own party.  Others within his own camp were even urging that elections be postponed. 

On this point Lincoln was adamant: suspending elections even in the midst of a civil war was wrong in principle even if holding the election would have resulted in Lincoln’s defeat and therewith the cause of emancipation that he so deeply believed in. “This morning, as for some days past,” he wrote in a memorandum, “it seems exceedingly probable that this Administration will not be re-elected.  Then it will be my duty to so co-operate with the President elect, as to save the Union between the election and the inauguration; as he will have secured his election on such ground that he cannot possibly save it afterwards.”  

Lincoln’s willingness—calling it a “duty”—to work with his successor is the highest expression of political responsibility.  To his infinite credit, he realized that free elections should not be sacrificed even if the cost would be the defeat of the cause on which he had staked his all.  A war that would end up by destroying free elections would not be a war worth winning. For constitutional leadership, the ends do not justify the means.   It is in this possibility of a leader operating within the limits of constitutional restraint that the hope of a democratic statesmanship rests.

Fortunately, Lincoln’s gloomy reflections did not come to pass and he won re-election in a landslide but his willingness to gamble the outcome of the civil war on an election should remain a pole star for all future leaders.  He was willing to stake his all on the judgment of the American people and let the chips fall where they may.  It is clear that former President Trump failed this test.  His willingness to spread lies and incite violence is anathema to constitutional rule.  Whether he was convicted or not is somewhat beside the point.  He should provide a negative touchstone for all future time. 

Steven B. Smith is Alfred Cowles Professor of Political Science and professor of philosophy at Yale University. He is the author of numerous books, including Modernity and Its Discontents and most recently Reclaiming Patriotism in an Age of Extremes. He lives in New Haven, CT.

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