Populism and Our Political Institutions

Michael P. Zuckert

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In 1838, when Abraham Lincoln was a young man in his late 20s, he gave a speech entitled "The Perpetuation of Our Political Institutions" to the Young Men's Lyceum of Springfield, Illinois. This was just after the end of Andrew Jackson's presidency. Jackson, of course, had been a controversial president, known for his strong use — many at the time said abuse — of presidential powers. Among other things, he is remembered as the president responsible for the forcible removal of Native Americans from the southeastern United States to the West, which came to be known as the Trail of Tears.

At the time of his speech, Lincoln was a member of the Whig Party, which was formed specifically to counter President Jackson. In his address, Lincoln asked whether we had any reason to be worried about the "perpetuation of our political institutions." Somewhat surprisingly, given the general peace the nation was enjoying, he answered yes — there was reason to worry about the future of American constitutionalism. The source of his worry was not Andrew Jackson per se, for Jackson was no longer in office. Nor was it a foreign danger, or even the issue of slavery, which was not yet the source of the kind of unrest and conflict that would arise around it within the next 10 years. What most concerned Lincoln was the increasing presence of mobs and mob violence in American life.

As a great admirer and student of the founders — and ultimately the great defender of the constitutional republic they established — Lincoln knew the democratic order they created rested upon the morality of its citizens and their belief in representative government and the rule of law. And, through their direct and especially their indirect effects, these mobs constituted the greatest threat to the republic.

Lincoln's insights about mob law and the spirit of lawlessness carry some enormously relevant lessons for our political life today. They might help us think in particular about our populist moment and the potential dangers it poses to the constitutional order. But those lessons are not simple, and do not point in one direction alone.

MOB JUSTICE

The mobs that worried Lincoln were not instigated in any particular region or section of the country; nor, Lincoln said, were they particularly a feature of the slave or non-slave parts of America. Despite this claim, the two main instances of mob violence that he discussed both came from slave states: Mississippi and Missouri. He identified these two as "perhaps, the most dangerous in example, and revolting to humanity."

One kind of worry he had was especially visible in the Mississippi case, where mobs first took off after gamblers who had recently been licensed by the state legislature to practice their trade. The mob then moved on to "negroes" who "were caught up and hanged in all parts of the State"; then they went after white men "supposed to be leagued with the negroes"; and finally, just about any unfamiliar individual the mob came across "till, dead men were seen literally dangling from the boughs of trees upon every road side." Mob violence spawns mob violence. Lincoln was much concerned with such contagion.

The other example he developed at some length concerned an individual named McIntosh, a man of mixed race whose fate was the "most highly tragic, of any thing of its length, that has ever been witnessed in real life." McIntosh was seized by the mob, chained to a tree, and burned alive. All this took place "within a single hour from the time he had been a freeman, attending to his own business, and at peace with the world." The cruelty, the arbitrariness, and the injustice of mob action — these greatly concerned Lincoln.

But he did not consider the direct effects of this mob violence to be the main danger to the republic. Surprisingly, perhaps shockingly, Lincoln almost dismissed the immediate consequences. "Abstractly considered," he said, "the hanging of the gamblers...was of but little consequence. They constitute a portion of population that is worse than useless in any community...[their loss] is never matter of reasonable regret with any one."

"Similar too," he added, "is the correct reasoning, in regard to the burning of the negro at St. Louis. He had forfeited his life, by the perpetration of an outrageous murder...and had he not died as he did, he must have died by the sentence of the law, in a very short time afterwards."

Lincoln belittled the direct consequences of mob action, in part, in order to highlight the more dangerous secondary effects. Just as there is a sort of contagion or expansive power to the violence perpetrated by the mob itself, so too is there an expansion of lawlessness from the original mob to other sorts of persons in the community. The mobs, by their example, encourage "the lawless in spirit" to become "lawless in practice." This group, the lawless in spirit, has no attachments to the law or justice in themselves but accepts the restraint of the law only through "dread of punishment." Seeing the mobs go unpunished, they lose their dread and act out as their hearts have always desired. Indeed, they "pray for nothing so much" as the "total annihilation" of government.

From the "lawless in spirit," the contagion spreads to "good men" — men "who love tranquility" and who "desire to abide by the laws, and enjoy their benefits." Experiencing the breakdown of the law, these individuals, "the strongest bulwark of any Government," Lincoln said, "become tired of, and disgusted with, a Government that offers them no protection" and thus lose their attachment to that government. These ordinary, law-abiding citizens then become open to experiments in governance by strongmen who promise them more peace and security than what is being provided by republican forms.

The path along which the perpetuation of our political institutions is endangered is now clear: The mobs encourage the "lawless in spirit" to violate the law, which in turn leads to the disaffection of the "lawful in spirit" and their yearning for order and security through more effective governance than the republic supplies.

Lincoln's analysis is quite plausible, and is a good fit for the 20th-century movements away from democracy and toward despotism, like those that arose in Germany and Italy in the 1930s, for example. But one aspect of his analysis should make us sit up and take notice: The original mobs he spoke of are not the same persons that he called "the lawless in spirit." The latter are liberated to lawlessness by the mob violence, but they are not at all the same as the mobs. The mobs Lincoln was primarily concerned with are not the mobs that we would identify today with rioters and others who become "lawless in practice" when they loot big-box stores and walk out with 75-inch LED-screen televisions.

Lincoln's mobs are those who share a "growing disposition to substitute the wild and furious passions, in lieu of the sober judgment of Courts; and the worse than savage mobs, for the executive ministers of justice." These are not common looters, but groups who act in the name of or to effectuate justice. They are groups who take the law into their own hands and who believe they are serving justice in place of and better than the ordinary officers of the law. His primary concern was with that kind of action he called "mob law" — mob actions that substitute for regular and proper legal judgments by regular and proper governmental bodies.

That observation not only offers an insight into the scope of the problem Lincoln had in his sights but also a suspicion of what he saw as the most likely cause of the phenomenon. In America, the idea of the people exercising political power is not so strange. Indeed, one might say it is even the official doctrine of the nation, for in America we think of our system of government as one based on popular sovereignty — that is, on the idea that the source of governmental legitimacy is the consent of the people and that the ultimate possessors of political power are the people. Isn't that the very meaning of the Declaration of Independence when it pronounces all men to be created equal and the source of legitimate governmental authority to be the consent of the governed? But this presents another question: If a dominant part of the American conception of government since the revolution, if not before, has been popular sovereignty, then why was the popular tendency to take the law into the people's own hands so recent a phenomenon in 1838, more than 60 years after the Declaration? 

Lincoln provided no answer to this question in his speech, but there is an answer embedded in the context of the time. The Jacksonian era is widely known as a period of democratization. Suffrage requirements became more democratic in states across the Union; the rhetoric of the common man, his rights, and his dignity became the order of the day; political participation through the vehicle of the political party became ever more widespread; and the favored spoils system became entrenched in national politics so that the common people who were active in the political parties became increasingly active in governance itself. During the Jacksonian era, in other words, the nation moved toward more directly empowering the people through democratic reform. Just as it was an era of democratization, so too was it an era of turning against elites who were portrayed as usurpers of the people's right of self-government. The so-called Republican or Democratic-Republican Party, of the line of Virginia presidents from Thomas Jefferson to James Monroe, became simply the Democratic Party. The Whig Party, mostly representing the shunted-aside elites, arose in response to the Jacksonian moment.

As the Jacksonian movement of democratization spread, the self-conception of the nation as based in popular sovereignty took on a new saliency beyond what it had had in the founding era itself. The political order the founders put in place in their new Constitution combined the theoretical idea of popular sovereignty with a particular kind of elitism. In Federalist No. 39, James Madison explained that, to be acceptable, the Constitution had to be consistent with "republican principles." He admitted that the word "republic" had been understood in many different ways throughout the history of political thought, but he supplied a much more democratic definition than was common at the time. He defined a republic to be "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure [i.e., the pleasure of a superior officer], for a limited period, or during good behavior," as in the case of federal judges who serve for life unless some evidence of improper behavior is established through the impeachment process.

The point of this somewhat-complex definition is to insist that in actual governance the primary sovereignty of the people is recognized: All governing officers are to be selected by the people or by persons themselves selected by the people. Thus, the president was to be selected by electors, who are themselves chosen by the people. Lower-level executive offices are then to be appointed by the president, sometimes in collaboration with the Senate, in which case the selection is rather indirect; nonetheless, the ultimate source of the authority to govern lies with the people. Likewise, all governing individuals are limited in their terms of office so that the people can be — as indeed they must be — consulted periodically about their governors. Popular sovereignty thus had a robust presence, both theoretical and practical, in the constitutional order. 

CONSTITUTIONALISM AND POPULISM

The constitutional system was, and still is, ultimately answerable to the people. But those governing are not the people themselves. The people have a defined and crucial role to play in governance, of course, but they, and popular sovereignty along with them, recede into the background except during those moments when the people are directly involved, as during elections.

This kind of arrangement has not been satisfactory to everybody who has thought about democracy. Jean-Jacques Rousseau, the political philosopher who became the teacher of the French revolutionaries, would not settle for an arrangement like American constitutionalism. Though the British constitution was often hailed as the model of a free government, Rousseau said that the British people only thought themselves free; in reality, they were free only on that one day when they voted for their representatives in Parliament. Representation, the keystone of the American constitutional arch, was anathema to Rousseau, who considered rule by representatives hardly any freer than rule by kings and autocrats. Rousseau therefore sought a political arrangement more like what we and the American founders would call a direct democracy, as opposed to our constitutional democracy.

Our constitutional system of political institutions was designed to operate in two main ways. First, there would be a selection process rooted in the people, according to which they would use their best judgments as to who should be put into office. A system of elections would stand in place of the older, more purely democratic method of selection by lot, or random choice. This method, characteristic of ancient Athens, was understood to be the pure and proper expression of the democratic idea of equality: All citizens were recognized as equally capable of governing, and therefore selection of officers by random lottery was the most appropriate way to select governors. The American idea of election was to bring considerations of merit into the selection process.

Second, government officials would operate within offices strictly defined by the Constitution and under supplemental laws that would both grant and limit the powers of those officials. Further, each official would be placed in a broader structure of offices where no single body or person had the power to make, execute, and adjudicate law. Thus, the kind of heated and expansive action taken by mobs would not be possible. Operating according to set rules and procedures, public officials would not act so cruelly as the mob did toward McIntosh, or so irrationally as the mobs did in Mississippi.

The founders created institutions grounded in and answerable to the people — but they are emphatically not run by the people themselves operating independently of constitutional forms and formalities. Lincoln and most other Americans of the 19th century, looking at the very different outcomes of the American and French revolutions, and the very different results of their respective experiments in more direct or more representative democracy, had no doubts about which model — their own or the French — was the greater success.

So at the same time that the nation understood itself as a republic rooted in popular sovereignty, it also possessed a set of governmental institutions that, although derived directly or indirectly from the people, just as plainly were not the people themselves. At one place in the Federalist Papers, Madison emphasizes that the people in their collective capacity were wholly excluded from governance with the exception of the jury system, where ordinary and unelected citizens, more or less drawn by lot, would directly wield political authority. Madison and most of the other founders were in the complex position of affirming the people as the source of authority, but also denying that the people as such were fit instruments for wielding this authority that belonged to them. 

The founders made a commitment to be governed by chosen officials acting under the structures and powers of offices established by the Constitution. This is what American constitutionalism meant: a commitment to the Constitution and its shaping of political offices according to the law. When the people — in Lincoln's case, in the form of the mob — take over, the law tends to be overrun by passions and anger, by a righteous desire to do justice, but also by an inability to judge soberly what justice requires. The structure of constitutional offices puts a damper on passion, gives guidance to action through the provisions of law, and imposes checks on the tendency to act impulsively. 

Thus, direct governmental action by the people was anathema to American constitutionalism, even though the source of governmental powers was this very same people. For this kind of constitutional system to work properly, the people must accept both the limitations placed upon them and the responsibility of holding their governors accountable. For Lincoln, as evident later in his career, this translated into robust self-government, but also recognition by the people of the need to defer to the law as administered by officials. Lincoln was witness in the late 1830s to a moment when the nature of this distinction between popular sovereignty and constitutionalism was breaking down. That kind of breakdown is called populism — the people attempting to exercise governmental power more directly than the system's constitutionalism normally allows.

DRAIN THE SWAMP

The Jacksonian era was not the only bout of populism we have seen in America: There was a major one in the late-19th century, and we are experiencing such a populist moment right now — at least that's what the pundits tell us. Lincoln's analysis helps lead us to a more precise definition of populism than these pundits normally provide. It also gives us a way to understand the periodic outbreaks of populism in America and in other places "so conceived and so dedicated" — with a political order resting, as America's does, on popular sovereignty combined with constitutionalism.

The analysis in the Lyceum Address allows us to understand why Lincoln worried over whether such a nation, as he later put it in the Gettysburg Address, "can long endure." On the one hand, the success of the regime depends on the people keeping to their proper place. Lincoln outlined very clearly the threatening consequences if they do not. On the other hand, the temptation of populism will always be present in a regime based on popular sovereignty. From a philosophical perspective, like that of Rousseau, populism is merely the people taking directly into their own hands what constitutionalism has wrongly placed in other hands — power that, after all, truly belongs to them. There is, therefore, a natural tendency for people living in a democratic republic to periodically swing toward populism. So what Lincoln observed with dismay and ominous foreboding could also be described as a movement toward more democracy — toward direct or participatory democracy. That is the positive way to describe the populist swing of the pendulum.

Given populism's relation to popular sovereignty, it is not a big surprise when Lincoln, in what otherwise seemed a stunning reversal, provides a justification for the mob law he had denounced so strongly. As mentioned above, he acknowledged that, "[a]bstractly considered, the hanging of the gamblers at Vicksburg, was of but little consequence." And with regard to McIntosh, he also provided a shocking excuse for the mob's lethal action: Judging solely on what the mobs intended in taking the law into their own hands, Lincoln suggested that their actions were just and aimed at the public good. Thus, it is clear why these mobs are not the same as the "lawless in spirit," those who are law-abiding only from fear of punishment. These mobs act in the name of justice rather than of lawlessness. This is a vital point: The populist mobs are not moved by an aspiration to self-enrichment, as are looting mobs, or by an aspiration to anarchy and general lawlessness, but by a concern for justice. 

Lincoln, to a degree, rehabilitates and even endorses the populist activists. But only to a degree: He maintains his view that through their indirect effects, and through their liberation of political action from the constraints of law, they threaten injustice by the activation of passion and hot judgment rather than the more rational and cooler thinking encouraged by regular, lawful, and constitutionalist action. Lincoln overstated his approval of the mobs' direct action in order to make his point about the intimate relation between populism and popular sovereignty.

Lincoln's analysis up to this point still leaves us with one important question: Why does populism occasionally crash through the boundaries of constitutionalism? In answer, he suggests a set of causes, using the example of the mob's actions in Mississippi. Why did the mob suddenly take the law into its own hands and start hanging gamblers? Lincoln said this can be understood as a public-spirited action aimed at the common good. But he added that these very gamblers and their occupation were "so far from being forbidden by the laws, [that they had been] licensed by an act of the Legislature, passed but a single year before." Lincoln deployed that fact in order to emphasize the lawful character of gambling, but he also insinuated something quite different at the same time. The democratic legislature of Mississippi had licensed the gamblers in the very recent past, and in doing so, the legislators seem to have been out of touch with their constituents — the very people who put them in office. 

To better understand what Lincoln was driving at, we must again take account of the context. Although at this distance we cannot possess detailed knowledge of the facts, we can be sure of three things of relevance. First, the people of Mississippi, then even more than now, were overwhelmingly Baptist in their religious commitments. Second, Baptists are strongly opposed to gambling as a moral and theological evil. A resolution of the Southern Baptist Convention from as late as 1984 states,

WHEREAS Gambling is an immoral effort that creates deliberate risks not inherent in or necessary to the functioning of society...Be it therefore RESOLVED That we, the messengers of the Southern Baptist Convention...encourage Southern Baptists to work diligently with other Christians and other responsible citizens who oppose the spread of legalized gambling [and that] we express our prayerful support and strong encouragement for those who are providing courageous leadership in vigorously opposing the legalization of gambling both in the states...and at the national level.

It is unlikely that Mississippi Baptists in 1838 were less opposed to gambling than the Baptists of 1984.

And third, when the actions of legislators are contrary to the clear preferences and sensibilities of their constituents, there is often a special explanation. In the 19th century, this was often outright bribery. (The 21st-century version takes the form of campaign contributions or other lobbying practices by which interests benefitting from legislative action attempt to provide special perks to lawmakers.)

Thus, the mob, in its way, was attempting to re-establish order after their legislators let them down. This opposition to governing elites who are seen to be benefitting themselves rather than their constituents is encapsulated in the contemporary slogan, "drain the swamp." There are moments, in other words, when the people wish to take back their sovereign power — moments when they believe their constitutional rulers are out of touch with them, their goals, and their moral sensibilities. These moments are especially dramatic when the people suspect their representatives have strayed in order to feather their own nests. Lincoln illuminates the when and why of the periodic outbursts of populism that have punctuated American history. That analysis should lead us to expect that, so long as the nation is "so conceived and so dedicated" — grounded on human equality and popular sovereignty — we can expect these periodic outbursts of populism to continue. 

THE VALUE OF CONSTITUTIONALISM

Lincoln's analysis of the close link between populism and popular sovereignty is probably the most valuable lesson that his populist moment can offer our own. One implication of that analysis is that we should not look at populist eruptions as novel or freak events. They are, in effect, baked into our three-cornered political order, which combines popular sovereignty, constitutional democracy, and populism. Lincoln's analysis is both reassuring and worrisome. On the one hand, insofar as populism is endemic to our kind of regime, and insofar as we have survived past bouts of it, we can be confident, to some degree, that we can survive this one too. But reassuring as the implications of Lincoln's analysis may be, his warnings of the dangers inherent in a populist movement are explicit and far more concrete. Many details of Lincoln's moment and ours differ, but the challenge populism poses to constitutional government and the rule of law is a peril common to both. 

The populist disaffection of the ordinary good citizen is an outcome always to be deplored, but it can be an especially serious challenge to our political institutions when it interacts with another hazard lurking in the American political order: There exist individuals, Lincoln asserted, of extraordinary ambition. These are not people who are satisfied by a seat in Congress, or even by the presidency. The founders wisely built the offices of the Constitution to be sufficiently elevated, powerful, and important to satisfy individuals of ordinary ambition within the constitutional order, that is, within our political institutions. Such men are not a threat to the perpetuation of these institutions. 

But more ambitious persons, the ones Lincoln claimed "belong...to the family of the lion, or the tribe of the eagle," are not satisfied by positions within an order created by others: "Towering genius disdains a beaten path." These men see "no distinction in adding story to story, upon the monuments of fame, erected to the memory of others." They do not seek fame within the constitutional order established by Washington, Madison, Jefferson, and the rest of the founders, but seek to supplant the founders' political order and set up new modes and orders of their own — to be the new Washington, the new FDR, or the new Reagan. Nothing suits their aims better than the populist emergence of a disaffected citizenry, whose grievances and aspirations they happily channel in service of their own ambitions.

As Lincoln said, such a lion or eagle "thirsts and burns for distinction; and, if possible, it will have it, whether at the expense of emancipating slaves, or enslaving freemen." In the combination of the disaffected citizenry with the individual of lion-like ambition lies the most potent danger to our political institutions, for the greatly ambitious individual has a will to overturn the established order, and the disaffected citizenry is willing to sign on for the attempt.

As we continue to assess this present populist moment, the question naturally arises: Is Donald Trump the sort of "towering genius" whom Lincoln warned against, the type of individual who can take advantage of populist disaffection and pose a genuine threat to our political institutions? We must note at the outset that when Lincoln invoked "towering genius," he did not mean what we would mean by using this phrase. He was not describing a man of towering intellect, but a man of great spirit or ambition. Judging from his own comments, perhaps President Trump has such ambition. He already declares himself the greatest president next to Lincoln. He seems to aspire to even more. Does this mean he aspires to bring new modes and orders to burnish his own fame at the expense of the constitutional order? Perhaps it does; perhaps it doesn't. President Trump certainly pursues policies that are controversial and distasteful to many, though they are welcome to others. This disagreement, however, is a normal part of our political order, and should not be grounds for special concern beyond the give-and-take of ordinary politics.

But there are certain aspects of the Trump presidency that Lincoln's analysis and prescription warn us to take more seriously. He attempts on a very regular basis, for example, to discredit the press as the enemy of the people. But as Thomas Jefferson said of the press (which, by the way, was quite partisan and vicious toward him in his day), "Where the press is free, and every man able to read, all is safe." The president also regularly tries to discredit the agencies that uphold the rule of law in our society: the Justice Department, the FBI, and the intelligence community. He regularly speaks and acts as if the purpose of these institutions is to support and protect him personally, and he is miffed when they do not act as he wishes. What is most troubling, besides his apparently complete misunderstanding of his office, is the pass his supporters and his party give him on these alarming actions — presumably in order to give him protection to pursue the policies they favor. 

Lincoln would urge us to distinguish Trump's policies from his threats to the Constitution and the rule of law. President Trump does indeed look at times like the man of great ambition trying to whip up his populist base in order to go beyond or outside the constitutional order. Lincoln would tell us, I believe, to agree to disagree about Trump and his policies, but at the same time to agree about the value of the constitutional order — which, whatever its flaws, has secured more civil and religious liberty over time than any other in world history. On this front, do not cut Trump slack; do not make excuses for him; do not seek partisan advantages by countenancing moves he makes that threaten the Constitution and the fundamentals of the constitutional order.

If we remain true to the Constitution, and to the rule of law it provides, we will get through this moment just fine, perhaps even reaping some of the benefits of populism. But we can do so only if we do not succumb fully to the lure of populism, and if we keep before us the necessity of finding a balance between the rule of the people and the rule of law.

Michael P. Zuckert is the Nancy Reeves Dreux Professor of Political Science at the University of Notre Dame. His next book will be entitled A Nation So Conceived: Abraham Lincoln and the Problem of Democratic Sovereignty.


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