David J. Siemers is Professor of Political Science at the University of Wisconsin Oshkosh. His most recent book is called The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions (2018 University of Missouri Press).
‘Tis the season to ponder our constitutional soul. A tumultuous presidential term has culminated in charges of a fraudulent election and a strained passing of the baton from Donald Trump to Joe Biden. All this should prompt consideration of which constitutional rules, practices, and norms are working well in the United States, and which have been tested and found wanting. My point in this essay is that robust political disagreements are not troubling in themselves, but a particular subset of them is. At this juncture in our national life we should learn better to accept political competition, while acting to marginalize political subversion.
The authority who best illustrates my point is a surprising one for a modern constitutional democracy: the 16th century Florentine Niccolo Machiavelli. Machiavelli is most often associated with the idea that cruelty can be useful in politics, but this relates far less to our present situation than the content of his significantly underappreciated initial chapters of the Discourses. Ostensibly a book about Rome’s republic, Machiavelli writes for a purpose larger than mere historical interest: he describes what makes for effective politics in a republic. The early chapters of the Discourses suggest that politics should serve as a housing for conflict. A working republic blunts, but more importantly redirects the force of conflict toward positive outcomes and regime-reinforcing results. In this era of heightened tensions, Machiavelli’s thinking offers some reassurance, but also serves as a stark warning.
The Machiavellian Reassurance
Commentators frequently lament that American politics is now as polarized as it has been since the Civil War. The worry is that if our partisan divide does not soften we are in danger, and the republic may falter. Machiavelli’s observations about Rome seem particularly apt here.
Rome’s politics was defined by a rancorous relationship between the nobility and the public at large, or plebs. Their sharp rivalry and day-to-day contests caused most writers to stress that Rome’s politics was tumultuous and disordered, and therefore highly problematic. This assessment was erroneous according to Machiavelli because the city’s fights occurred within institutional bounds. The Roman Senate, populated by nobles, was countered by tribunes, who looked out for the interests of the plebs. These institutions clashed, but the fights were explicitly political and not extra-political. Rome’s political rivalries played out in speeches and proposed laws rather than through rival militias and violent acts. Prior commentators had been utterly deceived. They paid “more attention to the noise and clamor resulting from such commotions than to what resulted from them.”
In the United States our primary political division is between two popular parties rather than a strict class divide. Yet the lesson applies. Republican and Democratic officials now seem consistently at odds, and they use strong, exasperated terms to describe their opposition. So long as their contests play out within institutional bounds, however, they do not degrade our constitutional republic; they actually reinforce it. Strongly articulating one’s position and aiming to have it prevail in an institutional setting respects the institution and its constitutional housing.
Machiavelli would remind us that conflict, even deeply partisan conflict, is not in itself indicative of a failing republic. Or put positively, political conflict is the price of admission to living in a free society, something that the American founders also stressed. We cannot expect popular government to produce amity. Rather, our more modest expectation for democracy should be that robust political contests remain within institutional bounds.
Many Americans yearn for the cross-party coalitions that defined policy-making for most of the 20th century. But this situation is not likely to be replicated. It was brought about mainly by Southerners calling themselves Democrats, almost regardless of what the national party stood for from the 1930s through the 1970s. We may be tempted to look upon that prior era with gauzy nostalgia. If we do, then we deserve reminding that it produced McCarthyism, a robust system of racial apartheid, and Watergate, as well as the Marshall Plan, the Civil Rights Act of 1964, and the Clean Water Act. Political wrangling is an inevitable part of democracy. So is public displeasure with that wrangling. Machiavelli challenges us to consider that if these fights occur in the proper venue, they are a sign of a constitutional health.
We are still posting great successes under conditions of high polarization. Take the 2020 election. Though the election was bitterly contested, the fact that a record 160 million participants turned out and cast their individual ballots in good faith is heartening. A significant effort to turn up irregularities has found that the number of ballots fraudulently submitted was close to zero. American citizens bought in to the democratic process that populates our political institutions. Election day disruptions or violence did not materialize. The Trump campaign’s thin claims of a lack of equal protection for voters have played out within the courts rather than on the streets. The fact that both major parties came away with significant victories should reinforce our understanding that ballots are not just stronger than bullets in the United States. Rather, ballots are the only way to pursue our political desires, and bullets have no place in the American political process.
The Machiavellian Warning
Events after the election have not been heartening. Unsupported public claims of fraud are troubling. They call into question our legal election procedures and the honesty of government agencies. They build a case for pursuing societal goals through extra-political means. Those who believe elections are stolen are not just made less likely to participate in the future. They are more likely to turn to illegal acts. Machiavelli himself witnessed this in his native Florence. Baseless political accusations that could not be adjudicated for lack of evidence began a dire chain of events: a spiral of resentment, unremitting factionalism that was used to justify violence and, ultimately, the dissolution of the Florentine republic by an oligarchic coup.
This is why responsible behavior on the part of some Republican officials has been so valuable, but most of the party’s response has been so disappointing. Republicans who have certified key battleground elections and who have pushed back against imaginary claims of significant electoral fraud are engaged in institution-preserving behavior. In executing the law, they demonstrate that the continuation of our institutions is more important than the partisan wishes of the hour. Most others have chosen differently, putting faith in our institutions at risk in the pursuit of their partisan goals.
Machiavelli does not ask his readers to ignore political infighting. Rather, he asks them to realize that the fights they detested were actually beneficial. Left to their own devices, the nobles would have clearly oppressed the plebs. By pushing against the Senate, the tribunes preserved freedom in the city. Likewise, the Senate restrained the more problematic tendencies of the people. The nature of specific institutional battles indicated what each class believed and how ardently it held its position. When either party went too far, it was restrained. This required both the nobles and the plebs to work through their respective institution, and it put them in the habit of accepting the final legal result of each contest. The laws made them good. Far from degrading Rome’s politics, the city’s political fights reinforced the strength of its institutions, shaped its policies, and preserved the republic.
American politics inevitably fails to meet our individual hopes. And yet, milestones forged by hard fights endure. Social Security has been in place since 1935. Recent presidents have tinkered around the edges of clean water and clean air standards that have been fifty years in the making. Reaganism has now effectively reduced the highest marginal income tax rates for forty years. Even the Trump years have seen some legislative production, like federal sentencing reform. The United States’ government is cumbersome—probably overly cumbersome—but when both parties believe that they can affect political outcomes over time through constitutional means, they use constitutional means.
Conversely, the more a major party or group feels consistently shut out or shut down, the more likely its members will turn to extra-legal avenues. In the long run, majorities should shape policy in a democracy. This requires institution-respecting behavior that puts bounds on the extent to which one will pursue partisan ends.
Legal Redress of Grievances
Accompanying Machiavelli’s observations are two chapters on what to do about potential wrongdoing by public officials. True to his general philosophy, Machiavelli directs readers toward legal, institutional resolutions, and away from activities outside of legal bounds.
Book 1, chapter 7 of the Discourses suggests that there should be robust legal avenues for charging officials with wrongdoing. Machiavelli proposed that any citizen should be able to charge a public official with a crime. To make sure this provision was meaningful, accusers would be protected from retaliation. The matter would be submitted for a hearing, at which evidence would be presented. Arguments would be made in public and a jury of the people, rather than a small, closeted band of officials, would render a verdict.
This process offered several advantages according to Machiavelli. Public officials would feel substantial preemptive pressure to keep their behavior within legal bounds. It would induce them to act for the public good rather than to seek their own personal benefit. The populace was provided a legal outlet if they felt abused. And even if the process would occasionally err, it would reinforce the understanding that public problems were to be worked out through the law and state institutions. This process is similar to how we use courts, and the courts have distinguished themselves in the aftermath of the 2020 elections. They have produced law and evidence-based verdicts untainted by institution-destroying partisanship.
In regard to the presidency, the United States has not been so fortunate. The 1988 Justice Department memo insulating a president from legal prosecution runs precisely counter to this ethic. The Mueller Report took its cue from this memo. While strongly suggesting that President Trump engaged in obstruction of justice, the report refused to call for legal charges, apparently in the belief that the only proper remedy for illegal activity by a president is impeachment and removal. Yet the current incarnation of the two party system seems to preclude that possibility. There has been no means to enforce the emoluments clause, to force a reversal of the unlawful withholding of foreign aid from Ukraine, or to disallow the recess appointment of public officials who were not legally eligible to hold their positions of public trust. There are good reasons to be wary of the prosecution of public officials, but we need more robust legal avenues to hold presidents to account.
The Danger of Calumnies
Machiavelli argues even more forcefully about calumnies—public accusations against an official made without any formal legal charge. The purpose of a calumny is to discredit someone without evidence. Machiavelli describes the effects of calumnies being realized “in the squares and arcades” rather than in court. His examples cite public officials discrediting rivals by spreading “diverse sinister rumors.” Such demagoguery exasperated the citizenry, promoted division, and led to ruinous factionalism. Calumnies degrade the rule of law and damage the efficacy of political institutions, because the public presumes there is no legal remedy for the problems that are proffered.
Machiavelli suggests that calumnies not be allowed. An accuser should be made to bring a formal legal charge. If the accuser refuses, or if their legal charges are found to be frivolous, they would face punishment.
In the last four years Donald Trump has served as Calumniator-in-Chief. He is drawn to frequent, evidence-less and unprosecutable accusations against his political rivals. Trump proclaims that President Obama and President-elect Biden should be in prison for treason for “spying” on his 2016 campaign. Hillary Clinton “committed a lot of atrocities” that should land her there as well. Lead House impeachment manager Adam Schiff, members of the press, and even officials who have made rules to protect public health during the pandemic should be “locked up.” It is a dizzying spectacle.
Democracies should be very protective of robust and open public debate. Calumnies hinder robust political discussion by turning public attention away from more meaningful considerations of character and policy. Expression, like all other rights, has boundaries. Machiavelli would counsel us to take public faith in our political institutions seriously enough to limit calumnies. The public utterances of our officials are a public concern. Just as lawyers are required not to lie in court, we should hold elected officials and candidates to a basic standard of decorum that precludes baseless accusations of criminality. The unproveable standard for defamation of public figures set forth in New York Times v. Sullivan (1964) should be revisited.
The United States has a long constitutional history. This fact should not make us complacent. Our constitutional health is a constant concern. Niccolo Machiavelli is not the first name we might think of in prescribing the right political medicine, but his ideas are appropriate to our time. We cannot banish conflict, so let’s emphasize having the right kind of conflict: conflict that preserves and enhances the efficacy of our political institutions. The results of that conflict need to be sufficiently productive for the public to believe that government is responsive. We need to sideline the worst tendencies of the last four years—unprosecuted illegality, and baseless accusations of fraud and criminality that degrade public faith in our political institutions.