I don’t normally write on day-to-day politics because a) it’s wearying, b) plenty of people are more attuned to various minutiae and inside-baseball than I, and c) by definition almost anything I write on the subject will be lapped by subsequent events if not rendered outright obsolete.
But I was moved to write something after reading a couple of recent pieces that pulled me in, Godfather III-style. Both concern the recent indictment against former President Trump.
The first, from my friend Damir Marusic, argues that the indictment is inescapably political in nature; that whether one agrees or disagrees with it on the merits, it cannot in good faith be framed as a merely legal question. This is Carl Schmitt’s territory, and unsurprisingly Damir explicitly references Schmitt’s treatment of the idea of the exception. We have been placed in this condition (per Damir), both because the Biden administration has taken the unprecedented step of bringing legal charges against a former president and future presidential candidate. But we are also in an exceptional state, because Trump himself, along with his political supporters and potential constituency (presently a decent majority of GOP primary voters) is prepared to contest both the indictment itself and more broadly the political establishment that insists on the legitimacy of the 2020 general election. The Schmittian response here is that the exceptional situation is resolved by sovereignty—with the catch being that in such circumstances we cannot know ex ante who or what is really sovereign; sovereignty is affirmed by the decision itself.
The second essay is from Noah Millman, who is not a friend per se, but is someone whose writing I’ve enjoyed for some years now. Noah concedes that we’re in a fundamentally Schmittian situation – viz. that the question of who is truly sovereign is up for grabs. Noah’s answer is that in a democracy like ours the people are ultimately sovereign, but the question, “who is the people?” is presently a contested one. Thus, we have what might seem like a turtle problem. But I would say it is in fact more circular than that. For the “who is the people?” question is itself a contributing factor to our constitutional dilemma.
As it also happens, the “who is the people?” question is near and dear to my own heart. I wrote about it here and here, and I have consistently argued that it is perhaps the central political problematique of our age. This might sound a bit grandiose, but the concept of “the people” is surely central to our regime. It’s no accident that our Constitution begins with the words “We the people…”
Neither the U.S. Constitution nor any other founding document, however, defines that term. The people are simply broadly understood to be all of us. This marks a crucial distinction from the idea of "the people" in classical or medieval contexts: the question of the people is foundational for us in a way it wasn’t for the ancients. In place of, e.g., SPQR (the senate and people of Rome), the people is not just one component of the regime but the entirety of it.
Hence “populist” leaders are claiming not just to represent the people, understood as a particular demotic faction, but the true people, understood as the authentic basis for legitimate government. Such leaders, then, are claiming to be literally representative in a way that their opponents are not. Nationalists by the way make a similar claim; to put it a bit too neatly, both are concerned with the same question, but populism asks it with an eye toward domestic affairs, and nationalism with an eye toward foreign affairs.
In the American context alone, this sort of rhetorical claim is neither new nor inherently right-wing or conservative. Yes, Reagan and before him Nixon employed it (both quite successfully), but so in various ways did FDR and Andrew Jackson, not to mention various also-rans of both the left and right, from William Jennings Bryan to Pat Buchanan.
Nor is defining the people necessarily an exclusive preoccupation of the right, as the invocation of Schmitt might suggest; Jacques Derrida has an uncharacteristically lucid (for him) discussion of precisely this question, in which he argues that it was the drafting and signing of the Declaration of Independence that effectively called into existence the people on behalf of which it claimed to speak. (Admittedly, both are philosophical heirs of Friedrich Nietzsche, but so are most of the major thinkers of the past 100+ years…)
In the end though populism is a vague term because it is above all a way of talking about democracy without talking about democracy. It is for this reason that I don’t really like the term “populism” at all, as it seeks to ascribe to some independent phenomenon what is simply a function of democratic politics: appeals to the people. In political terms, populism is the word we use for what the other guy does.
Besides this, what we call populism is itself a lie on two levels. First, because it insists that the authentic “people” it claims to represent are a truly existing entity rather than one that is being called into existence through the rhetoric of populist leaders. And second because it promises (impossibly) that it will provide a way for the people to truly rule.
Some of this impossibility traces back to good old Madisonianism; ours is a representative government, and its many checks and balances are designed to act as a break on democratic tumult. But beyond the particularities of our regime, the impossibility of populism inheres in modern government: the state as an institution is too big, too complex, and too powerful to serve as a conduit for popular politics; it necessarily functions through bureaucracy.
Nonetheless, the tension in our basic political assumptions--that the people are the ultimate source of political legitimacy, and that the government that represents them must operate at some remove from them--can only but produce periodic irruptions of discontent by a substantial minority if not a majority of the population.
This brings us back to Trump, whose initial candidacy starting in 2015 raised all manner of discussion about populism (seriously, too many essays and articles to even bother linking), nearly all of which today read like democratic anxieties being filtered through social science explainers. By this I mean that few people wanted to acknowledge that Trump was a democratic phenomenon. Moreover, Trump has never been ideologically or politically (or temperamentally) consistent enough to hold most of the positions attributed to him by either supporters or detractors.
His claim at bottom is simply that he—on some charismatic or personal level—represents the American people, or a sufficient mass of them at any rate, in a way that the normal channels of government and the broader elite associated with them do not. This has always been his chief appeal, as it is for all "populist" leaders, but it has now been placed in stark relief by the present indictment. Hence the arguments that our situation is a Schmittian one. But to put it in more specific terms, the exceptional circumstances have to do with a deep uncertainty about the status of the people. Who are they and who represents them? In normal times, that status is ambiguous but unproblematically so as long as our political institutions (and the economy) function reasonably well. At times like this, the uncertainty becomes more acute.
Resolving that uncertainty through purely legal channels meanwhile can only go so far. As Jason Willick credibly argues, much of the Justice Department's case turns on Trump’s public claims about the validity of the 2020 election, which are defensible as political speech even if the claims themselves are false. Thus, this is fundamentally a political issue: do enough of the people believe him over the federal government?
All this said, I don't want to overstate the perils surrounding this indictment. Whatever does happen, Trump won’t last forever—he’s old and by all appearances can’t be in the greatest health, and part of his schtick requires the maintenance of a certain rude energy. But the underlying problem, which Damir correctly diagnoses as political rather than legal, isn’t going away. The mutual distrust—and, perhaps at the margins, hatred—between people and elites is now a mainstay of American political life. We certainly didn’t invent this dynamic—it was also a mainstay of the Roman republic. But when the Roman republic ran out of credible foreign threats, this political tension ceased to be productive and contributed to the destruction of republican institutions. Perhaps, then, our post-Cold War politics shouldn’t come as such a surprise to us.