CIVILITY, ROTARY, AND THE U.S. CONSTITUTION

By The Honorable Abraham D. Sofaer

George P. Shultz Distinguished Scholar,

and Senior Fellow Emeritus

The Hoover Institution,

Stanford University

26 October 2023

 

Presented at the Rotary Club of Palo Alto / University Civil Discourse Salon

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Rotary’s Rules. First, as you know, Rotary has no “civility” rule as such. The Four-Way Test, however, necessarily rests on the obligation to be civil. How else could a person think, say, or do?

 

What is the TRUTH?

Is it FAIR to all concerned?

Will it build GOODWILL and BETTER FRIENDSHIPS?

And will it be BENEFICIAL to all concerned?

 

Political Reality. We support these rules and the civil conduct they require. But these rules have little (if anything) to do with American political reality. America has only had about four years since the Constitution was implemented of what could be regarded as civil behavior in our national government: the four years of George Washington’s first term. President Washington had virtually universal support. But when it became clear that he would serve only two terms, America’s political system burst forth in its robust and highly uncivil form as though it had been waiting in the wings ready to take the stage. Washington’s elite Cabinet divided. Vice President Adams, Secretary of the Treasury Hamilton, and others formed the Federalist Party. Secretary of State Jefferson, Congressman James Madison and others formed the Republican Party. Each Party had its own newspapers that wrote vicious articles about the other Party and its Members. Jefferson stopped talking to his old friend Adams and ran against him in 1800; his supporters falsely claimed that Adams wanted to be King of the U.S.

 

By 1860, American government had become a blood sport. Abraham Lincoln became President, and the Southern States withdrew from the Union over slavery. Lincoln offered to allow slavery to continue where it existed. But the South chose war, and some 600,000 Americans were killed, including Lincoln. General Grant allowed the Rebel forces to keep their rifles and its leaders to avoid being executed for treason. But, while Congress was able to adopt the Civil Rights Amendments, the racist South rose again by 1876, with the Ku Klux Klan murdering Black Americans who dared to run for political office or vote.

 

Many years passed before America resumed the fight for racial equality. In addition to the treatment of Blacks in this country, consider how brutally American Indians were treated, and the hostile receptions given virtually every new immigrant group. Nor does any trend exist towards greater civility. Trump is singularly uncivil. His enemies also seem ready to do anything to put him in jail. The January 6 riots came close to being a national disaster, built on untruths and an utter disregard of fairness and mutual benefit. As usual, the gloves are off.

 

Deliberate Incivility. A third, key point here is based on my research and writing when I was teaching at the Columbia Law School. My book on the powers of the President and Congress regarding war taught me that incivility – the nasty, untrammeled, even bloody competition we know exists in US government affairs – was deliberately built into our constitutional system. The proof of this is in the Constitution itself. Hamilton, Madison, and Jay explained why in the Federalist Papers. The Framers viewed human history as establishing that people have a dark side. They believed that democracies would, from time to time, inevitably elect a tyrant who would destroy democratic institutions and overturn just laws. This happened in ancient Greece as well as in Rome.

 

To prevent tyranny the Framers concluded that, while separating the legislative, executive, and judicial powers was essential, it was not enough. This is why, they explained, the Constitution divided the legislative power into two Houses, and then “mixed” the separated powers of all three branches. Some powers historically regarded as legislative were given to the Executive, like the power to veto legislation. And some executive powers were given to the Congress, like raising money, which was the province of the King in England. Each branch was in effect armed with authority to contest the aims of the other branches in virtually every important area of government activity and to defend its own powers in those areas. In this way the Framers tried to prevent tyranny, which they understood as any situation in which any one branch controlled the others. The Framers valued freedom from tyranny above efficiency.

 

Rotary Remains Relevant. This history explains why the Four-Way Test seems to have no relevance to our government. But if we look at why the Framers built a constitution based on Planned combat and incivility, we can see why, despite that plan, the Four-Way Test remains relevant, even for politicians and governments. The Framers did not expect all politicians to crave or support tyrannical power all the time. They saw tyranny as inherently a danger that would arise from time to time. They designed our government to enable conflict, not because they approved of conflict, but as a method for enabling each branch to prevent any tyrant from any other branch from gaining absolute control. Freedom from tyranny was their objective, not incivility, lies, or unfairness.

 

So, while we should not expect politics in America to ever be guided by Rotary’s Four-Way Test, in my view those rules should remain the goal for our conduct as individuals as well as for the conduct even of politicians. And while we should expect many of us to fail, especially those of us exercising government powers, that is not because the Framers approved of uncivil conduct, but because the Framers used the ambition inherent in human behavior to prevent each branch from achieving tyranny, i.e., absolute control over the other branches. The Constitution thus anticipates and encourages combat and incivility. But it does so not to approve such conduct but to use it to ward off its potentially evil consequences.

 

I hope these remarks have been helpful, if only to remind you of the genius of our Framers, and of the reasons why we should continue our commitment to Rotary’s rules.

 

Threat To Democracy. To what extent, if any, did the Framers anticipate a serious threat to democracy that we're facing now, perhaps having faced since the 1850s exemplified by a previous President who refuses to accept a free and fair election; by a Speaker of House, second in line from the presidency, who refuses to accept a free and fair election, and the resulting threat that represents to democracy. What would the Founders have said?

 

The Founders would have said, we told you so. They anticipated that tyrants would come along (or would-be tyrants), and that people would go along with them, and real threats would emerge. If there was only a House of Representatives in the country, and there were no offsetting authorities in the Executive Branch, the Senate, and the Courts, we'd be a hell of a lot more worried about what's going on in the House of Representatives. That's the reality of it. And that's why the Founders designed The Constitution the way they did. They really strongly believed that these kinds of things would happen. And in fact, we had a civil war. We've had worse things happen. We had the whole racist reconstruction period. I mean, it was horrendous. It took from 1876 to almost 1976 to get back to where we were. It is not an easy thing to keep people together, doing the right thing.

 

In addition to the way we treated blacks, think of the American Indians and how they were treated. And every new immigrant group, everyone today, Italians are the biggest single group in America. They were despised when they first landed here. Jews, Catholics, you know, they all went through various stages of terrible discrimination and had to overcome it over time. But there's no trend towards civility in our government. Look at what we have right now. There's a group of people in America who really don't care what is the truth, at all. They deliberately adopt things that are not true, just because they can get away with it. And on January 6th we had a riot that almost prevented the Electoral College from doing its work. This is fundamental to the election of the President. We have only had one other threat to the elected college in our entire history in the 19th century. This was an immediate and dangerous threat to the functioning of our constitutional system. So, the gloves are off in America.

 

Why is it so interesting that we have this incongruity? And what is the Mixing of Powers? The Constitution was designed to create combat; designed to create incivility. Let me explain. I was teaching at Columbia, and I was asked to write a book about the war powers in American history and the division of authority in our government between Congress and the President. This work taught me that the nasty, untrammeled, and sometimes bloody competition we know that exists in the United States was deliberately built into our constitutional system. And the proof of this is in the Constitution if you read it carefully. It is explicitly explained in the Federalist Papers. The authors Hamilton, Madison, and Jay (John Jay was the first Chief Justice of our Supreme Court, and one of the three authors of the Federalist Papers). They viewed human history as establishing that people, us, have a dark side.

 

Freud incidentally suggested the same thing many years later, but they really were optimistic about America and our future. In designing the government and explaining what we did in the Constitution, they start out by saying, in effect, especially in Federalist Number 10, "People have a history of doing bad things to each other. And democracies have a history of electing tyrants. And tyrants have a history of destroying institutions." So, what do we do about that? Well, they read the works of political theorists from the 17th and 18th centuries, and they explained that separating the branches of government is not enough to keep the tyrants from taking over periodically.

 

And so, they said, we not only have to separate branches, but we also have to mix their powers. Mixing is something people don't talk about much because they don't understand it. We don't just have a separation of powers. We have a mixing of powers. And what is a mixing of powers? You take things that were normally considered legislative powers, like the power to veto a bill, and you give it to the Executive, The Executive is normally supposed to implement legislation but is also allowed to say “no” to a piece of legislation. Also, you take things that are normally executive, and you give them to the legislature. The power to raise money, which normally in British constitutional history was the king's prerogative, and it was exclusively given to the House of Representatives. In fact, that is where all bills and finance originate, in the House.

 

The Electoral College. Hillary Clinton won the popular vote by about 7 million votes, yet she still lost the election in the Electoral College. We now have the threat of third-party candidates, such as “No Labels”, and “The Freedom Party”, and a few others. I see that as a real threat to diluting the Electoral College to the point that maybe no one will get the majority of Electoral College votes, and it could possibly be thrown into the House of Representatives.

 

Yet, I wouldn't change our electoral system because Hillary lost that election. I think Mr. Trump did things as president that were conventional, a lot of things that were conventional. But his effort to claim he won the next election, those things he did really do differ from what went on initially. He was going to clean up the cesspool that Washington DC represented in America. But he has gone far beyond that.

 

Do You think the system will hold up now? I have no doubt that we will hold up against the kind of loony tunes we are living through compared to some of the other stuff we've had. Slavery was far more dangerous. People owned slaves and they really wanted to keep their property and status. I mean, there was real sort of a dirty kind of pride in it. I don't think what we're facing today is anything like that.