Eric Posner’s Democracy for the Few

The Guardians

Does “the Resistance” actually want more democracy or less?


It is one of the virtues of an extraordinarily vicious presidency that it has led some to openly confess their preference for elite rule. Even those who vigorously promoted elements of aristocracy—or oligarchy—once used to feign devotion to a democratic creed. Now, alongside the regular suggestion that Donald Trump threatens democracy, some are willing to say he proves its bankruptcy. “Voters know in the abstract what they ought to know,” conceded Jason Brennan, the author of Against Democracy, after the last presidential election. “They just don’t actually know the things they think they should.” When the people chose Trump, Brennan concluded, it proved the need for “epistocracy,” a kind of update to the ancient Greek philosopher Plato’s contention that the wise should rule.

Like many members of the self-anointed “Resistance,” Eric A. Posner was shaken by Trump’s election. Best known as a skeptic of international law who agreed that George W. Bush was justified in pushing its boundaries in the War on Terrorism, Posner became an unexpected ally of those decrying Trump’s propensity to smash norms. Having made his reputation as a scourge of progressives, the legal scholar became a leading critic of the miscreant in chief. But Posner’s new history, The Demagogue’s Playbook, reveals he has not so much changed his mind as found a propitious moment to defend his belief that elites should control politics and that American traditions of dethroning them suggest what happens when democracy goes too far. For Posner, too, Plato was right: Democracy unleashes the base passions, and it is therefore to be expected that in the resulting disorder and tumult, people will turn to a tyrant for a modicum of order.

The Demagogue’s Playbook tells how politicians throughout the history of the United States have drawn on democratic legitimation while upending the elitist designs of the American founders and the normal functioning of the government. “For Plato,” Posner writes, “pretty much any popular leader in a democracy was a demagogue.” While he acknowledges that America should remain, in some sense, a place where the people rule, he still insists that our experience with Trump makes clear the eternal worth of Plato’s insight—and the need to save elite control from democracy. His attempt to do so, however, shows the reverse is true: What the Trump era proves is that we need more democracy in America, not less.

A leading law professor at the University of Chicago, Posner is a gifted scholar. The son of Richard Posner, the founder of the law and economics school that sought to wreck the premises of the redistributive and regulatory state, Posner fils spent most of his early career building a withering attack on international law. In part, he chose the topic because there were few other fields of law for him to turn the family’s demolition business on. In part, he did so because criticizing appeals to global norms before and during the War on Terrorism allowed him to make his own contribution to the American right.

Together with some like-minded colleagues at the University of Chicago, especially his frequent coauthor Adrian Vermeule, Posner cultivated the reputation of a generational bad boy. He collaborated with Vermeule on a defense of their friend John Yoo’s torture memos that appeared in The Wall Street Journal in 2004. Associating himself with the early years of the Bush administration, Posner also defended coercive interrogation, a broader category overlapping with torture, as a necessary tactic in some circumstances. Apparently, for Posner, the War on Terrorism and its associated costs were not all that objectionable; he certainly did not argue that they were the fruits of demagogy.

Posner and Vermeule also worked to rehabilitate Carl Schmitt, the notorious Nazi jurist. They coined “tyrannophobia” to describe the notion that if one temptation in governance is to allow too much authority in one place, another is to fear its concentration so much as to incur even higher costs. (Vermeule impishly titled one of his more notorious papers “Optimal Abuse of Power.”) As their last major act together before Trump’s election, they penned the 2011 book The Executive Unbound, which claimed that the American presidency had outgrown the founders’ attempts to impose checks and balances against it. Public opinion, they maintained, was now nearly the sole force that kept America’s national leaders from transgression—and this was a good thing, too, because of the beneficial role a competent administrative state plays relative to dysfunctional legislatures and ignorant judiciaries. In the fun and games of intellectual strife before Trump, no one anticipated that someone like him was coming to inherit the power the authors defended.

Known to their liberal opponents as the horsemen of the apocalypse, these now middle-aged conservatives blinked in November 2016 when the apocalypse actually materialized. Posner soon discovered his inner liberal: Within a matter of months and without ever explaining his turnabout, he began regularly advising liberals on how they could use the law to constrain the current president. No longer an edgy gadfly and outlier, he now helps man the ramparts of the Resistance and has been heralded by many of his erstwhile critics. Heads nod sagely everywhere The New York Times is read as it prints op-ed after op-ed from a defender of torture about how to hem Trump in. But for informed observers, it seemed more like an atheist rushing into the arms of the church after the devil appeared. (For his part, Vermeule literally joined the church—he converted to Catholicism in 2016—and embraced reactionary positions much more consistent with his earlier writings, but that is another story.)

Part of Posner’s appeal to the centrist coalition known as the Resistance is no doubt found in the fact that he is not interested in the root causes that led to Trump’s election. Though Posner has written a book with the economist E. Glen Weyl, Radical Markets, that belatedly registered some of the costs of America’s accelerating inequality, the only credible alternative to neoliberalism, they insisted, was even more of it. (We should marketize the voting system!) And now in The Demagogue’s Playbook, Posner blames “the people” for Trump’s rise. For Posner, all manner of evils are defensible, from free markets on steroids to forever wars that ruin the world, as long as elites are the ones who implement them. What the Platonist cannot abide is when the people push back.

Posner’s opening premise in The Demagogue’s Playbook is that “demagogue” is a better label for Trump than “authoritarian” or “fascist,” at least to date. For Posner, the frequent arguments that Trump is already a fascist politician or a dictator on the make are not so much mistaken as premature. They are “more like an inarticulate attempt to express—in constitutional terms—an uneasiness.” If democracy can lead to tyranny, as Plato first proposed, demagogy is a distinct and preliminary stage. And, Posner insists, it is more present, so far, in American history.

The threat of demagogy, Posner contends, is the reason the American founders were Platonists: They crafted a modern republic on the assumption that the people themselves were the chief threat to it, and they sought to make popular legitimation safe for and through elite rule. To do so, they constructed the Constitution in a manner that not only responded to the frailty of the federal government after 1776 but also warded off the growing signs of democracy, like the radical Pennsylvania state government and Shays’s Rebellion. Their inspired achievement was the suite of 
antidemocratic devices that the Constitution enshrined, from the Electoral College to the enumeration of congressional powers, from a Senate to cool any populist legislation to a Supreme Court that could invalidate it. Founder John Adams’s main mistake, Posner writes, was “incautiously” telling the people openly it was good for them to defer to the superiors, as in his proposal of the tag “Your Majesty” for the president of the new republic. His son John Quincy Adams enthusiastically predicted that the handiwork of the founding generation would “increase the influence, power, and wealth of those who have it already.”

After celebrating the origins of the rule of the wise, American style, Posner goes on to discuss how challenges to it were contained. The process started, he argues, when, in the name of agrarian ideals, one of the founders, Thomas Jefferson, decided to take a run at the ascendancy of the best and the brightest he had helped set up. Then came “the first demagogue,” Andrew Jackson. Whereas Jefferson conceded the need for elites and attacked the original framework at the margins—earning resistance from his never-Jefferson opponents after the election of 1800—Jackson was the real deal. A white nationalist who railed against elite projects like Alexander Hamilton’s national bank, “Old Hickory” portended Trump, Posner asserts, like no president before or since. A lot of ills followed, but Posner disputes the notion that Jackson did any good in exchange for the horrors he brought, even for the ordinary white men he claimed to represent. In Posner’s view, Jacksonianism proved that democracy is the worst of both worlds: You lose elite governance without helping the masses, either.

Given that most of the people then could not even vote, it took the new era of mass democracy that followed the Civil War for the next wave of demagogy to arrive. Wading into an old debate over late 19th century political history, Posner insists that a demagogic politics was central to the populist movement. But with little interest in the different economic and social grievances that propelled it, he generally conflates left and right populism and sees little reason people in the late 1800s—America’s first Gilded Age of the victory of the rich, before our own—might have been interested in reclaiming power from elites. Generously, however, he concedes that William Jennings Bryan, the Nebraskan Democrat who ran unsuccessfully for president three times as a progressive and pacifist, wasn’t a demagogue.

Posner’s chronicle of American history continues with what he applauds as “the triumph of elite technocracy” in the 20th century. Progressives may have adopted populist ends, he allows, but they “distrusted the ordinary people whom the populists celebrated.” Franklin Roosevelt capped this movement of elite egalitarian change: He helped the people by keeping them in their place, according to Posner. The Cold War, he argues, merely extended this suppression. He acknowledges that demagogues could still rear their heads throughout, from anti-communist zealots like Joseph McCarthy in the 1950s to Southern segregationists like George Wallace in the ’60s. But Posner is wistful for the middle decades of the 20th century as a time when no president came close to demagogy, in spite of a few feints by Richard Nixon. Instead, the party establishments worked to enthrone experts, pretty much as the Platonist founders had planned it.

In tracing the final stretches of the road to Trump, Posner shifts from his study of personalities to a story of the “political institutions that constrained the public’s influence on the selection of the president and other major politicians.” He has in mind, in particular, nomination processes and transformations in the media. Predictably, for Posner, all hell broke loose as the parties democratized after 1968. With the rules changed, the people now had more power, which he argues allowed a series of figures to arise who now seem like premonitions of our moment—rabble-rousers like Pat Buchanan and Ross Perot. Posner specifically rejects economic and status grievances as causes for Trump’s success, first among Republicans and then against his Democratic opponent, Hillary Clinton. Instead, he contends that Trump inherited and maximized the populist undercurrent that elites sagaciously kept from surging in the prior century.

The defects in Posner’s account begin with the sloppiness of his central concept. The word “demagogue,” he says, has a “core meaning” that has “remained stable over millennia.” In fact, the ancient Athenians who coined the term—which literally means “leader of the people”—used it as the title for an office that advocated, after Pericles’s death, the correct course for the city-state to take. It was not a term of abuse; for that matter, Plato never used it in any of his dialogues.

When it comes to modern history, Posner is on sturdier ground and is clearly onto something when he asserts that some politicians flirt with the boundaries of acceptable discourse to the point of outrageous excess. But rereading US history as a series of dry runs for Trump—and as a set of struggles by elites to maintain control of a democracy they were sometimes forced to build upon and expand—misses most of its moral drama and almost all of its social conflicts. Gone, in particular, are the deeper reasons elites desire control and sometimes lose it when their failures and shortcomings become clear.

Part of the problem (though Posner gets points for honesty here) is how apologetically he slips into laudatory portraits of elites as disinterested rather than self-dealing and of populist forces as uneducated and unwashed. In some ways, he is attempting to revive the consensus historiography of Richard Hofstadter, a Columbia historian and the most celebrated scholar of the American past in the mid-20th century. Yet Hofstadter, a former radical who was not merely anxious about challenges to centrist rule but also sensitive to liberalism’s dark sides, was not above excoriating the injustices that elites perpetrate. He hoped to confine the most potentially destructive forces on the right to their fringe while protecting the vital center against the left. But his centrism was anything but uncomplicated, in part because it was far more open to how universal irrationality is.

This is why the most revealing section of Posner’s book is on the mid-20th century, when Hofstadter could consider centrist liberalism a fait accompli, thus normalizing the New Deal and the emerging Cold War consensus. For starters, Posner bends over backward to distract us from recognizing how damaging Roosevelt is to his whole framework. Although highborn, FDR nonetheless played the man of the people, challenging norms and institutions for their failures, and rightly so. For his trouble, he was commonly branded a demagogue—or an authoritarian or fascist—by his enemies, far beyond the denunciations that all leaders earn from their foes.

The real reason that memory has not preserved how profound Roosevelt’s challenge was to the norms and institutions of his time is one that Posner eventually comes around to conceding: FDR “was vindicated by events, as much as history ever allows.” The victorious demagogue in one era becomes the mainstream democrat in the next. Fortunately, that will not happen with Trump. But if Roosevelt succeeded where Trump fails, it is hardly because of the latter’s excoriation of elite mistakes. Rather, it is because his persona and program intensified the elite rule of our time, as part of what the political scientists Jacob Hacker and Paul Pierson recently dubbed “plutocratic populism.”

Likewise, Posner does not engage the foreign policy fiascoes of elites that—especially given his own past—ought to loom large in any assessment of how they lost hold. During the Cold War, which Posner portrays as a golden age of elite rule, Roosevelt’s “technocratic” successors armed the American state like no power before it and made the globe its killing field. Posner affectionately cites John Adams, who remarked that “the Athenians grew more and more Warlike in proportion as the commonwealth became more democratic.” Posner doesn’t mention that the Cold War and the War on Terrorism would have made Adams blanch.

As the 1980s and ’90s brought early warning signs of the impending disaster of 2016, like Buchanan’s candidacy, it hardly signified that the dangerous people were improvidently being given a chance to speak, as Posner disarmingly proposes. Rather, they were symptoms of how catastrophic the elite’s performance was at home and abroad. The clues to the mystery of how Trump became credible to 60 million Americans surely lie in these decades—but not because democracy was unleashed, since, after all, a minority put him in office, thanks to the very minority-rule mechanisms the founders designed. Instead, the outcome signaled just how disastrous the preceding decades of elite rule had been.

As for Posner’s explanation for Trump’s electoral success, it is circular. On the one hand, he rejects the combination of grievance and racism that drew voters to Trump in order to insist it was demagogy that did it; on the other, he acknowledges that these very factors made the situation ripe for demagogy. (He explains that they were just not “a sufficient condition”—though who said they were?—and required a demagogue to take advantage of the situation.)

One might expect Posner to close his tale of American demagogues kept at bay with a suite of new remedies for the pathologies of popular rule. Surprisingly, he offers none. He acknowledges that “constitutional reform” is on the agenda. “Perhaps,” he muses, “we need to strip the presidency of many of the powers that it has accumulated over the years, so that future demagogues who are elected president will be unable to cause harm.” But the sole indication that Posner has thought about how to reconcile his old and new selves—the apologist for presidential aggrandizement and the critic of this particular president—comes in a footnote. “I believe,” he says there, “that only a strong presidency can solve the problems with the American constitutional system.” The only fair conclusion is that for Posner, even once you realize demagogy is a risk, you do not act to contain unaccountable and unchecked power; you just pray that elites wield it.

In the end, Posner replaces one Resistance cul-de-sac with another. Instead of focusing on impending tyranny, he endorses an only slightly more useful notion that the country’s problem is demagogy. But it is not clear that any political leaders elected by a majority have ever have seized dictatorial control of their countries, and certainly none have done so in American history. (So much for Plato’s theory.) And Posner’s charge that America’s difficulty is that the country has finally fallen to the very demagogy its founders designed it to avoid really just distracts from assessing the costs of elite rule. New Deal reformer and Yale Law professor Thurman Arnold had it right: “The man with the social values which you do not like, you will call the demagogue.” Crying “demagogue” is another kind of evasion.

Learning nothing from his experiences, Posner offers an apology for elite rule during a period in which it is in a state of crisis—an apology that will persuade only those who share his complacency. A study that found the top 10 percent of earners control the political system “does not prove that elite control is excessive,” he asserts. Instead, “we would need to know what policy would look like if elites held less control, and no one knows.” He prefers to rest content with the wisdom that in “any organized system of governance” there is a “need for division of labor and specialization of functions” that “results in a small number of people at the top.” Instead of calling for better elites, however, Posner goes so far as to indict the rare ones who bolt from the defense of their privileges.

But the fact that “there is no direct way for the people to rule in the American system,” as he observes, is hardly an excuse for suggesting that we should simply accept the status quo ante of the rule of the self-appointed wise. Thanks to thinkers like Gaetano Mosca, Vilfredo Pareto, and Joseph Schumpeter, the first lesson of modern political science as a profession is indeed that elites will rule even in democracies. But it very much matters which ones do so, for whose sake, and to what ends. Among other things, they can help democracy live up more and more to its promise of collective self-government, challenging the line between the ruling class and the rest of us.

Finally, unlike Posner and the other latter-day Platonists, we know that elites have their own passions and prejudices, as disabling and distorting as those of the people and probably more so. Posner’s most debatable error—one that connects his earlier career arguing for free markets and executive power with his current bout of democratic malaise in the Trump era—is in giving elites a pass for their dysfunctions. That the ancient case against the irrationality of democracy is itself irrational suggests that Plato is the wrong place to begin when explaining Trump’s rise. The reasonable fear for the immediate future, once Trump is kicked out by the people, is of a baleful elite restoration. In fact, it already seems like the biggest thing to fear.

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