Paul Rosenberg on Nixon and "constitutional hardball"

Paul Rosenberg in Destroying democracy is the GOP’s goal Salon 03/30/2015 discusses an idea he credits to Mark Tushnet, "constitutional hardball."

At the time, Nixon’s lawlessness was thought to be an aberration, but it now seems more like the establishment of a new, somewhat sociopathic norm (“madman theory,” anyone?), particularly given how young Nixon hands Donald Rumsfeld and Dick Cheney operated in the Bush administration 30 years later. In the interim, Cheney vigorously defended and covered up Reagan-era lawlessness in the Iran-Contra affair as well. Even more specifically, Nixon’s peace talks sabotage was echoed in electoral criminal activity for both Reagan (the alleged “October Surprise”) and George W. Bush (voter purges).

The bipartisan toleration of high-level misconduct and crime has ebbed and flowed. But the arc of events from Nixon's sabotaging the Paris Peace Talks to Dick Cheney's torture program is a pattern that gets progressively worse.

I wouldn't want to mark the time boundaries of this process too sharply. Corruption and deception are nothing new in American statecraft. But the Cold War created a context in which it grew and intensified to a qualitatively new level.

Today's Republicans would point to the "dictator" Obama's predecessors in that role (in their eyes), Abraham Lincoln and Franklin Roosevelt. And it's true that both in some ways did push the existing limits of their authority, Lincoln in his actions against pro-Confederate Copperheads, FDR in his efforts to boost American defenses against Germany and Japan in the face of determined isolationist Republicans in Congress.

But the criticisms of Lincoln and Roosevelt need to be carefully and critically scrutinized, because both play significant ideological roles in the worldview of today's Republicans.

Strangely enough, conservative Republican Supreme Court Chief Justice William Rehnquist (1924–2005) did a good book on Lincoln's Constitutionally controversial wartime actions, All the Laws but One: Civil Liberties in Wartime (1998).

Kathryn Olmsted has described the FDR-planned-Pearl-Harbor conspiracy theory as "a foundational myth of modern conservatism." Many people have debunked it well. For instance: Gordon Prange, At Dawn We Slept: The Untold Story of Pearl Harbor (1981) and Pearl Harbor: The Verdict of History (1986). Judith Greer provided a more condensed version in Did FDR know? Salon 06/14/01.

Rosenberg's longish essay looks at the effect of divided government, with one part controlling the Executive and the other controlling one or both Houses of Congress. In that context, he observes:

Democrats have internalized the values of a divided government constitutional order, and don’t even use strongly partisan proposals as bargaining chips. Republicans are still pushing for a radically different constitutional order in the future, and are willing to blow everything up if they don’t get their way, because psycho-politically, they don’t feel they have anything to lose. [my emphasis]

That's a very good description of an important aspect of the Democratic Party's passivity that drives the netroots and other activists nuts. Ironically, it appears in a parenthesis.

Rosenberg also connects it to the ascendancy of neoliberal ideology in the Democratic Party (The right’s Bergdahl calamity: How Bill O’Reilly & Rush Limbaugh discard America’s norms):

... the neoliberal minimalism of Clinton’s policy vision is itself a product of the persistent condition of divided government, and that neoliberalism has substantially replaced New Deal liberalism—the Americanized form of social democracy—within the Democratic Party. ...

... part of what makes things much easier for Republicans in this era is that—with few exceptions—they’re not going up against FDR-style social democrats, with the full-bodied set of attitudes, assumptions, principles and expectations entailed in that constitutional order, but instead face neoliberal Democrats who desire compromise in a framework of diminished expectations.

Digby Parton also writes in the same edition of Salon on where this kind of non-symmetric party dynamics are taking us:

There was a time when we had decided that wars of choice were off the table. We managed to bust that one all to pieces with the invasion of Iraq. For many, many years we had believed that torture was taboo but that’s obviously no longer operative. The torture genie is out of the bottle, especially for unfortunate Americans. And now we are in the process of degrading and abandoning the very long tradition of trading prisoners of war. And we’ve decided that enemy prisoners of war should be held forever, a cruelty reserved only for suspected terrorists up until now.