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May 26th, 2017

Insight

Elections matter too much

Glenn Reynolds

By Glenn Reynolds

Published Jan. 30, 2017

 Elections matter too much
One of the most striking things about Donald Trump's accession to the presidency has been the over-the-top reaction of his opponents. One would need a heart of stone not to laugh at some of the expressions of dismay exhibited by Democrats, such as the now-famous protester who simply screamed "Noooo!" as the oath was taken, or Madonna saying she "thought an awful lot about blowing up the White House."

But in fact, this reaction to an election loss - by anyone, to any candidate - is not entirely irrational. Elections matter, after all. In fact, these days they matter too much. In the wake of the 2008 election, writer Jerry Pournelle observed: "We have always known that eternal vigilance is the price of freedom. It's worse now, because capture of government is so much more important than it once was. There was a time when there was enough freedom that it hardly mattered which brand of crooks ran government. That has not been true for a long time - not during most of your lifetimes, and for much of mine - and it will probably never be true again."

In other words, if Americans increasingly find it intolerable that their political opponents control the government, that's because government controls too much.

Then, of course, there was the weaponization of the IRS. When it was Tea Party groups being harassed, nobody cared much. But now Democrats fear that under Trump, the IRS might target them. And they should: Going back at least as far as FDR, as Jonah Goldberg noted in his book, Liberal Fascism, presidents have used the IRS and other parts of the bureaucracy to target opponents.

But now, of course, we've just finished eight years of a president who claimed the legal right to kill Americans, without a trial, anywhere in the world outside the United States. One who spied on journalists, and imprisoned those who leaked to them. One who openly boasted that with his pen and a phone he didn't need Congress.

And that was fine with Democrats, until the other team took power. Then, as libertarian Bretigne Shaffer notes, everything changed: "I understand that a lot of people are worried, upset, even frightened over the prospect of a Trump presidency. Good. They should be. But they should have been worried eight years ago, or at the very least, four years ago. . . . It cannot be that all of these people only see evil when it wears the other team's uniform. It cannot be that they are more upset by offensive speech than by a man claiming the right to kill any human being on earth at his whim. These things simply cannot be. And yet it sure looks like they are."

Well, I'm certain that, as my old law prof Stephen Carter has predicted, with Trump in power "the left will swiftly rediscover the virtues of limited government and, in particular, strong constitutional restrictions on the independent exercise of authority by the executive. In a further turnaround, the left will celebrate corporate power as a check on government." But the truth is, no president should have as much power as presidents enjoy now.

The trouble is, if people only support restraints on government when they're out of power, those restraints will never happen, since "out of power" means, well, out of power. So I have a proposal.

Let those Democrats unhappy with the power possessed by Trump get together with those Republicans who were unhappy with how much power was possessed by Barack Obama and propose some real limits. Since they have to be limits that will apply no matter who is in power, they have to be limits that can't be overturned by an election: Constitutional limitations. We need amendments to the Constitution that will reduce the power of the government back to the point where, as Pournelle remembers, it doesn't matter much which gang of crooks is running things. Maybe we should have a constitutional convention to discuss them.

As a libertarian myself, I'd strongly support such limits no matter who is in power. I hope that the Democrats - who are now worried - and the Republicans - who've been talking about smaller government for as long as I've been alive - will support them too.

And for anyone who doesn't want to limit the power of the government over its citizens? That will make clear that their only real worry is that their own "gang of crooks" isn't in power. Which should be instructive.

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Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself and is a columnist at USA TODAY.

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