THE END OF THE FIRST REPUBLIC AND THE BIRTH OF THE SECOND—THE SECOND WHAT?

Republics are “shorter lifed” because expectations are unrealistically high; because restraints on the powers of the developing government are more numerous and more strict; and because the decisions, compromises, and side-payments are insufferably transparent. True to form, the Confederacy was toppled by a bloodless coup d'etat. The decision made and action taken by the Convention of '87 display undeniable symptoms of illegitimate birth:

1. 1. Authorization of a convention in Philadelphia “for the sole purpose of revising the Articles of Confederation” was immediately set aside, in favor of replacing the Articles (Morrison, Commager, and Leuchtenburg Reference Morrison, Commager and Leuchtenburg1969, 244).Footnote ³

2. 2. Article I, Section 8, granted a whole list of powers for the national government, capped by a “supremacy clause” (Article VI) providing that all laws and treaties “under the Authority of the United States” shall be superior to those of any state or subdivision. To seal the new covenant, all state and local officials as well as national officials were required to take an oath to support the new U.S. Constitution. These and other items imposed new restrictions on the hitherto “sovereign” states.

3. 3. Next was the so-called Connecticut Compromise, celebrated as the Great Compromise between the large states and the small states. It produced an unprecedented bicameral Congress. But the pot was much sweeter: the 3/5^ths compromise, a Faustian bargain, a sell-out, to keep the southern states from seceding. Each slave was to be counted as a whole person in the Census for purposes of apportionment, but only as 3/5^ths for purposes of representation and no permission to vote. It rewarded slave owners. But the legitimating cover story was that Americans were so adjusted to slavery in the eighteenth century that Americans found the 3/5^ths compromise “natural and just.” This was irredeemably illegitimate, because the authors of the great Declaration of Independence had actually included in the 18th (and last) grievance that the king of England had forced slavery on Americans and then tried later to incite the slaves against the colonies. This was Thomas Jefferson talking. It was dropped from the list of 18 grievances, but its presence is proof that it was already accepted as immoral.

4. 4. The fourth illegitimacy was Ratification. The Articles of Confederation required a 13-state unanimity for any and all decisions. Article VII of the Philadelphia Constitution provided ratification by 3/4^ths of the states.

   The first American Republic was thus abolished, and its replacement was heralded as a miracle. But why didn't we label it the Second Republic? Why don't we enumerate our republics? The French do. The Germans did. Monarchies do. I found the answer 45 years ago, when I was about to get married, and my wife-to-be introduced me to some of her friends as her “first husband.” A very sobering sobriquet. To enumerate is to concede there will be successors. This bit of serendipity drove me to the conclusion that Americans don't enumerate their regimes because they want to believe that our Constitution is etched in stone, like the Ten Commandments. If so, this is a profound source of illegitimacy. It denigrates the value of the First and hides the shame of the Second.

IS THERE A THIRD?

The history of illegitimacy is not a condemnation; it is only a condemnation of the creed of American exceptionalism. Our state does what all states do. This Second Republic extended its hegemony over a population of former British citizens, slaves, serfs, aboriginals, and then to an empire, mainly Hispanic, beyond the Mississippi. This is surely why Jefferson was guilt-ridden by the dubious constitutionality of the Louisiana Purchase. The bend sinister became more prominent with the compromise extending slavery beyond the Mississippi, which also re-opened the slave trade. Although the Constitution had given Congress the power to prohibit slave importation after 1808, the Constitution did not require Congress to do so (Article I, Sec. 9).

However, the ultimate illegitimacy was not to be introduced until 1833, with Barron v. Baltimore. Barron brought suit against Baltimore, whose local government had dumped so much surplus land into the bay that it had destroyed the commercial value of Barron's wharf. Barron won the case on the claim that his loss was a “taking” of his property without due process under the Fifth Amendment. The state court of appeals reversed, and Barron appealed to the Supreme Court, where he lost by the hand of Chief Justice John Marshall himself:

This was the dawn of dual citizenship, which meant that liberty is a matter of geography. A throwback to the Articles of Confederation, dual citizenship became the cover for the abandonment of the Bill of Rights, the greatest of all victories over autocracy that became the greatest of illegitimacies: as measured by the distance between the form and the reality of the Second Republic.

The Bill of Rights existed only in Washington. If a state did not provide in its own constitution for a particular right, the right did not exist there. And slavery was legalized there as just another form of property. The Second Republic, 1789–1868, R.I.P. For a democratic republic it was very “long lifed.”

The Third Republic was in the making during the Civil War and was given its birth with triplets in the Thirteenth (1865), Fourteenth (1868), and Fifteenth (1870) Amendments. I chose 1868 for its founding because the Fourteenth was sufficient; because it was in the same universalized language of the Bill of Rights; because it surpassed the Bill of Rights with some operative principles; and, because, you would think, it reversed Barron v. Baltimore.

The Fourteenth Amendment was truly a theory of revolution, but it came and went with dizzying speed. Five years after ratification came the Slaughterhouse cases, and Fourteen was slaughtered. The litigation was juristically identical to Barron: A Louisiana state law adopted by a corrupt state legislature prohibited the slaughter of livestock in the entire New Orleans region, and then granted a 25-year monopoly to one corporation. Open and shut case? The court discounted the Fourteenth Amendment first on the grounds that a literal interpretation would kill federalism, and second, that Congress intended only that the “one pervading purpose” was to protect “negroes … as a class.” And even in that narrow interpretation it was never implemented. Any intelligent person reading the Fourteenth would have to concede that its intent was to nationalize the Bill of Rights. What we got instead was bend sinister all over again; as Herman Pritchett (Reference Pritchett1959, 536) put it, “for over half a century … corporations … were the principal beneficiaries.” How's that for distance between form and reality?

It should be clear by now that the Supreme Court was a fellow traveler with states and states' rights to widen the gap between form and reality. That in fact helps explain how the Third Republic lasted well into the twentieth century, with bend sinister shining brightly.

LET THERE BE FOUR

A Fourth Republic was aborning, therefore more difficult to give it a date of birth. A “new American state,” as Skowronek (Reference Skowronek1982) labels it, could have been perceived by hindsight and through institutional developments that demonstrated the growth of state capacity and the emergence of state theory. The Great Depression was the beginning of the end of the Third Republic, with the coming of the so-called Roosevelt Revolution. It was not really a revolution, despite the enormous growth of the national government and Congress' surrender. It was a case of legiscide, not an abdication like the German Reichstag under Article 48, but death by a thousand cuts in the form of legislation authorizing the president and the executive branch tremendous discretion to make the laws. Validation of the transformation from “congressional government” to “presidential government” was delivered by the surrender of the Republican opposition in the 1950s. Despite Dwight D. Eisenhower's promise to put an end to “creeping socialism,” he did not terminate a single New Deal program; he did not even single out one program for termination.

However, the Fourth Republic did not come with Ike. Presidential government was blooming, but it did not yet have a mature state theory. The Third Republic was still strong enough to maintain dual citizenship, because most of the New Deal programs operated under a Faustian bargain that the states be given most of the final power to implement these programs in ways that kept races, classes, and genders in their proper place. What was not yet ready to happen was a renewal of the 1789 and 1868 commitment to a legitimate nationalization of the Bill of Rights, bringing reality truly closer to form.

Ike, though America's patriarch saint, was obviously not a founder. His refusal to declare war on the New Deal institutionalized the Roosevelt Revolution. He also modernized and bureaucratized the presidency along military lines, which significantly advanced state capacity. He also appointed Earl Warren chief justice, which was, in his terms, “the most damn-fool mistake I ever made.” But, to follow Skowronek (Reference Skowronek1982), these were mere “expansions of national administrative capacities.”

John F. Kennedy was also not a founder. He was first to bring joy to national politics, and that made him something of a social democrat. But he was only a mover, not a shaper.

Thus by process of elimination, I have designated Lyndon Baines Johnson the Founding Father of the Fourth Republic. He embodies the triumph and the tragedy of the genuinely new American state. He took the joy of JFK's politics, and for a moment in history he did chisel away much of the bend sinister on the Great Seal because he did in fact nationalize the Bill of Rights and the Fourteenth Amendment, if only for a moment as history measures time. He succeeded in completing a state theory that used the nation-state through the Warren Court and public policies to tie rights to citizenship. Just ponder for a moment the Constitution of the Fourteenth Amendment, Section I:

The first sentence eradicates dual citizenship. The second sentence virtually applies the entire Bill of Rights to the states. A third sentence comes as the final statement of the Amendment (Sec. 5); it is operational, making clear and unmistakable that “Congress shall have power to enforce this article by appropriate legislation.”

That's the triumph of the Fourth Republic. Then comes the tragedy. Success of the nationalization of rights was made dependent upon implementation and maintenance by the president. Once presidential government replaced congressional government, the presidency became plebiscitary—i.e., the masses of citizens focused their expectations of social democracy on the president, and the science of opinion polling gave us our means of holding the plebiscite once a month, eventually one a week—daily if necessary. After Eisenhower, each president has started out with an approval rating well above his popular vote, and then ends up in disgrace. Tom Lehrer provides the best dramatization: “sliding down the razorblade of life.” And the best indicator of the plebiscitary presidency is Johnson's declaration that “I won't be the first [president] to lose a war.”

This brings us back to the future of the history of illegitimacy. Mass expectations have become so intense and insatiable that presidents have to compensate for their inevitable disgrace. Mass expectations are diffuse, like the sun. But when the sun's rays are run through a magnifying glass, the concentration of light becomes dangerous. Consequently, each Fourth Republic president has to have a contingency plan for deceit. Although their methods may have differed, all presidents since LBJ have tried to heed the counsel of Machiavelli that truth is preferable to deceit except where the state itself is at issue. And Louis the XIVth had the last word: L'état c'est moi.

Begin with founder LBJ. According to Arthur Schlesinger (Reference Schlesinger1973, 240), although LBJ was relatively casual about executive privilege when he became president, the need for cover intensified until, toward the end, he constantly called upon the FBI, CIA and other national security agencies to put “subversive and extremist” individuals under surveillance (Goodman and Tillman Reference Goodman and Tillman1984). Johnson had been a successful politician living a life of compromise and “reasoning together,” with a leathery tolerance and patience necessary for the cutthroat politics of Texas and the only slightly more genteel U.S. Senate. If Johnson could, in less than two years as president, be transformed into a paranoid psychotic, then there has to be something intrinsically pathological in the Fourth Republic presidency. We have been wrong to depict Richard Nixon as the model. His extremes only confirmed the pattern of illegitimacy.

Jimmy Carter was by nature the least deceitful, yet his very naiveté drove him to try to overcome his disgrace and restore some legitimacy to his beloved government by planning and authorizing a secret “invasion” of revolutionary Iran with six attack helicopters, two of which collided in a vast and empty desert just slightly before D-day, M-morning. Ronald Reagan, who got back the Iran hostages on his inauguration day, showed promise of being the one exceptional Fourth Republic president; nevertheless, he became so illegitimate that his redemption was sought with a two-horse parlay: Iran-and-Contra, for which he must have committed a dozen extremely “high crimes and misdemeanors.”

The demise of George H. W. Bush was the most pathetic. His response against Saddam Hussein in Desert Storm was rewarded by the deserved approval of the entire diplomatic community and by the fastest ascent to the highest approval rating in the history of presidential polling. A year later he couldn't get re-elected, and he left office under a hailstorm of vilification from his own conservative wing.

Bill Clinton is the signature character of the Fourth. He adored being the epicenter of attention. He was star ball carrier and water boy. And he embraced the fact that the media treat the presidency as the personification not only of his party but (echoing LBJ) the entire government. One parting case in point is taken from the cover stories of presidents in 2008 campaigns alone: “How he'll fix the economy” (cover, Fortune); “Which one can fix the economy?” (cover, American Prospect); “How the next president can make America grow again” (cover, Time); “But could he deliver?” (cover, The Economist); “How would he govern?” (cover, Congressional Quarterly); “Who can restore American power and security?” (with variations on several covers). Emphasis added. This is so unbelievably primitive. After surviving the First Republic with the Second, someone asked Ben Franklin what he would call the new government, to which he replied, “a republic, if you can keep it.” We've run fast and loose with the Fourth, with Congress and legitimacy in its wake. Can we keep it?

A FIFTH REPUBLIC AND THE SEARCH FOR ABSOLUTES

Intimations of a Fifth Republic can be found as early as President Harry Truman. But from Truman through Nixon, they were constrained by the Supreme Court. Truman seized the Youngstown steel mills to put an end to a strike during the Korean War, based on the claim of the “inherent power” of the president in times of emergency. The Supreme Court turned him down and in the process lectured the president on how he could have achieved his goal without claiming prerogative, under laws passed by Congress delegating such authority to the president.Footnote ⁴

Nixon—probably the best-qualified Fourth Republic president—passionately espoused presidential prerogative and embraced it long after he was removed from office. In defense of his highly secret, patently illegal domestic surveillance program, he responded on a popular network TV program with: “Well, when the President does it, that means it's not illegal.”Footnote ⁵ Nixon hovers as an archangel over a Fifth Republic, not because he was wrong but because he was only premature. His successors continued to make claims of prerogative, but opposition to the claim was getting progressively weaker.

Was all this mere presidential hubris in a decadent Fourth Republic? The Fifth Republic has an answer, another confirmation of Lenin's maxim. There had to be a theory.

The Fifth Republic was already displacing the Fourth. It was long coming, but so was Fifth Republic state theory. Although the Democrats—Presidents Johnson, Carter, and Clinton—embraced presidential government, the authors of the Fifth Republic Constitution were Republicans, from top to bottom. How odd, at first blush, given steadfast Republican opposition, from FDR's domination throughout the Fourth Republic. Converts, so often the most orthodox, were going to be the Founders of the Fifth Republic, in which the president-centered Fourth Republic was going to become a presidential government of “absolute power” (MacKenzie Reference MacKenzie2008). The Lenin of this movement was Edwin Meese III, who had been promoted from White House counsel to attorney general in 1985. The concept for his theory was “the unitary executive,” a term dug out of the grave of Alexander Hamilton's Federalist essay No. 71, advancing his argument for a single-headed executive branch whose energy would be needed for his constitutional mandate “that the laws be faithfully executed.” It would also give the executive branch the means of defending the separation of powers against Congress, which Hamilton believed was the branch most likely to dominate the other two. No thought was given to the possibility that the executive might become the dominant branch.

The “unitary executive” was an inspiration to a number of young conservatives—virtually the organizational imperative of the Federalist Society—who supported Meese's argument that the presidency had power to interpret the Constitution equal to the power of Congress and the Court. Meese even contended that the Court's interpretation of the Constitution did not necessarily bind the chief executive (MacKenzie Reference MacKenzie2008, 20). Meese also appears to be the first to formalize and strengthen what came to be called “signing statements” that accompany the president's signature on a statute, giving his own interpretation of the law. Meese also succeeded in getting the semi-official West Publishing Company to publish “presidential intent” along with the traditional “legislative intent.” One of those young Federalist Society members, Samuel Alito, wrote Meese's statement pressing the validity of presidential intent as part of the official legislative history of all bills passed by Congress.

All the while, illegitimacy in the Reagan administration was growing significantly, despite the fact that Reagan's approval ratings were not declining as steeply as his predecessors'. Iran-Contra alone outweighs any legitimacy Reagan had earned, to such an extent that he was bringing down the president-centered Fourth Republic. CIA Director William Casey was caught in an outright lie in his denial that he used money earned from illegal sales of weapons to Iran along with even larger secret sums from Saudi potentates to violate still more stern and explicit laws banning support to the Contras. Reagan claimed ignorance of the Iran-Contra conspiracy but was spared impeachment because he was undoubtedly showing signs of Alzheimer's.

Iran-Contra and its profound embarrassment to the beloved President Reagan was the spawning ground of Dick Cheney and David Addington and some of the same young acolytes, including Samuel Alito, who brought the Federalist Society with them. With Cheney's elevation to secretary of defense under George H. W. Bush, and with Addington as his special assistant and general counsel, the whole gang, topped off with Meese, Cheney, and Donald Rumsfeld, would lie in waiting 12 years of, to them, the disappointment of four years of George H. W. Bush and the frustration of eight years of Bill Clinton. Maturation, determination, and ideological zeal kept them in line, ready to compensate for what was to them a model for the George W. Bush administration.Footnote ⁶

One of the principal goals drawn from the new state theory has been to denigrate the separation of powers and, indeed, government itself: Anti-judiciary, for lack of respect for original intent, for states' rights, and for “legislating from the bench,” with intrusion of rights issues. Anti-Congress, for its inability to do its job and for interference with national security issues, interference in war and resistance to “supporting the troops”; and anti-bureaucracy, for interference in the market.

What's left is the presidency and the highest echelon of the executive branch: That is the Fifth Republic. The fight for the unitary executive has been won: presidential transcendence was apparently the only antidote for the tragedy of the plebiscite that had haunted the Fourth Republic. Here are some signs and symptoms of the end of the Fourth.

• • The Senate can do little because passing legislation now takes 60 votes, yielding to the mere whisper of “filibuster,” which is no filibuster at all.

• • Power of the purse has shifted to the White House. Between 2001 and 2007, $779 billion in “emergency war funds” were passed in supplementals on top of the denigrated, “ever growing” regular annual budget. And most of the supplementals are not “emergency,” which means that they should have been regular budget items that are subject to debate and inquiry. As the war heated up, President Bush declared that all war related costs would be funded through supplementals. And “no official or lawmaker dissented” (Kaplan Reference Kaplan2008). As of December 2008, another $700 billion and another trillion or more in bailouts and bridge loans will have been sent by Congress with full presidential discretion. It is doubtful that the new president would reject the money and/or the discretionary authority.

• • When President Bush confessed rather proudly that he had authorized warrantless surveillance and also brought the media in as a co-conspirator, it would at first blush appear that he was convicting himself in an impeachment for “high crimes.” Yet as soon as Rep. Nancy Pelosi became speaker of the House with a new Democratic majority, she announced in her first address that “impeachment is off the table.”

• • Culmination of the privatization of government, which took nearly 20 years, virtually wiped out the long-standing separation of public and private spheres. Control of the fisc, an essential function of government, was shifted to the private banking, investment, insurance companies, and insurers of insurance; credit sources on top of sources of credit to the creditor; Ponzi schemes, investment in investments in investment. The limiting cases are the privatization of prisons and the outsourcing of war and national security.

• • The privatization of brilliant young government officials after leaving the government to write state theory from a private perspective. The author in this case was Professor John Yoo, a Federalist Society whiz kid who left Justice Department for a professorship at the Law School of the University of California, Berkeley—one of the great, “far left” law schools. Professor Yoo denounced the Supreme Court for its decision to accept writs of habeas corpus filed by aliens who had been captured allegedly fighting against the U.S.Footnote ⁷ The following is a list of concepts Mr. Yoo dropped into the editorial, biased and propagandistic words that were a patent attempt to denigrate the Court and the case:

• •

  

I found a wrap-up of my story of the end of the Fourth Republic and beginning of the Fifth in a New York Times editorial endorsing Barack Obama for the presidency:

The Fifth Republic is a true constitutional revolution. What shall we call it? Constitutional dictatorship? Plebiscitary authoritarianism? Authoritarian democracy?

The Fifth Republic seems to be legitimate. It is a bipartisan compact. Regardless of party, the 44th president will seek, accept, and embrace the transcendent presidency because that is the only solution to the new president's recognition that he must have “power commensurate with his responsibility.” And, since there can never be enough power to meet mass expectations, the masses must be mobilized on a permanent war footing.

And it deserves repeating: Any president elected in 2008 will do this, whether he is a Democrat or a Republican. He will foster “permanent war,” a revival of the Cold War mentality and the Cold War culture. In fact George W. Bush can claim this as his legacy—a simple transposition from the war against world communism to the war against world terrorism.

This is not an illusion. It is an integral part of Fifth Republic state theory. Since the beginning of the Cold War our foreign policy has been theory driven. In Hot War, the objective is force against a defined enemy, ending in victory as measured by destruction or lack of capacity to continue. In Cold War, the objective is deterrence—mobilization for war in order to prevent war. But since there is no way to measure prevention—by non-events, non-happenings—it has to be driven by a theory that violent events are inevitable wherever and whenever we are weak. Every act of violence confirms the theory; and when there is no violent event, the theory is also confirmed. QED: the theory is self-confirming. That's the war footing.

When Clinton Rossiter published his book, Constitutional Dictatorship in Reference Rossiter1948, he was grimly accurate but also passionately optimistic:

But he then goes on to propose that “constitutional dictatorship should be legitimate … [i.e., that] no official action should ever be taken without a certain minimum of constitutional or legal sanction” (300, emphasis in original). Writing in 1947, Rossiter could see and experience the formal and real termination of a great war, with impressive (but not complete) return to the status quo ante. He therefore had no conception of permanent war (especially with the American experience of past post-war demobilizations). This helps us understand why such erudite persons—then and now—could imagine that constitutional dictatorship—any kind of dictatorship—can be legitimate. What he could have said then, and all of us now, is that any kind of dictatorship or authoritarianism is illegitimate, and that there have to be ways and means to admit it and compensate for it by severely punishing those who abuse it, and especially, rationalize it. Consequently, the stain of bend sinister remains on the crest, on the flag, and imprinted on the retina of all who ever participated in the rationalization of a “war-footing.”

The transcendent presidency of the Fifth Republic has not signed a short-term rental agreement on the White House. The extreme radicals around George W. Bush—the classical theorists and the party ideologues—have more than fantasized about the permanent hegemony of the Republican Party, with the realistic expectations of permanent war in an indefinite Cold War culture. And the Fifth Republic does not need a George W. Bush and thugs like his. He already had established his legacy when the Democrats ratified the transcendent presidency as soon as they took over Congress after the 2006 election.

Full ratification began with Al Gore's genial surrender to an unconstitutional, unconscionable coup d'etat by the U.S. Supreme Court, whose chief justice declared that the use of the equal protection clause would be “limited to the present circumstances.” This holding in Bush v. Gore seems to be the first effort in the history of the Supreme Court to declare that future litigation cannot rely on a previous decision as a precedent. If it can't be cited, it cannot actually exist. How wide is the gap now between form and reality?

In the minority for 10 years, the Democratic Party gave its tacit consent. The takeover of Congress following the election of 2006 could have generated second thoughts about the constitutional changes being sought by the Republicans. Instead, it took the Democrats only a few moments of political time to confirm their ratification of the entire Fifth Republic. It is worth repeating that the new, Democratic speaker, Nancy Pelosi, third in line for the presidency, occupying the highest position ever held by an American woman, made her maiden speech an almost casual pronouncement that the new House Democratic majority was “taking impeachment off the table.” To us in media land it was tantamount to Neville Chamberlain's “peace for our time.”

Pelosi's grande jest was even more significant because she was at the same time taking Clinton's impeachment out of contention, probably forever. Clinton's impeachment was his most valuable legacy because it revived and restored impeachment as the ultimate weapon for defense of the Constitution and pursuit of accountability. (President Truman said “the buck stops here,” but he didn't say how the buck gets there.) Thanks to the Democratic leadership, impeachment was returned to the living dead, where it had slept during the nearly 135 years between Andrew Johnson and Bill Clinton. All of the affronts to the Constitution were neatly kept from exposure to trial by “executive privilege.” Shades of Richard Nixon; only now the claim to being above the law is no longer premature.

However, even without the power of impeachment, there are other means of pursuing accountability. Harry Truman's special Senate war profiteering investigation committee would be a good model. Exposure alone is an effective sanction, all the more so because refusal to cooperate is an indictable crime and, note well: The Constitution does not protect high officials once they leave office. Moreover, the use of presidential power to confer in advance immunity from crime is in itself damning exposure.

A second weapon of accountability is a blue ribbon citizen's commission to investigate and expose the criminal element of the Fifth Republic. We cannot deliver our war criminals to the International Criminal Court because that court has power only to administer victor's justice against malefactors of small and weak states. The few Great Powers must be trusted to punish their own. If such a committee or commission identifies “persons of interest” bordering on the jurisdiction of the International Criminal Court such persons could at least be stigmatized and therefore confined to their own country. As in the case of Chilean dictator Augusto Pinochet, if they step outside U.S. sovereignty they could be held prisoner for their own safety or seized and extradited to a country with a demonstrable grievance. Once again, exposure is especially painful to elites, even if detention is brief. The Pinochet precedent is a shining star.

The third, and most instructive, is an entirely new Constitution for a Sixth Republic. When, in the course of human events, the republic has become illegitimate beyond our consent, we no longer have the option of making things right through use of the methods provided for in the text of the existing Constitution because they have been undermined or discredited by consent of Congress and the judiciary. All it takes is an invitation by Congress, just like the invitation of February 21, 1787:

If they could do it, so can we. Our dysfunctions are as embarrassing in the eyes of our own citizens today as they were in the eyes of citizens of the last years of our First Republic. And if the constitutional crisis of 1787 brought out language and thought whose value was nothing short of a miracle, so can it also bring out the best in us. And we can also take inspiration from the constituent assembly of France in 1958, whose Fifth Republic Constitution has produced 50 years of enhanced legitimacy and has fostered economic growth.

Altogether, the probability of embracing any of these options is quite low, because they appear to be radical. They might become more palatable if people understood that radical doesn't mean violent. Drawn from mathematics, it simply means “going to the root,” “the foundation,” “primary.” Failing that, we still have access to the one factor common to all three: exposure and shame, the most effective sanction for the elites of the political class. “Fame is the spur” said Ben Jonson; who was followed by Edmund Burke: “Passion for fame … is the instinct of all great souls;” followed by Alexander Hamilton, “love of fame … is the ruling passion of the noblest minds” (quoted in Adair Reference Adair1974, 7, 11).Footnote ¹⁰

I would not be so silly as to compare as equals our contemporary leaders to the leaders of the 1770s and 1780s. But fame is a passion that can spur the most ordinary souls. Why else would George W. Bush, Cheney and Rumsfeld, Carl Rove, the dying Tony Snow, John McCain, Barack Obama, Hillary Clinton, Bill Clinton, etc., etc. risk their security and their good name to pursue something as evanescent as fame? They may call it legacy. Whatever the term—fame or legacy—it's their effort to deny death. The dark side of fame is shame. And we have irreparably lost our country when our leaders cannot answer the question Joseph Welch asked Joseph McCarthy: “Have you no decency?” McCarthy did not respond.

This is not my country. America has become more and more like our enemy. Pogo was prophetic when he exclaimed, “We have met the enemy, and he is us.”Footnote ¹¹ If we allow freedom to be seduced, rights suppressed, and critics silenced by damnation as a danger to the president's definition of national security, we become our own enemy in somebody else's country. To take inspiration from e.e. cummings (Reference Cummings1944), “There's a helluva good universe next door; let's go.” If we try to take our country back, we may take a few hits from terrorists, but we will have democratized the risk.

Our Fifth Republic will live in infamy. May its life be brief. Long live the Sixth. ■