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Copyright by Charles Ulrich Zug 2020 The Dissertation Committee for Charles Ulrich Zug Certifies that this is the approved version of the following Dissertation: DEMAGOGUERY AND AMERICAN CONSTITUTIONALISM Committee: Jeffrey K. Tulis, Supervisor Russell Muirhead, Co-Supervisor Gary J. Jacobsohn Devin Stauffer DEMAGOGUERY AND AMERICAN CONSTITUTIONALISM by Charles Ulrich Zug Dissertation Presented to the Faculty of the Graduate School of The University of Texas at Austin in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy The University of Texas at Austin May, 2020 Dedication To Grant and Cynthia Witherspoon, Robert Goldberg, and Jeffrey Tulis. Acknowledgements In writing this dissertation, I have benefitted greatly from my friends and colleagues, particularly Kyle Shen, Thomas Bell, Corey Herndon, Mimi Gryska, and Zac McGee. I presented an early draft to the graduate fellows at the Clements Center for National Security, for whose feedback, comradery, and generous financial support I am grateful. I would also like to thank the Charles Koch Foundation and the University of Texas Graduate School for dissertation fellowships. Whatever merit this dissertation has, I owe to my teachers. Russell Muirhead kindly agreed to co-chair my committee and has been exceedingly generous with encouragement and feedback. Robert Goldberg, my college mentor and friend, introduced me to political philosophy, and Devin Stauffer helped me mature in my understanding of it as I have endeavored to apply its insights to the study of American politics. I thank Gary Jacobsohn for all of the opportunities he has given me, for his generosity and care, and for teaching me the fundamental importance of constitutionalism. I owe my greatest debt of gratitude to Jeffrey Tulis, my model for scholarly and intellectual excellence, without whose guidance, support, and friendship I would not have completed this project. v Abstract Demagoguery and American Constitutionalism Charles Ulrich Zug, Ph.D. The University of Texas at Austin, 2020 Supervisor: Jeffrey K. Tulis Co-Supervisor: Russell Muirhead Despite a renaissance in the study of demagoguery and related concepts like populism, scholars have said relatively little about the range of meanings that demagoguery can have when deployed in different ways, by different political figures, for the sake of different political ends. Since William Fennimore Cooper’s classic 1831 essay on the subject, almost every account of demagoguery in American political thought has described a form of rhetorical leadership that is essentially bad. In this view, demagoguery is defined at the outset as divisive and destabilizing leadership that appeals to what is worst in an audience at the expense of what is best for the sake of the leader’s own aggrandizement. Scholars working within this thought paradigm appear, as a consequence, to have been closed off from the more interesting possibilities that a less emphatically moralistic approach to the subject opens up. Curiously, these same possibilities seem to be intuitive for most scholars even though their implications have not been explored: the same writers and commentators who insist on a moralistic conception of demagoguery will also concede vi that rhetorical tactics traditionally associated with demagoguery, like appeals to the passions and settled opinions (or prejudices) of one’s audience, can be legitimate in special instances and when executed in a responsible way for the sake of a publicly beneficial end. This dissertation draws out and develops the intuition on which this concession is based. What are the factors and considerations that make the use of demagogic tactics plausibly legitimate in American politics, even though thoroughgoing demagoguery is acknowledged to be bad? Looking to the basic principles of American constitutional democracy, the dissertation proposes an evaluative framework for distinguishing the few instances in American politics where demagogic rhetorical tactics are justifiable from the overwhelming majority in which they are not. Its goal is to help us see the good in rhetorical leadership that we have previously dismissed as mere demagoguery, and to see what is harmful in rhetoric that we currently lack the tools to understand. vii Table of Contents Introduction: Demagoguery and American Constitutionalism ............................................1 PART I: THEORY AND HISTORY ..........................................................................................14 1. Literature Review and Conceptualization ......................................................................15 A. Conceptualizing Demagoguery ............................................................................17 B. Case Selection ......................................................................................................56 2. Demagoguery in the Founding Perspective ...................................................................62 A. Rhetoric in the Classical Perspective ...................................................................65 B. The American Constitution’s Theory of Political Rhetoric .................................74 3. Shays’ Rebellion and the Collapse of Discourse ...........................................................94 A. Daniel Shays in Contemporary Understandings ..................................................95 B. The Insurgency ...................................................................................................101 C. Political Text: Shays in Action ..........................................................................109 D. Political Interpretation: Creating a Demagogue ................................................127 PART II: CASE STUDIES .....................................................................................................141 4. Demagoguery and The Court .......................................................................................142 A. Justice Samuel Chase and the Judiciary Act of 1802 ........................................146 B. Justice Antonin Scalia and the Corruption of the Judiciary ...............................160 5. Demagoguery and Congress ........................................................................................174 A. Representative Adam Clayton Powell, Jr., and Civil Rights .............................178 B. Senator Joseph McCarthy and Communism ......................................................203 C. Senator Huey P. Long and the Concentration of Wealth ...................................233 viii 6. Demagoguery and the Presidency ................................................................................251 A. Evaluating Presidential Rhetoric........................................................................251 B. Franklin Delano Roosevelt and the New Deal ...................................................261 C. President Donald Trump and Immigration ........................................................273 Conclusion: The Weaponization of Demagoguery ..........................................................290 References ........................................................................................................................295 ix Introduction: Demagoguery and American Constitutionalism “This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it.” -Abraham Lincoln “Vox populi, vox humbug.” -William Tecumseh Sherman On December 10, 2019, eight days before President Donald Trump’s impeachment by the United States House of Representatives, the print version of the New York Times ran an op-ed equating Trump’s notoriously aggressive rhetoric with the rhetoric of numerous presidents before him.1 The author, Philip Terzian, endeavored to refute the view that Trump’s rhetoric is unprecedented in American presidential history. To substantiate his position, Terzian compared Trump’s enormities—including his (then) recent allegation that House Intelligence Committee Chairman ‘Adam “Pencil-Neck” Schiff’s impeachment proceedings [were] illegal, invalid, and unconstitutional’2—with public statements by Theodore Roosevelt in his capacity as president. “[Trump’s] impulsiveness,” asserted Terzian, “is nearly as habitual as Theodore Roosevelt’s.”3 One might reasonably question the equivalence Terzian sought to draw between these particular presidents. After all, given Trump’s notorious and well-documented 1 Philip Terzian, “Trump’s Rhetoric Has Precedent,” New York Times, Thursday, December 10, 2019: A29. The author thanks Gary Jacobsohn. 2 Terzian, “Trump’s Rhetoric,” A29. 3 Terzian, “Trump’s Rhetoric,” A29. 1 aversion to reading,4 it hardly seems like an exaggeration to speculate that President Roosevelt—the author of at least thirty five monographs5—had, at the time of his death at age sixty, written more books than Trump has read. Indeed, an eloquent writer and an unusually reflective political mind, Roosevelt sought to justify his understanding of the American regime, and his particular leadership role within it, at lengths and with a degree of argumentative rigor that few presidents, let alone Trump, could hope to match.6 At the same time—and lest we mistake the forest for the trees—the deeper inquiry that appears to have motivated Terzian’s brief article deserves the attention of all serious students of American