Saturday, January 16, 2021
Politics

Josh Hawley’s Different Writing On Contested Elections

Josh Hawley's Different Writing On Contested Elections
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“And it was here that the country’s political division became a political crisis,” Sen. Josh Hawley wrote nine years ago. “Because they regarded Jefferson and his party as a threat to the Constitution, Federalist congressmen returned to Washington determined to deny him the presidency, regardless of what the voters wanted.”

Hawley, then a law professor, recounts the story of the election of 1800 at length in the 2012 piece: the famously bitter campaign between John Adams and Thomas Jefferson over what exactly the federal government’s scope and purpose should be, the attempts to portray Jefferson as an atheist Jacobin, the Federalist Party’s strategy to deny him the presidency through the first version of the Electoral College system, the contemporaneous concerns about civil war breaking out, and, finally, the Federalists’ voluntary concession to the reality of Jefferson’s victory. He describes that election as “one of the most underappreciated constitutional events in our history” — almost inarguable. Take, for instance, this from Hawley’s piece and reflect on the last week:

Meanwhile, rumors of unrest reached the capital. Each member of the Pennsylvania congressional delegation received a letter from Philadelphia Republicans warning that the day Congress denied Jefferson the presidency would be “the first day of revolution and Civil War.” … As he waited for the House to determine his fate, Jefferson himself grew increasingly agitated at the Federalists’ apparent determination to overturn the results of the election. “This tells us who are entitled to the appellation of anarchists with which they have so liberally branded others,” he told a correspondent.

Finally, on February 17, 1801, nearly a week after voting began, the Federalists gave way. Their change of heart was forced by the realization that to deny the considered choice of the people would itself threaten the Constitution. Out of respect for that document and its principles, they decided to ratify the selection the public had made…

Paraphrasing Jefferson, Hawley writes that “if the contending parties agreed to respect the basic system of government the Constitution had created, however, these principled differences could be settled by something far short of revolution or coup d’état: They could be settled by democratic election.”

This story, in Hawley’s piece, elucidates a distinction he draws between constitutional law and constitutional politics (the majority deciding the broader interpretation or implementation of the Constitution) that, I suppose, you could twist to rationalize his recent objection to election certification. In the piece, the distinction sets up his argument about the “most dangerous” branch of government: the judiciary. He contends that the Supreme Court needs restraint and a new context for deciding what’s a constitutional matter. The court, he argues, should defer more often to the constitutional interpretation of Congress, a prospect that’s not entirely heartening. He vests real power in people acting as “principal interpreters of constitutional meaning and the primary enforcers of constitutional fidelity.”

But either way, Josh Hawley clearly once understood the historical perils of messing around with the constitutional system after an election.

I came across this 2012 piece while reading some of Hawley’s older writing, wondering how we got to him raising a fist to the rally that subsequently became the mob that overtook the Capitol. While we can’t see into his heart, I imagine he thought he could ride the political tide of Donald Trump’s post-election dreamland as politicians have for years — without the whole thing combusting into real-life chaos and death. But that’s a real lesson of the 1800 election and all five years of the Donald Trump era: the unthinkable really can happen.

Hawley has positioned himself as the inheritor of a more intellectual Trumpism — slightly more populist economics (the $2,000 checks), combined with an intense social conservatism (no judges who aren’t sufficiently anti-abortion) and an aggressive approach to big tech and big pharma (popular intellectual positions, though sometimes in different forms). Before running for attorney general and Senate in Missouri, Hawley attended Stanford, Yale Law, clerked for Chief Justice John Roberts, wrote a biography of Theodore Roosevelt, worked as a law professor, and participated on behalf of Hobby Lobby in their litigation against the contraceptive mandate in the Affordable Care Act.

In between all that, during the first Obama term — among other writing — he published a trio of pieces in the academic-adjacent, conservative quarterly National Affairs: “America’s Epicurean Liberalism,” “Rediscovering Justice,” and “The Most Dangerous Branch,” which contains the 1800 election material.

Reading back through pieces about civic society, liberty, justice, and the Constitution written years ago by Hawley (or, really, anyone) the week after a mob riot overtook the Capitol is like that part in “The White Album” when Joan Didion can’t look at her mother-in-law’s framed blessing (“And bless each door that opens wide, to stranger as to kin”) because it seems like the “ironic” detail that reporters would include in the story if they were all found murdered. You could really let loose with the cheap irony hottest hits here.

But taken together, based on those pieces, Hawley wants a more societal, collective view of the individual with a possibly paternalist, conservative government. “America’s Epicurean Liberalism,” for instance, sets up a dichotomy about Woodrow Wilson vs. Theodore Roosevelt and who truly ruled the progressive era — he implicitly sides with Roosevelt’s more expansive, interventionist view of domestic governance. (The piece does not reckon with the abounding racism of the time, but Hawley apparently does do so in his Roosevelt biography.)

Justice rediscovered, to Hawley in 2012, is about adjusting society to unleash people’s individual gifts — sort of a moral version of economic justice, though the piece touches on economics. “To govern is to exert a guiding influence on something or someone else, to manage or direct or shape things,” he argues. “We usually think of it in a political context, but there is nothing inherently political about governing. It can describe any responsible, constructive exercise of care or authority.”

Either he’s being too vague or I’m being too obtuse to totally buy some of the distinctions he draws in the pieces. In particular, I don’t quite comprehend the practical, everyday difference between “epicurean” liberalism (his view that the modern conception of liberty focuses too intently on self-fulfillment above all else to the detriment of society, which, arguably, is a critique of the current left and right) and self-determination (how he wants to recast liberty into a more societal framework, but one that seems to require a foundational assumption of what’s right that he never fully describes).

Regardless, Hawley wrote more than 15,000 words about governance and the American system for a serious publication when he was in his thirties. They’re about how — on some level, in my interpretation — building off of a shared assumption about society, responsible stakeholders can determine the course of events for others.

On New Year’s Eve, Mitch McConnell asked Hawley to explain to other Republican senators why he planned to object to the certification of the election results — an essentially empty, performative act — and received silence, because Hawley wasn’t on the call. “If you’ve been speaking to folks at home,” Hawley later emailed his colleagues in defense of his plans, “I’m sure you know how deeply angry and disillusioned many, many people are – and how frustrated that Congress has taken no action.” He’s defended his objection to the results this week, even after the events of last week, calling it is his duty to speak on behalf of constituents worried about election integrity.

Last year, Jamelle Bouie wrote for the New York Times about the election of 1800, noting that while the past doesn’t repeat, there’s “tremendous value” in understanding how past actors approached crises of their time.

“Of all the elements self-government needs to survive, it’s this awareness — the knowledge that power wanes, for you and your opponents — that matters most,” he writes in the column. “When a democracy loses this awareness, when there is a party or a faction or even a demographic that refuses to admit or accept defeat, it finds itself on life-support, risking terminal decline.”



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