Some Thoughts on Professor Garrett Epps’ "Trumpism Is the Symptom of a Gravely Ill Constitution"

The funny thing is ... I don’t disagree with Professor Epps’ core thesis, which I restate here in my own words, as: something is wrong in the United States, and some of what is wrong relates to our Constitution.

That said: some of Professor Epps’ specific claims strike me as, at the very least, odd. How much worse than odd, if at all, I leave to you, the reasonable reader.

Now to brass tacks. Professor Epps wrote:

“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses.

Garrett Epps, Trumpism Is the Symptom of a Gravely Ill Constitution, The Atlantic, Sept. 20, 2016 (emphasis added), http://tinyurl.com/zhv3rbw.  Let us (for a moment) leave aside Democratic opposition to the Supreme Court nominations of Judge Bork and Justice Thomas. Let’s go with Epps’ In 1998, the Republicans “first” started America’s descent into constitutional hell fire & brimstone.

Still what precisely does Professor Epps mean by a “repudiated” House majority? The 105th House was elected in 1996. The Republicans had a wafer thin majority of 8 members among 435 voting House members. In 1998, during the midterm election, the Republican’s majority was clawed back from 8 members to 5. A loss of 3 seats. But the Republicans retained the majority, and then its members proceeded—as they had indicated during the election—to impeach President Clinton during the lame duck session. (On the Senate side, the Republicans had 55 members before and after the 1998 election.) So what does Epps mean by a “repudiated House majority.” Its majority was returned, albeit ever so slightly reduced, and it was the Democrats who stayed in the minority. It appears Epps is unwilling to recognize the democratic legitimacy of the then Republican Congress, which is odd, very odd, because his claim against today’s Republicans is that they “have simply refused to accept [President Obama] as the nation’s legitimate leader.” Id.

Next point. What does Professor Epps mean by “minor offenses”? If Epps had said, “President Bill Clinton was innocent, and the Republicans knew he was innocent,” such a position, true or false, would be comprehensible, particularly as it depends on disputed facts. But Epps is not saying that; instead, he is saying the alleged offenses were “minor.” How so? Paula Jones claimed that Bill Clinton (while governor of Arkansas) unlawfully sexually harassed her in violation of Section 1983 and Section 1985 of title 42 of the U.S. Code. These provisions, and their sister provision Section 1984, are more than a hundred years old, and tens of thousands of U.S. litigants annually use these provisions to mount civil rights actions under the Bill of Rights, particularly against state and local government officials. When has anyone, particularly anyone on the left, suggested that such allegations were minor? Indeed, the very fact that Congress has passed these statutes and provided federal forums to vindicate these rights establishes that the democratic arm of our government thinks these allegations are serious, not minor. Furthermore, Clinton was impeached for perjury in relation to his conduct in opposing Jones’ Section 1983 and Section 1985 civil rights claims. Perjury is not a minor wrong; it is a crime—a felony of longstanding. What court has ever suggested that perjury was a minor offense? It is sad to hear such arguments put forward by political scientists and historians, but for a law school professor to put such arguments forward is catastrophic. Why? Because Epps’ position will be heard, by students and by practitioners and by the lay public, and some number of people who hear it may come to believe it true: that perjury is minor. And when we reach the point that perjury is widely thought to be minor, we may have to reconsider if we need judges and courts at all, and if we don’t need them, then we certainly won’t need American law professors to tell us what to think. 

Only Professor Epps can explain what he means by “minor.” I surely don’t know what he meant. But I can make a fair guess how many readers will understand him, albeit it is just my guess.

Clinton was an important person: the elected President of the United States. And Paula Jones was a nobody, and probably just a tool of the President’s opponents. He was important, and she was “minor.”

I think that is how a lot of people will understand Epps’ article in The Atlantic. If I am correct about this, and if Epps really wants to know why many people are voting Trump, then he should just—look in a mirror. It is writing like his that has and is pushing many Americans to do just that.

Now as you can see, I think Professor Epps is entirely wrong. Allegations that a defendant has violated someone’s civil rights, i.e., in violation of the Bill of Rights and federal statutes, are not minor. But for a moment, let us accept Epps’ position. Let us assume that sexual harassment and perjury in relation to allegations of sexual harassment are minor. If that were true, then the Democratic Senators who proffered Professor Hill’s allegations against Justice Thomas were ... only bringing up “minor offenses.” In that situation, Epps should date our polity’s descent into constitutional hell, not from 1998, but from 1991, and the fault would lie, not with Republicans, but with the Democrats. Epps’ position is all so odd. Very odd.

One last point. Professor Epps wrote: “Stanley Milgram’s ‘obedience to authority’ experiment suggests that others, who know better, will simply stand aside as the toadies take over.” Id. No: A thousand times no. The Milgram experiment suggests no such thing. The only lesson of the Milgram experiment is that some (hopefully few) academics are willing to impose on and to lie to people, i.e., ordinary people—sometimes struggling students—trying to pick up some spare change, and that Milgram and those like him will do these things in order to advance their academic careers, wholly without regard to the psychological and other consequences endured by their experiments’ subjects. Furthermore, academic bodies and professional associations, which should maintain ethical boundaries and standards, will give positions, honors, and grants to such men. If Professor Epps thinks there is something else to be learned from Milgram’s experiment, then his judgment here is far worse than his misremembering and misunderstanding the events of 1991 and 1998. 

When the elite of our society quote Milgram and honor him, then other people will take the hint. Some of these ordinary people—who used to be called “citizens” and “voters,” but are now called “basement dwellers,” “deplorables,” and “irredeemables”—just might think they have more in common with Jones and with the subjects of Milgram’s experiments than they do with Professor Milgram and with Professor Epps. And if these people vote for Trump, I know why.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, “Weighing” Good & Evil, and What We “Forgive” in History, The New Reform Club (Sept. 21, 2016, 5:25 AM). [Here]