It is a cliché of post-Watergate history that our country’s institutions proved resilient and protected American democracy in the face of President Richard Nixon’s attempts to subvert them.
In his timely and provocative new book, “The Presidents and the People,” Corey Brettschneider, a political science professor at Brown University, dissents. “Understood properly,” he writes, “Nixon’s presidency and resignation is not a study in the strength of our institutions. It is an illustration of their vulnerability. … In this case, the pardon of Nixon allowed his vast crimes to be swept under the rug despite the initial outcry against them.”
Drawing on constitutional law, history, and political science, Brettschneider challenges another shibboleth — that the courts, especially the US Supreme Court, serve as the foremost interpreters of the Constitution and guardians of our democratic order. In fact, he suggests, the Supreme Court has too often failed us, eroding constitutional protections in cases such as Dred Scott and Plessy v. Ferguson.
Recent court rulings seem only to have reinforced Brettschneider’s thesis. The 2022 Dobbs decision, returning the issue of abortion to the states, imperiled women’s reproductive rights. Then, on July 1, in Trump v. United States, the Supreme Court’s finding of broad immunity for official presidential acts seemed to ratify Nixon’s controversial assertion: “When the president does it, that means it’s not illegal.”
Brettschneider reads the Constitution itself more generously than many scholars, who have highlighted its tolerance of slavery and anti-democratic provisions. Even apart from the issue of limited (but gradually expanding) suffrage, the Constitution enshrines the Senate and the Electoral College, institutions that purposely limit popular sovereignty.
Brettschneider prefers to emphasize that the preamble of the Constitution situates power in “We the People.” Public opinion, we may argue, is a fickle thing, and news deserts and misinformation have only rendered it more unreliable. Brettschneider’s focus is on the best of us –— individual citizen activists who have rallied “democratic constitutional constituencies” to check presidential excesses. As “readers of the Constitution,” he writes, this vanguard has influenced elections and convinced “recovery presidents” to spearhead progress toward a more perfect union. These activists have shown that a strong presidency can be harnessed against authoritarianism.
In workmanlike, occasionally repetitive prose, Brettschneider singles out five presidents as particularly problematic: John Adams, James Buchanan, Andrew Johnson, Woodrow Wilson, and Nixon. “Well before [Donald] Trump,” Brettschneider writes, “these leaders posed great threats to democracy” and “stoked the fire of a constitutional crisis.”
The thin-skinned Adams embraced a quasi-monarchical view of the presidency. Fearing war with France, he supported the Alien and Sedition Acts of 1798. Brettschneider calls the Sedition Act, which contravened the First Amendment’s guarantees of free speech and freedom of the press, “a power grab and election manipulation scheme masquerading as a security measure.” Under the Adams administration, the law led to charges against newspaper editors, publishers, and others — at least 126 people.
As president, Thomas Jefferson pardoned those imprisoned under the Alien and Sedition Acts. But he also privately tried to stifle hostile speech. His successor, James Madison, was a more robust First Amendment champion, Brettschneider says, the War of 1812, harsh Federalist critics, and his own Democratic-Republican Party’s pressures notwithstanding.
The next constitutional battlegrounds involved the wrenching issues of slavery and civil rights. We remember James Buchanan as a weak, indecisive leader who did nothing to prevent the (probably inevitable) Civil War. Brettschneider says that Buchanan was worse still, “arguably the most radical proslavery president America ever had.” He cites Buchanan’s secret lobbying of the Supreme Court in Dred Scott, an infamous decision that denied enslaved Black people citizenship and other constitutional rights.
The abolitionist (and escapee from slavery) Frederick Douglass read the Constitution differently, believing it “must be construed strictly in favor of liberty and justice.” Brettschneider calls Douglass “America’s greatest constitutional interpreter.” Douglass kept pressing his case, through Canadian exile and Civil War and successive presidential regimes, finding an eventual ally in Abraham Lincoln and Ulysses Grant, and a foe in the white supremacist Andrew Johnson.
Woodrow Wilson’s presidency represented yet another regression on civil rights. The South already had instituted a violently segregationist Jim Crow regime, but Brettschneider faults Wilson for “nationalizing white supremacy.” Opposing him were the civil rights leaders William Monroe Trotter and Ida B. Wells, whom Brettschneider credits with having “changed the course of Black activism and defined the mission of constitutional recovery of the Reconstruction amendments.”
Their heirs, including Martin Luther King, Jr., and the lesser known Sadie Alexander, successfully influenced future presidents, ultimately making possible the civil rights achievements of Lyndon B. Johnson.
Turning to the Nixon era, Brettschneider interviews the late Daniel Ellsberg, whose leak of the Pentagon Papers provoked presidential ire. He also tracks down members of Grand Jury One, which sought to indict Nixon on criminal charges, as well as an attorney involved in the case. In the end, the grand jury was persuaded by special prosecutor Leon Jaworski to settle for providing evidence to congressional investigators and naming Nixon as an unindicted co-conspirator.
But it was President Gerald Ford’s subsequent pardon of Nixon, before he could be charged with any crimes, that Brettschneider sees as the era’s most crucial mistake. “The truth is, we have never fully recovered from the Nixon presidency,” with its lack of accountability, he writes.
And we are still wrestling with the consequences, he contends, in Trump’s authoritarian ambitions and assaults on the 2020 election. One irony is that Trump supporters who stormed the US Capitol on Jan. 6, 2021, also were citizen interpreters of the Constitution, albeit, in Brettschneider’s view, “corrupted” and “anti-democratic” ones.
The latest twists in the Trump saga, from his May 30 conviction on 34 felony counts to the Supreme Court’s immunity ruling, have raised the issue of presidential accountability to a fever pitch. With President Joe Biden’s political viability teetering, and Trump ahead in the polls, Brettschneider’s claims seem less like history than prognostication.
THE PRESIDENTS AND THE PEOPLE: Five Leaders Who Threatened Democracy and the Citizens Who Fought to Defend It
By Corey Brettschneider
W.W. Norton & Company, 384 pages, $32.50
Julia M. Klein is a cultural reporter and critic in Philadelphia.