At the Constitutional Convention of 1787 a Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” to which Franklin responded, “A republic, if you can keep it.” The 1996 presidential election cycle and the twenty years hence have demonstrated the fragility of Franklin’s “If.”
1996 pitted popular incumbent Bill Clinton (D) against the well-respected but less charismatic Bob Dole (R). Clinton won easily, which, given his charisma and political skills, was unremarkable. What stands out about that election cycle and its aftermath was the public’s (non)reaction to President Clinton’s and his supporters’ attempts to place him above the law, like a king, in the impeachment process regarding his inappropriate actions while serving as president of the United States.
But remarkably the public’s love of President Clinton grew throughout his legal difficulties. Clinton’s first term Gallup average approval rating was 50%, second term 61%, and stood at 66% approval the day he left office. Compare that to the public’s reaction during the period of 1972-1974 when Richard Nixon – re-elected in 1972 with 60.67% of the popular vote — similarly attempted to place himself above the law. The public ushered Nixon out of office with gusto, emphasizing that in America not even a popularly re-elected President stood above the law. The public remained so offended by the concept of an Imperial Presidency that President Ford’s pardon of Nixon from criminal charges became one of the principal reasons Ford lost his own bid for election in 1976. That the public’s love of Clinton grew emphasized how much our culture has changed from then to now.
The populace’s embrace of President Clinton did not go unnoticed by the other courtiers within the Grand Duchy of Washington, DC. After President Clinton’s impeachment in the House of Representatives, when the Senate sat to decide whether to remove him from office, even several Republican Senators decided that although he was guilty of an impeachable offense it would be too harmful to the country to remove him from office. Those Senators dutifully followed polls showing that a majority of Americans agreed President Clinton had done as charged but that the Senate should not remove the ruler they had chosen. The Senate — the bi-cameral part of the legislative branch intended by the Founders to be insulated from public opinion — now deferred to what seemed a “king’s” popularity over evidence and the rule of law.
One of the most recent examples of a branch of government buckling to President Clinton’s popularity over constitutional rule of law occurred in 2015 when the Supreme Court considered the constitutionality of the Affordable Care Act, otherwise known as Obamacare. At issue was whether the Constitution’s commerce clause gave Congress the power to order every American to purchase insurance. While ruling that the commerce clause did not give Congress that power, Chief Justice John Roberts (reputed to be a conservative Justice) nevertheless upheld the law under Congress’ taxation power – even though when it passed Obamacare, Congress expressly denied it was relying on its taxing power and President Obama had denied that the “insurance mandate” was a tax. Chief Justice Roberts’ ruling is widely viewed as having resulted from his concern that the Court’s legitimacy with the public would be at risk if a popular President’s marquee law was struck down. In this way, it appeared that a United States president’s popularity trumped the rule of law in the Supreme Court, too.
Popularity and unpopularity affecting the applicability of the rule of law, whether to men, women or ideas, has now bled through all of our governmental institutions, enthralled our media and academic institutions, and now threatens to permeate everywhere in our culture, even private institutions, where people are no longer free to hold or express an unpopular view without placing their livelihood at risk. The Founders meant the rule and protections of law to apply equally to all persons and ideas no matter their popularity or unpopularity. Franklin’s test – can we keep it – hangs on a thread that will not stretch forever.
Brian Chilton is a graduate of the University Of Virginia School Of Law where he served as Associate Editor and Executive Editor of the Virginia Law Review. Additionally, he served as Senior Counsel in the Office of the Independent Counsel. Chilton represented the mother and daughter in the 2004 Supreme Court case, Elk Grove Unified School District v. Newdow, resulting in the words “under God” being retained in the Pledge of Allegiance. He is the author of the novel, Issachar’s Heirs (White Feather Press).