Just spotted this NYT essay that is filled with insights and professional knowledge. The three elements of “unwritten constitution” — Separation of federal prosecution, political neutrality of the military and the integrity of civil servants or officials — are exactly what my theory of preinstitutions has been talking about, and why looking at the institutions alone is never sufficient.
We really owe Mr. Trump a “Thank you” note for placing the government, at least the executive branch — but as Professor Wu has pointed out, the Congress also — under a “stress test.” The result has smashed many myths previously held.
I would add two more points to this already excellent essay, just to make the discussion more interesting through idea exchanges.
First of all, the so called “unwritten constitution” contains both deeds and thoughts. Sometimes the thoughts matter more, while the deeds prevail in others. But instead of separating the two, it is much better to look at their interactions and synergies. Strictly speaking, all the three pillars discussed in the essay are driven by deep seated pro-democratic preferences.
Behind the separation of the prosecution power for example is the shared preference for fair competitions. This explains, as correctly pointed out in the essay, why “six of Mr. Trump’s close associates have been convicted and seven were indicted” right under Trump’s watch. It indeed proves the “prosecutorial independence.” By the same token, it also explains why DOJ is now investigating President-elect Joe Biden’s son, Hunter Biden, right after all 50 states have now certified their election results.
Here is a sports analogy: Ensuring fair competition is not much different from playing commercials only during the break of a football game, but never when the game is playing. The idea is “no distraction” when the game is still on, which would render the game outcomes unreliable and unfair.
The same preference for fair competition has driven the GOP officials to repeatedly break away from Trump and resist his explicit requests for violating the election protocols. Political neutrality of the military follows the same logic.
If only one tenth of Chinese citizens had possessed such a shared American preference!
A fair competition is the most equilibrium competition. Anytime when a single game is interfered by an external force, we know the same interference would play a role for the next and all the following games. China has been a perfect example: Its history has been riddled with so many coup d’é·tat, all because once someone received power through military means, others would copy that and try the same. This is why dynasties simply replaced one another without moving the society forward.
The other point I want to add is that time itself is a part of the democratic game. That is, democracy is never perfect at any point of time but promises to get better. The founding fathers had designed it — explicitly or implicitly — as a repeated game over fixed intervals. Thus the Senator this time has shown no backbone against Trump, it does not mean they will act that way in the future. Things change, people change and most importantly they change in lock steps. This is why I have highlighted “accumulated choices” as the key driver for understanding most, if not all, changes. In other words, although this time we relied on preinstitutional resources to save our republic, it is highly likely that the next time the institutional part will be involved to play a better game. This is fundamentally how preinstitutions and institutions are connected over time, as they learn from each other and act upon each other.