Table of Contents Cover Title Page Contents Introduction The Dictator’s Handbook, US Edition by Eric A. Posner Constitutional Rot by Jack M. Balkin Could Fascism Come to America? by Tyler Cowen Lessons from the American Founding by Cass R. Sunstein Beyond Elections: Foreign Interference with American Democracy by Samantha Power Paradoxes of the Deep State by Jack Goldsmith How We Lost Constitutional Democracy by Tom Ginsburg and Aziz Huq On “It Can’t Happen Here” by Noah Feldman Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic Within Liberal Democracies by Karen Stenner and Jonathan Haidt States of Emergency by Bruce Ackerman Another Road to Serfdom: Cascading Intolerance by Timur Kuran The Resistible Rise of Louis Bonaparte by Jon Elster Could Mass Detentions Without Process Happen Here? by Martha Minow The Commonsense Presidency by Duncan J. Watts Law and the Slow-Motion Emergency by David A. Strauss How Democracies Perish by Stephen Holmes “It Can’t Happen Here”: The Lessons of History by Geoffrey R. Stone Acknowledgments Contributor Biographies Notes Index About the Author Copyright About the Publisher Contents Cover Title Page Introduction The Dictator’s Handbook, US Edition by Eric A. Posner Constitutional Rot by Jack M. Balkin Could Fascism Come to America? by Tyler Cowen Lessons from the American Founding by Cass R. Sunstein Beyond Elections: Foreign Interference with American Democracy by Samantha Power Paradoxes of the Deep State by Jack Goldsmith How We Lost Constitutional Democracy by Tom Ginsburg and Aziz Huq On “It Can’t Happen Here” by Noah Feldman Authoritarianism Is Not a Momentary Madness, But an Eternal Dynamic Within Liberal Democracies by Karen Stenner and Jonathan Haidt States of Emergency by Bruce Ackerman Another Road to Serfdom: Cascading Intolerance by Timur Kuran The Resistible Rise of Louis Bonaparte by Jon Elster Could Mass Detentions Without Process Happen Here? by Martha Minow The Commonsense Presidency by Duncan J. Watts Law and the Slow-Motion Emergency by David A. Strauss How Democracies Perish by Stephen Holmes “It Can’t Happen Here”: The Lessons of History by Geoffrey R. Stone Acknowledgments Contributor Biographies Notes Index About the Author Copyright About the Publisher Introduction Cass R. Sunstein The United States is living under a military dictatorship. No one dares to call it that—but that’s what it is. Here’s what happened. A year ago, a terrorist organization launched a successful attack in Chicago. Two thousand people were killed. President Donald Trump declared a national emergency and imposed martial law. With overwhelming popular support, he ramped up existing surveillance policies. The government is now monitoring all emails and telephone calls. Americans know that they are being monitored. Most of them don’t mind. In President Trump’s words, “Privacy just isn’t smart.” Harkening back to the late 1800s, the Trump administration made “sedition” a crime. Sedition includes “disloyalty to the United States,” which includes “actions that demonstrate sympathy to our nation’s enemies.” Under the sedition laws, thousands of people have been arrested. No one knows exactly how many. Muslim-Americans must register with the authorities, and if they engage in “suspicious behavior,” the authorities will pay them a visit. Preventive detention has become routine. No one knows how many people have been detained. There is a lot of private violence against people who are thought to be “disloyal.” As a precautionary measure, tens of millions of people are displaying American flags on their automobiles and homes. It’s not easy to leave the country. If you do, beware: it’s tough to get back in. If you aren’t an American citizen, good luck. Since the Chicago attack, Congress has capitulated to the president’s demands and enacted the laws he favors. The federal judiciary has upheld his programs. So far, the press remains free, at least as a formal matter. But the most popular news outlets enthusiastically embrace President Trump’s programs. They are careful not to criticize him. The majority of Americans dismiss the president’s critics as sources of “fake news.” The Department of Justice is starting to investigate some sources of fake news for possible sedition. Whether or not the investigations result in prosecution, the dissenting news outlets are increasingly marginal. In terms of impact, they’re failing, and their economic situation is increasingly dire. In a recent speech to a joint session of Congress, President Trump declared that the war on Islamic terrorism “had no beginning and has no end.” Sure, I made all that up, and it’s just a story; it’s hardly likely. (Some of the chapters here will defend that view.) But if you find anything in the narrative even close to imaginable, we could try a few others. North Korea attacked Guam, and the president claimed “emergency powers.” China did something frightening and horrific, and the president claimed, “We are now at war.” The economy took a horrific downturn, and the president contended that he must “do whatever needs to be done to protect the country.” Better yet: a catastrophe or a threat took a form that we cannot even imagine, producing something like the situation just described. Fiction writers, like Sinclair Lewis, Philip K. Dick, and Philip Roth, have ventured alternative histories of the United States, in which some kind of authoritarianism ends up triumphant. Maybe Germany won World War II. Maybe the United States fell under the spell of an authoritarian ruler. If you like alternative history (and I confess that I love it), it’s probably for one of two reasons. First, a tale of what-might-have-been can tell us something important and even profound about ourselves. It seizes on some feature of our national character—small or large, hidden or overt—or some inclination that some people have, and it shows what might have happened if that feature or tendency had somehow flowered. Roth’s book The Plot Against America is a masterpiece in that vein. What-might-have-beens warn us: inside every human heart, there’s a fascist waiting to come out. George Orwell’s Nineteen Eighty-Four remains the best analysis of that point, and it might well be true. After the attacks of 9/11, a lot of people discovered something like that, and their political party didn’t matter. Second, what-might-have-beens make an intriguing claim about a nation’s history: with a little push or shove—with an illness here, a death there, a single act of cowardice or courage, a coincidence around the corner—our world could have ended up a whole lot different. If Adolf Hitler had been smarter, maybe most of Europe would have ended up under the Nazis. Without Franklin Delano Roosevelt, the United States might have gone in all sorts of different directions in the 1930s and ’40s. In 1936, Lawrence Dennis wrote a book titled The Coming American Fascism. It’s not a warning. It’s hopeful and optimistic. With some twists and turns in the future, maybe Islamic terrorists will turn significant parts of the world in their preferred directions. Submission, by Michel Houellebecq, is all about that. It’s not optimistic, but its arresting narrative arc makes the tale something other than totally implausible. Houellebecq’s focus is unusual. Since the 1930s, the question whether it can happen here typically asks about the rise of fascism. But that’s a failure of imagination. Things can go wrong in a thousand different ways. Actually, they have. If the United States did not have the history it has had, speculative writers would spin tales that would defy belief, including the enslavement of millions of people in the American South; lynching countless people because of their skin color; decades of racial segregation; denial of the vote to women (until 1920, no less); the internment of more than 100,000 Japanese Americans on the West Coast—and also (less bad, but not good) the rise of McCarthyism in the 1950s and Nixon’s grotesque abuses in the 1970s. This is not a book about Donald Trump, not by any means, but there is no question that many people, including some of the authors here, think that Trump’s words and deeds have put the can-it-happen-here question on the table. Several of the essays engage his election and his presidency. Some of the authors fear that an election of a left-wing extremist could create its own form of “it.” But the discussions here reach well beyond President Trump, left-wing extremists, and any other contemporary figure. They are focused on big and enduring questions. For example: Is a powerful central government a threat to liberty—or a safeguard against it? If a president wants to be a dictator, what steps would he take? Can populism produce authoritarianism? What’s the Deep State, and should we worry about it? How robust is freedom of speech? Can we rely on our courts? Does the American Constitution solve the problem? What can we learn from history? If some of the chapters are a bit academic, well, that should be taken as a tribute to the seriousness of the topic, and to the importance of confronting it with more than a quick glance at politics, law, and history. So: Can it happen here? My own summary of this book: Absolutely. It has happened before. It will happen again. To many Americans, something like it is happening now. That’s mysterious, I know. Read on. The Dictator’s Handbook, US Edition Eric A. Posner1 Tyrannophobia, the fear of the dictator, is as old as the American republic.2 The founders worried about being governed by a Caesar or Cromwell, and ever since, as regular as the election cycle, Americans have accused the serving president of harboring dictatorial ambitions. Although none of the forty-five men who have occupied the presidency so far have succeeded in their supposed dictatorial goals, the public’s tyrannophobia has never been stronger. George W. Bush and Barack Obama, for example, were both routinely compared to Hitler based on their alleged dictatorial behavior and ambition. With the presidency of Donald Trump, tyrannophobia has reached a fever pitch. Even before taking office, Trump was labeled a dictator. The accusations no longer come from the wings but have taken center stage. Journalists, politicians, academics, and other people with centrist, establishment credentials genuinely fear that Trump will inaugurate authoritarian rule in the United States. Their fears are based on Trump’s statements and actions during the campaign: Trump has flouted the norms of American elections and governance at every turn, including calling for the jailing of an opposing candidate, encouraging violence against protesters, endorsing the torture of prisoners, suggesting he might not respect the results of the election, falsely claiming that millions of illegal votes were cast, failing to resolve unprecedented conflicts of interest or to even disclose his tax returns, and attacking a federal judge based on his ethnicity (and that’s of course a highly incomplete list).3 While it’s possible that this was all bombast, the stakes are high, and we should take seriously the claim that Trump seeks some level of authoritarian rule, whether or not “dictatorship” in its scariest sense is on the table. Is it possible that he can succeed? Can it happen here? To answer this question, let’s assume that Trump does seek to become a dictator in the fullest sense. The problem he faces is that powerful institutions stand between him and the scepter. He would need to subvert these institutions in order to seize the prize. It’s worthwhile, if only as an exercise, to imagine how this subversion might work.