The Constitution does not expressly set out a specific legal standard for impeaching a president or judge, but it does use the term “high crimes and misdemeanors” as an operative reason for removal. Certainly, it is possible for the House of Representatives to impeach a president, cabinet official, judge, or Supreme Court justice for noncriminal behavior: Gerald Ford tried this against William O. Douglas. Ford argued that “high crimes and misdemeanors” and “good behavior” was a malleable standard, one that was “whatever a majority of the House believes it to be at a given time.” In 1970, Ford failed to convince the House that Douglas merited impeachment.
It may be difficult to draw parallels between Justice Douglas and President Trump because Douglas had served on the Court for three decades and did not come into office with vast wealth (or the claim of vast wealth). Yet there is a parallel between then and now. Ford accused Douglas of unethical behavior, consorting with foreign entities, and misconduct by receiving money from the Mafia. However, there was no evidence to substantiate the latter two allegations. (Douglas may have crossed the line by publishing a book and several articles in a magazine reputed to be pornographic, and Douglas’s extramarital affairs were the basis for other impeachment demands).
Democrats who have argued for impeaching President Trump are alleging an abuse of power by coercing or aligning with the president of Ukraine to damage a political opponent. There are also investigations into his finances as well as payoffs to mistresses.
Thus there is a parallel of sorts. Of course, a president is commander in chief and generally gains office by an Electoral College vote; meanwhile, a Supreme Court justice gains office by a presidential nomination and Senate approval. But the standard for impeachment—notwithstanding Ford’s claims to the contrary—is the same. Ford acted on April 15, 1970, by demanding impeachment and claiming that the Central Intelligence Agency had “dirt” on Douglas’s foreign activities and that the Securities and Exchange Commission and Internal Revenue Services also had proof of Douglas’s malfeasance. None of these agencies produced evidence against Douglas. Nor did the Federal Bureau of Investigation or Justice Department provide evidence (even though Attorney General John Mitchell promised evidence would be forthcoming).
It appears to be the case that in our present circumstances there is evidence, by President Trump’s own admission, of seeking foreign help against a political rival. There’s also the questionable timing of President Trump withholding military aid, followed by the release of congressionally appropriated monies after the Ukrainian president promised that a new prosecutor might relook an investigation into Hunter Biden.
Bribery is a specified offense in the Constitution. There is a prima facie case of it in regard to the president. Douglas was unpopular with conservatives: he engaged in extrajudicial activities that are prohibited by codes of ethics today but were not at the time. Somewhere in all of this, it is time for the House to employ a constitutional, rather than Ford’s, standard.
Joshua E. Kastenberg is associate professor of law and the Lee and Leon Karelitz Professor in Evidence and Procedure at the University of New Mexico School of Law. His many books include To Raise and Discipline an Army: Major General Enoch Crowder, the Judge Advocate General’s Office, and the Realignment of Civil and Military Relations in World War I and Law in War, War as Law: Brigadier General Joseph Holt and the Judge Advocate General’s Department in the Civil War and Early Reconstruction, 1861–1865.
Listening to White House aides such as Kevin Phillips, who urged a shift to the right on social and race issues during the 1970 midterm campaign season, President Richard Nixon attempted to lure Democrats into the Republican fold with rhetoric that channeled the frustrations and concerns shared by the voters he labeled the “great silent majority.” Just days before the election, in the wake of a raucous and violent demonstration against his speech in San Jose, California, earlier that week, Nixon pleased one Arizona crowd with his trademark tough talk. “The time has come to draw the line,” Nixon fumed against “the haters.” “The time has come for the great silent majority of Americans of all ages, of every political persuasion, to stand up and be counted against appeasement of the rock throwers and the obscenity shouters in America.” However, rather than gain seats in Congress, Nixon watched several coveted campaigns fail to provide the mandate he anticipated, instead puncturing his claim to a new majority. In retrospect, even Nixon admitted the approach went “too far overboard.” In the weeks following the 1970 election, Nixon’s staff scrambled to explain the poor showing and the shortcomings of his “law and order” appeal to America.
Ever since Nixon coined the term “silent majority” in his 1969 address concerning the Vietnam War, commentators became obsessed with debating this voting bloc’s contours and its character throughout his presidency and beyond. Rick Perlstein defined the silent majority’s amorphous impetus as follows: “The silent majority is always going to be a state of mind. It’s a feeling. It’s a feeling of dispossession. And that feeling of dispossession can come about most dramatically in times when things seem to be changing, when all that’s solid melts into air.” This vague sentiment still resonates today as President Donald Trump and his voters continually call themselves the “silent majority.” Comparing Nixon’s definition—or definitions—of the silent majority and Donald Trump’s coalition reveals similarly dubious patterns in conservatives’ claim to a majority and their explanation for this majority’s silence. Meanwhile, Cheri Bustos, the Democratic Congressional Campaign Committee’s chair of Heartland Engagement who guided 2018 candidates in twelve states, attempted to steer the silent majority in a different direction: “If you look throughout the heartland,” Bustos hoped, “there’s a Silent Majority who just wants normalcy, just wants to see that people are going to go out to Washington and fight for them in a civil way and get something done.” Unfortunately for Bustos and other Democrats borrowing this conservative phrase, even when defined in moderate terms by its civility the history behind this mythologized voting bloc demonstrates the crucial role that the concept of a silent majority plays in backlash politics.
Despite the 1970 campaign’s failures, Kevin Phillips continued to paint a backlash image of Nixon’s silent majority: “Young policemen, truck drivers, and steelworkers,” who Nixon sought to include in his constituency along with Sunbelt suburban voters, “lean towards a kind of hippie stomping, anti-intellectual, social ‘conservatism’ in the [Governor] George Wallace vein.” The secret to politics, Phillips once said, “is knowing who hates who.” In Phillips’s attempt to map a political majority, this quote meant targeting young leftists but also opposing civil rights legislation and channeling racist resentments to win white voters from the Democratic Party. As he claimed, “From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don’t need any more than that.” Phillips’s view of the silent majority connected this voting bloc to Wallace, a firebrand segregationist, and garnered important conservative adherents within the White House such as Tom Huston and Pat Buchanan. Not all of Nixon’s aides agreed with Phillips’s assessment.
Capturing the perspective of the moderate, middle-of-the-road advisers who suggested Nixon temper his approach to court the silent majority, a revealing memo from his White House aide, Daniel P. Moynihan, offers a lens into this internal discussion. Moynihan, a Democrat in a Republican administration, understood the potential of backlash politics and encouraged Nixon’s attacks on countercultural permissiveness, but he added that Nixon should balance this tough approach with a more civil and positive embrace of patriotism and the United States’ political and cultural traditions. While Moynihan also explored a populist vision of a resentful silent majority, he maintained that these voters required finesse and demanded an intellectual defense of their traditions in the face of the 1960s challenges from the Left. Moynihan explained, “The silent majority is silent because it has nothing to say,” as he believed these voters begged Nixon for a convincing counter to the robust debate raging between the political extremes on the Right and the eft.
The real problem, according Moynihan, was that the majority of Americans had no response to the challenges to capitalism and “American virtues.” As he advised Nixon, “The adversary culture which dominates almost all channels of information transfer and opinion formation has never been stronger, and as best I can tell it has come near to silencing the representatives of traditional America.” Citing the “fourth rate minds around the administration” and worrying that the “only persons with vigor in their argument are the real right wingers,” Moynihan complained about the dearth of outspoken, effective communicators of conservative virtues that he defined as “moderation, decency, common sense, restrained ambition, attainable goals, comprehensible policies.” “You may have more troops,” Moynihan conceded, “but the other side has more firepower. Infinitely more.” Thus, Moynihan hoped that if Nixon and his administration could give these voters a moderate voice to marginalize the extremists across the political spectrum, it would provide the silent majority with the rhetoric and confidence to stand up for the middle and prove they outnumbered the “authoritarian left.” Hardly the “hippie stomping, anti-intellectual, social ‘conservatism’” Phillips advocated.
Furthering his contrast to Phillips’s backlash thesis, Moynihan warned Nixon about the dangers of wading into student politics. Especially after the Ohio Army National Guard’s traumatic shooting of four unarmed students during a Kent State demonstration in 1970, Moynihan feared that “the general impression is that we have been running against the kids.” After all, William Scranton’s Presidential Commission on Campus Unrest reported that Kent State’s student body “are predominantly the children of middle class families, both white collar and blue collar, and in the main go on to careers as teachers and as middle-level management in industry.” These students belied the notion that all protesters were fringe radicals, or a minority. Still, even though Moynihan urged caution when confronting the “sons and daughters of the silent majority,” he demonstrated the racial limits of moderation when he supported Nixon’s targeting of “black militants” and “racial extremists.” Despite Moynihan’s distinctions, conservatives often conflated black and white protesters to separate both groups from the majority.
While Nixon and his advisers debated the silent majority’s significance, conservative activists on campus targeted antiwar voices and dismissed them as a minority. One conservative group at the University of Tennessee distributed a flyer on campus during the (predominantly white) student strike following Kent State, asking, “Who helped these long haired, unintelligent, dark skinned, poorly dressed . . . protesters?” The term “silent majority” always carried racial connotations because the word “majority” claimed political power and appealed to white fears that the minority gained preferential treatment under LBJ’s Great Society and urban programs to combat poverty. As Perlstein points out, “To say majority is to say minority, and everyone knows who minorities are. They are people in America who are not white.”
The term “silent majority” continues to prove resilient and influential because it motivates a conservative voting constituency’s political identity in contrast to the Left. As one Trump supporter complained, “The reason why we’re silent is because we’re not allowed to talk.” He continued, “My favorite thing about Trump is that he wants to get rid of political correctness.” Though similar to Moynihan’s claim that that the silent majority lacked a voice, Trump’s version of this coalition leans more toward the anti-intellectual, vitriolic strain Phillips identified and blames the Left more directly for intentionally muzzling conservative perspectives. Even this more recent claim that the silent majority has been silenced is rooted in racial politics. In fact, Trump’s rhetoric reveals the exact expressions of patriotism and white identity politics that his voters feel unable to discuss in what Moynihan called “terms that will win a respectful hearing.” For example, due to this revived sense of “dispossession,” loyal Trump supporters believe the president’s racist appeals work with the predominantly white silent majority today. Greg Gallas, a county GOP chairman in Minnesota, recently bragged that Trump’s targeted criticism of Representative Ilhan Omar is “awakening a ‘silent majority’ of supporters.” As he gushed, “I love it. It’s called winning.”
From its inception, the silent majority’s racial boundaries—who it included and their interests—have been shaped and debated by political experts. Van Jones, a liberal commentator on CNN, recently challenged the contemporary vision of a backlash-driven silent majority when after Trump’s rally in North Carolina where supporters chanted “send her back” he claimed, “I think there’s a silent majority of people who have been getting increasingly uncomfortable with what Trump is up to.” However, Jones and other Democrats looking to borrow the phrase also espouse the same emphasis on civil moderation that Moynihan exaggerated, and they overlook the crucial role race, resentment, and alienation played in framing the silent majority. Thus, while these voters aren’t always silent nor a majority, they always stand in opposition to a minority that is perceived as disproportionately influential and growing, no matter the reality. Certainly, considering its history, asking the silent majority to resist Trump’s politics seems a quixotic exercise.
Seth Blumenthal is a senior lecturer at Boston University’s College of Arts and Sciences. His work has appeared in the Journal of Policy History and The Sixties: A Journal of History, Politics and Culture.
 Richard Nixon, “Remarks at Phoenix, Arizona,” October 31, 1970, John T. Woolley and Gerhard Peters, The American Presidency Project, https://www.presidency.ucsb.edu/documents/remarks-phoenix-arizona.
 Kevin Phillips, “‘Kidlash’ a Possibility: Important Changes Could Come from Vote of 18–21 Year Olds,” Post-Crescent, May 2, 1971.
 Daniel Patrick Moynihan, “Memorandum for the President,” November 13, 1970, Nixon Library, https://www.nixonlibrary.gov/sites/default/files/virtuallibrary/documents/jun09/111370_Moynihan.pdf.
 President’s Commission on Campus Unrest, “The Report of the President’s Commission on Campus Unrest” (Washington, DC: US Department of Health, Education, and Welfare Institute of Education, 1970), https://files.eric.ed.gov/fulltext/ED083899.pdf.
 Flyer, University of Tennessee Special Collections, Folder: Student Unrest 1970s.
 Sam Sanders, “Trump Champions the ‘Silent Majority,’ but What Does That Mean in 2016?” NPR, January 22, 2016, https://www.npr.org/2016/01/22/463884201/trump-champions-the-silent-majority-but-what-does-that-mean-in-2016.
 Judy Keen, “Trump-Omar Sparring Influences the Fight for Minnesota in 2020,” StarTribune, July 29, 2019, http://www.startribune.com/trump-s-feud-with-rep-ilhan-omar-influences-the-fight-for-minnesota-in-2020/513297212/.
 Ian Schwartz, “Van Jones: Silent Majority of People Uncomfortable with What Trump Is Up To,” RealClear Politics, July 19, 2019, https://www.realclearpolitics.com/video/2019/07/19/van_jones_silent_majority_of_people_uncomfortable_with_what_trump_is_up_to.html.
Only fifteen years before his 1980 campaign, Ronald Reagan blasted students on California’s campuses as “malcontents, beatniks, and filthy speech advocates.” But it was just a few years later that Hunter S. Thompson, citing “that maddening ‘FOUR MORE YEARS!’ chant from the Nixon Youth gallery in the convention hall,” heard the voices of those beatniks’ coevals who would become some of Reagan’s staunchest supporters. It is this cadre of young conservatives, more muted in the histories than the so-called Silent Majority, that this book brings to the fore.
1. What’s your elevator pitch for Children of the Silent Majority? How would you describe the book in two or three sentences?
While the 1968 generation first threatened the conservative realignment that Republican leaders envisioned, it eventually offered a vital asset in the increasingly image conscious political environment. More lasting, Nixon’s youth effort fortified the GOP with a cadre of new voters and party leaders after the voting age fell to eighteen.
2. Children of the Silent Majority started as your dissertation. How long did you spend working on the book?
My first research trip was to the Nixon Library in 2009, and so it began.
3. What led you to research the Republican efforts to recruit young voters?
Watching an obscure guerilla television documentary called Four More Years about the Republican National Convention in 1972, I noticed how the Young Voters for the President popped up everywhere and I wondered who they were, and what they were thinking. It took me some time, but I found out.
4. What was the most challenging aspect of researching and writing the book?
There isn’t really anything else about Nixon’s Young Voters for the President, so that was exciting but also daunting as the historiography was non-existent. In addition, as I interviewed YVPers I had to resist the nostalgic interpretations of the GOP’s youth effort. Many of the people I talked to referred glowingly to this experience, but of course, not everybody thought so highly of Nixon and his campaign.
5. Your book goes into great detail how, at the height of the 60’s ‘flower-power’ movement, President Nixon and the Republican Party was able to build its majority. Can you draw any parallels between 1968 and 2018? Are Republicans using the same tactics to win young voters?
In some ways, I think the message is that the GOP has largely forgotten young voters’ role in their rise to power. President Trump has been very bad for the Republican brand with youth. Though, I think one thing that is consistent is that College Republicans are still more organized than their Democratic counterparts. I spend quite a bit of time in the book explaining the training program developed by the CR and the Young Voters for the President, and that professional structure and relationship with the senior party officials still provides leadership schools to recruit and cultivate future Republicans.
6. Have you noticed any efforts by either party in the current election that remind you of the Republican playbook used from 1968-1980?
Obviously Obama comes to mind. But interestingly, I have come to appreciate the irony that Obama succeeded in rallying the youth coalition that McGovern sought to build by using the organizational techniques and structure from Nixon’s campaign.
7. As Republican attempt to maintain and build their current majority, have any party leaders (the actual children of the silent majority) made any comments about how they were won over by the party?
Karl Rove comes to mind as he talks quite a bit about his youth activism and the lessons he learned about campaigning in the early 1970s as he too played a central role in the Nixon youth campaign in 1972. Paul Manafort was a Young Republican leader who played a prominent role in Ford’s youth vote effort. If you look at prominent College Republican and Young Republican alumni it’s a who’s who in GOP politics, but in most cases they were political animals before they joined these groups so it’s more about training and organizing youth than winning them over. I interviewed over 15 former YVP members, many went on to very successful careers as political consultants, campaign managers and politicians. Some grew up in Democratic families in the urban, ethnic enclaves or from the South and saw the GOP as an alternative to one party rule.
8. If you could have any one person read your book, who would it be and why?
Well, sadly, Hunter S. Thompson. He wrote the most about Nixon’s young voters, and despised them, I think because he appreciated their significance in countering the (and his) liberal dream for youth politics in 1972 and the future. We could sure use him these days.
But as for actual living human beings, Senator Bill Brock who is now 87. He is a fascinating political figure in the GOP’s history, a star in the book, and he deserves his own biography.
How are U.S. presidents and FBI directors supposed to communicate?
A new FBI director has recently been nominated, former Assistant Attorney General Christopher Wray. He will certainly be thinking carefully about this question as he awaits confirmation.
Former FBI Director James Comey’s relationship with President Donald Trump was strained at best. Comey was concerned that Trump had approached him on nine different occasions in two months. In his testimony to Congress, Comey stated that under President Barack Obama, he had spoken with the president only twice in three years.
Comey expressed concern about this to colleagues, and tried to distance himself from the president. He tried to tell Trump the proper procedures for communicating with the FBI. These policies have been enmeshed in Justice Department guidelines. And for good reason.
FBI historians like myself know that, since the 1970s, bureau directors try to maintain a discrete distance from the president. This tradition grew out of reforms that followed the often questionable behavior of former FBI Director J. Edgar Hoover, who served from 1924 to 1972.
Over this long period, Hoover’s relationships with six different presidents often became dangerously close, crossing ethical and legal lines. This history can help us understand Comey’s concerns about Trump and help put his testimony into larger context.
As the nation’s chief law enforcement arm, the FBI today is tasked with three main responsibilities: investigating violations of federal law, pursuing counterterrorism cases and disrupting the work of foreign intelligence operatives. Anything beyond these raises serious ethical questions.
From FDR to Nixon
When Franklin Roosevelt became president in 1933, Hoover worked hard to develop a close working relationship with the president. Roosevelt helped promote Hoover’s crime control program and expand FBI authority. Hoover grew the FBI from a small, relatively limited agency into a large and influential one. He then provided the president with information on his critics, and even some foreign intelligence, all while ingratiating himself with FDR to retain his job.
Hoover found President Dwight Eisenhower to be an ideological ally with an interest in expanding FBI surveillance. This led to increased FBI use of illegal microphones and wiretaps. The president looked the other way as the FBI carried out its sometimes questionable investigations.
But when John F. Kennedy became president in 1961, Hoover’s relationship with the president faced a challenge. JFK’s brother, Robert Kennedy, was made attorney general. Given JFK’s close relationship with his brother, Hoover could no longer bypass his boss and deal directly with the president, as he so often did in the past. Not seeing eye to eye with the Kennedys, Hoover cut back on volunteering political intelligence reports to the White House. Instead, he only responded to requests, while collecting information on JFK’s extramarital affairs.
By contrast, President Lyndon Johnson had a voracious appetite for FBI political intelligence reports. Under his presidency, the FBI became a direct vehicle for servicing the president’s political interests. LBJ issued an executive order exempting Hoover from mandatory retirement at the time, when the FBI director reached age 70. Owing his job to LBJ, Hoover designated a top FBI official, FBI Assistant Director Cartha “Deke” DeLoach, as the official FBI liaison to the president.
The FBI monitored the Democratic National Convention at LBJ’s request. When Johnson’s aide, Walter Jenkins, was caught soliciting gay sex in a YMCA, Deke DeLoach worked directly with the president in dealing with the backlash.
One might think that when Richard Nixon ascended to the presidency in 1968, he would have found an ally in Hoover, given their shared anti-Communism. Hoover continued to provide a wealth of political intelligence to Nixon through a formal program called INLET. However, Hoover also felt vulnerable given intensified public protest due to the Vietnam War and public focus on his actions at the FBI.
Hoover held back in using intrusive surveillance such as wiretaps, microphones and break-ins as he had in the past. He resisted Nixon’s attempts to centralize intelligence coordination in the White House, especially when Nixon asked that the FBI use intrusive surveillance to find White House leaks. Not satisfied, the Nixon administration created its own leak-stopping unit: the White House plumbers – which ended in the Watergate scandal.
Not until after Hoover’s death did Americans learn of his abuses of authority. Reform followed.
In 1976, Congress mandated a 10-year term for FBI directors. The Justice Department later issued guidelines on how the FBI director was to deal with the White House and the president, and how to conduct investigations. These guidelines have been reaffirmed, revised and reissued by subsequent attorneys general, most recently in 2009. The guidelines state, for example: “Initial communications between the Department and the White House concerning pending or contemplated criminal investigations or cases will involve only the Attorney General or the Deputy Attorney General.”
These rules were intended to ensure the integrity of criminal investigations, avoid political influence and protect both the Justice Department and president. If Trump attempted to bypass these guidelines and woo Comey, that would represent a potentially dangerous return to the past.
President Donald Trump is about as subtle as a claw hammer. Two weeks ago, he went to Environmental Protection Agency headquarters in Washington, D.C., to announce his disdain for nearly everything the agency had been doing during the Obama Administration. The presidential criticism amounted to a stunning rebuke of an agency that has, for over 45 years, earned solid marks from Americans for using law to safeguard their lives, communities, and future opportunities.
Presidents usually visit EPA to highlight some new initiative to take care of our environmental resources: the air, land, and water on which our lives, and our American prosperity and liberty, depend. President Trump went instead to lash the agency, demean its staff, and challenge the bipartisan legal legacy that has made Americans more prosperous and free by protecting their public health. Picture the Trump/EPA moment as the President of the United States flashing his big, fat middle finger at the agency.
Those of us who have worked for EPA, and know first-hand about its people’s dedication and professionalism, found Trump’s symbolism telling: there the president was — in the Rachel Carson Room, for gosh sakes — signing executive orders to speed up coal mining, roll back air quality protections, and undermine this nation’s signal effort to mitigate the grievous impacts of climate change. For good measure, President Trump paraded a handful of sheepish coal miners in front of his EPA ceremony to buttress his campaign pledge to “make coal great again.”
This month marks the 48th Earth Day. Throughout April, in events large and small, choreographed and spontaneous, Americans join their fellow passengers on Spaceship Earth to salute what Apollo 8’s astronauts, on Christmas Eve 1968, fondly called “our good earth.” Now that the President of the United States has publicly trashed EPA, our premier environmental law enforcement agency, we should think a little harder about how our lives, our communities, and our legacy depend on environmental law.
EPA began in 1970. A very different kind of Republican president, Richard M. Nixon, created this new agency by welding pieces of other, older federal agencies into a single force combining environmental science, education, lawmaking, and enforcement. Of course, that was big news. And those were very different times than today. But we should widen our focus on EPA and 1970 a little to get the full story about the agency, to understand how radically disruptive and destructive President Trump’s environmental actions appear, and to appreciate how hard they will be to carry out. A little history about environmental law in America will put 1970 in perspective, situate EPA in a long and proud governmental tradition, and link today’s environmental challenges to those our grandparents faced after World War II.
A decade ago, I began writing Before Earth Day: The Origins of American Environmental Law. I wrote the book to answer a simple, but surprisingly elusive, question: where did American environmental law come from? I’d taught the subject at the University of Kansas (KU), to both undergrads and law students, for a number of years. I’d studied the American legal system and American environment systematically since beginning my history PhD work at KU in 1996. And I’d spent much of my adult life working in and around law and the environment as a lawyer, elected legislator, and citizen activist in my home state of Idaho. And yet, despite some three decades of immersing myself in the challenges we create by living on this earth, I had no more clear idea about environmental law’s back-story than on the day I started law school in 1980.
Even if you’re not a lawyer, and even if you don’t put yourself in the “environmentalist” camp, you probably know a little about the famous federal laws that help keep us healthy and productive: the 1970 Clean Air Act, the 1972 Clean Water Act, and President Nixon’s 1970 pen-stroke that created the United Environmental Protection Agency. My book took a look at the “environmental decade” of the 1970s and found some important precursors to all those important laws. In fact, the more I looked into American environmental law’s “origin story,” the less I believed 1970 was the be-all end-all of the story. My book didn’t mean to diminish the hard-working, creative, and determined Americans who took up the fight against pollution and waste and injustice as the Seventies dawned. What Before Earth Day did is actually make those pioneers more traditional and less revolutionary, and their many accomplishments therefore more durable and defensible.
Law doesn’t just “happen.” Rules don’t appear spontaneously. Systems don’t come from nowhere. Environmental law, like environmentalism itself, emerged somewhat slowly after 1946. And like the ideas, imagery, and rhetoric of environmentalism, the principles and practices of environmental law have one foot planted in cautious tradition and one foot planted in bold reform. In fact, one reason why environmental law has stuck around so long is its very distinguished pedigree. Some of our most important environmental law principles date back to the early 20th century. Others emerged during the New Deal’s darkest days and the postwar era’s bright promise.
We should appreciate American environmental law for the careful, thoughtful, incremental advance it represents over the earliest American attitudes toward the natural world. At the origin of the American Republic, most laws encouraged people to own, use, and waste natural resources and systems. As late as 1900, few laws restrained factory-owners from pouring their waste into the air, water, and landscape. Even in the 1950s, government agencies – federal, state, and local – could plow a roadway through a wetland, or pour chemicals onto a forest, without telling neighbors, sharing the basis for their decision, or accepting constructive criticism. By 1970, though, even “Before Earth Day,” all those older ways of doing business (and damage) to the natural world had been replaced or substantially modified by the legal system we know today. President Trump may complain that dredging a wetland takes too long and emitting air pollutants has gotten too expensive. But that’s what environmental law has gained for us: breathing space, health benefits, and public participation.
President Trump and EPA Administrator Pruitt have announced drastic plans to shear off many key environmental law principles and to slash EPA’s capacity to make and enforce environmental law. What may restrain them as much as public outrage and business indifference (just check out how the energy industry has voted with its investment dollars against coal and for wind) is history and tradition. EPA may be only 47 years old, and it may have appeared when men tended their sideburns and women tottered on their platform shoes (not so different than today), but the underlying legal rules, principles, and precedents are far older. With roots that run so deep in American legal, cultural, and political soil, POTUS and Pruitt will find it harder than they imagine to tear up our environmental law system.
Karl Boyd Brooks is a Clinical Professor and Program Director, LBJ School of Public Affairs, University of Texas-Austin and former associate professor of history and environmental studies, and courtesy professor of law, University of Kansas; and U.S. Environmental Protection Agency Regional Administrator and acting Assistant Administrator
In the current presidential election cycle, we have witnessed unprecedented firsts from the nominee of the Republican Party, Donald Trump. We have seen this major-party presidential candidate say racist, misogynist, xenophobic and all manner of unorthodox or shocking things, like threatening to pull out of NATO and praising Vladimir Putin. We’ve also seen him borrow from the political past. He’s dredged up and embraced the previously discredited America First movement of the early 1940s, and he’s borrowed the Law and Order mantle of Richard Nixon in 1968. In early August Trump announced, to some excitement and drama, that he had signed the Children’s Internet Safety Presidential Pledge, a declaration crafted by an anti-pornography group claiming it seeks to protect children (they all do) and calling itself Enough Is Enough. This latest news item involving The Donald is also nothing new. Focusing on pornography or obscenity and appealing to people’s perceptions of decaying morality has been a standard GOP modus operandi since the late 1960s and Richard Nixon and ever after.
By the late 1960s, after various Supreme Court rulings liberalized federal anti-obscenity law, leading to a boom in the pornography industry, some Americans unsurprisingly became concerned. Around the same time (1970), in the realm of politics, political scientists concluded that Democrats won elections on economic issues while Republicans won by appealing to social issues. The GOP and Nixon fully embraced this idea and appealed to the great “silent majority” of Americans who worried about crime and respected decency, and Nixon squeaked out an electoral victory. Nixon continued to push social issues as president and focused on the pornography boom as something dangerous to Americans. A scientific presidential commission had even been formed by President Lyndon Johnson to study the issue, and the report was due out during Nixon’s first months in office.
The commission concluded that pornography did not contribute in any significant way to America’s various social problems of the time. Nixon would have nothing of it, and pushed the issue going so far as to arrange an all-out effort to discredit the commission’s report and advocating for the strengthening of federal anti-obscenity law. Nixon staffers even drafted an internal report on “The Pornography Explosion” and wanted to “activate all of the anti-obscenity groups” against the commission’s report. Nixon hoped to change the law (but the GOP had only minority numbers in Congress) or push for new obscenity prosecutions to develop a possible new Supreme Court ruling in its favor. Neither happened, but Nixon’s appointing of four conservative Supreme Court justices did slow, if not stop, the liberal trend in obscenity case rulings.
This trend then continued with certain GOP presidents. During the Reagan years pressure mounted again to do something about pornography, which resulted in Reagan’s attorney general, Ed Meese, releasing his own utterly un-scientific report concluding that pornography resulted in sexual violence and social problems. Even still during the 1980s fewer than 100 people were charged under federal anti-obscenity statues and only 71 convicted, a dismal record reflecting the continuing liberal evolution of Americans’ attitudes about the issue. Still, the issue was good for Republican base politics.
Reagan’s successor, George H. W. Bush, however, was not much interested in this aspect of social politics and neither, of course, was the Democrat Bill Clinton. But when George W. Bush ran for president in 2000 he resurrected it as an appeal to his right-wing evangelical base who wanted something done about obscenity and pornography. Bush won the election and even tried, but failed, to reinstate federal prosecutions of adult obscenity — unsurprisingly claiming an aim to protect children, an age-old proclamation — which had previously faded away. When Barrack Obama assumed office in 2009 he ended the Bush effort (except for the focus on child pornography) as a drain on resources, but socially conservative Republicans tried to push back and demanded the Obama Justice Department do something about the alleged threat pornography posed to American society.
So Trump’s resurrecting the old ratty dog of pornography and its threat is really nothing new. It’s an effort to motivate the GOP’s socially conservative based in hopes to drum up votes. Could anything come of Trump’s anti-pornography pledge? Perhaps. But obscenity prosecutions have actually diminished steadily not just from the 1960s but throughout most of the 20th Century and into the next. It would be legally and socially very difficult for a President Trump to revive anti-pornography targeting and prosecutions; George W. Bush tried and failed miserably. American culture and social attitudes have just evolved too far to care much and see successful prosecutions. Then again, it would also depend on Trump winning the election, and that seems unlikely.
The CNN Original Series “Race for the White House” captures the dramatic twist and turns of America’s presidential elections past. Executive producers Kevin Spacey and Dana Brunetti offer a six episode series featuring coverage of JFK vs. Nixon; Lincoln vs. Douglas; Clinton vs Bush; Bush vs Dukakis; Jackson vs Quincy Adams; and Truman vs. Dewey. To learn more about the latter, read Andrew E. Bush’s “Truman’s Triumphs: The 1948 Election and the Making of Postwar America.” Even readers knowledgeable about Truman’s 1948 victory will discover new findings in this fresh and revealing account of that dramatic race.