“When we talk about the Supreme Court, it really raises the central issue in this election. Namely, what kind of country are we going to be?” Hillary Clinton
When we started blogging about this year’s presidential race, we hoped to identify a few rhetorical moments to illustrate how verbal persuasion works. We thought the exercise might prove useful to our law students, and perhaps interesting to other readers.
But this remarkable race has taken us by surprise. It has triggered a national conversation about our shared values: what it means to be an American. The vituperative rhetoric that caused some viewers to turn off the television altogether rather than endure a third presidential debate has served a purpose. It has forced us to react, to clarify and solidify the definition of who we are.
That has always been the point of rhetoric in a democracy.
The First Amendment of the Constitution protects a great deal of hateful speech. So long as words do not rise to the level of incitement to violence, “true threats,” “fighting words,” or defamation (each a narrow exception to free speech, with its own specific legal criteria), most anything goes. When we say that Donald Trump has engaged in condemnable rhetoric, we are not saying that what he is saying is necessarily illegal. Instead, we are saying it is unpersuasive. It displays a stunning lack of understanding of the way democracy works. But it has forced Hillary Clinton to articulate her vision of America. In that way, it has been useful.
First, let’s examine how Trump’s rhetoric in this debate misunderstands our democratic processes.
Take, for example, Donald Trump’s arguments that everything wrong in the world is the fault of Hillary Clinton, that she “should have changed the law when you were a United States Senator.” He implies that in her role as a senator or secretary of state, she would have wielded the power to singlehandedly reform the tax code or control immigration or direct the actions of foreign countries. He shows little understanding of how the work of the government is done—not by fiat, but through a system of checks and balances. Neither Trump nor Clinton, if elected president, would possess the powers of a dictator. Our democracy doesn’t work that way. No single person can exercise the kind of power that Trump accuses Clinton of wielding, or that he seems to envision having for himself were he to win.
Trump further argued in this debate that Clinton should not be “allowed” to run for the presidency. Again, this is not how our system works. There is no vetting organization that gives permission for a candidate to run. Instead, the voters choose. Republicans who do not support their own nominee are keenly aware of this.
The basis for his claim that she should be disqualified as a candidate is that she is “guilty of a very, very serious crime.” But in America, you are not guilty simply because someone with a loud voice says you are. You must be indicted, then prosecuted, and then found guilty by a jury of your peers. The FBI (led Republican James Comey) spent over a year investigating Hillary Clinton’s use of a private e-mail server and found no evidence of a crime. The Department of Justice has closed the case. This system is important—it prevents a powerful governmental actor, as Trump hopes to be, from unilaterally throwing someone in jail. Instead, we have due process. There is no evidence that either the FBI or the Department of Justice has done anything untoward in making these determinations. But because Trump does not like that outcome, he questions the integrity of the entire prosecutorial system, calling it “rigged.”
This isn’t the only thing that Trump claims is “rigged.” The media, too, is “rigged,” according to Trump: “The media is so dishonest and so corrupt and the pile-on is so amazing. The New York Times actually wrote an article about it, but they don’t even care. It is so dishonest, and they have poisoned the minds of the voters.” Trump has suggested limiting the freedom of the press, including changing laws to make it easier to sue news organizations. But a free press is another hallmark of our democracy, guaranteed by the First Amendment of the Constitution. The media serves as an essential check on our government, including on political candidates like Trump who play fast and loose with the truth.
What else is “rigged,” according to Trump? The election itself. “If you look at your voter rolls, you will see millions of people that are registered to vote. Millions. This isn’t coming from me. This is coming from Pew report and other places. Millions of people that are registered to vote that shouldn’t be registered to vote.” (This is not, in fact, what the Pew study said, nor is it likely that an election can be rigged.) When moderator Chris Wallace asked Trump if he would accept the outcome of the election were he to lose, Trump replied, “What I’m saying is that I will tell you at the time. I’ll keep you in suspense, okay?”
Hillary Clinton rightfully called the moment “horrifying.”
Our democracy is something of which we can be proud. We are a country immigrants want to come to, in large part because we are peaceful. We are safe. We uphold the rule of law. One of the ways we keep the peace is through our system of free and fair elections, which results in the orderly transition of power from one leader to the next, without violence or revolution. Even when the candidates cannot stand one another, the loser concedes for the good of the country, to enable the nation to come together. When Trump suggests, without evidence, that the election is “rigged” because it is not going his way, he is denigrating one of the most important parts of our democracy. (But if he loses in a landslide, we’ll still be able to see that our democracy works just fine, because there won’t be much he can do about it.)
You can see this debate moment here:
Against Trump’s misogynistic vitriol (“Such a nasty woman”), Hillary Clinton has demonstrated remarkable grace. There is no doubt that this woman can think under pressure. And she can articulate a positive vision for the country, even in contentious circumstances. Immigration? “I think we are both a nation of immigrants and we are a nation of laws and that we can act accordingly.” Reproductive choice? “This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it…I’ve been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children like they used to do in Romania. And I can tell you the government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right.”
You can see one of Clinton’s best debate moments here, when she takes down Trump for his treatment of women. She urges her listeners to take this moment as an opportunity for us to define ourselves, to “demonstrate who we are and who are country is, and to stand up and be very clear about what we expect from our next president.”
“America is great because America is good,” says Clinton. If the presidential race were decided on the basis of rhetoric alone, Clinton is the clear victor.
Molly Bishop Shadel and Robert N. Sayler are professors at the University of Virginia School of Law and the authors of Tongue-Tied America: Reviving the Art of Verbal Persuasion.