For the Symposium on Michael Klarman, The Framers' Coup: The Making of the US Constitution.
As established inwards yesterday’s post, the Framers worried non only that the People would enact relief legislation if left unchecked but also that they would live probable to elect a demagogue. The 2016 presidential election results suggest that such concerns were hardly rendered obsolete past times the passage of time.
When the Framers idea of “pretended patriots” in addition to “designing men” duping the people into supporting “the most baneful measures,” Patrick Henry was in all likelihood 1 of the principal objects of their concern. During the ratifying competition inwards Virginia, 1 of Madison’s correspondents told him that the People were “disposed to live his [Henry’s] blind followers” and that Henry’s true objective was non to amend the proposed Constitution but to secure “a dismemberment of the union.” Most supporters of the Constitution’s ratification (“Federalists”) worried that Henry, whom Thomas Jefferson called “the greatest orator that e'er lived,” would exercise considerable influence over “weak men” at the Virginia ratifying convention. At that convention, which met inwards Richmond inwards June 1788, Henry demagogically (and implausibly) warned of a night pattern behind the Framers’ failure to explicitly protect slave belongings inwards the Constitution, in addition to he warned that “[a]mong 10 thou implied powers which [a northern-dominated Congress] may assume” was the ascendence to “liberate every 1 of your slaves” past times conscripting them into armed forces service inwards the trial of a war.
While Patrick Henry was in all likelihood the Framers’ paradigm of a demagogue, they would receive got forthwith recognized Donald Trump equally 1 equally well. Trump is the most ignorant in addition to deceitful individual e'er to inhabit the American presidency, in addition to he seems non to believe inwards basic norms of democratic governance.
The president’s astonishing ignorance is revealed, for example, inwards his apparent belief that Frederick Douglass, the nifty dark leader of the nineteenth century, is yet live (“Frederick Douglass is an illustration of somebody who’s done an amazing project in addition to is getting recognized to a greater extent than in addition to more, I notice”), his lack of familiarity amongst the wellness attention neb he pressed Congress to enact (“Nobody knew wellness attention could live in addition to then complicated”), his full unfamiliarity amongst the New START treaty (Strategic Arms Reduction Treaty) (he had to enquire an aide what the treaty was while on a telephone telephone yell upwards amongst Vladimir Putin!), in addition to his confusion regarding the human relationship betwixt Democratic People's South Korea in addition to China (“after listening for 10 minutes [to President Xi Jinping during a conversation at Mar-a-Lago] I realized that it’s non in addition to then easy”).
The president’s ignorance is rivaled only past times that displayed past times his extraordinary Cabinet appointments: Ben Carson (who latterly described slaves equally “immigrants who came hither inwards the bottom of slave ships” amongst a “dream” of “prosperity”), Betsy Devos (who thinks that historically dark colleges, which were established at a fourth dimension when no white institutions of higher instruction inwards the South would acknowledge African Americans, were “real pioneers when it comes to schoolhouse choice”), in addition to Rick Perry (who, though he tin at nowadays in all likelihood scream back the scream of the subdivision he runs—Energy—apparently did non know when accepting the project that the bulk of its portfolio has to produce amongst nuclear weapons). Yet at to the lowest degree 1 tin repose assured that the president, equally he himself says, is “a actually smart person” in addition to that he “knows to a greater extent than nearly ISIS than the generals do.”
Possibly fifty-fifty to a greater extent than troubling than the president’s ignorance is his inability to tell the truth. Trump lies nearly pocket-sized things: the size of the crowd in addition to the atmospheric condition at his inauguration, whether local wearing clothing shops had sold out of inauguration gowns, in addition to the size of his victory inwards the electoral college. But he also lies nearly matters of consequence: whether 3 to 5 1 thou 1000 illegal votes damage him victory inwards the pop vote, whether the U.S. murder charge per unit of measurement “is the highest it’s been inwards 47 years,” whether a “sick” President Obama had ordered a “tapp” on Trump’s phones “during the real sacred election process,” whether Trump had opposed the Republic of Iraq War from its outset, whether he had mocked the disability of a New York Times reporter (watch the video), in addition to whether President Obama was born inwards the US (Trump afterwards decided that it was Hillary Clinton who had “started the birther controversy” inwards 2008). One wants to live careful earlier agreeing likewise oft amongst Senator Ted Cruz, but he had it nearly correct when he called Trump “a pathological liar” in addition to “utterly amoral” (until “many months of careful consideration, of prayer in addition to searching [his] ain conscience” led Cruz to vote for Trump on Election Day). Democracy depends on transparency; whether it tin hold upwards a pathologically deceitful president is an interesting question—the reply to which nosotros would receive got been amend off never having to discover.
Most deplorable of all, Americans receive got elected a president who, ironically, does non believe inwards the basic norms in addition to institutions of democracy. Consider several illustrative examples.
Trump plainly does non believe inwards the virtues of an independent judiciary. During the presidential campaign, he denounced Judge Gonzalo Curiel, who was presiding over a lawsuit against Trump University for allegedly defrauding students. Trump called Curiel a “Mexican” (the judge, inwards fact, was born in addition to has lived all sixty-three years of his life inwards the United States; his parents were Mexican immigrants), a “disgrace,” in addition to a “hater of Donald Trump” who was “railroading” him piece presiding over the lawsuit. Trump also vaguely threatened the justice (“I’ll live seeing y'all inwards Nov [when the instance was scheduled to come upwards to trial] either equally president or” earlier trailing off).
Since his election, Trump has denounced Judge James Robarts, the federal district justice (appointed past times President George W. Bush) who invalidated his start executive guild on immigration, equally a “so-called” judge. Trump called the federal circuit courtroom panel that affirmed that guild “disgraceful.” In all likelihood, the president is laying the groundwork for (1) defying hereafter judicial orders (as Trump’s now-favorite predecessor-in-office Andrew Jackson was said to receive got threatened to do); in addition to (2) preemptively blaming the federal judiciary for the side past times side terrorist onset (“Because the ban was lifted past times a judge, many real bad in addition to unsafe people may live pouring into our country. If something happens blame him in addition to [the] courtroom system”) (Note to the president: if y'all in addition to your advisers had non described your Muslim ban equally a “Muslim ban,” y'all mightiness receive got fared amend inwards court.)
Nor produce Trump’s statements suggest a belief inwards the virtues of a costless press. During his campaign, Trump promised that if he won he would “open upwards our libel laws” in addition to then that the press could live sued for writing “horrible in addition to mistaken articles.” He also threatened to sue the “failing” New York Times for its clearly First Amendment–protected reporting on Trump’s alleged series sexual assaults upon women. (Trump falsely claimed during 1 of his debates amongst Hillary Clinton that the many women who had come upwards frontward to accuse him amongst sexual laid on had been “debunked.”) Since the election, Trump has regularly denounced mainstream intelligence media for their “fake news” in addition to called reporters of the New York Times and other intelligence organizations the “enemy of the people” (which, if the president were non in addition to then ignorant of history, he would recognize equally a telephone yell upwards for their eradication).
Further, dissimilar whatever other presidential candidate inwards American history, Trump form dubiousness on the legitimacy of an election earlier it happened. At a stimulate trial inwards New York inwards September 2016, Trump said, without presenting whatever supportive evidence, “They’re letting people pour into the province in addition to then they tin become in addition to vote.” In October, Trump told a nearly all-white gathering inwards Pittsburgh that “other communities” (i.e., dark people) would assay to steal the election inwards Philadelphia.
Such statements culminated inwards the extraordinary scene of presidential-debate moderators scream for Trump whether he would convey the legitimacy of a Clinton victory at the polls. At the start presidential debate, Trump replied that he would “absolutely” produce so, only to forthwith walk dorsum that argument afterwards: “We’re going to receive got to see. We’re going to encounter what happens.” At a subsequent debate, Trump’s reply was, “I’ll hold y'all inwards suspense. . . . We’ll encounter what happens.” Unsurprisingly, inwards lite of such statements, seventy percentage of Trump supporters reported that they believed that voter fraud occurs real often or somewhat often inwards the United States, fifty-fifty though political scientists are agreed that it almost never occurs. Fifty percentage of Republicans said they would non regard Hillary Clinton equally a legitimate president if elected.
One presidential historian stated at the time, “I haven’t seen anything similar this since 1860, this threat of delegitimizing the federal government, in addition to Trump is trying to say our entire regime is corrupt in addition to the whole scheme is rigged. And that’s a secessionist, revolutionary motif. That’s someone trying to topple the apple tree cart entirely.” H5N1 Harvard political scientist told the New York Times, amongst regard to Trump’s advance delegitimizing of the election, “To a political scientist who studies authoritarianism, it’s a shock. This is the materials that nosotros encounter inwards Russian Federation in addition to Venezuela, in addition to that nosotros don’t encounter inwards stable democracies anywhere.” Does anyone really believe that had Trump won the pop vote past times nearly 3 1 thou 1000 votes piece losing inwards the electoral college that he would receive got forthwith conceded defeat, equally Clinton did?
Another of Trump’s violations of basic democratic norms was his sly advocacy of violence at political rallies, commonly inwards linguistic communication that was sufficiently inexplicit that he could afterwards downplay his incendiary statements equally jokes or sarcasm. Last August, Trump said, amongst regard to the Second Amendment, that if Hillary Clinton won the election in addition to hence was inwards a seat to appoint the replacement for the deceased Justice Antonin Scalia, at that spot would live “nothing y'all tin produce folks.” Then he apace added, “Although the Second Amendment people—maybe at that spot is, I don’t know.” In Feb 2016, Trump stated amongst regard to a protestor existence removed from 1 of his rallies, “I’d similar to punch him inwards the face.” “In the old days,” he continued, “protestors would live carried out on stretchers.” After a Black Lives Matter protestor disrupted 1 of his rallies inwards Nov 2015, Trump said, “Maybe he should receive got been roughed up, because it was absolutely disgusting what he was doing.” Trump told supporters at roughly other rally: “If y'all encounter somebody getting cook to throw a love apple tree [at me], knock the crap out of them, would you? Seriously, ok? Just knock the hell—I hope you, I volition pay for the legal fees.” Trump is at nowadays existence sued inwards federal courtroom for inciting the violence that led to protestors existence injured past times his supporters at a stimulate rally inwards Louisville, Kentucky.
Trump also explicitly encouraged a unusual acre to intervene inwards the presidential election, something that no other candidate inwards American history had e'er done. Specifically, Trump urged the Russians to hack Hillary Clinton’s email: “Russia, if you’re listening, I hope you’re able to uncovering the 30,000 emails that are missing. I mean value y'all volition in all likelihood live rewarded mightily past times our press.” The FBI is currently investigating whether Trump or his stimulate staff actively colluded amongst Russian efforts to influence the election inwards his favor.
In addition, Trump promised, if elected, to receive got his opponent jailed, something that previously had occurred only inwards countries that produce non exercise the dominion of law. In the 2nd presidential debate, Trump declared, “If I win, I’m going to instruct my attorney full general to instruct a special prosecutor to await into your [Hillary Clinton’s] situation, because there’s never been in addition to then many lies, in addition to then much deception.” Then, a infinitesimal later, Trump said to Clinton that if he became president, “you’d live inwards jail” (to applause from the audience, no less!). Charles Krauthammer, a conservative commentator, observed: “Vladimir Putin, Hugo Chavez, in addition to a cavalcade of two-bit caudillos lock upwards their opponents. American leaders don’t. . . . It takes decades, centuries, to develop ingrained norms of political restraint in addition to self-control. But they tin live undone inwards brusque guild past times a demagogue feeding a vengeful population.” Since the election, Trump has declared—as usual, without offering whatever supportive evidence—that President Obama’s one-time national safety advisor, Susan Rice, is a “criminal” (for “unmasking” the identity of Trump aides caught on FISA-approved wiretaps of unusual agents—something that a national safety advisor mightiness enquire intelligence agencies to produce inwards the routine course of instruction of business).
Finally, throughout the presidential campaign, Trump expressed a bizarre admiration for unusual leaders who are authoritarian. In Raleigh, North Carolina, he said of Saddam Hussein that he “killed terrorists. He did that in addition to then good. They didn’t read them their rights.” Trump also praised Vladimir Putin of Russia, who has had political opponents assassinated, equally a leader who exercised “very strong command over his country,” piece expressing admiration for Putin’s 82 percentage world blessing ratings. When it was pointed out to Trump after the election that Putin has had his political adversaries murdered, Trump responded, “There are a lot of killers. We got a lot of killers. You mean value our country’s in addition to then innocent?” (Can 1 imagine roughly other president inwards American history comparison the US to Russian Federation equally an equal-opportunity murderer?)
During the campaign, many Republicans responded to concerns that were voiced nearly Trump’s apparent lack of commitment to basic democratic norms past times emphasizing that the Constitution’s scheme of checks in addition to balances would adequately constrain Trump’s worst impulses. For example, inwards June 2016, Senator John McCain of Arizona said, “I yet believe nosotros receive got the institutions of regime that would limit someone who seeks to laissez passer on their constitutional obligations. We receive got a Congress. We receive got a Supreme Court. We’re non Romania.” How much confidence ought Americans to receive got that other branches of the regime volition command Trump?
That a Republican-dominated Congress would non exercise much constraining influence on Trump was made clear during the stimulate in addition to has been confirmed inwards the early on months of his presidency. For example, during the campaign, Paul Ryan, the Republican Speaker of the House, called Trump’s attacks on “Mexican” Judge Curiel the “the textbook Definition of a racist comment” piece reiterating his back upwards for Trump’s candidacy. “I disavow these comments. . . . It’s absolutely unacceptable. But produce I believe that Hillary Clinton is the answer? No, I produce not. I believe that nosotros receive got to a greater extent than mutual the world on the policy issues of the 24-hour interval in addition to nosotros receive got to a greater extent than likelihood of getting our policies enacted amongst him than amongst her.” Similarly, Senator Deb Fischer of Nebraska said after the initial release of the Access Hollywood video inwards which Trump bragged of sexually assaulting women: “The comments made past times Mr. Trump were disgusting in addition to totally unacceptable nether whatever circumstance . . . . It would live wise for him to stair aside in addition to allow Mike Pence to serve equally our party’s nominee.” Three days later, after hearing from her constituents, Fischer said, “I computer program to vote for Mr. Trump. I never said I was non voting for our Republican ticket,” adding, “It’s non a tough choice.”
Little has changed since the election inwards this regard. Every 24-hour interval that he is inwards office, President Trump violates the Constitution’s Emoluments Clause, in addition to the conflicts of involvement posed past times his continuing ownership of the Trump Organization are vast compared amongst those of whatever previous president. Republicans inwards Congress appear non to attention a whit. Similarly, the extraordinary lies that Trump has voiced equally president—that 3 to 5 1 thou 1000 ineligible voters participated inwards the presidential election, that President Obama wiretapped him during the campaign—have elicited hardly whatever objections from Republicans inwards Congress.
With regard to investigating alleged complicity betwixt Trump aides in addition to Russian intelligence officials bent on steering the presidential election Trump’s way, Senator Rand Paul of Kentucky said, “I simply don’t mean value it’s useful to live doing investigation after investigation, peculiarly of your ain party. We’ll never fifty-fifty instruct started amongst doing the things nosotros demand to do, similar repealing Obamacare, if we’re spending our whole fourth dimension having Republicans investigate Republicans.” Congressman Jason Chaffetz of Utah declared at that spot was no demand to investigate one-time National Security Advisor Michael Flynn’s ties to Russian Federation because “it’s taking attention of itself.” And House Intelligence Committee Chair Devin Nunes, earlier existence forced to recuse himself from the investigation after existence caught acting equally a shill for the White House, was far to a greater extent than focused on figuring out who leaked details of the FBI’s investigation into possible collusion betwixt Trump aides in addition to the Russians than determining whether such collusion (which would essentially constitute treason) had occurred.
Congressional Republicans receive got hence far manifested footling involvement inwards investigating or criticizing a Republican president who tin advance their legislative agenda—tax cuts for the wealthy, repeal of Obamacare, the rolling dorsum of environmental in addition to other regulations—regardless of the outrageousness of his lies, the full general incompetence of his administration, the recklessness of his unusual policy actions in addition to pronouncements, in addition to his possible complicity amongst a hostile nation’s efforts to swing the presidential election inwards his favor. When it comes to advancing the Republican political agenda, partisan considerations receive got hence far swamped the form of separation-of-powers incentives that James Madison predicted (in an era without modern political parties) would to a greater extent than often than non seat Congress in addition to the president at loggerheads.
What nearly the federal courts equally a potential depository fiscal establishment check on Trump? Thus far, federal judges receive got indeed stepped inwards to invalidate the president’s executive orders on immigration, in addition to it is probable that all federal judges strongly disapprove of the reckless charges that the president has leveled at those federal judges who receive got held him accountable to law.
Yet, for 2 reasons, it would live a error to suppose that the federal judiciary, inwards the end, volition pose a pregnant constraint on the president’s authoritarian tendencies. First, nosotros know from those executive powers cases that arose during the Bush administration’s War on Terror that conservative Justices are inclined to defer to presidential actions (at to the lowest degree those taken past times a Republican president) inwards the ostensible service of national security. Trump has already appointed 1 Justice to the Supreme Court. Were he also able to supercede 1 of the liberal Justices or Justice Kennedy, that mightiness give the Court a conservative bulk that would live to a greater extent than sympathetic to measures such equally the president’s thinly veiled Muslim ban. (See, for example, the dissent of several conservative judges from the Ninth Circuit’s refusal to grant en banc review of the panel’s determination invalidating Trump’s start executive guild on immigration.)
Second in addition to to a greater extent than importantly, throughout American history the Supreme Court has rarely stood upwards to the president or Congress during times of state of war or terror. Supreme Court Justices riding circuit rejected constitutional challenges to the Sedition Act inwards the belatedly 1790s. The Court ducked the number of armed forces tribunal trials of civilians until after the Civil War had ended. During World War I, the Justices upheld prosecutions of political leftists nether the Espionage in addition to Sedition Acts. The Court validated Japanese-American exclusion in addition to internment during World War II. During the early on Cold War, the Justices mostly rejected First Amendment challenges to criminal prosecutions in addition to legislative investigations of alleged Communists. The principal apparent exception to this trend—the Steel Seizure Case of 1952—is in all likelihood explicable inwards terms of the extraordinary unpopularity of the president at the fourth dimension (Truman) in addition to of the state of war that he was fighting (in Korea).
Thus, recent federal courtroom rulings against Trump’s executive orders on immigration are unreliable indicators of how courts mightiness respond to presidential actions taken during a state of war or after a major terrorist attack. As James Madison famously noted inwards contesting the utility of adding a neb of rights to the master copy Constitution, “Should a rebellion or insurrection alert the people equally good equally the government, in addition to a recess of the habeas corpus live dictated past times the alarm, no written prohibitions on Earth would forestall the measure.”
To inwardness up, the Framers despised republic partly because they assumed the American people were likewise ignorant or easily manipulated to resist the siren telephone yell upwards of a demagogue. Two hundred in addition to 30 years after they wrote the Constitution, their skepticism seems prescient: The American People (or, to a greater extent than accurately, simply nether 63 1 thou 1000 of them, who were geographically distributed inwards such a agency equally to secure Trump a victory inwards the electoral college) receive got elected a stunningly ignorant, pathologically untruthful demagogue, who fundamentally disbelieves inwards the basic norms in addition to institutions of democracy. Whether the structural safeguards the Framers inscribed inwards the Constitution are upwards to the project of constraining Trump’s authoritarian tendencies is anybody’s guess.
Michael J. Klarman is Kirkland & Ellis Professor at Harvard Law School in addition to writer of The Framers’ Coup: The Making of the US Constitution (Oxford University Press 2016).
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