Citizens of the United States may be witnessing a constitutional crisis, a normal constitutional revolution or normal constitutional politics. Prominent commentators bemoan Donald Trump’s victory in the 2016 presidential election as the consequence of a breakdown of vital constitutional norms that augurs the destruction of constitutional governance in the United States. Other portends suggest that Americans are experiencing a normal constitutional revolution in which a particular political faction gains sufficient control of the national government to make that coalition’s constitutional vision the official constitutional law of the land. Evidence also supports the proposition that the national election of 2016 was only part of a normal political cycle in which Democrats and Republicans alternate control of the White House every eight years.
The inauguration of President Donald Trump seems both the consequence and the worst constitutional crisis the United States has faced since the American Civil War. Trump may or may not be a narcissistic personality, as suggested by several leading psychiatrists, but he is a serial liar, almost certainly a sexual predator, proudly uneducated, notoriously thin-skinned, and a bigot. His utter lack of support among conservative intellectuals, journalists, and others with expertise in American politics speaks to his complete lack of the characteristics traditionally thought vital for the president. If, as Publius repeated in numerous Federalist Papers, the one primary purpose of American constitutional institutions was to privilege to the extent humanly possible the election of the “best people” to public office, then Americans in 2016 apparently experienced a constitutional failure of alarming perspectives. Constitutional democracy in the United States is under siege both because Americans elected a president spectacularly unqualified to govern who has no particular commitment to constitutional democracy, and because the forces responsible for the Trump presidency are likely to rage unabated for the foreseeable future. Being like “the Donald” is likely to be central to candidate handbooks in the 2018 midterms and future presidential elections.
The 2016 national election will have different consequences if Trump governs closer to a contemporary Republican than a chief executive with no ties to any governing institution. Should this occur, the United States may experience a more normal constitutional revolution. Throughout American history, new regimes have come to power and have made their constitutional vision the constitutional law of the land. Republicans during the 1860s rewrote the constitutional text to abolish slavery and promote greater equality. Democrats during the 1930s rewrote the reigning interpretations of the constitutional text when empowering the national government to regulate all facets of economic life. Lincoln’s Republican Party, Roosevelt’s Democratic Party, and, for that matter, Jacksonian Democrats and Reagan Republicans also altered the way constitutional government operated when realizing their constitutional revolution. From this perspective, unified Republican Party government is the most important consequence of the 2016 national election. By more effectively mobilizing lower-middle-class white voters through a combination of ethno-nationalist rhetoric and promises to alter American trade policy, Trump may have forged a relatively enduring Republican Party majority. The combination of gerrymandering and voting restrictions in the states may well result in an electorate even more biased in favor of the Republican Party in the near future. The end result is that something like the constitutional vision of Antonin Scalia may govern Americans for a generation.
The 2016 election also fits a different pattern, one which lacks the drama of a full scale constitutional crisis or normal constitutional revolution. Donald Trump’s victory in 2016 is consistent with the pattern of 18 of the last 19 national elections. Had Democrats won the 1980 presidential election, the presidency from 1944 to 2016 would have changed partisan hands on every eight years without fail. Trump won, on this view, not because constitutional institutions failed or because Americans are not committed to the Republican Party but because the pattern that best explains the Democrats’ victory in the 2008 and 2012 elections best explains Republican success in 2016. Apparent permanent majorities in American politics prove evanescent. Conservativism, dead in 1964, rebounded in 1968.
Democrats, within four years of losing control of all three branches of the national government in 2002, regained the House and Senate, then regained the presidency in 2008. Victory seems to breed failure. President Clinton gained office promising healthcare reform, Republicans took over in the wake of the failed Clinton health care initiative, Obama campaigned on the Republican failure to reform health care, then Republicans rebounded on public dissatisfaction with the Affordable Care Act. Perhaps the Trump election teaches only that the best road to political success is not to be responsible for governing in the recent past.
Over the next few years, Americans and constitutional observers are likely to learn whether the Framers in 1787 did indeed contrive a “machine that would go of itself” or whether human intervention is necessary both to operate the constitution and compensate for systemic constitutional failures. Given the numerous twists and turns of recent constitutional politics, American constitutional development for the next few years may mostly likely confirm the wisdom of the great sage Lawrence Peter (Yogi) Berra, who reminds us, “It’s tough to make predictions, especially about the future.”
Featured image credit: Constitution by wynpnt. CCO Public Domain by Pixabay.
Thank you for this article. I am very concerned about the infringement of civil liberties in a post-truth presidency.
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