Balkinization  

Tuesday, August 23, 2016

The Greatest Constitutional Protestant of the Twenty-First Century

Richard Primus



So far, anyway.

For the last ten years or so, I’ve had a framed New Yorker cartoon on the outside of my office door.  It’s a courtroom scene, with a man sitting on the witness stand, being cross-examined by a lawyer.  The witness is speaking.  The caption reads as follows: “As a matter of fact, I have read the Constitution, and, frankly, I don’t get it.”

I love that cartoon for more than one reason.  One is the way the joke deflates the implicit grandstanding of the cross-examining lawyer, who has presumably just thundered “Have you read the Constitution?” at the witness.  I’ve also thought that putting that cartoon on my door might be a hospitable gesture toward introductory students, who might be coming to my office because of their own feeling of not getting something.  But there’s also a deeper reason why I’ve had an affinity for that cartoon, a reason tied to a point about constitutional theory.  The witness is speaking an important truth, though perhaps not consciously: reading the Constitution is not, in fact, the best way to get it.  That’s not to say that reading the Constitution isn’t important.  Of course it is—it’s hard to have a good grasp of constitutional law without reading the Constitution.  But constitutional law is a great deal more than, and sometimes in tension with, the text of the Constitution.  So if you read the Constitution and stopped there, you probably wouldn’t get it.

In Sandy Levinson’s wonderful typology of Protestant and Catholic constitutionalism, that
perspective makes me a Constitutional Catholic, at least on the first of Levinson’s two questions.  For the sake of quick review: Levinson’s first question is “What is the Constitution?”  The Protestant answer is “A document,” and the Catholic answer is “That document, and also a broad apparatus of practices and traditions and received understandings about American government.”  Levinson’s second question is “Who is authorized to interpret the Constitution?”, and the Protestant and Catholic answers are, respectively, “Anyone who can read,” and “Only those who have been specifically authorized to do so,” the latter answer coming down essentially to the federal judiciary acting as a priesthood. 

I largely agree with Jack Balkin’s suggestion that Catholicism and Protestantism in Levinson’s system can profitably be understood as a nested opposition rather than a strict dichotomy—but that’s beside the point for the moment.  For the moment, I’ll say that I’m a Catholic on Question 1, albeit a Catholic who thinks it’s important to be attuned to the way that all those things that “aren’t” the document shape our understanding of what the document means, such that the boundary between what “is” and “isn’t” in the text is not always straightforward.  Both in my writing and in my teaching, I try to draw attention to the limits of the text and the role of other sources of constitutional authority.  To make the point that just reading the Constitution, though important, isn’t enough.

That said, I also try to make sure that my students understand the power of Constitutional Protestantism.  If you’re trying to win a case in court, or a cause in politics or in the broader public discourse, you’re often well advised to present the Constitution—the document—as plainly on your side. 

This summer, we all met the man whom I regard as the greatest Constitutional Protestant of our time: Khizr Khan.  He played the part perfectly, on both of Levinson’s questions.  Khan brandished his copy of the Constitution—the physical document—the way a Bible-thumping preacher brandishes his sacred text, like a magical artifact with the power to ward off evil.  And the power of Khan’s rhetorical question to Donald Trump—“Have you even read the U.S. Constitution?”—lies in the idea that anyone who reads the thing will understand plainly what it means. 

It will have been lost on nobody, of course, that Khan’s line at the Democratic National Convention--"Have you even read the Constitution"--is also the cross-examining lawyer’s line in my New Yorker cartoon.  But that lawyer is the butt of the joke, and Khan should be understood—I say this without hyperbole or irony—as a hero of the Republic.

My Catholic law-professor brain saw in Khan’s speech what it usually sees in the best performances of Constitutional Protestantism: conviction, and strength, and also some corner-cutting, at least as measured by a certain set of standards that I would apply to speech or writing in an academic space.  After Khan asked if Trump had even read the Constitution, and offered to lend Trump his copy, Khan went on to direct Trump to look for the words “liberty” and “equal protection of law.”  Those words are in the Constitution, of course.  But I’d be disappointed in any of my students who did not recognize, at the end of an introductory course, that Khan has not made his case against Trump merely by pointing out that those words are in the document.  It’s not clear from the text of the Constitution what “liberty” means, as applicable to a conflict between Khan and Trump.  And even the most awful of Trump’s suggestions about immigration policy or banning Muslims from entering the United States might not contravene anything the text of the Constitution says about “equal protection of [the] law[s],” if only (and perhaps not only) because those words are addressed, as a textual matter, to state governments rather than to the federal government.  To see why Trump’s policy prescriptions here are flagrantly unconstitutional, which they are, one needs to do more than read the text of the Constitution.

But to scold Khan for those reasons might be to practice a sort of Catholicism that justifies a Reformation.  Or, put more soberly: It might be the case that there are times and places for Constitutional Catholicism and times and places for Constitutional Protestantism, or that there are different roles in which these different approaches are appropriate.  A speech at a political convention is neither an article in a law review nor a class at a law school.  And the summer of 2016 might be a moment for Protestantism in the name of—well, of liberty, and equal protection of the law.  And the Constitution. 

I’ve taken the New Yorker cartoon down from my door.  Maybe in better times I will put it up again.

Saturday, August 20, 2016

Jan Deutsch: An Appreciation

Mark Tushnet


         Musing as I do on occasion about the legal academics who have most influenced my way of thinking about law, Jan Deutsch is one of the top three. I can’t say that I was a “student” of Deutsch; I took one class and one seminar from him. The class was Corporations, and all I remember from it are two episodes. In the first he engaged in a sustained line of questioning of my classmate Richard Diamond, at the end of which he asked, “So, now, Mr. Diamond, do you see your behind in front of you?” – a pointed way of saying that he had managed to get Richard to answer one question, then another, then another, to the point where his final answer contradicted the one he originally gave.[1] I can’t fully reconstruct the second incident, but its thrust was that in making a corporate deal we would react differently were we told to meet a lawyer with responsibility for the deal on a street corner where he’d be wearing a trench coat or told instead to go to the offices of Jones, Day (a law firm at which Deutsch had worked) and meet the lawyer there. I now understand the point of the observation to be that law is backed up by a set of social expectations that are never fully captured in the formal law – something of a “law and society” observation – but I can’t say that I understood it that way then.
       The seminar was a different matter, and it is one of three encounters with Deutsch’s thought that decisively shaped the way I think about law. The seminar was “Law and Psychiatry,” and it was usually co-taught by Professors Joseph Goldstein and Jay Katz. It was a “hot ticket” when I was at Yale, because Professor Goldstein had an “in” with Judge David Bazelon of the Court of Appeals for the District of Columbia Circuit, and Judge Bazelon was what we’ve now come to call a feeder judge to the Supreme Court’s liberal justices. As a result, ambitious Law Journal editors competed for seats in the seminar. I took the seminar because, perhaps oddly, I was actually interested in the subject. My family was quite psychoanalytically oriented: An uncle was an influential figure in the Los Angeles psychoanalytic community, and my older sister and her husband were both analysts. And, as it happened, Professor Goldstein was on leave that semester, and Deutsch taught the seminar with Professor Katz.
          At some point in the seminar the light went on in my head. As I came to interpret the conversations in the seminar, Professor Katz was defending the proposition that the kinds of clinical judgments trained professionals reached embody a distinctive – and perhaps ineffable – form of knowledge, and that those clinical judgments were quite different from the kinds of rule-guided judgments lawyers were trained to make. As the semester developed, I saw that Deutsch was repeatedly making the point that rule-guided judgments were not in principle different from clinical ones (or, to put the latter in terms more congenial to lawyers, from all-things-considered judgments). I’m not sure that I would have put it this way at the time, but Deutsch’s argument, as I came to assimilate it, was that the equivalences ran both ways: A clinical judgment was just the result of an accumulation of rule-guided judgments that could be teased out through careful analysis, and the judgments reached in a system of complex rules could never be fully justified by any identifiable subset of rules. In some sense, I think, that was where I began to think about the so-called indeterminacy thesis associated with critical legal studies (and before that, with legal realism).
        My second encounter with Deutsch came in reading his article, “Precedent and Adjudication,”[2] which simply blew me away. I continue to recommend it to students as probably the best article in constitutional law – ever. As I describe it, the article consists of Deutsch’s almost literal dissection of a single Supreme Court opinion. Its underlying structure, though not its surface, is this: Take the opinion, rearrange its paragraphs, and you discover that the rearranged opinion means something quite different from the original – even though the words in the “two” opinions are exactly the same. The lesson to be drawn from the article is a simple but I think quite deep one: What a decision said to be a precedent means is determined not by the opinion itself but by what later judges make of it. Or, a precedent is what later judges say it is. In that sense, later judges can’t “distort” or “mangle” precedents – and, importantly, they can’t be constrained by precedents either.[3]
My final encounter came quite a bit later. At some point, probably while we were in law school, Duncan Kennedy (the second in the array of legal academics who shaped my thinking) communicated his enthusiasm about Deutsch’s article, “Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and Political Science.”[4] I read the article, but couldn’t see why Duncan was so enthusiastic about it. Re-reading the article a few decades later, I did. Again, as I describe it, the article is a complete deconstruction of Legal Process thinking, taking it seriously on its own terms and exposing its internal contradictions. As I came to see things (which is not to say, as things really were), Legal Process scholars presented themselves as the sophisticated heirs to Legal Realism, but without the reduction of law to politics that they associated with the most hard-core Realists. True, they agreed, we were irreducibly divided over questions of the substantive policies our polity should pursue but, they contended, we could agree on a “principle of institutional settlement” according to which we would assign authority to make substantive policy choices to an array of institutions with distinctive characteristics. And, importantly, the principle of institutional settlement was a-political, and so it sustained the distinction between law and politics.[5] 
Deutsch’s article accepts the Legal Process premises at every point up to the principle of institutional settlement. But, it shows, exactly the same reasons Legal Process scholars gave for accepting the proposition that we could not come to an a-political agreement on substantive policy were available – and were equally cogent – with respect to the principle of institutional settlement. The distinction between law and politics that Legal Process scholarship tried to reconstruct collapsed once again. 
All three encounters led me to what I suppose some might think are banal insights. My experience in the legal academy suggests otherwise. The idea that there is a real difference between all-things-considered judgments and rule-guided ones is an important theme in much contemporary scholarship, for example, and of course the effort to sustain a distinction between law and politics continues with no less zeal than ever before.
But, for me, Jan Deutsch was there already.


[1] I’ve never been able to do that with a student, and not, I think, because my students wouldn’t be as astute as Richard in being able to provide answers to each question as it arose.
[2] 83 Yale L. J. 1553 (1974).
[3] Another connection to the indeterminacy thesis, I suppose.
[4] 20 Stan. L. Rev. 169 (1968).
[5] Whether the best Legal Process scholars thought that the principle of institutional settlement was indeed a-political is unclear to me. I have in mind the stunning passage in Hart & Sacks where the authors ask, about a specific choice among institutional decision-makers, whether the Chamber of Commerce and the Soviet Politburo would reach the same conclusion. I’m inclined to treat that as a genuine question on the authors’ part, which could be given either answer. And, if the answer is “No,” the implication is that the principle of institutional settlement is not a-political.

Friday, August 19, 2016

Kathleen Brady's The Distinctiveness of Religion in American Law

Andrew Koppelman


Religion is something special in American law.  A swelling army of scholars think this is unfair.  Kathleen Brady's new book, The Distinctiveness of Religion in American Law, shows how and when equality between religion and nonreligion became the central theme of religion law scholarship, and offers an original and important response that will persuade almost nobody.

I have reviewed the book for a forthcoming issue of the Journal of Religion.  A draft is now on SSRN, here.

Monday, August 15, 2016

Levinson on the American Political Tradition

JB

Over at Law and Liberty Blog, Sandy Levinson has an essay entitled, American Tradition in Theory and Practice, responding to an essay by Marc DeGirolami, The Unforgettable Fire: Tradition and the Shape of the Law.


Friday, August 12, 2016

Levinson and Balkin on Democracy and Dysfunction: Some Notes

Stephen Griffin

I am of course quite grateful to Jack and Sandy that they mention my book Broken Trust in their valuable exchange on political dysfunction and constitutional reform (referenced by Jack below).  In response, I will make some perhaps disconnected observations which I hope are at least somewhat comprehensible.  As far as trying to push the discussion forward in some way, these issues seem most relevant to me:

1.      Will there be a new political regime?  Jack leans heavily on the idea that political or policy dysfunction is the byproduct of an era of regime change.  We are seeing the birth pangs perhaps of Democratic dominance, a new founding moment for the Republican Party (or both).  Although this possibility has to be taken seriously, one way to extend Sandy’s argument and challenge Jack’s perspective is to raise the question of whether both the hard-wired Constitution and the constitutional order are blocking necessary and desirable regime change.  Federalism, after all, is pretty hard wired into the Constitution, yet I suggest it is difficult to find states in which, say, Republicans are dominant yet are genuinely questioning the direction of their party.  Sandy can say better than most because he lives in Texas, ground zero for relentless opposition to President Obama and what is seen as a runaway central government.  I suggest that many “movement conservatives” like Ryan and Cruz are waiting Trump out and then hoping for a return to normalcy, albeit with a few policy tweaks to satisfy the base.  In other words, states and congressional districts that are deep red, where movement conservatives have a real base, show no signs of incipient regime change.  The structure of federalism and (in the South) the legacy of what political scientist Rob Mickey calls “authoritarian enclaves” protects these Republican politicians and their voters from national trends in public opinion.  But if this is right, then we might regard fundamental political and constitutional reform as a way to nationalize politics, unblock the channels of political change and speed up the transition to a new regime to lessen the policy harms of a lengthy interregnum.  What harms?  This leads me to my second point.

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Thursday, August 11, 2016

Donald Trump is right: The election IS rigged (though not in the way he thinks)

Sandy Levinson

The Washington Post has an article making the point that even if Hillary Clinton wins a "mandate," she is unlikely to get anything through Congress.  The author gives seven reasons, the first one of which, and the most important, is that "Republicans are almost certain to hold the House.  The tea party wing might actually wind up with more leverage, not less, after November."  The "logic" of our political order and the "separation of parties, not powers" (as Rick Pildes and Daryl (no relation) Levinson our it, is that an opposition party has no reason whatsoever to cooperate (or, in their language, "collaborate," with a president of the opposite party, for the simple reason that president's will pick up (at least) 90% of the credit for any accomplishments.  If the president is thinking of running for re-election, that's a big advantage.  This is why Mitch McConnell was behaving perfectly rationally in doing everything he could to deprive Barack Obama of any accomplishments during his first term.  He had learned from both Newt Gingrich and Ted Kennedy that the consequence of cooperation/collaboration was re-election of the incumbent (respectively, Bill Clinton and George W. Bush).  As a matter of fact, Hillary Clinton will e the most vulnerable incumbent, in 2020, of any president since Herbert Hoover.  It would be idiotic, if one is thinking only in terms of party interest--and what else does the Republican "leadership" that is willing to "endorse" Donald Trump think of these days (it's certainly not the good of the country)--to give her any accomplishments, such as financing infrastructure improvement bills that might actually provide jobs for the working class, as well as stop our decline into third-world status with regard to our roads, airports, railways, bridges, and the like.

But why are the Republicans likely to hold the House while Hillary is walzing to the Oval Office and the Democrats are (probably) recapturing the Senate.  The answer is all too simple:  It's a combination of gerrymandering and the more general consequences of having exclusively single-member districts, as required by a congressional law passed originally in 1842.  This means, for example (and, of course, this is not hypothetical), that Democrats nationally can get 1.5 million more votes for the House and end up with Republicans having a majority in the House of 34.  (Not to mention, of course, the Senate, which is illegitimate under any 21st century notion of one-person/one-vote.)  This, obviously, is big-time rigging.  And we should, at the least, be discussing it and even marching in the streets about it.  It wouldn't even take a constitutional amendment to repeal the 1842 law and instead require each state with more than five representatives, say, to draw multi-member districts with proportional representation elections.  Texas, for example, with 36 representatives, could easily be divided into six districts of six representatives each.  Any of the extant systems of proportional representation would assure West Texas Democrats of being able to elect one or two of their own, just as Travis County Republicans would now be able to elect a local Republican and not rely on a vicious Tom Delay gerrymander to make Austin the largest city in the country without a genuinely "local" representative.  It's not rocket-science.

Obviously, it is unlikely in the extreme that the House would ever vote for such a sensible bill (any more than state senators are likely to vote themselves out of a job in, say, Minnesota, by deciding that that state could easily emulate Nebraska's (or New Zealand's) unicameralism.  If the US were like one of the many states that included popular initiative and referendum, then We the People could do an end run around a corrupt and self-interested House. But it's not.  So, alas, only a national constitutional convention could propose an amendment that would restore legitimacy to the process by which we elect members of the House (even if the convention chose to ignore the obvious problems with the Senate).

Elizabeth Drew, a sagacious commentator on US politics, sadly typifies the obtuseness even of the best mainstream pundits.  She has a review of the new book Ratf___ked, about the skilled use by Republican operatives of modern technology to gerrymander congressional districts after the 2010 elections to assure Republican control of the House until at least 2022 (unless Hillary so clobbers the narcissistic sociopath that she actually generates a Democratic House, but, sadly, that seems to be relatively unlikely).  All Drew can do, like lots of "good government" types, is to call for "non-partisan commissions" to draw the lines instead of leaving it up to self-interested political operatives. The only recognition she shows of the problem of single-member districts is to criticize the notion of "the big sort," the idea proposed by Bill Bishop several years ago that as more and more Americans are choosing to self-segregate by political preferences.  This suggests that it's not simply gerrymandering that leads to the modern House.  Compact districts, for example, might lead to 80% Democratic districts in many urban areas , while Republicans are advantaged by lots more districts in which they would have, say, only 55% of the population.  But single-member districts are, by definition, winner take all.

From my perspective--no surprises here--this is simply another illustration of how we are victimized by our dysfunctional and even "imbecilic" Constitution.  It's not only the craziness of, practically speaking, needing to rev up a constitutional convention in order to repeal a statute that made a great deal of sense in 1842 and generates really terrible consequences today; it's also the fact that the insane difficulty of constitutional amendment makes the very idea "unthinkable" among practical and "thoughtful" people as defined by the Washington Beltway and other centers of "thoughtfulness."

And Democrats are so eager to dismiss the ravings of the narcissistic sociopath regarding his own demented notion that the election is rigged--how else could somebody so magnificent actually lose the presidential election--that they/we are unwilling even to lay the basis for the deep critique of the American political system that assures that the election of Hillary Clinton, if the Republicans keep the House, will make, at best, a marginal different domestically, other than saving us from the prospect of a sociopathic president.  That will be something to be grateful for, but it won't one whit lessen the overall political and constitutional crisis that faces the country and that most people simply wish to ignore because we have a Constitution that seems to assure there is no way out of it.

Tuesday, August 09, 2016

Causes of Trump: Economic or Political?

Stephen Griffin

I’m flirting with the idea that there is an elite conspiracy to downplay the political causes of Trump, relative to the economic.  I’m sure you’ve absorbed the economic causation narrative – lack of wage progress, costs of trade, plants going overseas and so on.  I’m sure there’s some truth there, but friends, relatively speaking – baloney!

The basic problem with the economic narrative is not that it is not relevant to this election, but that it doesn’t explain Trump.  It is a long-term explanation.  The problem with long-term explanations is that they face the challenge: why now?  Surely a short-term explanation for Trump is simpler and more plausible.  As far as the economic narrative is concerned my memory may be off, but I do recall election year stories about the sorry state of the Rust Belt in every election since the Rust Belt rusted.  That’s the 1980s!  It is probable that the media always focus on this story in election years because Pennsylvania, Ohio, Michigan, West Virginia and so on are usually battleground states and full of voters who want their steel plants back.  Wouldn’t you want to win these states if you were a presidential candidate?  So other, more plausible causes for Trump recede into the background.  And this is just what DC elites want (and I’m only partly kidding).

Have you heard Hillary Clinton talk much about political reform lately?  Changing the ways of DC?  She’s rather been talking, as I suspect she would strongly prefer, about making more economic progress.   This is no doubt of interest to millions of voters.  The only trouble is, when (and if) Trump is gone, his voters and their perspective will remain part of our politics.  And I suggest economic concerns are a minor part of the story of Trump.

The more plausible short-term causation story for Trump has to do with political and, yes, constitutional dysfunction, not the state of the economy.  I decided to do this post after reading a NYT op-ed by Max Boot.  Boot, who worries like many about what might happen to foreign policy in a Trump presidency, contends that Republicans have let themselves become the “stupid party.”  He recommends that the party “rethink its growing anti-intellectual bias and its reflexive aversion to elites.”  Well, record me as in favor of being intellectual, but bosh! This kind of analysis takes us in the wrong direction.

One reason the future of the republic is plausibly at stake is because after Trump, Trump’s voters, will still be with us, with their concerns about political dysfunction.  Democrats have their own version of these concerns.  And Boot’s solution is to trust elites?  I certainly agree trust is at the core of the issue (and is the best political explanation for Trump), but why should voters do this?

Contrary to what Boot might think, populists have a point.  Elites are necessary, but just at this moment in American history, elites have a lot to answer for.
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Is Trump Sui Generis

Mark Graber

Donald Trump is a liar who is profoundly in love with himself.  Whether these sociopathic and narcissistic tendencies make him sui generis is more controversial.  My previously expressed view is that Trump, who won the Republican nomination fair and square, exhibits the tendencies of the modern Republican Party.  Republicans who denounce Trump claim Trump is an accident who is not a fair representation of the GOP leadership.  The non-partisan organization PolitiFact suggests a third alternative.  Trump is fairly representative of the politicians favored by the most influential wing of the Republican Party, but not of the most establishment wing of that party.  

PolitiFact evaluates the truthfulness of fact claims political actors make when campaigning or governing.  Their surveys evaluate statements as “true,” “mostly true,” “half-true,” “mostly false,” “false” and “pants on fire” ridiculous.  For purposes of simplicity, the below analysis treats as true those statements that PolitiFact evaluates as either true or mostly true, and false those statements that PolitiFact evaluates as mostly false, false and pants on fire ridiculous. Half-truths are left out, which is why the percentages do not add up to one-hundred.

The data have interesting features that transcend present presidential politics.  Even the most honest presidential candidates and politicians do not tell the truth one time in four.  If we would label an adult a sociopath who lied 25% of the time, then the United States is governed by sociopaths.  Our Congressional leadership is particularly prone to falsehood.  Paul Ryan (34-42), Mitch McConnell (36-46), Nancy Pelosi (17-44) and Harry Reid (37-51) make more false than true claims (the numbers reflect percentages).  If a politician makes a long speech with numerous fact claims, some will almost certainly be false.  Nevertheless, so-called “balanced reporting” that highlights the lies every candidate tells fails to inform the public that some politicians tell the truth far more than others. Considerable variance, in particular, exists in the truth percentages of candidates for the presidency. 

Partisanship explains much of the variance in truth-telling and lying among presidents and candidates for the presidency.  Democrats in the executive branch or running for the executive branch are twice as likely to make true statements than false statements.  Hillary Clinton (50-27), Barack Obama (48-26), Bernie Sanders (52-26), Tim Kaine (50-24) are particularly truthful, at least when compared to all other prominent political actors. Joe Biden (40-33) is more truthful than not.  The two most prominent establishment Republicans who ran for president in 2016, Jeb Bush (48-31) and John Kasich (52-32), are almost, but not quite as truthful as prominent Democrats.  Establishment Republicans who actively seek support from evangelicals and Tea Party members, John McCain (40-42), Marco Rubio (36-41) and Mitt Romney (31-42), are considerably less truthful.  Those Republicans who represent the now dominant insurgencies within the party lie routinely.  The numbers suggest such luminaries as Sarah Palin (23-56), Ben Carson (7-82), Ted Cruz (22-65), Rick Perry (29-47), Michael Pence (20-50), and Donald Trump (15-70) stumble upon true assertions largely by accident.

This evidence supports, with important qualifications, the good faith of Bush-Kasich Republicans (i.e., the Republican defense establishment) who have recently denounced Trump.  Trump’s behavior is far different than the persons they believe most qualified to govern the United States.  Their favorites are relative truth tellers.  Trump is not.  The first qualification is that, contrary to some popular literature (see a particularly poorly argued piece by Jonathan Rauch in The Atlantic), no equivalence exists between Trump and Sanders that merits an implicit bargain whereby Republicans who denounce Trump today should be able to ask Democrats  to denounce Sanders or a Sanders-like candidate in 2020/2024.  Sanders is a strong truth-teller, at least when measured against his peers.  Trump is a barefaced liar, even by the low standards of contemporary American politics.

The second qualification is that the evidence demonstrates that Trump is not sui generis in his incapacity for truth-telling.  He is typical of the candidates who appeal to the present ascendant wing of the Republican Party.  Trump is more successful than Perry, Cruz, Palin, or Carson because he is a more effective liar, not because he has a statistically significant tendency to lie more.  Both establishment Republicans in particular and Americans in general must find a way to change a constitutional culture in which a majority of voters in one party clear prefer candidates whose programs belong in the fiction section of the library.  Denouncing Trump and Trump only as an outlier in American constitutional politics ignores the true threat to American constitutional democracy.   Should, as appears probable, Clinton wins the election, Trump may go away, but if present tendencies continue, his replacement is more likely to be an even better liar than an establishment Republican who does not think "facts are stupid things."

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