Balkinization: The Framers, Democracy, and the Demagogue, Part Two

The Framers, Democracy, and the Demagogue, Part Two

Guest Blogger

Michael Klarman

For the Symposium on Michael Klarman, The Framers' Coup: The Making of the United States Constitution.

As established in yesterday’s post, the Framers worried not only that the People would enact relief legislation if left unchecked but also that they would be likely to elect a demagogue. The 2016 presidential election results suggest that such concerns were hardly rendered obsolete by the passage of time.

When the Framers thought of “pretended patriots” and “designing men” duping the people into supporting “the most baneful measures,” Patrick Henry was probably one of the principal objects of their concern. During the ratifying contest in Virginia, one of Madison’s correspondents told him that the People were “disposed to be his [Henry’s] blind followers” and that Henry’s true objective was not 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 ever lived,” would exercise considerable influence over “weak men” at the Virginia ratifying convention. At that convention, which met in Richmond in June 1788, Henry demagogically (and implausibly) warned of a dark design behind the Framers’ failure to explicitly protect slave property in the Constitution, and he warned that “[a]mong ten thousand implied powers which [a northern-dominated Congress] may assume” was the authority to “liberate every one of your slaves” by conscripting them into military service in the event of a war.

While Patrick Henry was probably the Framers’ prototype of a demagogue, they would have immediately recognized Donald Trump as one as well. Trump is the most ignorant and deceitful person ever to inhabit the American presidency, and he seems not to believe in basic norms of democratic governance.

The president’s astonishing ignorance is revealed, for example, in his apparent belief that Frederick Douglass, the great black leader of the nineteenth century, is still alive (“Frederick Douglass is an example of somebody who’s done an amazing job and is getting recognized more and more, I notice”), his lack of familiarity with the health care bill he pressed Congress to enact (“Nobody knew health care could be so complicated”), his total unfamiliarity with the New START treaty (Strategic Arms Reduction Treaty) (he had to ask an aide what the treaty was while on a phone call with Vladimir Putin!), and his confusion regarding the relationship between North Korea and China (“after listening for 10 minutes [to President Xi Jinping during a conversation at Mar-a-Lago] I realized that it’s not so easy”).

The president’s ignorance is rivaled only by that displayed by his extraordinary Cabinet appointments: Ben Carson (who recently described slaves as “immigrants who came here in the bottom of slave ships” with a “dream” of “prosperity”), Betsy Devos (who thinks that historically black colleges, which were established at a time when no white institutions of higher education in the South would admit African Americans, were “real pioneers when it comes to school choice”), and Rick Perry (who, though he can now probably remember the name of the department he runs—Energy—apparently did not know when accepting the job that the majority of its portfolio has to do with nuclear weapons). Yet at least one can rest assured that the president, as he himself says, is “a really smart person” and that he “knows more about ISIS than the generals do.”

Possibly even more troubling than the president’s ignorance is his inability to tell the truth. Trump lies about small things: the size of the crowd and the weather at his inauguration, whether local dress shops had sold out of inauguration gowns, and the size of his victory in the electoral college. But he also lies about matters of consequence: whether three to five million illegal votes cost him victory in the popular vote, whether the U.S. murder rate “is the highest it’s been in 47 years,” whether a “sick” President Obama had ordered a “tapp” on Trump’s phones “during the very sacred election process,” whether Trump had opposed the Iraq War from its outset, whether he had mocked the disability of a New York Times reporter (watch the video), and whether President Obama was born in the United States (Trump later decided that it was Hillary Clinton who had “started the birther controversy” in 2008). One wants to be careful before agreeing too frequently with Senator Ted Cruz, but he had it about right when he called Trump “a pathological liar” and “utterly amoral” (until “many months of careful consideration, of prayer and searching [his] own conscience” led Cruz to vote for Trump on Election Day). Democracy depends on transparency; whether it can survive a pathologically deceitful president is an interesting question—the answer to which we would have been better off never having to discover.

Most distressing of all, Americans have elected a president who, ironically, does not believe in the basic norms and institutions of democracy. Consider several illustrative examples.

Trump plainly does not believe in 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, in fact, was born and has lived all sixty-three years of his life in the United States; his parents were Mexican immigrants), a “disgrace,” and a “hater of Donald Trump” who was “railroading” him while presiding over the lawsuit. Trump also vaguely threatened the judge (“I’ll be seeing you in November [when the case was scheduled to come to trial] either as president or” before trailing off).

Since his election, Trump has denounced Judge James Robarts, the federal district judge (appointed by President George W. Bush) who invalidated his first executive order on immigration, as a “so-called” judge. Trump called the federal circuit court panel that affirmed that order “disgraceful.” In all likelihood, the president is laying the groundwork for (1) defying future judicial orders (as Trump’s now-favorite predecessor-in-office Andrew Jackson was said to have threatened to do); and (2) preemptively blaming the federal judiciary for the next terrorist attack (“Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. If something happens blame him and [the] court system”) (Note to the president: if you and your advisers had not described your Muslim ban as a “Muslim ban,” you might have fared better in court.)

Nor do Trump’s statements suggest a belief in the virtues of a free press. During his campaign, Trump promised that if he won he would “open up our libel laws” so that the press could be sued for writing “horrible and false articles.” He also threatened to sue the “failing” New York Times for its clearly First Amendment–protected reporting on Trump’s alleged serial sexual assaults upon women. (Trump falsely claimed during one of his debates with Hillary Clinton that the many women who had come forward to charge him with sexual assault had been “debunked.”) Since the election, Trump has regularly denounced mainstream news media for their “fake news” and called reporters of the New York Times and other news organizations the “enemy of the people” (which, if the president were not so ignorant of history, he would recognize as a call for their eradication).

Further, unlike any other presidential candidate in American history, Trump cast doubt on the legitimacy of an election before it happened. At a campaign event in New York in September 2016, Trump said, without presenting any supportive evidence, “They’re letting people pour into the country so they can go and vote.” In October, Trump told a nearly all-white gathering in Pittsburgh that “other communities” (i.e., black people) would try to steal the election in Philadelphia.

Such statements culminated in the extraordinary scene of presidential-debate moderators asking Trump whether he would accept the legitimacy of a Clinton victory at the polls. At the first presidential debate, Trump replied that he would “absolutely” do so, only to immediately walk back that statement afterwards: “We’re going to have to see. We’re going to see what happens.” At a subsequent debate, Trump’s reply was, “I’ll keep you in suspense. . . . We’ll see what happens.” Unsurprisingly, in light of such statements, 70 percent of Trump supporters reported that they believed that voter fraud occurs very often or somewhat often in the United States, even though political scientists are agreed that it almost never occurs. Fifty percent of Republicans said they would not regard Hillary Clinton as a legitimate president if elected.

One presidential historian stated at the time, “I haven’t seen anything like this since 1860, this threat of delegitimizing the federal government, and Trump is trying to say our entire government is corrupt and the whole system is rigged. And that’s a secessionist, revolutionary motif. That’s someone trying to topple the apple cart entirely.” A Harvard political scientist told the New York Times, with regard to Trump’s advance delegitimizing of the election, “To a political scientist who studies authoritarianism, it’s a shock. This is the stuff that we see in Russia and Venezuela, and that we don’t see in stable democracies anywhere.” Does anyone genuinely believe that had Trump won the popular vote by nearly three million votes while losing in the electoral college that he would have immediately conceded defeat, as Clinton did?

Another of Trump’s violations of basic democratic norms was his sly advocacy of violence at political rallies, usually in language that was sufficiently inexplicit that he could later downplay his incendiary statements as jokes or sarcasm. Last August, Trump said, with regard to the Second Amendment, that if Hillary Clinton won the election and thus was in a position to appoint the replacement for the deceased Justice Antonin Scalia, there would be “nothing you can do folks.” Then he quickly added, “Although the Second Amendment people—maybe there is, I don’t know.” In February 2016, Trump stated with regard to a protestor being removed from one of his rallies, “I’d like to punch him in the face.” “In the old days,” he continued, “protestors would be carried out on stretchers.” After a Black Lives Matter protestor disrupted one of his rallies in November 2015, Trump said, “Maybe he should have been roughed up, because it was absolutely disgusting what he was doing.” Trump told supporters at another rally: “If you see somebody getting ready to throw a tomato [at me], knock the crap out of them, would you? Seriously, ok? Just knock the hell—I promise you, I will pay for the legal fees.” Trump is now being sued in federal court for inciting the violence that led to protestors being injured by his supporters at a campaign rally in Louisville, Kentucky.

Trump also explicitly encouraged a foreign nation to intervene in the presidential election, something that no other candidate in American history had ever done. Specifically, Trump urged the Russians to hack Hillary Clinton’s email: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” The FBI is currently investigating whether Trump or his campaign staff actively colluded with Russian efforts to influence the election in his favor.

In addition, Trump promised, if elected, to have his opponent jailed, something that previously had occurred only in countries that do not practice the rule of law. In the second presidential debate, Trump declared, “If I win, I’m going to instruct my attorney general to get a special prosecutor to look into your [Hillary Clinton’s] situation, because there’s never been so many lies, so much deception.” Then, a minute later, Trump said to Clinton that if he became president, “you’d be in jail” (to applause from the audience, no less!). Charles Krauthammer, a conservative commentator, observed: “Vladimir Putin, Hugo Chavez, and a cavalcade of two-bit caudillos lock up their opponents. American leaders don’t. . . . It takes decades, centuries, to develop ingrained norms of political restraint and self-control. But they can be undone in short order by a demagogue feeding a vengeful population.” Since the election, Trump has declared—as usual, without offering any supportive evidence—that President Obama’s former national security advisor, Susan Rice, is a “criminal” (for “unmasking” the identity of Trump aides caught on FISA-approved wiretaps of foreign agents—something that a national security advisor might ask intelligence agencies to do in the routine course of business).

Finally, throughout the presidential campaign, Trump expressed a bizarre admiration for foreign leaders who are authoritarian. In Raleigh, North Carolina, he said of Saddam Hussein that he “killed terrorists. He did that so good. They didn’t read them their rights.” Trump also praised Vladimir Putin of Russia, who has had political opponents assassinated, as a leader who exercised “very strong control over his country,” while expressing admiration for Putin’s 82 percent public approval 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 think our country’s so innocent?” (Can one imagine another president in American history comparing the United States to Russia as an equal-opportunity murderer?)

During the campaign, many Republicans responded to concerns that were voiced about Trump’s apparent lack of commitment to basic democratic norms by emphasizing that the Constitution’s system of checks and balances would adequately constrain Trump’s worst impulses. For example, in June 2016, Senator John McCain of Arizona said, “I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations. We have a Congress. We have a Supreme Court. We’re not Romania.” How much confidence ought Americans to have that other branches of the government will control Trump?

That a Republican-dominated Congress would not exercise much constraining influence on Trump was made clear during the campaign and has been confirmed in the early 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” while reiterating his support for Trump’s candidacy. “I disavow these comments. . . . It’s absolutely unacceptable. But do I believe that Hillary Clinton is the answer? No, I do not. I believe that we have more common ground on the policy issues of the day and we have more likelihood of getting our policies enacted with him than with her.” Similarly, Senator Deb Fischer of Nebraska said after the initial release of the Access Hollywood video in which Trump bragged of sexually assaulting women: “The comments made by Mr. Trump were disgusting and totally unacceptable under any circumstance . . . . It would be wise for him to step aside and allow Mike Pence to serve as our party’s nominee.” Three days later, after hearing from her constituents, Fischer said, “I plan to vote for Mr. Trump. I never said I was not voting for our Republican ticket,” adding, “It’s not a tough choice.”

Little has changed since the election in this regard. Every day that he is in office, President Trump violates the Constitution’s Emoluments Clause, and the conflicts of interest posed by his continuing ownership of the Trump Organization are vast compared with those of any previous president. Republicans in Congress seem not to care a whit. Similarly, the extraordinary lies that Trump has voiced as president—that three to five million ineligible voters participated in the presidential election, that President Obama wiretapped him during the campaign—have elicited hardly any objections from Republicans in Congress.

With regard to investigating alleged complicity between Trump aides and Russian intelligence officials bent on steering the presidential election Trump’s way, Senator Rand Paul of Kentucky said, “I just don’t think it’s useful to be doing investigation after investigation, particularly of your own party. We’ll never even get started with doing the things we need to do, like repealing Obamacare, if we’re spending our whole time having Republicans investigate Republicans.” Congressman Jason Chaffetz of Utah declared there was no need to investigate former National Security Advisor Michael Flynn’s ties to Russia because “it’s taking care of itself.” And House Intelligence Committee Chair Devin Nunes, before being forced to recuse himself from the investigation after being caught acting as a shill for the White House, was far more focused on figuring out who leaked details of the FBI’s investigation into possible collusion between Trump aides and the Russians than determining whether such collusion (which would essentially constitute treason) had occurred.

Congressional Republicans have thus far manifested little interest in investigating or criticizing a Republican president who can advance their legislative agenda—tax cuts for the wealthy, repeal of Obamacare, the rolling back of environmental and other regulations—regardless of the outrageousness of his lies, the general incompetence of his administration, the recklessness of his foreign policy actions and pronouncements, and his possible complicity with a hostile nation’s efforts to swing the presidential election in his favor. When it comes to advancing the Republican political agenda, partisan considerations have thus far swamped the sort of separation-of-powers incentives that James Madison predicted (in an era without modern political parties) would generally put Congress and the president at loggerheads.

What about the federal courts as a potential check on Trump? Thus far, federal judges have indeed stepped in to invalidate the president’s executive orders on immigration, and it is likely that all federal judges strongly disapprove of the reckless charges that the president has leveled at those federal judges who have held him accountable to law.

Yet, for two reasons, it would be a mistake to suppose that the federal judiciary, in the end, will pose a significant constraint on the president’s authoritarian tendencies. First, we 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 least those taken by a Republican president) in the ostensible service of national security. Trump has already appointed one Justice to the Supreme Court. Were he also able to replace one of the liberal Justices or Justice Kennedy, that might give the Court a conservative majority that would be more sympathetic to measures such as 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 decision invalidating Trump’s first executive order on immigration.)

Second and more importantly, throughout American history the Supreme Court has rarely stood up to the president or Congress during times of war or terror. Supreme Court Justices riding circuit rejected constitutional challenges to the Sedition Act in the late 1790s. The Court ducked the issue of military tribunal trials of civilians until after the Civil War had ended. During World War I, the Justices upheld prosecutions of political leftists under the Espionage and Sedition Acts. The Court validated Japanese-American exclusion and internment during World War II. During the early Cold War, the Justices mostly rejected First Amendment challenges to criminal prosecutions and legislative investigations of alleged Communists. The principal apparent exception to this trend—the Steel Seizure Case of 1952—is probably explicable in terms of the extraordinary unpopularity of the president at the time (Truman) and of the war that he was fighting (in Korea).

Thus, recent federal court rulings against Trump’s executive orders on immigration are unreliable indicators of how courts might respond to presidential actions taken during a war or after a major terrorist attack. As James Madison famously noted in contesting the utility of adding a bill of rights to the original Constitution, “Should a rebellion or insurrection alarm the people as well as the government, and a suspension of the habeas corpus be dictated by the alarm, no written prohibitions on earth would prevent the measure.”

To sum up, the Framers despised democracy partly because they assumed the American people were too ignorant or easily manipulated to resist the siren call of a demagogue. Two hundred and thirty years after they wrote the Constitution, their skepticism seems prescient: The American People (or, more accurately, just under 63 million of them, who were geographically distributed in such a way as to secure Trump a victory in the electoral college) have elected a stunningly ignorant, pathologically untruthful demagogue, who fundamentally disbelieves in the basic norms and institutions of democracy. Whether the structural safeguards the Framers inscribed in the Constitution are up to the task of constraining Trump’s authoritarian tendencies is anybody’s guess.

Michael J. Klarman is Kirkland & Ellis Professor at Harvard Law School and author of The Framers’ Coup: The Making of the United States Constitution (Oxford University Press 2016).

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