an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I continue to believe that Donald Trump will not win the November presidential election. Trump may be a particularly skillful demagogue, but he is also likely to be an unsuccessful demagogue. He has undermined many important norms of American politics, but our constitutional system still has abundant defenses against his brand of political nihilism. I hold to my constitutional faith: If people let the natural processes of American democracy take their course, and if they fight for what is right within our constitutional system, Trump will lose.
Many other people, however, are not as optimistic as I am. They lack the same degree of faith in our political system, which they believe has been enervated and corrupted over many decades. They worry that Trump has a very serious chance of being elected, and that if he is elected, hewilldestroy the American constitutional system, not to mention undermine our alliances, make disastrous foreign policy decisions, and endanger the world. Many people agree with Hillary Clinton's suggestion that Donald Trump cannot be trusted with our nuclear arsenal.
Yet no one who makes these claims, as far as I am aware, is arguing that in order to preserve the American way of life, or to prevent an accidental or intemperate descent into nuclear war, government and military officials should go outside of the ordinary practices of politics and law to prevent Trump from being elected and taking office. No one has called on President Obama, for example, to refuse to step down if Trump is elected. Military officials have not suggested that they will stage a coup. State and local officials have not suggested that they will remove Trump's name from the ballot as a precaution. Perhaps a lot of people believe that Trump is an existential threat, but they seem to be willing to risk his being elected anyway, even though, presumably, they would take all sorts of precautions to prevent far less disastrous outcomes.
What explains this? One possibility is that people are just exaggerating. They don't really believe that President Trump would seriously undermine democracy in the United States; they don't really fear that he would misuse America's military prowess or its nuclear arsenal. They are just engaged in hyperbole, and they trying to scare gullible people into believing what they themselves don't actually believe. They are running together the fact that Trump is a blowhard and a bigot with the notion that he is an existential threat.
The claims that Trump is a dictator in waiting, that he is a madman, that he is unstable, that he can't be trusted with the nuclear codes-- all of these are just the sort of over-the-top rhetoric that we hear all the time in political campaigns. And we should discount it accordingly. (Recall that during the 2008 and 2012 elections, Republicans argued that Obama's election would fundamentally transform America and destroy our freedoms.) For the record, I think a lot of anti-Trump rhetoric may be trading on this confusion-- that he because he is a bigot, a scoundrel, a cheat, and a liar,
he is also an existential threat to American democracy. But Trump could be the former without being
The other possibility is far more interesting. Many people-- including many quite reasonable people-- actually do fear the worst. They really think that Trump is a genuine threat to democracy. But if that's the case, then in playing by the rules, they are taking the risk-- by no means insignificant-- that Donald Trump will defeat Hillary Clinton in a fairly conducted election and become President. But they can't imagine that it would be appropriate to do anything other than to oppose Trump through the normal democratic process. They can't imagine that it would ever be appropriate to stage a coup to prevent him from taking office, or to try to remove him from the ballot, because that would undermine the very values of American democracy that they believe in. To do this would be to destroy American democracy in the process of saving it. No matter how much people fear Trump, they fear even more damaging the American constitutional system.
Suppose that many reasonable people actually feel this way. Then for these people at least, Donald Trump is a one man constitutional crisis.
Let me explain.
In previous work, Sandy Levinson and I have offered a theory and a typology of constitutional crises. These crises are actually very rare in the United States. To be sure, people use the term "constitutional crisis" all the time, but most things that people call constitutional crises aren't really. Often what people are referring to are garden variety political struggles, or at most, important political crises that people fear will spin out of control into a constitutional crisis.
Well, then, what exactly is a constitutional crisis?
Just as a health crisis is a threat to a body's ability to sustain itself and stay alive, a constitutional crisis is a threat to a constitution's ability to do what constitutions do, which is to facilitate peaceful, ordinary politics, including a peaceful succession of power. The point of establishing constitutions is to make politics possible-- to allow people to fight about what they want through ordinary politics, instead of resorting to violence and civil war.
A constitutional crisis occurs when the constitution is on the verge of no longer being able to perform this central and crucial function. The constitution fails at its central task of channeling political conflict into ordinary politics; as a result, people go outside the constitutional system (or threaten to do so).
A crisis represents a turning point in constitutional authority. That turning point will either lead to constitutional failure (as occurred during the Civil War), or the political system will somehow manage to come back from the brink, although it may be significantly changed as a result of the trauma.
There are three ways that a constitutional crisis can occur. In Type One crises, political actors publicly announce that they will disobey the Constitution in order to avoid some terrible danger. Type One crises almost never happen in America, because political actors almost always are able to claim that they are obeying the Constitution. The complex system of laws and doctrines we have built up over the last two centuries offers politicians many ways to make plausible claims that they are acting within the Constitution. As a result, Americans almost never talk in Schmittian terms of having to make an exception or go outside the legal order.
In Type Two crises, political actors are unable or unwilling to go outside of what they believe the Constitution permits, and as a result, disaster strikes. Type Two crises involve politicians and government officials going over the cliff together rather than violating the Constitution as they understand it. This kind of crisis also rarely happens in American history, and for much the same reason. As things come closer and closer to disaster, more and more people have an interest in making creative constitutional claims to avoid that result. They change their minds about what is constitutionally and legally permissible. Or, in the alternative, Type Two crises turn into Type Three crises.
In Type Three crises, the constitutional system breaks down because people take to the streets in rioting and massive civil disobedience. States or territories attempt to break away. The system is no longer able to channel political disputes into ordinary politics. People and regions of the country go outside of ordinary politics because they feel that ordinary politics is useless; therefore they feel that they no longer have to play by the rules. Again, these moments are rare, but they have happened. The American Civil War is the most important example of a Type Three Crisis.
All of this brings us to Donald Trump. Obviously, Trump's supporters think that he poses no threat. He is going to make America great again. But among his opponents, many people believe that this election is not a normal one posing a normal choice between normal candidates. Perhaps they fear that if Trump takes office, he will publicly violate the Constitution, precipitating a Type One crisis. Or perhaps the fear is that if Trump is elected other people will precipitate a Type Three constitutional crisis-- that there will be rioting in the streets and movements towards secession.
But the most interesting possibility is that Donald Trump is already precipitating a Type Two crisis. People fear that if Trump is elected, disaster will strike, not only for America, not only for our allies, but for the entire world. They argue this in increasingly anxious tones, offering warning after warning. And they really believe it-- they really believe that he is a dictator in waiting, a narcissistic and unstable personality who will destroy the country.
At the same time, the very same people don't want to put themselves outside the Constitution to stop him. As a result, the election is held and he wins. Trump takes the oath of office; he receives the nuclear codes and all of the powers of the modern Presidency.
This is a Type Two Crisis. Because of people's fidelity to the Constitution, they are unwilling to violate it in order to prevent what they believe to be a genuine threat to the republic. In a Type Two crisis, people do not acquiesce because they are sheep. They acquiesce because Americans value their Constitution; they value self-government and the orderly succession of power that is central to our constitutional system. In this way a dictator or madman takes power and calamity follows.
In Sandy's and my article on constitutional crises, we point out that Type Two crises are unstable phenomena. They depend on people believing that there is nothing they can do, consistent with the Constitution, to avoid the danger that they face. But if people really believe that disaster is about to strike, they are likely to look afresh at the Constitution, engage in creative constitutional thinking, devise new legal strategies, and change their minds about what the Constitution permits, requires, or forbids. In our article, Sandy and I point out how James Buchanan precipitated a Type Two crisis in 1860. He asserted that although it was illegal for states to leave the Union, the Constitution did not allow him to lift a finger to stop the South from seceding. But this state of affairs did not last very long. The next President, Abraham Lincoln, interpreted the Constitution very differently. The result was a Type Three crisis, The American Civil War.
I can't predict what will happen in the unlikely event that Trump wins. Maybe, in order to reduce cognitive dissonance, people who formerly feared him will swallow hard and conclude that he isn't such a threat at all. Indeed, maybe it will turn out that all of the overheated rhetoric was just that-- overheated rhetoric. Perhaps Trump will take office, and he'll just be a mediocre or a corrupt president, or maybe, at worst, just a poor president on the order of, say, George W. Bush. That isn't a happy result by any means, but it's not the end of the American system of governance.
On the other hand, it's also possible that if Trump wins in November, people will become increasingly fearful about what he and his allies will do. As the time grows closer to Trump's actually taking office, people's views about what the Constitution allows may undergo significant change. For example, we might see vigorous debates about the responsibility of members of the electoral college to vote their consciences rather than for the candidates who won their respective states. We might also see debates about what will throw the election into the House of Representatives (for the Presidency) and the Senate (for the Vice-Presidency). We may even see schemes floated that try to place Mike Pence, or Tim Kaine, or even Speaker Paul Ryan in office instead of Trump or Clinton following a deadlockin the House; or schemes that try to use the Twenty-Fifth Amendment to keep Trump from exercising the powers of the Presidency on the grounds that he is mentally unstable or incompetent.
Thus, even if Trump's candidacy is a Type Two crisis, what starts as a Type Two crisis may not end up that way. The most likely scenario is that the crisis will dissipate, as people decide that he is not such a threat after all, and simply work to oppose him in ordinary politics and find ways to check him consistent with the Constitution. In either case, the constitutional crisis is resolved because people channel their energies into ordinary politics. That is, of course, the whole point of a constitution.
The more troubling possibility is that as inauguration day grows closer, events will move in the opposite direction, and that what begins as a Type Two crisis might turn into a Type Three crisis, with civil unrest and a genuine struggle for power. Let's hope it never comes to that. I don't think it will. The most likely result is that Trump loses in November. Even if he wins, the most likely result is that his opponents grumble but acquiesce, he becomes president, and he turns out to be thoroughly corrupt and incompetent.
Trump is a recognizable type. He is the twenty-first century version of the billionaire rabble-rouser who gains power by appealing to the mob—almost a stock character in the waning years of the Roman Republic. The founders certainly feared such a person, but the major obstacles to the presidency that they created or kept in place in order to keep a demagogue out of the office—property qualifications for voting, indirect elections, federalism, separation of powers—have mostly been dismantled. Even in our democratic age, it seems that some people are coming to appreciate the vision of elite-led democracy that these institutions were meant to sustain. Trump may not threaten the constitutional order himself, but he is provoking the elites to reconsider their support for a constitutional order in which someone like Trump could be elected president.
It's not clear whether Eric actually supports the idea of elite-led democracy, or whether he is just making fun of elites. Nevertheless, he has put his finger on an important point. People who assert that Trump is an existential threat should ask themselves if they want to destroy the village in order to save it. For the vast majority of Americans, the answer to that question will be no.