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).