Friday, January 29, 2021

The Trump Presidency, Racial Realignment, and the Future of Constitutional Norms

Neil Siegel

The relationship between racial conflict and compliance with constitutional norms (or conventions) appears to be under-studied by U.S. constitutional law scholars. At least part of the explanation is that constitutional law scholars who study such norms tend to focus on the separation of powers, not racial equality. I recently posted to SSRN a new paper in which I link the degradation of constitutional norms in the contemporary United States not primarily to the behavior and influence of Donald Trump, but to long-term processes of racial realignment between the Democratic and Republican Parties that began in the late 1930s and early 1940s (not the 1960s), and that contributed significantly to the rise in asymmetric partisan polarization and mutual animosity beginning decades later. 

Here is the Abstract:

This chapter in a forthcoming volume, Amending America’s Unwritten Constitution (Cambridge University Press) (Richard Albert, Yaniv Roznai, & Ryan C. Williams eds., forthcoming 2021), asks into the likely implications of the Trump Presidency for the future sustainability of constitutional norms in the United States. It observes that what counts as a persuasive answer to that question turns primarily on why politicians’ respect for constitutional norms has been declining, and it argues that President Donald Trump is more of an effect (and a symptom) than a cause of the decline. Specifically, he is more of an effect than a cause of larger racial and cultural changes in American society that are causing Republican voters and politicians to perceive an existential threat to their continued political and cultural power—and, relatedly, to deny the legitimacy of their political opponents. As illustrated by the conduct of Republicans in Congress and statehouses, it is very unlikely that Republican politicians will respect constitutional norms when they deem so much to be at stake in each election and significant governmental decision. Moreover, Democratic politicians, now that they fully control the political branches, may begin a campaign of retaliation that will include violations of norms.  

As a result, one should expect continued violations of constitutional norms by American politicians to accomplish partisan goals—what Mark Tushnet has called “constitutional hardball”—at least until the electoral impact of demographic changes in the electorate exceeds the electoral impact of the rural favoritism that is built into the nation’s constitutional electoral processes. The Republican Party has likely been able to hold on to so much power without moderating for as long as it has primarily because of that rural favoritism. At the same time, the results of the 2020 elections indicate that the country is not nearly as liberal as the most liberal members of the Democratic Party may believe, so the party may remain under pressure to stay relatively moderate. Demography is not destiny, as the increase in Latino support for Trump in 2020 suggests, and the education-level divide may continue to play a significant role in party configurations in the years ahead.

At some point, however, the Republican Party may face a choice between losing most national elections and significantly broadening its appeal beyond racial, religious, cultural, and economic conservatives. Broadening the tent may again make it possible for the leaders of the Republican and Democratic Parties in the White House, Congress, and statehouses to sustain constitutional norms, but this time while sharing a commitment to racial equality. The sobering historical reality, discussed in this chapter, is that the leaders of the two parties have never been able to sustain norms and work together over a significant period of time when they have been divided over race. Put differently, the racial reckoning in the United States that continues to unfold as this chapter goes to press is likely responding in part to a history in which norm compliance and legislative cooperation among politicians in the two parties came largely at the expense of black people, who were not in “the room where it happened” when fateful compromises were forged.

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