It must be human nature to wade through moments of unpleasantness, noodling for some happy nugget that dispels our worst suspicions. One such pleasing landmark on the road toward decline was spotted by the Tampa Bay Times, in which a recent dispatch revealed that Donald Trump’s dominance at the top of Republican primary polls had piqued high school students’ interest in, of all things, civics. These high schoolers have reportedly been intrigued enough to inquire about the Constitution, the separation of powers, and of what it means to be a citizen. Don’t get too sentimental about it. “I hate to say it,” said one Florida-based government studies teacher, “but there’s something fun and childish about people trash-talking each other that appeals to 17- and 18-year-olds.” Undoubtedly.
These students may soon get a real world education in the nation’s founding document. Admittedly, Donald Trump – if he were to become the Republican presidential nominee – faces a near impossible uphill climb to the presidency. If the prevailing political conditions were to remain static, Donald Trump would lose and lose badly. But any number of unforeseen events could change that calculation, and the result might be a Trump victory in November. The problem with gaming out the presidency of a man who has never held elected office is that you can only judge him at his word, and, in Trump’s case, his word means very little. The celebrity candidate is known to contradict himself within the same press conference, so anyone’s faith in his ability to perform as a lawful executive is founded on precisely that: faith. Not to be too hyperbolic, but to take him at his word is to prepare for a constitutional crisis.
While it has served political scientists and columnists to sift through the sands of time for some hint of precedent that might point toward a way to constrain Donald Trump on the off chance that he wins both the Republican Party’s presidential nomination and the White House, this seems an academic exercise. Many would point to the menacing populist Andrew Jackson to explain both Trump’s style and appeal, but the analogy implodes when comparing Old Hickory’s martial discipline to Trump’s impulse-driven candidacy. You’ll find plenty of prescient warnings about willful demagogues like Trump in the Federalist Papers. When one is upon you, though, the Founders’ prescribed remedies are rather unspecific. The Constitution itself is an imperfect tool for restraining a figure with little to no interest in the document he seeks to uphold and protect from enemies both foreign and domestic.
The Trump phenomenon has exposed some rather terrible truths about what is ostensibly the most durable representative republic on earth. The first is that so many of the institutions that buttress American civil society, which have for decades been the envy of the world, are so unappreciated by both the public they serve and the stakeholders invested in their longevity that they have few defenders. A candidate who has promised to somehow re-write the law as to impose on America a British-style system of libel expressly in order to punish and ruin his critics should be inspiring mass backlash from those who buy ink by the barrel. And yet, Trump has received roughly $2 billion in free and relatively uncritical media coverage by virtue of his celebrity alone – the vast majority of which has been positive or neutral.
Here is a candidate who has on so many occasions welcomed political violence from his supporters, just so long as they target his enemies. Here is a candidate who is explicitly desensitizing his grassroots fans toward the prospect of violence in the event he does not get his way at a nominating convention. And yet, he is also a candidate who has earned the imprimatur of some of the GOP’s supposedly law-loving constitutionalists. Figures as lofty as the Republican Majority Leader in the House are rationalizing the effect a Trump camping could have on his party’s electoral prospects as the nation’s formerly conservative party begins to attract the support of erstwhile Democrats.
Many expected resistance from America’s elites to an obvious usurper. But the anticipated defense of American institutions and norms of appropriate conduct from a presidential candidate, which so many predicted was just around the corner, never materialized.
Take, for example, Trump’s pledge to order American men and women in uniform to commit criminal acts of war for which they will be personally liable and upon which there is no statute of limitations (not to mention, in regard to his pledge to have U.S. soldiers slaughter the families of suspected terrorists, acts which will haunt them for the rest of their lives). Trump had issued this blusterous pronouncement for weeks before the press finally heard it, and the ensuing uproar forced him to back down. The “United States is bound by laws and treaties,” Trump averred in a statement, “and I will not order our military or other officials to violate those laws and will seek their advice on such matters.” And yet, less than a week later on the debate stage, Trump averred that the United States was a nation composed of a “a bunch of suckers” who observe rules of engagement in war to which the enemy does not subscribe. He added that the U.S. must “expand” the law in order to permit the grotesque acts Trump has endorsed.
Donald Trump has not once said how he would work with Congress, or even if he needs to work with Congress, to change the law. In fact, he’s suggested that American judges sign bills into law, so it is safe to presume that Trump’s understanding of the process through which American laws are codified is tenuous. But ignorance is no excuse, and Trump has unduly benefited from knowledgeable people putting words in his mouth and discounting as nonsense his more ridiculous pronouncements. That is a luxury that will not be afforded an American president. What if Trump were to disregard the law and order his military commanders to commit crimes? What remedy is available to U.S. officers if they were to take exception with their commander-in-chief’s edicts? The Congress, presumably, but those American institutionalists with a modest reserve of respect for precedent may be disinclined to set one by adjudicating a dispute between American military officers and their civilian commander.
The same conundrum could be said for the courts. What if President Barack Obama, for example, simply balked at the notion that his discretion could be hindered by the judiciary, which, for example, recently blocked the implementation of an executive action deferring the deportation of illegal immigrants with children? Conservatives would of course be outraged by such a prospect, but their outrage is selective. There is a school of thought that was once common among conservative legal scholars which held that the modern era is characterized by undue deference to “judicial supremacy.” Some on the right believe that the executive and the legislature should feel less bound by the decisions of the Supreme Court. Reason’s Damon Root argues convincingly that such a philosophy contradicts both the founders and the earliest American jurists, who themselves first tested the parameters of the Constitution’s separation of powers. The point, however, is that this is all still being argued today, and the mechanisms to constrain a rogue executive are mostly theoretical and contingent upon the executive’s cooperation.
It took a Trump candidacy to expose how many customs of American constitutional governance are little more than generally accepted standards of conduct. Of course, if Donald Trump were to reach the Oval Office, he could quickly demonstrate that his persona on the trail was merely an act. He could instantly transform into the model of comportment rivaled only by General Washington himself. If, however, we were to take Trump at his word and he became president, the road ahead may be a rocky one. If America were truly tested by a president with no regard for his predecessors, probity, a responsibility to history, or national comity, it’s not hard to envision a crisis in which the extremely powerful executive branch tests precisely how robust American democratic institutions really are.