Donald Trump and Post-Constitutional America

UNITED STATES - MAY 29 - A biker shows off his shirt in support of Republican presidential candidate Donald Trump, on the Nat
UNITED STATES - MAY 29 - A biker shows off his shirt in support of Republican presidential candidate Donald Trump, on the National Mall during the Rolling Thunder Inc. XXIX 'Freedom Ride,' on Sunday, May 29, 2016 in Washington. The annual bike ride which occurs over Memorial Day weekend, honors U.S. prisoners of war and missing-in-action troops, as well as raises awareness about veterans issues. (Photo By Al Drago/CQ Roll Call)

The judge, Donald Trump roared, was "very hostile." Trump was only warming up. The judge, he continued, was a "disgrace" and a "hater." "His name is Gonzalo Curiel." Trump suggested that he might be "Mexican," and complained of being "railroaded." The judge, he added, should be "ashamed" of his actions. Trump did all of this in San Diego, where the judge keeps his courtroom. Finally, Trump mused out loud that he just might win in November and he let that thought linger in the air.

This is conduct unbecoming any private person. It was a speech that questioned the integrity of the judicial process and incited an already raucous crowd to boo and jeer at the mention of the judge's name and ethnic heritage. It has been convincingly suggested that conduct such as this might amount to contempt of court. It was, after all, a clear and evident attempt at intimidation.

Let us keep this in mind: This was not some otherwise anonymous frustrated litigant giving vent to disappointment at the way a judge was handling the details of an otherwise private lawsuit with little impact beyond the interests of the parties. Rather, it was an address delivered by a presidential candidate in front of a large crowd of already angry voters. And this was a speech delivered not in Slobodan Milosevic's Yugoslavia or in Vladimir Putin's Russia. This was a speech delivered by the Republican Party's presumptive nominee for President of the United States.

Donald Trump, clearly, represents something new and very disturbing in American politics. This point has been made by countless commentators in a wide variety of venues. But in this speech it is fair to say that he crossed a threshold that few if any public figures have ever dared to approach. He revealed himself as having utter disregard for American constitutionalism.

What do I mean specifically by "constitutionalism"? Constitutionalism is grounded in respect for the Constitution but it is something larger than the text of that document. The Constitution, of course, is the cornerstone of the American nation. It contains many specific provisions of importance not only to lawyers but to all Americans. Some of these provisions are quite precise in the rules they prescribe. The president must be at least thirty-five years of age. The Vice President is given the duty of presiding over the Senate. The House of Representatives is entrusted with the authority of originating "all bills for raising Revenue." I could give other examples of the precision and craft with which the Constitution was drafted.

But the Constitution is something larger than a collection of neatly-drawn rules. And that is what I mean by constitutionalism. It is an ethos, a sense of self-restraint, and a commitment to respect and preserve the rule of law.

Constitutionalism begins with an acknowledgment that our government is one of three coordinate branches. The presidency is not supreme, nor is the legislature, nor the judiciary. Each of the three branches of government was given the capacity to "check" the other two, thereby ensuring that no one person or party amassed all of the authority in the system. The system's success, furthermore, depends on the good will of the participants and requires the building of consensus.

Constitutionalism, furthermore, demands the self-restraint of the system's participants. Richard Nixon surely challenged the integrity of the constitutional order during Watergate but even Nixon obeyed court orders and finally resigned the presidency when his crimes were unmasked.

Good will, self-restraint, and respect, in other words, are crucial to the functioning of the entire system. Presidents are not bosses. They are not mercurial CEO's or petty tyrants empowered to fire or to intimidate members of the other two branches of government. Presidents must operate under the rule of law.

At a fundamental level, Donald Trump does not grasp the significance of the American constitutional order. The same can be said for the mob that cheered his taunts. One might ask, is Trump the cause or the symptom of American constitutional decline?

It seems that he might be both. Much of American popular culture no longer regards self-restraint and playing within the rules as positive goods. Consider professional wrestling -- an activity with which Donald Trump has some personal acquaintance. It is all about the celebration of strength. There is a good guy and a bad guy. Emotions are aroused, and after gruesome acts of simulated (and sometimes real) violence, a kind of catharsis is reached.

Or consider action movies beginning, say with the Rambo movies of the mid-1980's. The establishment -- whether it be military command and control, or timid elected officials, or other weak and vacillating authority figures -- betrayed the hero or the hero's friends, and now the hero must fight not only real enemies but his own superiors.

The good will required to lubricate the system, to keep the branches of government working harmoniously, furthermore, has been under attack for a long time. One need only look at the so-called House Freedom Caucus -- far-right obstructionists who hounded the Speaker of the House John Boehner from office and who continue to prevent the House from doing much needed business.

So, certainly there are antecedents to Donald Trump. But he nevertheless represents a new magnitude of threat to the constitutional order. He rails against freedom of the press. He attacks journalists by name, he mocks them for their physical disabilities, and denounces them for the questions they ask. He engages in vile racial and ethnic stereotyping and condemns whole world religions, even threatening to bar Muslims from entering the United States. He is an enemy of constitutional stability more akin to the demagogues of 1930's Europe than anything we have seen in the United States.

And now he means to break the constitutional order altogether with his attack on the judiciary. We must not see this outburst as just another petty grievance voiced by the most singularly unfit man to run for the presidency since the nineteenth century. He is not some private litigant who is angry now that his scheme to fleece the public has been exposed. Donald Trump is a presidential candidate who has attacked the way we do constitutional business here in the United States.

Donald Trump cannot be entrusted with power. He is already abusing his position as presumptive nominee. He is temperamentally unfit to hold elective office. And all persons of good will, whether of the left or the right, should unite in opposing him.