Wednesday, May 04, 2016
Trump and Constitutional Law
Like most members of my class, I abhor the possibility, now much stronger, that Donald Trump will become president of the United States. I tend to be an ambivalent technocrat, and so the notion of a blundering, populist, somewhat authoritarian president strikes me as frightening, if also as somewhat in the nature of just desserts for the mandarin class and its frequent distance from, if not borderline contempt for, substantial segments of the American population. I tend to think that he will be somewhat less frightening in reality than in prospect. Campaigning and governing are two separate activities, and even cult-of-personality campaigners must eventually leave many duties to an administration, some of whose senior officers will be more technocratic than Trump himself and much of which will be overseen by an entrenched civil service. Nevertheless, I do not relish the prospect of his presidency. A name like "New Haven" will take on a more literal and ironic meaning, I should think, if Trump is elected.
I am generally uninterested in law professors' politics, and quite uninterested in discussing my own, and so making such a forthright political statement is not my primary goal here. I declare my opposition to his candidacy simply as background for a more academic point, which is that a Trump presidency would be a goldmine for interest in and study of constitutional law. If he should win the presidency, I venture the following predictions:
1) There will be an immense rebirth of interest in the salutary aspects of federalism and separation of powers--on the ground, in popular conversation, and certainly in legal academic work. "Rights" talk, although never non-existent, will take a backseat to "powers" and "structure" talk. Those liberal federalists, like Heather Gerken, whose work has been admired but perhaps seen as somewhat eccentric from the main direction of constitutional study, will be joined by many new adherents, and there will be considerable conservative-liberal crossover in those fields.
2) Sentiment about congressional gridlock, and especially about congressional gridlock as a justification for creative and unilateral executive action, will shift overnight. Mann and Ornstein will receive many new fans, albeit those new readers will, in effect, mentally convert all the negative adjectives in that book to positive ones. Lawyers and legal scholars who minimized or celebrated President Obama's fairly aggressive use of presidential power will similarly reverse polarity almost immediately.
3) All this is fairly predictable. More interesting to me will be how self-conscious or un-self-conscious the reversal will be. Many legal scholars are both doctrinally grounded--not in the sense that they write a lot about doctrine, but in the sense that their work is grounded on law as a doctrinal tool for action, not on a deeper sense of or attachment to theory--and politically oriented in their work. For such scholars--and perhaps for most of us--things like federalism and separation of powers are purely instrumental tools, to be used as the occasion demands. Given that, I expect that a good deal of this new interest in the value of federalism, separation of powers, and gridlock will be un-self-conscious at first: it will neither acknowledge nor discuss the polarity shift involved. Since some of these scholars will not have written much about structural constitutional law before, they will not have a body of their own written work to fight against, so their shift will be less dramatic, although no less real. Others will barely cite what they have written on past occasions, or distinguish it on questionable grounds.
4) But this will change over time. Constitutional and legal theory change by a process of crude reflective equilibrium. Those of us working in law and religion have had a ringside seat to that phenomenon over the past few years: a slow shift away from an earlier equilibrium happens first more or less silently; then cases with a different set of facts or plaintiffs bring strong disagreement at the level of outcome, and inspire doctrinal criticism; and eventually those criticisms beget new theoretical structures of justification and a shift in the overall center of both theoretical and doctrinal thought. Just so, the newfound interest in federalism and separation of powers as positive qualities will eventually beget new theories to justify and consolidate the shift away from the current center of gravity. How much this happens, and how long it lasts, will depend in large measure on whether Trump (if he wins) secures a second term, and on how much Trump-as-president resembles Trump-as-candidate, and whether both his own inclinations and permanent institutional structures make him less of a populist or authoritarian than people currently fear.
5) As a partial aside, some polling evidence suggests that things like campus activism have contributed somewhat to success of Trump's candidacy. So one possible conclusion will be that the current round of campus and off-campus activism will, unlike most activist movements, have a significant and immediate effect on social change--albeit the effect, with delicious irony, will be the opposite of what most of the activists want. One imagines that the result, over time, will be varied: some activists will question or moderate their attachment to such movements, others will double down on their activism, some college presidents and other establishment figures will lose patience with those movements while others will give them freer rein, and there will be an overall upsurge in polarization around these movements. Students of social movements and social change will have plenty of new data to work with.
Prof. Horowitz's predictions seem to me to be quite apt. I look forward to all the new and exciting law review articles about the genius of the founders in creating a federal structure, with a limited federal government, and separation of powers.
Posted by: Douglas Levene | May 5, 2016 11:03:21 PM
Paul, I'm in the never Trump camp, I would definitely miss savoring these ironies.
Posted by: David Bernstein | May 11, 2016 9:58:00 AM