CONSTITUTIONAL ROT (is what we got)

I pulled this off the WWW . . . the words/thoughts/ideas/opinions of Yale Law Professor Jack Balkin.,

fixing any typos or major grammar goofs and highlighting and bolding or underlining here and there.  . . .

Wednesday, June 14, 2017

Trumping the Constitution

Jack Balkin, Knight Professor of Constitutional Law

Yesterday I gave a talk at a Yale Law School Alumni luncheon in New York City.  This is a summary of my remarks. (It is not a transcript—I spoke from notes.)

* * * * *

When you think about politics these days, it’s hard to avoid focusing on Donald Trump’s remarkable rise to power and his even more remarkable presidency. It’s even harder to avoid thinking about the scandals swirling around him day to day. It’s not that I don’t think these are important. But they are not the subject of today’s talk.  In this talk, I want to look at the big picture. In this picture, Trump is merely a symptom. He is a symptom of a serious problem with our political and constitutional system.

Because Trump’s method is to provoke outrage and fluster his opponents, many people have wondered whether we are currently in some sort of constitutional crisis.  We are not. Rather, we are in a period of constitutional rot.

By “constitutional rot,” I mean the decay of features of our system that keep it a healthy republic.  Constitutional rot, which has been going on for some time, has produced our current dysfunctional politics.

Constitutional dysfunction isn’t the same thing as gridlock—after all, the three branches of government are currently controlled by the same party. Rather, it is a problem of representation. Over time, our political system has become less democratic and less republican. It is increasingly oligarchical.

By “democratic,” I mean responsive to popular will and popular opinion. By “republican,” I mean that representatives are devoted to the public good, and responsive to the interests of public as a whole—as opposed to a small group of powerful individuals and groups. When representatives are responsive not to the interests of the public in general but to a relatively small group of individuals and groups, we have oligarchy.

Republics are especially susceptible to constitutional rot

Republics are premised on pursuit of the common good. Representatives are given power for the sole purpose of pursuing the public good. The Framers understood that republics are fragile things. They are easily corrupted, and over time, they are likely to turn into oligarchies or autocracies.

When a government becomes oligarchical, leaders spend less and less time working for the public good. Instead, they spend more and more time enriching a small group of important backers that keep them in power. Because the general public feels abandoned by politicians, it gradually loses faith in the political system. This leads to the rise of demagogues, who flatter people with promises that they will make everything right again.

Oligarchy has resulted from the gradual breakdown of the party system that selects candidates and makes political parties responsive to the public, as well as from changes in how political campaigns are financed and changes in the structure of mass media. The problem has occurred in both parties, but it is especially pronounced in the Republican party, which styles itself as a populist party but is anything but. A small class of wealthy donors has disproportionate control over the Republican policy agenda. The influence of the donor class over that agenda is the best explanation of developments in Congress.

What are the deeper causes of constitutional rot? There are four interlocking features, which we might call the Four Horsemen of Constitutional Rot: (1) political polarization; (2) loss of trust in government; (3) increasing economic inequality; and (4) policy disasters, a term coined by Stephen Griffin to describe important failures in decision making by our representatives, like the Vietnam War, the Iraq War and the 2008 financial crisis.

Today, one of the most important, overarching policy failures is America’s inadequate response to globalization. The 2008 financial crisis is a special case of this larger policy failure. A democracy requires a stable, economically secure middle class to create the right incentives for government officials to pursue the public good. A globalized economy puts serious pressure on social insurance programs and on the economic stability and self-sufficiency of Americans. Political and economic elites have not navigated globalization’s changes well. They have taken pretty good care of themselves, but they have not taken care of the whole country. This inadequate response to globalization has hastened constitutional rot.

These four horsemen—polarization, loss of trust, economic inequality, and policy disaster— mutually reinforce each other.  Political scientists have pointed out that rising economic inequality exacerbates polarization, which in turn helps produce policies that exacerbate inequality.  Rising inequality and polarization also encourage loss of trust.  Polarization and oligarchy create overconfidence and insulate decision makers from necessary criticism, which makes policy disasters more likely; policy disasters, in turn, further undermine trust in government, and so on.

In an oligarchical system, regardless of its formal legal characteristics, a relatively small number of backers effectively decide who stays in power. In such a system, politicians will have strong incentives to divert resources to the relatively small group of backers who keep them in power. Not surprisingly, the power of government and resources for government are often wasted or diverted from important public goods. Our constitutional system is still formally democratic but has become more oligarchical in practice over time. As a result, the United States has wasted a great deal of money on policy disasters, it has shaped the tax code so that most of the benefits of economic growth have gone to the wealthiest Americans, and through unwise tax and fiscal policy it has diverted a lot of money that could have been used for public services and public goods to the wealthy.

Constitutional defenses against constitutional rot

Our Constitution is designed to ward off both oligarchy and demagogues and preserve a republic. For the most part, it has been quite successful in the face of a wide variety of changes and challenges. Some of these features of our constitutional system, however, don’t work very well any more in preventing oligarchical tendencies.   Separation of powers between Congress and the President is a good example. Rick Pildes and Darryl Levinson have pointed out that our system is better described as separation of parties rather than separation of powers.  When the President and Congress are from the same party, there will be little oversight of the President. The Republican Congress’s almost complete disinterest in checking Trump is a particularly worrisome example of this.

Even so, the United States still has many other republican defenses. We still have an independent judiciary, regular elections, and a free press. Many other countries that have eventually succumbed to autocracy are not so fortunate. Moreover, in the United States, from the Founding forward, lawyers have played a crucial role in defending the republic: in staffing an independent judiciary; in promoting rule of law values in the bureaucracy; and in bringing cases to protect constitutional rights and check executive overreach. Once again, many other countries that have become autocratic are not as fortunate as the United States.

Propaganda and constitutional rot

One should not underestimate the value of our free press, even as comes under assault from the Trump Administration. Reporters have not been cowed into silence as they have been in other countries.  If anything, Trump’s shenanigans and his successful manipulation of the press in 2016 have caused the press to think more deeply about its democratic responsibilities.

Even so, the power of the press to protect republican government has been weakened.   Part of this is due to economics, and part of it is due to other factors.  The American system of freedom of the press was undermined in 2016, not by censorship but by Trump’s very effective hacking of the media; he is both a master manipulator and an effective demagogue in the digital era.

The system of free press was also undermined by the production of effective propaganda both from within the United States and from outside it. These two forms of propaganda come from different sources but they reinforced each other in a perfect storm in 2016.

We now have domestic propaganda machines that have thrown their support behind Trump, and now engage in the shameless forms of propaganda which would have done Soviet-era apparatchiks proud. The only difference is that instead of propping up communism, they prop up Trump. In addition, Russia and allied groups in Eastern Europe engaged in successful propaganda campaigns during the 2016 election season, designed to enhance Trump’s chances and sow discord and confusion in the United States.

Propaganda’s effects corrode republican institutions and encourage constitutional rot. Propaganda enhances polarization; it increases distrust of political opponents, as well as those elements of government held by one’s political opponents.

Propaganda seeks to foster controversies that divide the country and enhance mutual distrust and hatred among fellow citizens. It seeks to convert politics into a particularly brutal opposition between virtuous friends and evil enemies who must be stopped at all costs and by any means necessary.

Propaganda also undermines the crucial role of deliberation and the search for truth in a democracy. Propaganda attempts to put everything in dispute, so that nothing can be established as true, and everything becomes a matter of personal opinion or partisan belief.  Because everything is a matter of opinion, one can assume that anything a political opponent says can be disregarded, and that factual claims contrary to one’s own beliefs can also be disregarded. Thus, successful propaganda builds on motivated reasoning and encourages even more motivated reasoning.  It undermines shared criteria of reasoning, good faith attempts at deliberation and mutual accommodation between political opponents in democracies.

Moreover, if people stop believing in the truth of what they read, they don’t have to think hard about political questions. Instead, they can simply make political decisions based on identity or affiliation with their political allies. Propaganda, in other words, undermines truth to destroy the concept of the public good and to encourage tribalism.

As a political system becomes increasingly oligarchical, it also becomes less equal, more polarized, and generates greater distrust, both of government in general and of political opponents. People not only lose trust in government, but in other people who disagree with them.  Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.

Another way of putting it is that in a well-functioning republic, there are friends and potential friends. Potential friends are people you currently disagree with, but might ally with in the future because both of you are devoted to the public good.  In system of constitutional rot, you have something like Carl Schmitt’s model of friends and enemies. From this perspective, Schmitt’s friend/enemy distinction is a corruption of politics, rather than its essential nature.

Trump as a symptom of constitutional rot

Loss of trust in the government and in political opponents eventually produces demagogues who attempt to take advantage of the situation. Demagogues don’t spring up unawares. People see them coming from miles away. But by this point people have so lost faith in government that they are willing to gamble on a demagogue. They hope that the demagogue can make things right again and restore past glories.

Trump is a demagogue. We might even say that he is straight out of central casting for demagogues: unruly, uncouth, mendacious, dishonest and cunning.  His rise is a symptom of constitutional rot and constitutional dysfunction. Constitutional rot not only allowed Trump to rise to power; he also has incentives to increase and exacerbate constitutional rot to stay in power. Many of his actions as president—and his media strategy—make sense from this perspective.

Polarization helps keep Trump in power, because it binds his supporters to him. He exacerbates polarization by fomenting outrage and internal division. He also confuses and distracts people, keeping them off balance and in a state of emotional upheaval. Emotional upheaval, in turn increases fear and fear enhances mutual distrust.

Trump doesn’t care if his opponents hate him, as long as his base hates and fears his political opponents more.  Because his supporters hate and fear his enemies, they are more likely to cling to him, because they are quite certain that his enemies are even worse.

Polarization also helps keeps most professional politicians in his party from abandoning him. Many Republican politicians do not trust Trump and many regard him as unqualified. But if Republican politicians turn on Trump, they will be unable to achieve anything during a period in which they control both Congress and the White House. This will infuriate the base and anger the wealthy group of donors who help keep Republicans in power. Republican politicians who oppose Trump may face primary challenges. Finally, Republican politicians can’t be sure that enough of their fellow politicians will follow them if they stick their necks out. In fact, they may provoke a civil war within the Republican Party, in which Trump’s supporters accuse them of stabbing Trump (and the party) in the back.

Many people think that the sense of upheaval that Trump has created in American politics means that he cannot keep going this way for long; and that his presidency is about to crack apart at any moment. This is a mistake. Polarization and upheaval are good for him. Crisis is his brand.

Why Trump has been a populist turncoat

If you understand the relationship between polarization and oligarchy you will understand a remarkable feature of American politics. Although Trump ran as a populist who promised to protect the working class from the depredations of globalization, as soon as he entered the White House, he reversed course. His cabinet is full of wealthy individuals, and many of his top advisors are from the very financial class that he excoriated in his campaign. Moreover, he has quickly allied himself with the most conservative elements of the Republican Party, and he has supported a health care bill that is likely to harm many working class Americans.

The Republican Party in Congress depends on its donor class to stay in power. The central goal of the Republican agenda, therefore, is to deliver benefits to the donor class, either through tax cuts, government expenditures, or deregulation.

The current health care bill passed in the House and awaiting action in the Senate is a case in point. It is actually a tax cut disguised as a health care measure. It offers a 600 billion dollar tax cut to the wealthiest Americans, which it pays for by removing some of Obamacare’s insurance protections and gradually eliminating its Medicaid expansion. The health care bill’s tax cut also sets the revenue baseline that will be used to evaluate tax reform in the next fiscal year, when the Republicans will once again use the reconciliation procedure to pass a bill that cannot be filibustered.  By locking in tax cuts in the health care bill, Republicans make tax reforms easier to accomplish in ways that are more likely to please their donors.

From the standpoint of populism, the health care bill is an utter travesty; it withdraws important benefits and protections from working class Americans to benefit the very wealthiest. But it makes perfect sense from the standpoint of oligarchy. Even so-called moderate Republicans in the Senate depend heavily on the donor class, and therefore they face enormous pressures to cave and support the bill by adopting a face-saving (but ineffectual) compromise. Something similar happened in the House. Establishment and more moderate Republicans also caved, not because the Freedom Caucus is so powerful, but because the powerful donors who shape the party’s policy agenda wanted their tax cuts. Moreover, because the Senate bill is likely to be so unpopular among the general public, Senate Republicans are drafting it in secret, with no public hearings.  The actual text won’t be revealed until shortly before the vote is taken.  After all, as one Senate aide explained, the Republicans aren’t stupid. They know that the bill is toxic. But it pleases their donors, and so they will sacrifice any pretense of procedural regularity to achieve their goals.

The health care bill is a prime example of constitutional rot. Our nominally republican system of government has become so infected by oligarchy that the party in power has no scruples about acting in an entirely shameless manner, as long as the interests of its masters are well-served.

Which brings us back to Trump’s about face. Trump ran as a populist but he now governs as a sellout. This is not an unusual phenomenon among populist revolutionaries. Once they take power, they often quickly discard the people who put them in power; they substitute new backers who are easier to deal with and/or pay off to stay in power.

Trump is a huckster, with few actual ideological commitments. So he has few qualms about changing course. It is much easier for Trump to ally himself with Congressional Republicans than to attempt a seriously populist legislative agenda, which would be very costly, and would be opposed by members of his own party. Working across the aisle with Democrats is unlikely because of the very polarization Trump has helped foster. Democrats do not trust him and working with them might lead his Republican allies in Congress to abandon him.  And he needs loyalty among Republicans to fend off the scandals swirling around him.

Thus, ironically, Trump’s very strategies for gaining power—dividing the country and fomenting mutual hatred—mean that he should align his policies with members of his own party against the Democrats. That means that he will not govern as an economic populist, although his rhetoric will remain rabidly populist. But there will be little substance behind it. It is far easier to align with Congressional Republicans, who will protect him from Democrats who despise him and want to topple him with scandals.

Having cast his lot with Congressional Republicans, that means that he too, will serve the same donor class. Trump may have run a populist campaign, but now that he is in power, he has pretty much embraced oligarchy. His populism is mostly sloganeering—it is a Potemkin village.  We might say that it takes a Potemkin village to make a Trump presidency.

The future

That’s the bad news. Here is the good news.

First, Trump represents the end of a cycle of politics rather than the future of politics.  American politics is divided into regimes in which one party’s agenda tends to dominate. Eventually that party runs out of steam, its coalition fragments, its political agenda becomes irrelevant and inadequate to current problems, and the evolution of the political system undermines it.

Trump is the last president in the Reagan regime. During this period, the dominant party was the Republican Party; the regime’s policy agenda was tax cuts and deregulation above all; its coalition was white voters plus professionals and wealthy business elites; and it fostered and exacerbated the polarization of political parties that began with the 1968 election.

The Reagan regime’s electoral coalition is falling apart; from 1992 to 2016, the Republican Party won the presidential popular vote only once; twice the party has had to depend on an electoral college victory. This is a sign of weakness, not strength.

The regime is crumbling; Trump is the last Reaganite. In the next few election cycles, a new regime will begin, offering the possibility of a new beginning in American politics.

Second, despite the influx of propaganda and the decline of separation of powers in restraining the President, many features of the constitutional system remain robust.  We still have an independent judiciary, a free press, and regular elections.

Third, we should not confuse what’s been happening in the past several months with constitutional crisis. Constitutional crisis means that the Constitution is no longer able to keep disagreement within politics; as a result people go outside the law and/or turn to violence or insurrection. However unpleasant our politics may be, all of our current struggles are still within politics.

Fourth, we are headed for a big showdown in electoral politics over the next several election cycles.  One of the two parties will have to find a way to restore trust in government and renounce oligarchical politics.  The next decade will tell the tale. I remain hopeful.

Even if Trump left office tomorrow, and were replaced with Mike Pence, there would still have to be a reckoning over these issues. Indeed, even if Hillary Clinton had won the election, there would still have to be a reckoning—perhaps even more urgently if Clinton won, because she ran a campaign that paid so little attention to populist concerns. The United States has failed to reconcile globalization with democracy.  It has not accommodated the demands of republican government to global economic change. This is a serious policy failure, and it has contributed to constitutional rot. The bill for this neglect is coming due. We will have to pay it.

The central question is how to preserve republican government in the face of a changing global  economy.  Trump is a merely symptom of the larger problem. So my advice to you is: keep your eye on the larger issue, and not on the President’s latest tweets.

I believe we will get through this, together. But we have to pay attention to the real sources of constitutional dysfunction, and preserve our republic. In this task, lawyers like the people in this room today have an important role to play in defending the Constitution and the rule of law. Thank you very much.

Monday, May 15, 2017

Constitutional Rot and Constitutional Crisis


No one could accuse Donald Trump’s presidency of being boring.  The first hundred days have careened wildly through scandals, revelations, outrages, and fracturing of political norms. Every time Trump does something remarkable, like the recent firing of Director James Comey, pundits ask whether we are in a constitutional crisis.

However, as I noted in a previous post, constitutional crisis refers to something different: A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task of keeping disagreement within the boundaries of ordinary politics instead of breaking down into lawlessness, anarchy, violence, or civil war.

As Sandy Levinson and I have explained, there are three types of constitutional crises. In Type One crises, political leaders announce that they will no longer abide by the Constitution or laws (for example, because of emergency), or they openly flout judicial orders directed at them. In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster. In Type Three crises, political disagreement about the Constitution becomes so intense that the struggle goes beyond the bounds of ordinary politics. People take to the streets; there are riots; the military is called out to restore order (or suppress dissent); political figures threaten violence or engage in political violence; or parts of the country revolt and/or attempt to secede,

Constitutional crisis is very rare, and nothing that has yet happened in the Trump Administration — including the Comey firing– comes even close. But people are right to think that something important– and dangerous–is happening to our political institutions.  That is why, I think, people so often reach for the term “constitutional crisis” to describe it.

In this essay, I want to introduce a new idea to explain our current predicament. I will distinguish constitutional crisis, which is very rare, from a different phenomenon, which I think better describes what is happening in the United States today. This is the idea of constitutional rot.

Although the Comey firing is not an example of constitutional crisis, it is an example of constitutional rot.  For this reason, people are right to worry about it.

Constitutional Rot: Decay in the Norms and Institutions that Support Democracy

What is the difference between constitutional crisis and constitutional rot? Constitutional crisis could, in theory, happen to any constitution; constitutional rot is a specific malady of constitutions of representative democracies—that is, republics. Constitutional crisis occurs during relatively brief periods of time; constitutional rot is a degradation of constitutional norms that may operate over long periods of time.

What is constitutional rot? Democratic constitutions depend on more than obedience to law. They depend on well-functioning institutions that balance and check power and ambition. These include not only public institutions but institutions of civil society like the press.

Next, democracies depend on the public’s trust that government officials will exercise power in the public interest and not for their own personal benefit or for the benefit of private interests and cronies.

Democracies also depend on forbearance on the part of public officials in their assertions of power, and obedience to norms of fair political competition. These norms prevent ambitious politicians from overreaching and undermining public trust. These norms help to promote cooperation between political opponents and factions even when they disagree strongly about how to govern the country. Finally, these norms prevent politicians from privileging short term political gains over long term injuries to the health of the constitutional system.

When politicians disregard norms of fair political competition, undermine public trust, and repeatedly overreach by using constitutional hardball to rig the system in their favor, they cause the system of democratic (and republican) constitutionalism to decay. This is the phenomenon of constitutional rot.

The idea of constitutional rot is very old. The political theory of republicanism familiar to Constitution’s founders asserted that republics were delicate institutions that were always susceptible to decay and corruption over time.   Time was the great enemy of republics, because ever-changing circumstances, and the driving force of people’s ambitions and desire for power would open the door to—if not encourage—multiple forms of institutional corruption. In modern democratic republics, this institutional corruption is a version of constitutional rot.

The Dangers of Constitutional Rot

Constitutional rot creates two serious risks to democratic politics. First, by playing too much hardball, demonizing their opposition, and attempting to crush those who stand in their way, political actors risk increasing and widening cycles of retribution from their opponents. This may lead to deadlock and a political system that is increasingly unable to govern effectively.

Second, undermining or destroying norms of political fair play and using hardball tactics to preempt political competition may produce a gradual descent into authoritarian or autocratic politics.  Such states may preserve the empty form of representative democracy—they may have written constitutions and regular elections; and they may adhere for the most part to the rule of law formalities. But power is increasingly concentrated and unaccountable; the press, civil society, political opponents, civil servants and the judiciary no longer serve as independent checks on the power of the people in charge. Indeed, political leaders may systematically seek to weaken or co-opt each of these possible sources of opposition. These features of constitutional rot are likely to lead to increasing corruption, overreaching, and suppression of basic liberties. Regimes that slide into autocracy or authoritarianism may not suffer constitutional crises in the sense that they are politically stable and successfully avoid civil unrest or civil war. But they have failed as democratic constitutional systems; increasingly they are democracies in name only.

Obviously these two risks—deadlock and descent into autocracy—are related.  A system that has become so deadlocked that politics seems futile may lead to the election of demagogues and authoritarian minded politicians who undermine democratic norms and lead a nation toward autocracy.

There are important literatures emerging on these questions in political science, including the study of hybrid regimes that split the difference between autocracy and democracy, and the phenomenon of democratic backsliding, which we have seen in places like Hungary and Turkey. This January, Tom Ginsburg and Aziz Huq, writing on this blog, offered an account of what they call constitutional retrogression.  (This is an opening statement of a larger project they are working on, How to Lose a Constitutional Democracy.) All of these ideas are related to what I am calling constitutional rot.

Lest I be misunderstood, I am not claiming that the United States has already slid into autocracy, or that we have already produced anything like the democratic backsliding we see in Hungary or Turkey.  Our institutions remain far more robust. And indeed, as the incurable optimist that I am, I believe that our democratic institutions are resilient enough to push back against the depredations of a demagogue like Trump. But what many Americans increasingly sense, I think, is that our democratic institutions are decaying and/or are under assault.  If nothing is done to halt the decay, we will eventually be in very big trouble.

III. How Constitutional Rot Relates to Constitutional Crisis

What is the relationship between constitutional crisis and constitutional rot?  The two phenomena are not identical. As noted above, the question of constitutional crisis concerns whether the constitutional system can perform its central function of making politics possible—keeping struggles for power within politics and preventing violence, insurrection, and civil war.  The three types of constitutional crises listed above can occur in many different kinds of systems, whether democratic or not.  Constitutional rot, by contrast, is a feature of constitutional democracies and republics—it concerns how these systems degrade into deadlock and despair on the one hand, or into authoritarianism and autocracy on the other.

 There is another important distinction. The idea of “crisis” refers to a crucial moment in time—usually rather brief in duration—in which the constitutional system will adequately respond to a challenge, be undermined, or be successfully reconstituted.  Constitutional rot, by contrast, is often a long and slow process of change and debilitation, which may be the work of many hands over many years.  Crisis seems to come upon us suddenly—it focuses everyone’s attention on the spectacle.  Rot develops slowly and gradually and may be imperceptible in its earliest stages; sometimes features of constitutional rot are obvious, but sometimes they operate quietly in the background.

Even so, the two phenomena are connected.  Continued constitutional rot in a democratic system may be the harbinger of a constitutional crisis years later.  In his 2015 book, Broken Trust: Dysfunctional Government and Constitutional Reform, Steven Griffin has argued that the most important source of constitutional dysfunction in the United States is increasing loss of public trust among citizens. This loss of trust did not occur overnight; it is the result of decades of fateful decisions by political actors seeking short-term political success, stoking political polarization to win elections, and playing political hardball to lock in greater power and reduced accountability.  Griffin regards this as a sort of “slow-motion” constitutional crisis. I would say that it is a description of constitutional rot.

Constitutional rot in a democracy need not always lead to constitutional crisis. It might simply lead to a less just and less democratic system of government. This is what happens in slides to autocracy. Nevertheless, constitutional rot, if unchecked, can lead to a constitutional crisis, just as placing increasing weight on a rotten tree branch can eventually cause it to snap. Indeed, constitutional rot can lead to any one of the three types of constitutional crisis that Levinson and I described.

Politicians may publicly reject constitutional obligations. (Type One). The system may suffer severe crises of governance in which the state is unable to perform basic functions (Type Two).  Finally, loss of public trust combined with the rise of political opportunists and demagogues who stoke anger and resentment in their followers (or in their opponents) may produce cycles of political violence, or even insurrection (Type Three).

Constitutional rot, in other words, can eventually cause a democratic constitution to fail both as a *democratic* constitution—because the system degenerates into autocracy; and as a democratic *constitution*— because the constitution no longer can keep political disagreement within the bounds of law and peaceful political dispute.

My view is that we are not currently in a period of constitutional crisis. But for some time we have been in a period of increasing constitutional rot.  The election of a demagogue like Trump is evidence that our institutions have decayed, and judging by his presidential campaign and his first hundred days in office, Trump promises to accelerate the corruption.

Understanding the Comey Firing in Terms of Constitutional Rot

Similarly, Trump’s firing of James Comey was not in itself a constitutional crisis, because the President legally has the authority to fire the FBI Director. It happened once before, when Bill Clinton fired Director William Sessions because of ethics violations. Comey’s firing is not a constitutional crisis. Trump has not asserted (for example) that he is deliberately acting outside the Constitution.

Rather, Comey’s firing is a symptom of constitutional rot, and people have been employing the language of constitutional crisis to describe it.  This problem, I think, is related to what Steven Griffin meant when he suggested that we are in a “slow motion” constitutional crisis, one ultimately caused by lack of public trust in government.

Many Americans no longer trust government to act in the public interest, and many politicians act in ways that encourage their lack of trust. President Trump has violated many preexisting political norms, and our increasingly polarized politics has caused the nation’s two political parties to push the envelope through various forms of constitutional hardball.  When people in power no longer hesitate to use their power to its fullest extent, and when norms of fair political competition are pushed aside, the viability of our democratic constitutional system is threatened.

The real concern about James Comey’s firing as FBI Director is best understood in terms of constitutional rot. The FBI director serves for a 10 year term that is designed to span across presidential terms in office. The goal is to insulate the head of the nation’s investigative service from political pressure by politicians—and especially the President, who always retains the power to remove the director. Thus, the technical legal rule that the President can fire the director is accompanied by a more amorphous democratic norm; namely, the norm that the president should hesitate to remove a director except for very good reasons, and that the President should not remove a director in circumstances in which it might appear that the President is pressuring the FBI to compromise its investigative authority for political reasons.

The Comey firing violates this democratic norm. The circumstances of the firing, as well as Trump’s own shifting explanations for it, suggest that Trump acted out of corrupt motives. The concern is that Trump fired Comey because Trump sought to hinder ongoing investigations into connections between the 2016 Trump presidential campaign and the Russian government,  or between criminal enterprises (like money laundering) involving Russian oligarchs and Trump’s businesses.  Democratic norms exist to prevent even the appearance of political corruption. The worry is that the norm was violated in circumstances that scream conflict of interest and create the appearance of corrupt motivations—that Trump used his powers as President to obstruct an ongoing criminal investigation. If one could prove Trump’s intent to obstruct the FBI’s investigations, this would constitute a violation of federal obstruction of justice laws, and very likely constitute an impeachable offense to boot.

Loss of trust brought Trump to power and loss of trust keeps him in power despite his incompetence and venality.  Loss of trust has exacerbated political polarization– members of each party increasingly view the other as mortal enemies.  Polarization, in turn, sows increasing distrust, continuing the cycle.  Because of extreme polarization, Congressional Republicans feel they can’t afford to abandon Trump, even though many of them understand that he is a demagogue and unfit to be President. If they stand up to Trump, they fear that their base will punish them, and that Democrats will take advantage of them. If they spend time investigating or blocking Trump, they also fear that their policy goals will be derailed and their donors will punish them as well.  Hence Republicans keep their mouths shut and continue to enable Trump.  The inability to act caused by polarization is a form of institutional rot, which creates a space for Trump to continue to violate constitutional norms.

* * * * *

Constitutional rot does not occur all at once; it is a gradual process. The constitutional system in the United States may well be able to survive even Donald Trump’s misadventures. But Trump’s demagogic rise, his conduct of the presidency, and the inability (or unwillingness) of members of Congress to stop him, are signs that all is not well in American constitutional democracy. To paraphrase Shakespeare, something is rotten in the state of America. The limbs of the great tree of state are decaying. At some point, if we put too much weight on our democratic institutions, they will snap. Then we really will be in a constitutional crisis.

The language of constitutional rot is a better way to understand people’s recurrent use of “constitutional crisis” in describing the Trump Administration. There is currently no actual constitutional crisis in the United States. But if constitutional rot continues, we are living on borrowed time.

[UPDATE: For more on the problem of constitutional rot, see my June 14th speech to the Yale Law School Alums, Trumping the Constitution.]





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