Even After Trump Loses, Constitutional Democracy in the United States Will Still Be in Peril

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Posted in: Constitutional Law

The political discussion in the United States has become increasingly panicked, with people on the left and the right expressing concerns about a possible Trump presidency. These concerns are not, however, the standard sort of disagreements over the big issues of economics, foreign policy, and so on. The fear is over something much more fundamental than mere policy differences.

People are genuinely and understandably concerned about Donald Trump’s flirtations with policies and tactics that are common features of fascist dictatorships. Few people are willing thus far to call Trump an actual fascist, but as one philosophy professor titled a recent op-ed piece: “No, He’s Not Hitler. And Yet …

The most telling points in that op-ed were that Trump seems not to care about “the grave significance of the comparisons of him to Hitler,” along with “the fact that the comparison has any traction at all,” and most importantly “that the man at its center is not actively seeking to prove it wrong, [which] shows how severe the current crisis is, and hints at how dark the future might get.”

Indeed. We often forget, in the midst of Trump’s endless blustering and tweeted insults, that here is a man who is famously thin-skinned and who almost cannot resist responding to what he believes to be unfair attacks.

For example, in response to claims that he is a racist, Trump infamously responded with the cringe-inducing boast: “Look at my African-American over here.” As with everything else, when Trump decides to engage in tokenism, he does it with no finesse whatsoever.

Yet that hypersensitive man, the same man who aggressively defended his “manhood” in a Republican debate in response to insinuations based on the size of his hands, cannot bother to spend much time distinguishing himself from history’s most reviled totalitarians. When a Republican bigwig like Meg Whitman directly compares him to Hitler and Mussolini, Trump merely stays true to form and attacks the messenger.

Trump and the End of the U.S. Political System As We’ve Known It

Earlier this month, in “Is This the Beginning of the End of Constitutional Democracy in the U.S.?” I weighed in on the question of whether a Trump presidency could spell the end of our stable republican form of democratic government under the Constitution. Could we, if Trump were to win, witness the elimination or twisting of the constitutional limits on the power of the government that allow everyone to live under the rule of law?

In a related post on the Dorf on Law blog, I described how constitutional democracy might end in the United States. It would not necessarily be accompanied by an announcement that Trump has suspended the Constitution and canceled all future elections. (At the same time, however, it is disturbingly easy to imagine Trump saying such things.) But it could amount to the same thing.

Other scholars have weighed in on Trump’s threat to the rule of law as well, and one conservative law professor helpfully laid out the various ways in which Trump could push his powers to the limits and beyond, painting a picture that looked disturbingly like an authoritarian state.

Trump certainly represents the largest threat to our constitutional order that we have witnessed in several generations. Even so, I continue to think that Trump will lose the upcoming election, and that he will lose it rather decisively. He is also likely to drag down large numbers of Republican candidates with him.

But even if 2016 is not the year in which constitutional democracy effectively dies in the United States, the question is whether this was a one-off situation, a frightening deviation from our norms that will prove to be an unfortunate—yet thankfully brief—blot on our history. Or could it be the harbinger of worse to come?

The Post-Trump World of Anti-Constitutional Possibilities

As I noted in my June 2 Verdict column, the pain of the Great Recession raised serious fears that the United States would tip into political extremism. What makes Trump’s candidacy especially troubling, therefore, is that he took a major political party by storm—very much against the wishes of that party’s leaders—at a time when the economy has been (slowly) recovering.

The threat that Trump represents, then, is not a matter of people flailing about in search of a demagogic leader when the world seems to be completely breaking down. Instead, he is exploiting the long-term economic stagnation that creates especially fertile ground for xenophobes and those who promise to take people back to a mythic past, to make a country great again.

Thankfully, most people—even many people with genuine economic grievances—do not fall for the simplistic hate mongering of such self-styled saviors. Even so, as it becomes less and less realistic for people to hope for a better future, the political atmosphere becomes more and more receptive to extremism.

European countries are following similar patterns but to a more extreme degree thus far, with far-right anti-immigrant parties gaining strength even in countries that were long thought to be pillars of constitutionalism and the liberalization of modern societies. People like Trump, for all of their individual pathologies, are a product of a poisoned social environment in which hopelessness leads to scapegoating of “others” who are easy targets for hatred.

In short, we are now seeing the first serious outpouring of anger and fear that has its roots in the last generation or more of economic stagnation for the middle and lower classes. Even if Trump loses in 2016, that anger and fear will only become more powerful unless the situation changes significantly. Will it?

Will Republicans’ Hatred of Hillary Clinton Guarantee a Future That Will Make Trump’s Insanity Seem Mild?

As I argued above, the long-term health of the economy—not just economic averages that are skewed upward by increasing income inequality, but the actual lived experience of middle-class (and formerly middle class) people—is closely tied to the stability of the political and legal order in the U.S. and elsewhere. We thus need to know whether President Hillary Clinton will preside over an economy that starts to move in the right direction. Will people be able to say, four years from now, that they are better off than they were today?

One major concern for Clinton is that the Republicans have spent nearly the entire Obama presidency doing everything possible to undermine the economy. They guaranteed that the 2009-10 stimulus bill would be too small and that its benefits would be skewed toward wealthier people. They have fought every proposal for expansionary fiscal policy since then, and they have bullied the Federal Reserve into a prematurely anti-expansionary posture.

The immediate danger is that the economy might soon slip into recession. Even with good economic policies, after all, recessions do happen, and the economy has been expanding for seven years, which is longer than most recoveries last. This means that we might soon have to respond to an economic downturn.

Would the Republicans be any more willing to cooperate with the next President Clinton than with President Obama? Even many Republicans who have said that they reject what Trump represents say that they cannot ever imagine supporting Hillary Clinton, which tells us quite a bit about their level of hatred for both Hillary and Bill Clinton.

House Speaker Paul Ryan, for example, recently admitted that Trump’s attacks on a federal judge were the textbook definition of racism. However, Ryan immediately added: “But do I believe that Hillary Clinton is the answer? No, I do not.” Think about that statement for a moment. Republicans like Ryan do not view Hillary Clinton as a preferable alternative even to an unashamed racist becoming president. Amazing.

This hardly gives one confidence that the Republicans will try to cooperate with the new president. And if their sole concern is immediate electoral success, why should they? They won majorities in the House in 2010 and the Senate in 2014, with big gains in state governments along the way, by running against the weak economy that they themselves had prevented from prospering. Why would they not again decide to undermine the economy for electoral gain, especially during the presidency of a woman whom they have demonized for decades?

One hopes that the answer to that question is simply that Republicans will decide that the American people have suffered enough. And if that is not sufficient, Republicans could at least stop to consider just how bad things could become if the country experiences another recession or even merely manages to grind along with slow growth that makes only the wealthiest Republicans better off. If Trump’s voters seem extreme now, how much worse could they become after several more years of the same bad economic news?

Yet it is essential to remember that the Republicans’ majority in the House is now essentially hard-wired, which means that the Republicans who will remain in Washington to deal with Clinton will be the ones whose voting bases are the most anti-Democratic, anti-Obama, and anti-Clinton. These are the true believers who were all too ready to jump in bed with Donald Trump (or his equally extreme opponent, Ted Cruz) in the belief that Republicans had not been sufficiently opposed to President Obama.

There will be a telling moment early in Hillary Clinton’s presidency, a time when we will learn whether the remaining Republicans will have changed their approach to politics and policy. As I described in a Verdict column last Fall, in March 2017—less than two months into Hillary Clinton’s first Administration—we will experience the next go-round on our national fiscal Groundhog Day, in which Congress will again need to address the debt ceiling.

The debt ceiling is currently suspended, which is how it should remain. But Congress will need to repeal, re-suspend, or at least increase the debt ceiling in the months immediately after the debt ceiling comes back into effect early next year, or else there will be another episode in which everyone waits with bated breath to see whether the country will for the first time default on its obligations.

The evidence so far is not promising. Even though Paul Ryan rose to the speakership explicitly to mollify the most anti-government ideologues in the party’s far-right bloc, it has become clear that he is no more successful at inducing them to adopt realistic policies than his predecessor was. He has not even been able to get them to adopt a simple budget. For many of Ryan’s troops, moreover, refusing to increase the debt ceiling is a non-negotiable blood oath.

In short, electing Hillary Clinton will mean that the country has avoided its current flirtation with a takeover by an authoritarian demagogue. That is obviously an essential first step. Yet unless things start to meaningfully improve in the country and the world, we could soon see something worse.

Unfortunately, the most likely case from 2017 onward would appear to be a Clinton presidency that represents more of the same Republican-inspired gridlock that we have seen since the 2010 midterm elections. The worst-case would be a full-on debt crisis and economic collapse.

But because even the non-crisis version of that future would allow the threat of fascism to grow more than it already has, we need desperately to find a way actually to make people’s lives better. Hillary Clinton has some centrist and center-left policies that would move things in the right direction, but unless Republicans have an epiphany very soon, that might not be enough to prevent a genuine catastrophe.