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.

  • Maple Ruckus

    With the blatant election fraud and voter suppression executed by the DNC and the Clinton campaign, I wouldn’t be surprised if Trump wins. You want to try and scare the American public into voting for Hillary but that isn’t going to happen. Trump my be an egotistical moron but his personal faults pale in comparison to Hillary’s. That being said, Bernie Sanders won this primary. If he doesn’t run as a third party candidate or if Hillary doesn’t get indicted, I say the millions of people disenfranchised by the corporate parties should stop paying taxes. No taxation without representation!

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  • Garry Doolittle

    I am amazed that a serious academic would forego all rational objectivity and pen such a blatantly agenda-driven propaganda piece for the ideological “left” in this country. The authoritarian “right” and the authoritarian “left” are two near or proximal points on the same circle. Clinton and Trump may fall into this camp, but neither of these deeply-flawed individuals represent the set of ideals or national ethos that has fueled our system of government since its inception. GW has an avowed old-European socialist faculty member teaching a distorted view of (U.S.) Constitutional law.

    • jereuter

      General tenor of your comment matches what I was thinking as I read this chicken-little article. Reminded me of a three year old scooting around and splashing in a full bathtub.

    • LestertheNightfly

      I particularly agree with your last sentence.

  • I would suggest that Neil take a look at the Constitution upheld by our present Democrat in office and politicians in office on both sides. Take for example the “ECOSYSTEM RESTORATION POLICY” notice of final directive on April 27th, 2016 in the federal register. Directive to bring all forest back to Pre-Eropean times and the authorization to go as far as to do total closure to all in the text of being able to use a fence if needed. California Bill 637 signed into law on October 9th, 2015 which is in direct conflict with the 1872 mining law and the intent of Congress. California a decisively democratic state has said that the Supremacy Clause of the US constitution is not allowed within this 9th circuit court case. Judges even ignore the law — • US District Court rules against Oregon miners

    On March 25, 2016, Judge Mark Clarke (Obama Backed) ruled the State of Oregon the 1872 Mining Act because there is no language in the Mining Act or
    elsewhere that requires mining to be profitable, and miners are welcome
    to continue mining with non-motorized equipment. Castle v Womble, 19 LD 455
    (1894), where the Secretary of the Interior held that to hold a valid mining claim: “Where minerals
    have been found and the evidence is of such a character that a person of
    ordinary prudence would be justified in the further expenditure of his
    labor and means, with a reasonable prospect of success, in developing a
    valuable mine, the requirements of the statute have been met. Minerals on locatable federal land including National Forest precious mineral removal has to be authorized by the Bureau of Land Management through filing of a claim. This is just a few of the counter US Constitution and Laws of The Land that they choose to ignore. Look them up, they are available on any computer search. Neil is worried about the non Democratic Party politicians ignoring or suspending the Constitution. That is a laugh…

  • LestertheNightfly

    This article was so much blather it was too laborious to read. I will tell you this, tho’: you can be sure if Hillary does win, it will be as simple as it was last time: Cleveland & Columbus, OH; Erie, Pittsburg, Scranton, Norristown & Philadelphia, PA; Arlington, Manassas & Hampton, VA; and Ft. Lauderdale, Miami, Palm Beach & Orlando/Kissimmee, FL. Generally speaking, the rest of the U.S. voting map will look like it did in 2012. Take note, Donald Trump. This is where you need to be.

  • Glock27a

    We must now face terrorist from abroad as well as those implanted in this nation and now, now we have to endure the speculations presented here as a covert/overt terrorist attack of the mind. You propagate a division of the minds of people. Despite this you certainly enjoy the rights of the 1st amendment. Guessing at what will happen is not a very grown up idea, especially from an academic you pose to be. As Americans we need positive outcomes from the intelligentsia of our nation. Just recently an idiot named Jane Seymore (sp) posted that all American liberals will burn red light bulbs on their front porch to announce that they were a gun free home. How smart is that I ask? The same can be posited for this article.

  • JFD

    Stick to the law since economics and American political cause and effect seems to be well outside your area of knowledgeable expertise.

  • Donald Holland

    It is alleged that Hitler said if you tell a lie enough, it will be believed, so what about the lie that the US is a democracy?

  • Georgia Freeman

    I do not trust this author. America is a Constitutional Republic not a Constitutional Democracy. The second you call the American political system a democracy you have proven that you have a specific agenda and everything else you say is tainted by ideology and either stupidity or outright lies.