Trump is an annoying symptom of constitutional rot
by Rob Howard
Like virtually everyone who is close to me, I have mourned the election of President Donald Trump. I have been offended and alarmed by his behavior. And I have to admit, I have felt that Trump is a big problem.
He is not. He is a symptom of a much larger problem. One that has been growing since at least the 1968 election. I didn’t reach this conclusion by myself, but by watching a segment of The Last Word with Lawrence O’Donnell on MSNBC.
The segment had as its guest Jack Balkin, Yale Law School’s Knight Professor of Constitutional Law and the First Amendment. He was elaborating on two recent essays he wrote about “constitutional crisis” and “constitutional rot”. The two essays were the clearest, most common sense approach to what is happening to our constitutional republican form of government that I have seen.
We have all been chasing around thinking that there is a constitutional crisis brewing. We cite Trump’s two executive orders on travel from Muslim countries to the U.S. and the firing of FBI Director James Comey. We watch each development in the ongoing investigation into whether Russian interference in our election was helped along by collusion between Russians and the Trump campaign.
Balkin clarifies what a constitutional crisis is, saying, “A constitutional crisis occurs when there is a serious danger that the Constitution is about to fail at its central task. The central task of constitutions is to keep disagreement within the boundaries of ordinary politics rather than breaking down into anarchy, violence or civil war.”
He writes that constitutional crises come in three types.
“In Type One crises, politicians (or military officials) publicly announce that they won't obey the Constitution.” For example, if President Nixon had defied the Supreme Court’s order to release the tapes of his conversations, that would have been a constitutional crisis. President Trump, either to his credit or to having calmer advisors, has not defied any court order.
“Second, the Constitution might fail because it keeps political actors from preventing a looming disaster.” These situations are rare, and do not appear to be occurring right now.
“Third, a constitution might fail because lots of people refuse to obey it—there are riots in the streets, states secede from the Union, the army refuses to obey civilian control, and so on.” The Civil War was an example of this, and we are nowhere near a civil war right now.
Rather, Balkin thinks, and I agree, that we are in a long period of what he calls “constitutional rot”. He clarifies what he means: “By ‘constitutional rot’, I mean decay in the features of our system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has produced our current dysfunctional politics.”
He says there are four interlocking features of constitutional rot. They are: “(1) political polarization; (2) loss of trust in government; (3) increasing economic inequality; and (4) policy disasters….” Rot often leads to electing demagogues.
We can certainly see all that in our current situation. I have never seen the government more polarized. I think that polarization has led to a loss of trust in government. At the start of its new session, Congress’ approval rating was 19 percent favorable.
No one can deny that we have increasing economic inequality, exacerbated by the 2008 recession. Policy disasters, according to Balkin, include the Vietnam War, the Iraq War, the 2008 financial crisis and more broadly, the government’s terrible reaction to globalization.
He writes, “If economic inequality gets too pronounced, the wealthiest tend to grab disproportionate political power, and they will use it to further entrench and enrich themselves. A globalized economy threatens a broad-based, stable and economically secure middle class because it puts serious pressure on social insurance programs and on the economic stability and self-sufficiency of Americans.”
Balkin ends on an optimistic note. He thinks the Republican party is on its way out, citing their failure to win a majority in every presidential election between 1992 and 2016 except one. He also is encouraged by the fact we still have an independent judiciary and a free press.
Donald Trump is still annoying, alarming and a demagogue, but he is a symptom of constitutional rot. Balkin’s essay on rot is the most common sense explanation of what is going wrong that I have encountered. I recommend that each of you read it, at bit.ly/gayly29.
Copyright 2017 The Gayly – August 7, 2017 @ 9:25 a.m. CDT.