Ideas

OPINION | Robert L. Tsai

Trump’s constitutional revolution

LAURA BUCKMAN/AFP/Getty Images

Claims to usher in revolutionary change are nothing new to American politics, but how do we recognize that a leader is seeking to engage in revolutionary politics and how do supporters of gradualism resist constitutional radicalism?

During the most recent election cycle, Hillary Clinton offered a vision of incremental change within the existing liberal-pluralist order, whereas Donald Trump claimed to speak for a social movement representing “the forgotten men and women of our country.” He repeatedly insisted that elites had “rigged the rules of the game for everyday Americans.” At Gettysburg, the site of Lincoln’s famous call for “a new birth of freedom,” Trump asked the American people to “rise above the noise and clutter of our broken politics” and deliver him to the White House.

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So does Trump’s victory mean that the voters want revolution or did they merely reject Clinton for some narrower set of reasons having to deal with policy or personality? The answer to this question will almost certainly affect longstanding principles of constitutional law owing to the people’s achievements during Reconstruction, the New Deal, and the major social movements of the last 50 years.

Presidents who aspire to revolution use the same levers of power available in the modern administrative state for changing priorities to national policy, but try to press them into the service of overturning core legal principles. To determine that this is taking place, we must first pay attention to a new president’s choices of advisers and Cabinet members, which offer clues as to revolutionary intentions and the institutions likely to be refitted for legal transformation.

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Second, we should scour a new administration’s priorities for evidence of radical attempts to alter departmental policies, rules, statutes, agency interpretations, as well as key reversals in legal strategy and argumentation in major constitutional cases.

Finally, we must inquire into the ideological inclinations of a president’s judicial nominees, especially those to the Supreme Court, because a president with revolutionary aspirations will search for jurists who share his desire to rewrite foundational commitments.

While there is no magic formula, the process for domesticated revolution of this sort typically entails: the presentation of aggressive proposals that severely test, or clearly transgress, dominant interpretations of the Constitution; government arguments that new social conditions merit a reconsideration of cherished constitutional values; and codification of transformed constitutional values in authoritative sources of law such as statutes, executive orders, regulations, and judicial rulings.

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He has yet to take office, but Trump’s selections so far suggest that he is gearing up to pursue revolutionary ends through ordinary means. Steve Bannon, a professed “Leninist” and “economic nationalist,” has spoken gleefully of dethroning multicultural elites, “destroy[ing] all of today’s establishments,” and converting the Republican Party into a new worker’s party capable of governing according to a hard-right understanding of Judeo-Christian ethics. Jeff Sessions, tapped for attorney general, has long been hostile to racial egalitarianism and the rights of sexual minorities. Lieutenant General Michael Flynn, Trump’s national security adviser, like Bannon, believes that Christianity is engaged in a holy war with Islam, and has even insisted that fear of Muslims is perfectly rational. And Kris Kobach, reportedly on the short list for secretary of homeland security, has been a creative legal advocate for oppressive anti-immigration experiments that depart from mainstream interpretations of equality, liberty, federalism, and due process of law.

All of these figures will be well placed to undermine established principles of constitutional law. If they try to enact a revolutionary agenda, what is to be done?

The overarching approach must be to emphatically reject that legitimate conditions for revolutionary governance exist. A number of past presidents — from FDR to Reagan — asserted that their election authorized fundamental changes to settled constitutional precepts. Because such revolutionary claims don’t involve formal invocation of the Constitution’s regular amendment process but rather arise from the presidency’s moral leadership and its control of the modern administrative state, it is harder to determine whether the American people truly want settled law to be disrupted.

Overwhelming electoral victories can provide a springboard for such claims of power, as they did for FDR, but it is hard to credibly argue that voters wanted revolution on a similar scale in 2016. Although Trump enjoyed a shocking, come-from-behind Electoral College victory, he lost the popular vote decisively to Clinton by over 2 million votes. Moreover, historians have pointed out that anti-establishment sentiment generally turns the party occupying the White House out of power after two successful victories, and that cyclical pattern simply held true once again. Despite Trump’s attempt to generate revolutionary fervor, Democrats picked up two Senate seats and Republicans lost a net six seats in the House. A single, close electoral victory of this nature is hardly compelling evidence of a nationwide desire for major disruptions to our Constitution. To the contrary: It is a historically and jurisprudentially weak basis for seeking transformations in the law.

In these matters, there is a big difference between legality and morality. A president’s assertion of revolutionary authority better resembles a claim of political morality rather than an exercise in legal technicality. Trump is legally empowered to enforce the nation’s laws, but that doesn’t necessarily mean that the people have sanctioned radical changes to our constitutional commitments. So while there is abundant evidence of dissatisfaction meriting shifts in national policy on the economy, immigration, and counterterrorism, there is little evidence of broad-based support for fundamental changes to settled constitutional law. This point should be repeated, in litigation and in public discourse, to deny even the veneer of popular support for radical measures.

Despite little evidence of a sea change in the constitutional beliefs of ordinary Americans, the fact remains that one political party legally controls both houses of Congress and the president-elect perceives himself as a transformative figure. This brute reality means that the Constitution will almost certainly be put under duress by the Trump administration. That a major party candidate who trafficked in racist stereotypes and reveled in unbridled misogyny has been elected president is being celebrated by ultra-right activists as proof of Americans’ rejection of an enfeebled liberal egalitarianism incapable of dealing with the challenges of a global economy, migration, and radical Islam. Ideologues of this sort will push for major changes on a host of fronts, but they must not be allowed to claim a mandate to undo basic commitments to pluralism, equality, and individual liberty. To resist revolutionary change, gradualists must acknowledge some legitimate room for policy differences due to the changeover of parties, while resisting insurgent interpretations of the Constitution.

Roe v. Wade, which President-elect Trump has vowed to overturn, represents just the kind of precedent that has become embedded in the nation’s cultural life. Such rulings — and there are countless others that fall into this category — have been generated in part through the work of social movements, have withstood years of application and testing by jurists, and have been relied upon by generations of Americans in ordering their lives. Undoing these precedents would entail social disruption of great magnitude and overturn hard-won legal achievements.

Attempts to weaken the principle of racial egalitarianism would denigrate the achievements of all who fought the Civil War and World War II, and those who risked their lives and reputations during the civil rights movement of the 1960s. Perhaps the greatest risk of Trump’s rhetorical onslaught against “political correctness” is that it threatens the contemporary understanding of race and sex discrimination, which encompasses the idea of the hostile work environment. It remains to be seen if Trump’s agenda will result in any formal efforts to narrow the concept of discrimination, but if it does, that move should be resisted as imperfectly authorized and unduly disruptive to social practice. More broadly, the ultra-right has long touted the goal of making life so uncomfortable for racial and sexual minorities that they expel themselves from more culturally homogeneous communities or submit to subordinate status within them. But when pervasive acts of racial or sexual hostility are ignored by the state, such inattention violates the Reconstruction Amendments’ promise of equal citizenship for all.

The principle of sexual egalitarianism — originally extended on the basis of sex and gender, and later on the basis of sexual orientation — became a crucial feature of our basic law through the work of brave activists, thoughtful lawyers, and committed politicians who together revolutionized our understanding of the phrase “equal protection of the laws.” Decisions like United States v. Virginia and Frontiero v. Richardson built on the work of past feminist movements and their allies, and therefore represent the people’s sentiments over time. As such, they deserve to be treated as part of a body of constitutional law that is impervious to flawed claims of revolutionary change.

To the extent that members of Trump’s governing coalition might attempt to return the state to a position of fostering patriarchal forms of relations between men and women, this, too, would amount to a usurpation of the people’s prerogatives. Similarly, any effort to reverse the principle of equal dignity for gays and lesbians — say, by overturning Romer v. Evans, Lawrence v. Texas, or Obergefell v. Hodges — should require stronger proof of the people’s repudiation of such principles than what has been tendered so far. Otherwise, a single election could undermine decades of work by the gay rights movement and their predecessors. Because Trump did not actively campaign against the rights of sexual minorities, his agents should not be taken seriously if they abruptly claim the authority to reverse legal progress in this domain.

More rigorous vetting of immigrants or asylum seekers in order to exclude security threats might well be warranted in the Age of Terrorism, if existing screening methods prove faulty. After all, Congress enjoys plenary power over questions of admission and citizenship, and voters appeared to be demanding policy changes on this front. Where immigration restrictions rely on overly broad generalizations about race or religion, however, or are driven by animus against a particular social group, they might violate core constitutional values that date back at least as far as Reconstruction.

If Trump’s appointees try to impose religious litmus tests for immigration or asylum, or create a compulsory national registration system for Muslims generally, such measures can be resisted as violations of original understandings of religious liberty. Members of the ultra-right contend that Islam is empirically different in character than other religions (even that it is somehow “not a real religion,” as Lt. Gen. Flynn has argued). They will try to convince the rest of us that traditional ideas of pluralism and religious equality ought to be abandoned so that Muslims can be treated more harshly than adherents of other faiths.

Where national security is at stake, the secrecy that necessarily shrouds the work of government officials and their lawyers can make accountability especially challenging. What has made things even more difficult is the rise of the national security state, which has allowed a sitting president enormous power to take measures to protect the populace. Even so, it remains possible to identify significant departures from a constitutional framework that tilts so obviously toward security at the sake of liberty.

In the wake of 9/11, an ad hoc group of lawyers and advisers spanning multiple agencies circumvented protocols to devise legal justifications for torture, indefinite detention, and expanded use of surveillance. The work of this secret group ensured that members of the Bush administration operated under flawed, and sometimes radical, interpretations of the Constitution and international law. Legal memos rationalizing enhanced interrogation practices have since been repudiated by government lawyers, with older principles restored and reaffirmed by Congress. Even so, Mike Pompeo, Trump’s man to lead the CIA, favors “robust” use of mass surveillance. Trump himself has publicly promised to reinstitute Bush-era interrogation tactics such as “waterboarding and a lot worse,” though the leading candidate for defense secretary opposes torture. Whatever happens, we are now on notice that significant legal changes, possibly extreme ones, may be afoot. Revolution through secret processes violates the most elementary rules of popular legitimacy, namely that the people must be given notice of large-scale legal changes and be afforded a meaningful opportunity to weigh in.

Trump never seriously campaigned as a proponent of laissez-faire economics; instead, he presented himself as an economic nationalist. In related fashion, he vowed to repeal and replace Obamacare rather than attack Congress’s power to regulate health care. For these reasons, Trump has expressed no intention to undermine the key precepts of the New Deal. Instead, he proposed an end to unfavorable trade deals and the modification of other economic policies so as to minimize the harms to working class Americans. He has also recommended national spending to rebuild the country’s infrastructure.

Some of Trump’s trade proposals may turn out to be misguided as a matter of economic policy, especially if they provoke retaliation by foreign nations, but any number of initiatives to reduce the influence of “crony capitalism” or jumpstart the construction of roads and bridges can be accomplished without subverting critical features of the New Deal revolution or a modern president’s broadened powers over foreign affairs. That “shift in time” during the 1930s gave Congress significant authority to regulate the national economy, and even to take moral considerations into the calculus, so long as the subject of regulation affects more than one state.

One area where the federal government’s authority may be tested concerns Trump’s plan to defund sanctuary cities that object to mass deportation of undocumented immigrants. Only where Congress has clearly conditioned the receipt of federal monies upon state or local cooperation with immigration can funds be cut off for failure to do so. If state and local governments do not consent to help, the principle of federalism holds that they cannot be coerced into enforcing national immigration laws. It is possible that the Trump administration will interpret existing statutes aggressively and fashion new tools to bend dissenting jurisdictions to its will. If that happens, this controversy could prompt a more far-reaching reconsideration of the federal-state relationship.

Acknowledging the potency of voters’ demands for fresh priorities on the economy and immigration has several salutary effects beyond reviving a minority opposition party on the ropes. In terms of constitutional politics, this dialogue, as it recurs over many issues across time, should clarify the reasonable scope for major policy changes and siphon other energy away from radical projects that threaten constitutional values.

Some constitutional norms are still being contested and, in their fragile form, can be quickly reversed by an incoming president. Those that exist only in executive orders or in an administration’s litigation positions fall into this category. Other legal norms, inscribed in multiple places, such as statutes and judicial decisions, will be harder to sweep away by ideologues. All of this is as it should be.

Everyone has a role to play to guard against unauthorized revolution, but it will not be easy. A presidential plan to transform the Constitution is implemented through political appointees who might occupy obscure posts and dedicated government employees who face tremendous pressure to please their superiors. The objective is to deny rhetorical and institutional momentum for the destruction of ancient legal values. Ordinary citizens will have to be willing to demand transparency, sue the government, and even take to the streets to oppose the erosion of legal norms. Government employees must refuse to obey patently unconstitutional orders and resign their offices if they cannot convince their superiors to abandon a radical course of action. All of these actions can slow a president who is committed to constitutional revolution, but the surest way to stop a president who overreaches is to turn him out of office at the next opportunity.

Robert L. Tsai is a professor of law at American University and author of “America’s Forgotten Constitutions: Defiant Visions of Power and Community.”
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