What Might the End of Constitutional Democracy Look Like?

by Neil H. Buchanan

An increasingly urgent question has arisen recently in policy circles: Is Donald Trump really threatening a complete breakdown of the American political order?  That is, would a Trump presidency bring an end to the form of government that Americans take for granted?

Worries about Trump's flirtations with fascism have, in fact, been afoot for months.  In a Dorf on Law post not long ago, I quoted from a December 2015 analysis on Vox by Dylan Matthews, who concluded, somewhat bleakly: "To be blunt: Donald Trump is not a fascist. ... He's simply a racist who wants to keep the current system but deny its benefits to groups he's interested in oppressing."  Yet as time passes, Trump makes it impossible for people to shake the sense that something truly sinister is afoot.  He might not, in fact, want to keep the current system at all -- at least, not in anything but form.

Robert Kagan, a conservative author who left the Republican Party and who wrote a scathing op-ed in The Washington Post in February pointing out that Trump was "the GOP's Frankenstein Monster" (not a deviation from the party's leadership that Trump attacked, but its inevitable embodiment), made waves with a May 18 op-ed entitled "This Is How Fascism Comes to America."  Among the flurry of commentary that inevitably followed, perhaps the best news analysis was by Peter Baker in The New York Times: "Rise of Donald Trump Tracks Growing Debate Over Global Fascism."

The central problem with this debate is that analysts inevitably become sidetracked by trying to define what fascism means.  Unsurprisingly, historians do not agree on the precise definition of the word, and the two historical examples are so extreme that it is nearly impossible to imagine any incipient fascist movement looking like the real thing at the stage where it could still be stopped.

In my latest Verdict column, which was published yesterday, I sidestep that labeling issue and substitute a more operational concept: "Is This the Beginning of the End of Constitutional Democracy in the U.S.?"  Whatever one calls it -- fascism, authoritarianism, or something else -- the important question is whether Trump's rise threatens something truly scary, government by a strong-man demagogue who would ignore the rule of law in order to do what he has told the mob that they want him to do.

As I describe in my Verdict column, I (along with many others) began to worry about the possibility of a genuine political cataclysm starting in 2008, during and in the immediate aftermath of the Great Recession.  My argument in yesterday's column was that the danger of an extremist political coup did not end (or even abate) when the business cycle turned upward.  What Trump's success in the Republican primary shows is that the people who have been harmed by the long-term trends of the economy include sufficient numbers of angry bigots -- Nate Silver famously tweeted that the variable that consistently correlated with Trump's vote totals was the number of Google searches for the n-word -- that even in the seventh year of a (weak but still impressive) economic recovery, the danger of political breakdown is real.

My analysis in that column, then, essentially explained how the people who are worried about their economic future have split between supporting the Democrats (who are both offering proposals to try to improve people's lives) and Trump (who offers nothing but angry scapegoating and ever-changing policies that provide no hope for positive outcomes).  This election is shaping up as a test to see whether there are enough people who will say, "F-ck it, let's blow the whole thing up."  So far, despite the Republican leadership's craven decision to line up behind Trump, it appears that sanity will prevail in November

But what if it does not?  The title of my column referred to "the end of constitutional democracy," but how would that actually play out on the ground?  Although one can no longer be confident about any limits, it seems unlikely that Trump would simply announce that he had anointed himself Dictator for Life.  He would not need to do anything that looks like a classic military coup, or formally dissolve the legislature.  He would not even need to ban future elections.  After all, dictators have long found it useful to hold sham elections.  (Two years ago, Kim Jong-un won the North Korean election with 100% of the vote.)

The best description for a Trump disaster was noted in the Times column that I mentioned above: "Roger Eatwell, a professor at the University of Bath, in England, calls it 'illiberal democracy,' a form of government that keeps the trappings of democracy without the reality."  There is no need, after all, to worry the people by saying outright that the new Dear Leader has taken on totalitarian powers.  Although Trump is hardly known for subtlety, he would surely find it easier simply to do whatever he wants while claiming that he is not an autocrat.

There are certainly plenty of ways for a would-be despot to undermine what we think of as our constitutional and practical protections.  During the lead-up to the Iraq War, Vice President Dick Cheney reportedly leaned heavily on career civil servants in the intelligence community to change their analyses, and the Bush Administration certainly cherry-picked the analyses that it preferred in any event.  And even the Obama Administration has continued to erode the limitations on the president's war-making powers.

Trump could simply dare people to stop him, a la Stalin's famous retort to Churchill: "How many divisions does the Vatican have?"  The Supreme Court says that President Trump cannot violate treaties, because the Constitution says that they are the supreme law of the land?  Trump supporter Ben Carson recently expressed support for President Andrew Jackson, and Trump could certainly invoke Jackson's famously defiant (though possibly apocryphal) response to the Supreme Court: "John Marshall has made his decision, now let him enforce it."

This, again, is hardly without precedent in recent U.S. politics.  Republicans were at best silent, and at worst openly supportive, when a few state and local officials refused to follow the Court's decision regarding same-sex marriage.  Trump has recently been attacking the legitimacy of the court proceedings against him in the Trump University case, rousing his crowds to anger by saying that the judge "happens to be, we believe, Mexican."  (Bonus points for Trump's inadvertently hilarious response to a reporter's questioning why Trump would mention the judge's ethnicity: "Because I'm a man of principle.")

But what is especially worrisome is that Trump's basis for saying that the federal judge's rulings are illegitimate is simply that the judge is doing things that Trump does not like.  It is apparently not possible for Trump to be wrong, and if anyone opposes Trump, that person must be torn down and his rulings mocked and defied.  Similarly, Trump's angry response to reporters who tried to hold him accountable for his promises to donate money to veterans' charities suggest that Trump's instinct is to attack anyone who stands in his way.

Again, I do not particularly care whether we call this fascism or some other word.  The point is that Trump is already showing that he has no use for the limitations on power that are the essence of constitutional democracy.  He already has millions of people who are willing to personally harass reporters who displease their leader, and Trump always stands ready to hurl an ad hominem attack at anyone who dares not to admire him.

There is simply no reason to think that, once endowed with the powers of the presidency, Trump would show any restraint.  Concerns like mine might be overdone, but I doubt it.  In any case, the stakes are too high to take the gamble.