After months of watching the Trump clown show, I am decidedly torn—which is to say, I am decidedly undecided—as to whether the orange-hued clown is closer to a buffoonish ignoramus in over his head, or is in fact closer to a true would-be fascist who represents something akin to an existential threat to our Madisonian system of American constitutional governance. That I cannot tell which description is more accurate is not, of course, my problem; it is Donald Trump’s problem.
The issue with these well-intentioned constitutional conservatives, I believe, is that they are either too casually dismissive of or are not sufficiently scared of the very real historical perils of nations falling victim to undiluted authoritarianism. Some of these folks are so (properly) gung-ho about American constitutionalism, and so peppy about Tocquevillian democracy, that they cannot properly channel a more Machiavellian lens to decipher the motives of ill-intentioned malevolent actors. There is no real reason why authoritarianism cannot ever take hold in America, if We the People willfully discard our own constant vigilance. Yes, the Constitution’s structural safeguards for the preservation of individual liberty—via both the separation of powers and federalism—are permanently entrenched precisely in order to guard against such a result. Yet, at the same time, Thomas Jefferson only thought the Constitution would last 19 years, and many others from the Founding generation also viewed the Constitution as less of an eternal guide and more of a merely marked improvement over the failed Articles of Confederation.
Those who ignore the decisively strongman overtones in Trumpist discourse frankly have too abounding a faith in the ability of our institutions—as presently situated—to structurally preclude such a frightening usurpation. The judiciary’s own “hubris,” as Justice Antonin Scalia reminded us in his Obergefell v. Hodges dissent last term, has actually counter-intuitively served to remind the courts of their own “impotence.” Congress, via the complete abandonment of the “non-delegation doctrine,” has ceded increasingly large swaths of power to the Executive Branch’s administrative apparatus in a series of moves that Senator Ben Sasse eloquently referred to in his Senate floor maiden speech as amounting to “symbiotic legislative underreach.” Most states, furthermore, are all too willing to cower to federal authority: even pro-life Governor Mary Fallin, sitting in one of America’s most conservative states, is unwilling to affix her signature to a bill that would brazenly reject Oklahoma’s timid submission to the judicial despotism of Roe v. Wade. Many of us in the Tea Party who thought we were experiencing a true grassroots constitutionalist movement now instead look silly for having been partially duped by the brute populists in our midst.
Maybe he does turn out to be more controllable buffoon than would-be fascist. Are you really willing to risk that, though?….
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