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Will Trump Be the Ultimate Test of Our Constitution? - By carl-hurvich - November 16, 2016 - SF Weekly
SF Weekly

Will Trump Be the Ultimate Test of Our Constitution?

The Champagne remained unopened in the fridge, where it had been chilling since around 7 p.m. at our watch party of liberally liberal-arts-educated professionals. It was clearly too early to waste our precious bottle of Veuve Clicquot. By midnight, we had forgotten about the bottle in the fridge, and instead, I reached for the Ativan in the medicine cabinet.

Rather than spending an evening celebrating a grand reaffirmation of pluralism and democracy, I went to bed with the bizarre image of the Trump entourage standing dazed on the Hilton stage, looking like some mashup of the Romanov family and the cast of Jersey Shore. And I woke up to the nauseating signs of the massive apparatus of the executive power of the United States being handed over to the most noxious presidential candidate of the modern age.

After the warm brain hug of my pilfered party pill wore off, I decided I could not rely on pharmaceuticals to survive the next four years. In the spirit of avoiding excess heart palpitations, I share this set of at least moderately calming reflections. Above all, we should view this period in our history as a wake-up call and a test. It is an occasion to quickly rid ourselves of the complacency and myopia that led so many of our fellow citizens to be bamboozled, and it is also an urgent opportunity to learn how to use the protections that our Constitution put in place two centuries ago to deal with moments like this.

It’s OK to be afraid, even very afraid. The reasons for fear are obvious and everywhere to see. Facing the dangers of the moment head on, while scary, will allow us to see them for that they are, and eventually, how best to respond.

The first step in facing our fears is to reject false causes of hope. Chief among them is taking any comfort from the fact that our new president-elect has managed to forbear from engaging in blatantly authoritarian, racist, and misogynic rhetoric since winning the majority of the electoral college with a minority of the popular vote. Even if this shift in tone endures and the entirety of the incoherent ramblings that were passed off as his platforms are abandoned, citizens of this country are entirely justified in refusing to this president the honor and respect normally accorded a head of state. I respect and encourage all who refuse to rise or salute this president or accept invitations or awards from his White House.

Whether or not he sincerely believed the vitriol he spewed across the world stage is entirely irrelevant. So is the fact that many of his supporters appear not to have taken his most caustic claims literally. The strong man’s boasts about possessing a unique authority to fix our nation’s complex problems, his promises to jail his political opponents, and his refusal to commit to accepting the results of the election unless he won cannot be redeemed by even the “spectacular achievements” that are now being promised.

The corrosive power of such words, once spoken, cannot be undone.

However, we would be wrong to assume that the danger of his words and their deep resonance with much of the electorate would have passed had Hillary Clinton been elected. While the postmortem discussions of Clinton’s defeat paint a picture of a fatally misguided campaign that failed to read the nation’s mood, we would do well to consider that while there is much truth to these assessments, it is also the case that the Democrats’ loss was never preordained. The razor-thin margins in Wisconsin, Michigan, and Pennsylvania, combined with a significant surplus of cash available to the Clinton campaign, suggest that a moderate realignment of strategy and resources could have yielded a very different outcome.

While it is easy to make such pronouncements in hindsight, the salient point here is that far from being swept into office with a mandate for his vacuous campaign promises, it was the indifference of the majority of the American voting public as much as the anger and animus of the minority that propelled Donald Trump into the White House. Indeed, a majority of Americans surveyed found Trump “unqualified” for office, and a majority of those who cast a vote cast it against him.

These numbers suggest that, in fact, Clinton’s campaign succeeded in convincing the American people that Trump posed a unique risk to the nation by being at least unqualified and at most dangerous. While this message resonated with the majority of active voters, a majority of the country as a whole did not care.

For most of the country, the Trump administration does not need to be “normalized.” Voters saw the risk he poses but felt his illusory promises made the risk worth taking. While his most ardent supporters appear to be expecting the new administration to immediately vanquish all foes, erect a massive wall, remove all undocumented immigrants, and immediately provide a bountiful supply of low-skilled and high-paying jobs, many seem to regard him as little more than a benign provocateur whose supposed “business savvy” will provide a refreshing change of leadership.

This suggests that demonstrations denouncing Trump for his exceptional and disqualifying presidential campaign are both essential and woefully inadequate because a majority of the country is either unaware of, or indifferent to, the virtues required of a leader of a constitutional democracy.

Relying solely on the core message of Clinton’s campaign — that America’s commitment to tolerance and equality is fundamentally at odds with a Trump presidency — risks playing into the savvy hands of Trump’s insidiously brilliant political operatives. I was amazed and horrified at the Trump campaign’s ability to consistently deflect nearly all questions about his vile rhetoric as hypocritically pious handwringing. Instead, effective opposition to this decidedly abnormal administration requires balancing the refusal to allow them to ignore their ugly path to power while at the same time holding them responsible for the promises, both direct and implied, that were made to allure voters.

The extent to which Trump’s contempt for democratic institutions will infect his administration is uncertain, but the destructive effects of his contradictory policy agenda are not.

Driven into office by a minority coalition of socially conservative, non-college-educated Whites and upper-middle-class suburbanites with an enduring distaste for Hillary Clinton, Trump has delivered control of all three branches of the federal government to a party whose platform is not supported by a majority of the country. In exercising their role as a check on the power of the presidency, it is vital that we insist that our congressional representatives and senators take the unusual circumstances of this election into account. While Democratic senators and congresspeople have already vowed to oppose legislation that contradicts the party platform that a majority of voters endorsed in voting for Clinton (such as repealing Dodd-Frank and the Affordable Care Act), this is not sufficient. We must further demand all judicial, Cabinet, and administrative appointments receive heightened scrutiny, requiring that nominees demonstrate moderate views and positions in line with the nearly evenly divided preferences of the electorate. We must also insist that our representatives use the full legislative power to ensure that the president adheres to international law and treaty obligations.

Even if the Democratic opposition fails to halt all dangerous personnel appointments, we can insist that our representatives insure that a maximum political price is paid by exposing the records and agenda of people this administration wishes to nominate as well as the effects of the laws it wants to enact.

While many Trump voters were no doubt motivated by dire economic straits and feelings of cultural isolation, interviews with many reveal that they were lulled into assuming that their access to health care, contraception, and marriage were secure. In spite of some vague attempts at soothing demurrals from the incoming administration, it is already clear from his proposed Cabinet appointments that such assumptions are wrong, and we must do everything in our power to make this clear.

Finally, we must demand that our representatives in Congress understand that the Constitution leaves the exact limits of executive power undefined. It is up to the three branches of government to interpret these limits for themselves as they govern. The White House typically seeks guidance from the Office of Legal Counsel in the Justice Department to determine the extent of its authority. Congress has mostly left this task to the White House and Courts, but it need not, and must not, at this moment. We can insist that our representatives work as hard as possible to exert the full power of the Congress — especially with respect to declaring war and entering into treaties. While we are surely in uncharted territory, the unpreceded lack of experience of our future commander-in-chief requires a re-evaluation of its oversight of areas that have been increasingly left to executive discretion. Even if many Republicans resist such a role initially, Democrats must aggressively advocate for it and expose the dangers of placing any more trust than absolutely required by the Constitution in this president.

Perhaps this faith in the power of our constitutional structure to mitigate the dangers of this administration is naïve, but it is also the great question posed by our republic: whether the separation of powers can insulate the people from the dangers of any one leader. It is our fate to be in a terrifying stress test of this proposition. If we, as a republic, cannot honor the will of the voter while preserving individual liberty and preventing abuse of office, then the promises our Constitution were but a chimera. We are now in the position to find out.

Carl Hurvich is a lawyer and cultural critic. Follow him on Twitter at @carlhurvich.