I just posted something on the Washington Post’s Monkey Cage blog. It essentially points out that while Trump is exactly the kind of demagogue the Framers worried about, pretty much every political party leader is exactly the kind of demagogue the Framers worried about: modern parties and modern communications (by modern communications I mean U.S. mail-subsidized newspapers or later) pretty much guarantee that.
One thing I didn’t say in the piece, for reasons of both space and The Monkey Cage’s distaste for explicit ideologizing, is that liberals can (unlike Peter Wehner, whose recent New York Times op-Ed I was responding to) hope to vindicate a different kind of constitution. Those who defend a living constitution, i.e. one that changes in good ways in response to political movements and social changes, often say that the old-fashioned constitution that sought to check power via a radically decentralized political system has yielded to a modern constitution that embraces greater federal power-as needed in a complex contemporary economy-but also vigorous protections for individual rights. (I got this from one of Jack Balkin’s recent books, but it seems pretty standard.) On a sophisticated version of this theory, the new constitutional order rests not only on judicial review but on a new model of citizenship in which the hallmark of civic virtue is to notice, and spring to the defense of, one’s own rights and those of others; so-called “popular constitutionalists,” whose work I know less well, stress the particular importance of social movements in making this work and, indeed, in changing how we think about the constitution in the first place.
In other words, the best protection against the likes of a Trump is not constitutional conservatism—which, after all, would welcome the likes of a Cruz. Rather, it is the complex of groups devoted to vindicating individual rights—the NAACP, La Raza, the ACLU, #BlackLivesMatter—and those in the media, academe, and civil society poised to heed the kind of alarms that they sound. And, of course, the other party; but we shouldn’t have to rely on partisan opposition alone.
Of course, on some level what I just said was already quite obvious, implicit in how we do things. But maybe thinking about Trump can make it more explicit. Bruce Ackerman has referred to moments of ferment regarding constitutional interpretation as “constitutional moments.” Trump have have given us a constitutional teachable moment.
Pretty much all of the major Framers turned into exactly the sort of demagogues that the Framers worried about. It would have been nice if they had recognized in their own behavior the folly of a system that depended upon not having entrenched political parties, but they didn't.
"Those who defend a living constitution, i.e. one that changes in good ways in response to political movements and social changes,"
OK, that's just bizarre. Seriously. It's only a "living" constitution if it changes in *good* ways? That's how you tell living constitutions from judges just pulling interpretations out of their asses? That you like the change?
That's rather like having a "living" game of baseball, and you know it's "living" baseball because your team wins regardless of the performance of the players. If the other team wins on exactly the same basis, it doesn't qualify as living baseball, it's just the ump being a crook.
Look, if you manage to get widely accepted the idea that just convincing a judge to say the meaning of this or that clause of the Constitution is different is legitimate, (Still a very contested idea.) you don't get to restrict the application to changes you approve of. Trump gets elected, puts a couple of cronies on the Supreme court, and suddenly birthright citizenship doesn't apply to the children of illegal immigrants and tourists, *and never has*, and (Korematsu was never overturned) the pogrom begins.
And it's just as much living constitutionalism as SSM suddenly being constitutionally mandated, even if you don't like it. Living constitutionalism isn't some magic sword that won't allow itself to be held by a bad man.
Aren't these institutions along the lines of what used to be called "civil society"? Something that, unsurprisingly, has been actively and passively dismantled during the past generation or two…
AS: " .. the old-fashioned constitution that sought to check power via a radically decentralized political system has yielded to a modern constitution that embraces greater federal power – as needed in a complex contemporary economy – but also vigorous protections for individual rights."
Looking at the US federal government, in Paul Krugman's metaphor, as "an insurance company with an army", is it true that it's the economy that drives the accumulation of federal power? The army is not created by economic needs. As for the insurance company, if you look over here at the process of European integration, it's striking how little pressure there is for federalizing the welfare state in Brussels. Socialized health care and state pensions are transferable between EU members for individuals who migrate between them by a network of messy but functional kludges. There is no interest in Germany and France for changing from an insurance-based system of health care to the British or Swedish public service model, and vice versa. The decentralisation works because of the political consensus for the outlines of the welfare state, with intrastate arguments at the edges about its scope and details.
This suggests that the true reason for modern American federalism lies in the failure of Reconstruction and the continuing rejection by the old Confederacy of equal rights for the descendants of slaves. There is simply not enough common ground between Massachusetts and Texas for a decentralised American welfare state to be possible. It has to be federal or nothing.
The Krugman metaphor is incomplete. The modern state, post-Bagehot, post - Teddy Roosevelt and post-Keynes, has major tasks in the regulation of the macroeconomy and financial markets.The live areas of dispute in Brussels are over these. The Commission has secured wide powers over competition policy, using a European analogy to the Commerce Clause. It's not clear whether this centralisation was strictly necessary, but it's done. The rise of the administrative state escapes the Reconstruction argument.