Trumping the Constitution
Balkinization
When you think about politics these days, it’s hard to avoid focusing on Donald Trump’s remarkable rise to power and his even more remarkable presidency. It’s even harder to avoid thinking about the scandals swirling around him day to day. It’s not that I don’t think these are important. But they are not the subject of today’s talk. In this talk, I want to look at the big picture. In this picture, Trump is merely a symptom. He is a symptom of a serious problem with our political and constitutional system.
Because Trump’s method is to provoke outrage and fluster his opponents, many people have wondered whether we are currently in some sort of constitutional crisis. We are not. Rather, we are in a period of constitutional rot.
By “constitutional rot,” I mean the decay of features of our system that keep it a healthy republic. Constitutional rot, which has been going on for some time, has produced our current dysfunctional politics.
Constitutional dysfunction isn't the same thing as gridlock—after all, the three branches of government are currently controlled by the same party. Rather, it is a problem of representation. Over time, our political system has become less democratic and less republican. It is increasingly oligarchical.
By “democratic,” I responsive to popular will and popular opinion. By “republican,” I mean that representatives are devoted to the public good, and responsive to the interests of public as a whole—as opposed to a small group of powerful individuals and groups. When representatives are responsive not to the interests of the public in general but to a relatively small group of individuals and groups, we have oligarchy.
Republics are especially susceptible to constitutional rot
Republics are premised on pursuit of the common good. Representatives are given power for the sole purpose of pursuing the public good. The Framers understood that republics are fragile things. They are easily corrupted, and over time, they are likely to turn into oligarchies or autocracies.
When a government becomes oligarchical, leaders spend less and less time working for the public good. Instead, they spend more and more time enriching a small group of important backers that keep them in power. Because the general public feels abandoned by politicians, it gradually loses faith in the political system. This leads to the rise of demagogues, who flatter people with promises that they will make everything right again.
Oligarchy has resulted from the gradual breakdown of the party system that selects candidates and makes political parties responsive to the public, as well as from changes in how political campaigns are financed and changes in the structure of mass media. The problem has occurred in both parties, but it is especially pronounced in the Republican party, which styles itself as a populist party but is anything but.
