Post-Constitution

The Right's Post-Constitutional Moment

By Rich Lowry

No one will ever mistake Donald Trump for a student of James Madison.

The real-estate mogul has demonstrated about as much familiarity with the U.S. Constitution as with the Bible, which is to say, none. Trump has captivated a share of the tea party with a style of politics utterly alien to the Constitution. In the year of Trump, the right is experiencing a post-constitutional moment.

This wouldn’t have seemed possible a few years ago. In 2010, the newly arrived tea party produced a class of constitutional obsessives like Sens. Rand Paul and Mike Lee who were focused not just on what government shouldn’t do, but on what it couldn’t do and why.

After the compassionate conservatism of George W. Bush and the earmark-happy excesses of congressional Republicans in the Bush years, the tea party rebaptized the GOP in the faith of limited government and constitutional constraints. If you weren’t down with the 10th Amendment, you weren’t down with the tea party. Glenn Beck earnestly explored the Founding Fathers with his audience. It was a time of first principles.

Rand Paul, who sells autographed copies of the Constitution, is a libertarian distillation of these concerns. He makes constitutional persnicketiness a high art. Obamacare, the National Security Agency surveillance program, the Violence Against Women Act, President Barack Obama’s war in Libya and intervention in Syria are just a few things he considers unconstitutional (and don’t even get him started on Obama’s tax information treaties).

Paul, by the way, is the guy who objected that closing down part of the Internet, as Trump has proposed, would be unconstitutional. Not that it seems to have made much of an impression on Trump or anyone else.

Trump exists in a plane where there isn’t a Congress or a Constitution. There are no trade-offs or limits. There is only his will and his team of experts who will figure out how to do whatever he wants to do, no matter how seemingly impossible.

The thought you can’t do that never occurs to him. He would deport the American-born children of illegal immigrants. He has mused about shutting down mosques and creating a database of Muslims. He praised FDR’s internment of Japanese-Americans in World War II.

You can be forgiven for thinking that in Trump’s world, constitutional niceties—indeed any constraints whatsoever—are for losers. It’s only strength that matters. It shouldn’t be a surprise that he expresses admiration for Russian President Vladimir Putin, a “powerful leader” who is “highly respected within his own country and beyond.” Trump’s calls to steal Iraq’s oil and kill the families of terrorists are in a Putinesque key.

For some on the right, clearly, the Constitution was an instrument rather than a principle. It was a means to stop Obama, and has been found lacking.

Trump is a reaction to Obama’s weakness but also to his exaggerated view of executive power. Trump rejects the former, but is comfortable taking up the latter. Whereas Obama has a cool contempt for his political opponents and for limits on his power, Trump has a burning contempt for them. The affect is different; the attitude is the same.

What, after all, is the worst-case scenario for a President Trump’s strongman tendencies? Could Trump defy the law as written and give Congress the back of his hand in order to impose a new immigration system more to his liking? Obama has already done it. A hallmark of Obama’s governance has been to say that he lacks the power to act unilaterally on a given issue, and then do it anyway.

Progressives have been perfectly willing to bless Obama’s post-constitutional government. Trump’s implicit promise is to respond in kind, and his supporters think it’s about time.

Trump transcends the usual fault lines on the right between fiscal and social conservatives, libertarians and hawks, or establishment and grass-roots conservatives. What he has done is to unmoor conservatism’s populism from its traditional ideological commitments, including those to constitutionalism and limited government.

A pure populism is inherently in tension with constitutional conservatism. The Constitution is a device for frustrating popular enthusiasms, as are federalism, checks and balances, and the rule of law. It’s why impassioned factions usually have very little patience for them, and why they are so central to checking government and protecting individual rights.

If the right’s devotion to them wanes, it will be a loss not only for conservatism, but for the American polity.