Constitutionalism

President Trump violates the Constitution but most Republican lawmakers disregard that and Democratic lawmakers focus on economic issues instead.

President Trump has in the past week engaged in serious unconstitutional acts and that fact has been noted but aside from other aspects of these issues. Trump has started to build a ballroom in place of the East Wing of the White House and is being disparaged because it is grandiose and without expert consultation. He has also paid military people their salaries despite the government shutdown while other federal employees remain unpaid. But the real issue is that the cost of both projects are paid for by donations from wealthy benefactors when the Constitution says that the executive can spend money only when raised and authorized by Congress The power of the purse is an essential mechanism to make sure the executive is responsible to Congress and a key principle of representative government since Charles I was executed. I don’t know if Trump’s benefactors had avoided getting the money directly or to an executive branch rather than through the treasury, but in that case they would violate the emoluments clause. I suppose that question has not been litigated because no President was ever so brazen and no one has legally contested the loads of emoluments he has garnered from Qatar and from the proceeds of his first term Trump owned Washington hotel.

This principle was vindicated not so long ago when Ronald Reagan allowed a trade of hostages for the money to fund troops against the Sandinista in Nicaragua despite the Boland Amendment saying no money could be spent on the counterinsurgents, the Contras. Reagan relented but he had engaged in an impeachable offense. Similarly, Trump could be impeached for these two projects subsidized by wealthy millionaires and corporations but the two times that happened to Trump, the Senate would not convict despite the evidence against him and so that is old hat in that there are so many other impeachable offenses against Trump, such as he refusing to spend money allocated by Congress and letting go hoards of federal workers without proper procedure. It is not so much that Trump opposes the Constitution as he simply disregards it, just his usual way of doing business and the nation getting used to that.

Supreme Court Justices can bicker about how to interpret the Constitution. Conservatives like Anthony Scalia are originalists which means that a passage in the Constitution means what the terms meant when it was originally written though the shining example of this theory of interpretation was the Heller decision concerning Second Amendment gun rights and all he could squeeze out was that owning a gun was allowed in your own home and so it did not bar less extreme measures such as barring tommy guns and assault rifles. Not much of a victory and accomplished by cherry picking from English law. Liberals, for their part look at Constitutional provisions as more elastic and so decided that a right of privacy so as to protect the purchase and use of condoms was a right of privacy included within the penumbra of the constitution, never mind that technology advances and so contraception is available by telephone across state lines and so is subject to regulation as any other commodity that can be sold.

Here is a different basis for Constitutional interpretation. Look at the clear and plain and obvious meaning of the text, what the words say, to guide what they mean. Trump says there should be no birthright citizenship but the Fourteenth Amendment says “ All persons born in the United States are citizens”. No qualifications about only applying to ex-slaves. There is no way around that provision without amending the Constitution. The same is true with sending money, which can only be spent by Congress. The meaning is clearcut. Here is another constitutional issue currently discussed that also yields a clear and plain and obvious meaning. Some people say Trump could get a third term as President by being made Speaker of the House and then have the President and Vice President resign. He would never have been elected, just a legitimate successor. But that goes against the clear and obvious text which means he is barred from being given the oath of office rather than being voted in by the Electoral College. Otherwise, you could also get around being 35 years old and a native born citizen. Personal qualities such as having already served two terms are characteristics of the person not of the elective process, which everyone knows to be the meaning of the term even if lying Republican politicians say otherwise. 

Why are Republicans unwilling to utter the simple truth? The reason may be, as the Harris-Trump campaign showed, the American people don’t really care that much about constitutionalism because Harris campaigned on democracy and commentators said she had campaigned on the wrong issue, which should have been inflation because the opinion polls showed that the economy was the real issue even if that was not the weightiest one, and the opinion polls were misleading because they were engaged in a spurious correlation. Respondents to the polls correlated economic issues with Trump supporters when both reflected a third variable, which was what was reported by the polls as saying the United States was worse off than before rather than better off than before off, which is to be regarded as a state of mind rather than a description of reality. People saying things were worse off want to have someone different who will change things and offer economic reasons as a legitimate excuse for the choice of candidate.

The shift of the nation thinking the nation is getting worse is a long term shift from the view fosters perhaps after World War II that the government was humane, benevolent and responsible while today it seems mean spirited and incompetent and so elects someone who has both those features to right the wrong. The cycle of support and criticism of the government as a whole go through a long return cycle where the late nineteenth century was corrupt and leader incompetent which changed to a competent nation from TR through Richard Nixon and the after Reagan and HW Bush to a centrist politics that couldn't manage to accomplish only one piece pf legislation, such as the Affordable Care Act under Obama while other issues lingered, such as legislative action on abortion, because the two parties were so closely divided that neither had a working majority. So, now, let the bull in a china shop take sway and mess things up hoping it will fall right.

So how do the Democrats deal with the constitutional crisis which they treat as an economic one because they are convinced by the polls that only economics matters? They do so by using much smaller cycles of events, the shortest of which is the statute of limitations whereby a public issue gets overtaken by subsequent events. Commentators drop pointing ought that Trump said Haitian immigrants were eating cats and dogs in Springfield because he said Portland was burning which also wasn’t true and Trump just keeps coming up with new lies for the populace to focus on, and Trump never disappoints, always finding a whopper to offer up and fill the imagination. Chuck Schumer has decided that  he will continue the shutdown because the American people, as they have in the past, blamed Republicans for shutdowns and because the  notices of health care premium increases will shift public opinion against Trump and the effect of that will last to the midterm and so save the Republic by putting Congress in Democratic control, the Constitution a bonus for a Democratic victory even if not the main public incentive. Moreover, the increasing anxiety of Schumer and centrist Democrats that the Constitution is in danger and that moderate, old fashioned Republicans who were interested in a balanced budget and a smaller federal government have not jumped ship to oppose Trump shows how necessary it is for Democrats to unite to say “No Kings” and so the impasse over Congress can last for months more until the Republicans are losing favor big and by that time it will be too late for them to recoup. That is my rosy scenario, because the alternative is Trump setting the scene so that the 2028 election is no longer democratic.