The pseudonymous Trump partisan Decius writes that Donald Trump has mounted the “first serious national-political defense of the Constitution in a generation.” Decius has been sharply and effectively criticized elsewhere, but his defense of Trump is important for illuminating the abuse of constitutional rhetoric on the right. The abuse did not start with Trump partisans—even as Trump partisanship threatens to take it in new and uglier directions.
Let us put aside, for the moment, the idea that Trump is a serious defender of the Constitution and focus on the first-in-a-generation part. To start with, there has never been a better—or a more persistent, anyway—constitutional talker than Ted Cruz. And Cruz was hardly the first. Rick Perry’s 2012 campaign was largely built around championing the Tenth Amendment. Back in the nineties I heard Alan Keyes’s old talk radio show. I thought up a drinking game: You would take a drink whenever Keyes redirected a conversation from the issues of the day to the Declaration of Independence, or the Constitution, or natural rights. No human liver would have made it past a couple of episodes.
It isn’t clear why Trump is a serious defender of the Constitution but the constitutional lawyer, the big-state governor, and the political philosopher-turned-talk show host (all presidential candidates) are unserious. If anything, one could argue that the last generation has seen all too much self-important defending of the Constitution.
The Constitution is important. It empowers and limits components of the government. The Constitution is so old, and has been shaping our civic culture for so long, that it is part of our national culture in ways that go beyond politics. Abuses of the Constitution violate either the rights of individuals or the rights of the public to participate in society fully and lawfully. All of that matters.
But the Constitution (like the Federalist Papers, and Declaration- and Founder-worship in general) has played a larger role in conservative rhetoric than a mere defense of the clear provisions of the document could do. Defense of the Constitution has become a rhetorical crutch. It has become a substitute for an agenda that is relevant to the issues of the day.
This is understandable. Talking about taxes in the context of our entitlement obligations means talking about winners and losers. Not everybody can get a big tax cut, and the losers won’t be happy.
Talking about health care policy (any health care policy) will also involve tradeoffs. It is much easier to talk about how, as president, you will protect the beloved Constitution, than to talk about how you will seek to change health coverage in the direction of catastrophic coverage (which will make some health insurance recipients nervous) and how you will seek to make it easier for new market entrants to disrupt existing providers (which will make existing heath care providers very cross). Better to mumble some things about tort reform and then go back to talking about the Founding. Republicans might not have a tax policy that speaks to middle-class Americans, or a health care policy that is comprehensible to the general public—but they sure love themselves some Constitution.
It was the easy way, but the easy way led Republican politicians to the brink of irrelevance. People’s concerns exist, and they will not be diverted permanently by Constitution-talk. Trump cut through the evasion by saying, with brutal common sense, that his Obamacare replacement—which there is no reason to believe exists—wouldn’t let “people die in the streets.” But—but—the Constitution! Not now, Senator Cruz.
If you make people choose between constitutionalism and their everyday concerns, the Constitution will lose.
Which brings us to Trump. Trump is not an obvious defender of the Constitution. He certainly talks less about the Constitution than have recent Republican candidates. That is not altogether a bad thing, but he is probably going too far in the other direction. Trump proposes to “open up” libel laws so that he can target his journalistic critics, and he suggests that, as president, he would implement stop-and-frisk policing—this despite having no power over local police forces to force any such implementation.
Trump’s policing suggestion was almost certainly unserious. There is no reason to expect that he would try to commandeer our local police forces. He was just popping off. But it shows his lack of interest in either the structure or the content of the Constitution. Far from being its defender, he seems totally indifferent to it. To his credit, Trump hardly bothers to pretend that his promise to appoint pro-religious liberty and pro-Second Amendment judges is anything but transactional politics—like his promises to double ethanol subsidies for Iowa farmers.
But Decius’s defense of Trump as a constitutionalist opens up the possibility of a new kind of abuse of constitutional language on the right. Calling Donald “Only I can fix it” Trump a constitutionalist empties the term “constitutionalist” of any connection to our actual Constitution, or even to the small-c constitutionalism of respect for the rule of law—even as it carries the emotional charge of arguing about something of transcendent importance.
Decius argues that the question of this election is whether rule is by “The many or the few?” No, it isn’t. In 2012, Obama was elected with 51 percent of the popular vote. Trump, even if he wins, is likely to get a smaller share of the vote. Would Trump’s 49 percent represent the many, where Obama’s 51 percent represented the few? One is reminded of the campus left-wing activists who, reducing words to tribal war chants, scream about diversity and tolerance even as they do all in their power to persecute dissenters.
This is the real threat of this new abuse of constitutionalist language. If Trump is a constitutionalist, then the word “Constitution” has become something like the term “social justice” for the activist left. It is just some letters barbarians scrawl on rocks before going out to bash in the skulls of the tribe’s enemies.
That doesn’t mean we should give up on constitutionalist arguments. The rule of law is important. The Constitution’s protections of individuals and civil society are important. Constitutional norms are part of what allows us to keep our political disputes (usually) peaceful. But talking about the Constitution is not the answer to all (or even most) of our contemporary problems. Mike Lee (a Supreme Court clerk-turned senator) has eloquently defended the Constitution, and championed pro-working-class reforms of taxation, education, and welfare policy. He has had too few allies, and far too many colleagues who prefer to focus on the glories of America’s Founding. If we are going to rescue the Constitution from both the power hunger of the left and indifference of Trumpish demagogues, a defense of the Constitution will have to be bundled with a domestic agenda that speaks to the contemporary concerns of Americans.
Pete Spiliakos is a columnist for First Things. His previous articles can be found here.