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 conservatismâ€”which, after all, would welcome the likes of a Cruz. Rather, it is the complex of groups devoted to vindicating individual rightsâ€”the NAACP, La Raza, the ACLU, #BlackLivesMatterâ€”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.