Trump’s disdain for constitutional norms not just bad policy

No American living today has likely witnessed a US official so eager to attack the existence or relevance of truth itself as a category of political life, writes Neil Siegel

What is most troubling about United States President Donald Trump’s conduct during and since the 2016 election campaign is not any potential violations of the law, but his disregard of norms that had previously constrained candidates and his flouting of constitutional conventions that had previously disciplined presidents.

Constitutional conventions, as Commonwealth legal systems know well, are principles that restrain government officials in how they exercise political power. Conventions are derived primarily from past governmental practices that are engaged in out of a sense of obligation. To contravene a convention is to violate the spirit of the constitution, even if it does not violate a specific constitutional rule. Conventions may not be in the constitution, but they are deeply connected to the constitution. Their violation does not constitute simply bad policy, but a deviation from norms of good institutional citizenship that help sustain the constitutional system.

It may be tempting to assume a basic difference between the constitutional systems in New Zealand and the US is that conventions play a prominent role only here and not there. Unlike New Zealand, the US has a written, mostly judicially enforced constitution, which causes many American lawyers, judges, citizens and legal scholars to assume there are only two relevant categories of potential interest: the constitutional, which is conceived of as limiting governmental action, and the political, which is conceived of as licensing government officials to exercise their will to whatever extent they wish within legal bounds.

In reality, the US constitutional system is more complex than that. Consider two key examples of constitutional conventions in the US. Both concern the practice that has grown up around the Electoral College method of electing the president, according to which registered voters vote for electors and then electors vote for a president.

Believe it or not, the constitution is not generally thought by experts to entitle registered voters to participate in the process at all by casting votes for presidential electors. Article II, Section 1, provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ...” Yet it would be unthinkable today for a state legislature to appoint electors instead of allowing its voters to participate.

Nor is the constitution generally thought by experts to prohibit members of the Electoral College from ignoring the popular vote for president in the states that appoint them. Yet the overwhelming majority of electors throughout American history have not felt free to ignore the popular vote and support the candidate they prefer.

The response of most Americans to the above scenarios would very likely be that “you just can’t do that”. Their intuitions are best justified by longstanding constitutional conventions that limit the discretion of elected officials.

So it is not true New Zealand has conventions and the US has only a written constitution. The existence of a written constitution in the US does not necessarily crowd out the existence of unwritten constitutional conventions. Conventions in the US facilitate democratic self-government, keep partisanship within reasonable bounds and help ensure elected officials execute their responsibilities in a reasonably competent fashion.

Notably, however, Cornell Law School Professor Michael Dorf has expressed concern that America’s written constitution may make it difficult to formulate freestanding claims based upon past practice. “Because of the widespread but mistaken belief that the Constitution alone grounds legal authority,” he contends, “political actors feel the need to search for a constitutional hook for arguments that customary rules should be obeyed”, which has “lamentable consequences” because “for some customary rules, there is no readily available hook, and as a consequence, political actors may be tempted to violate them”.

There is truth to Dorf’s concern and it should be taken seriously in, for example, considering whether New Zealand should adopt a written constitution. But Dorf’s concern may be overstated. As just noted, there are important constitutional conventions in the US.

That said, the written, mostly judicially enforced character of the US constitution — especially in combination with significant political polarisation in the country — may lead to constitutional conventions being violated by elected officials, under-enforced by citizens and under-appreciated by American legal scholars. That is arguably what we have seen in recent years regarding the Senate’s (mis)handling of Supreme Court nominations.

That is also what we have seen regarding President Trump’s conduct. During the 2016 presidential campaign, he indulged in racism, misogyny, Islamophobia and mockery of the disabled in ways that are extraordinary in contemporary American politics. During or since the election, he has, among other things, compared the American intelligence community to “Nazi Germany”, attacked judicial independence by targeting “so-called” federal judges in highly charged and personal terms, sought to delegitimise the news media as composed of “dishonest people” who spread “fake news”, seemingly taken public positions on difficult, controversial issues without first consulting experts, declined to properly vet his initial executive order on immigration, insisted on not releasing his tax returns notwithstanding 40 years of contrary practice by presidents of both parties, repeatedly refused to disjoin public service from his private financial self-interest, and uttered falsehoods incessantly.

The last is the most troubling. President Trump’s persistent denials of truth and defences of falsehood go beyond anything I have ever seen in American politics. President Trump launched his political career on birtherism — the lie that President Barack Obama was not a natural-born US citizen and so was constitutionally barred from being president. And President Trump still counts “Obama wiretapped me” as an “opinion” worth defending, even becoming defensive when others point out the absence of any evidence. No American living today has likely witnessed a US official so eager to attack the existence or relevance of truth itself as a category of political life.

Constitutional conventions are supposed to help curb such conduct. Perhaps they will again in the future.

This is an adaptation of a free public address Professor Neil S Siegel is giving at Victoria University of Wellington’s Faculty of Law at 5.45pm on Thursday, May 11.

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