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Trump Can’t Do That, Can He?

Photograph by Nathaniel St. Clair

Notwithstanding his gift for self-deception, even Donald Trump knows that he would now lose anything like a free and fair election. He would lose the popular vote more soundly than four years ago, and he would lose in the Electoral College as well.

But he could still succeed in disrupting the election and delegitimating its results so thoroughly that anything could happen. He could even incite enough mayhem to launch a coup.

If he does, it would be because he feeds on the adulation of people he finds “disgusting,” the kind that flock to his super-spreader campaign events, and because his bottom line depends on it.

He would do it too in order to keep himself and perhaps also Ivanka, her husband Jared, and her two idiot brothers, out of jail for his and their actionable crimes.

And he would do it because, like Vladimir Putin, according to our Cold War mongering “liberal” commentariat, or like the perpetrators of the 9/11 attack on the Pentagon and the World Trade Center, according to George W. Bush, because he “hates our democracy.”

That would only be a secondary motive, however. Trump has an authoritarian personality second to none (so long as he is the authority), and he has foul instincts and attitudes, but he has neither the intelligence nor the level of intellectual maturity necessary for acting in coherent ways for other than self-regarding reasons.

In any event, the fear now is, that however his pre- and post-election shenanigans turn out, he will refuse to leave office voluntarily.

Could he do that?

The U.S. Constitution is vague about all sorts of matters; it could hardly have survived for as long as it has, were it not. But on the question at hand, it is clear as can be: unless the Donald is reelected, when his term expires, he has to go.

Nevertheless, the short answer to the question posed — “could he do that? could he not go? — is yes; more precisely, yes in theory, but probably not in practice.

As we expunge the body politic of the Trumpian menace, assuming all goes well, and then move into a post-Trumpian, Bidenesque era in which so much is at stake for civilization itself and for the political scene in the United States, for our duopolistic party system, and especially for the future of the Democratic Party, it is worth thinking at greater length about why, in theory if not in practice, Trump could in fact violate even that most unequivocal of constitutional prohibitions.

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No one can do what is logically impossible, and no one can violate laws of nature, but when we turn to questions about what is and is not possible in our social, political, and economic lives, especially insofar as they are governed by conventions, the situation becomes more complicated.

Conventions constrain what can and cannot happen, just as logical principles and laws of nature do. But because, in the final analysis, they, unlike the other constraints, are humanly constructed and humanly maintained, in principle, where they obtain, anything goes.

This is why Trump (or anybody else, individually or collectively) could in theory do constitutionally impossible things – if others bound by those conventions let him.

Constitutional crises almost never occur in the United States, in part because the convention that holds that, when they arise, the Supreme Court gets the final word, takes precedence over all else.

The problem now, though, is not just that the composition of that court is on the verge of taking a turn for the worse, but also that thanks to the social and political maelstrom Trump’s election set in motion, and thanks to the contradictory messaging running through his tweets and rants, all the conventions from which the Constitution’s power derive are losing their hold.

Were Trump to make a go of staying in power after Inauguration Day, the Democratic Party would be culpable just for being too reasonable (or cowardly) to stop him. They could hardly help it, though, inasmuch as so many Democrats suffer from having been born without a spine.

Republicans, meanwhile, are guilty as sin and then some, for having entered into a marriage of convenience with a pernicious conman, and then handing him the keys of destruction.

They did it in order to realize their longstanding dream of undoing those achievements of the Progressive Era, the New Deal, the Fair Deal, and the Great Society that provide a measure of restraint on the “economic royalists” Franklin Roosevelt inveighed against.

To that end, a key component of their strategy has been to stack the federal judicial system with judges whose heads remain stuck in the stone age.

That, more than undoing reproductive rights and otherwise reinforcing the subjugation of women or empowering theocrats is what their abject servility to the worst American president ever has been about. They have given lifetime positions to troglodyte judges because they are venal to the core.

They did it because what they care about most is making the world safe, or safer, for the miscreants who rule a capitalist system long overdue for a good overthrow and a thorough and fundamental reconstruction.

Chairman Mao –remember him? – famously declared that “political power grows out of the barrel of a gun.” That saying of his was plainly anachronistic inasmuch as political power existed long before guns were invented, but the thought behind it is unexceptionable.

Since at least the seventeenth century, it has been practically axiomatic in Western social theory and political philosophy that political power is inherently coercive. No doubt in China and elsewhere, that notion has long been commonplace as well.

Since the nineteenth century, there have been anarchists who envision a time when cooperation will replace coercion. But even they believe that for anything like that to happen, “the arc of the moral universe” will have to bend a lot farther than it ever has.

Thus, from time immemorial, the use or threat of force has been indispensable for coordinating individuals’ behaviors – especially in large, multi-generational communities that endure over extended periods of time and in which people are, for the most part, strangers to one another.

Force cannot do much coordinating in those circumstances, unless it is justified – or rather believed to be justified.

Thus, while political power may indeed grow out of the barrel of a gun, political authorities are not just highwaymen writ large. They are individuals with a license, as it were, to do whatever it takes to compel compliance, not just in particular instances, but as a general rule.

In pre-modern times – and in such backward places as Saudi Arabia and the Gulf States today – religious ideologies justify the requisite authority relations – usually through the offices of clerisies that have, in one way or another, won over peoples’ hearts and minds.

Their victories too were achieved and consolidated through the use or threat of force. But it all happened in a world in which the now familiar distinction between the natural and the super-natural was so alien to peoples’ ways of thinking that the secular justifying theories that we take for granted nowadays, were simply unthinkable.

It wasn’t until the dawn of the modern era that this began to change. We have the Protestant Reformation and the Catholic Counter-Reformation and the wars of religion that followed to thank for that, along with progress in the arts and sciences.

As the contending sides in the wars of religion fought to exhaustion and as enlightenment began to take hold, mutual hostility gave way to grudging acceptance of religious diversity. In time, tolerance, not just of competing creeds, but of many other aspects of life as well, came to be viewed not so much as a necessary evil, but as a positive good.

This, as much as the rise of the bourgeoisie and the resulting reorganization of the economic sphere along basically commercial lines, was what liberalism was about, and was therefore what the United States was about – insofar as the Constitution of 1787 set the so-called “American experiment” in motion.

At first, the beneficiaries were white men only, and then only if they were comparatively well-off. The situation has improved considerably since then, but not nearly enough. Patriarchal attitudes remain in force, money still calls the shots, and white lives still matter the most.

Be that as it may, thanks to its liberal origins, the United States has been, from Day One, a place where in theory – and, to a considerable extent, in practice too, – religion was a matter of private conscience only, of little or no public consequence.

Thus, a secular basis for justifying the power that comes out of the barrel of a gun and for adjudicating disputes arising within that framework became indispensable.

Amy Coney Barrett and those who think like her cannot change that, much as they might like to. Troglodyte jurists can make the world even safer for high-flying capitalists than it already is, and they can deliver for white evangelicals and reactionary Catholics, but they cannot claim that their authority derives from what recovering alcoholics call “a higher power.”

It comes from a Constitution, cobbled together in Philadelphia in 1787 by the economic and social elites of the day — Southern planters and northern merchants mainly – nearly all of whom were dependent in one way or another on slavery or the slave trade and, of course, on the subordination or outright extermination of the indigenous peoples of the Americas.

Nevertheless, the break from religious modes of thought and from theologically grounded justifying strategies was less far-reaching than might appear.

All major world religions are, in varying degrees, legalistic. Mainly for historical reasons, Christianity is something of an outlier; Protestant Christianity most of all. Thus, it is generally more demanding with respect to beliefs than most, and less demanding with respect to rituals and legally determined observances. Our “founders” were either Protestants or deists or outright secularists whose ways of thinking had been formed within a Protestant framework.

And so, from the beginning, the Constitution they wrote, though cobbled together in haste and based on far-reaching “transactional” compromises, was thought of like Holy Writ, inerrant and definitive, but requiring interpretation based as much on inspired intuition as precedent and tradition.

Liberal jurisprudence struggles against this understanding to some extent, seeing Constitutional democracy as an evolving project that, without breaking free, historically or conceptually, from its past, changes to accommodate new understandings, conditions, and needs.

The “originalist” jurisprudence of, say, Antonin Scalia, Coney Barrett’s mentor, and by Robert Bork and other rightwing ideologues, in and out of the Federalist Society, insists on following the letter, not just the spirit, of the 1787 constitutional settlement as best one can.

In much the way that proponents of monetary theories that connect the value of currencies to gold or silver make it more difficult than it would otherwise be to expand the money supply, originalism makes it more difficult than it would otherwise be for the law to change in ways that could encourage the larger economy to threaten the status quo from which later-day bourgeois ladies and gentlemen benefit so egregiously.

By upholding a notion of the inerrancy of sacred texts awaiting conscientious interpretation, originalism is more Protestant than Catholic in form and substance. How ironic, therefore, that so many of its best known and most influential proponents have been, like Scalia and now Coney Barrett, hardcore Catholic believers.

However that may be, the idea is that while high court rulings may be challenged (in the courts), they must not be defied, and that Supreme Court rulings provide the final word.

Would Trump, a man for whom norms exist only to be broken, defy a Supreme Court ruling anyway? Probably not, because that would be a bit much for the diehard Republicans he relies upon to abide; if only for that reason, there would be no percentage in it for him.

Of course, we may soon find out otherwise. So far, though, Trump and his minions have respected court decisions, preferring to pack the courts rather than to ignore or defy them.

But inasmuch as the judiciary has no army, only a few scantily-armed marshals, and therefore no effective way of enforcing its decisions other than by relying on the executive branch’s means of coercion, this could change.

If Trump is not defeated and Trumpism vanquished, anything could happen. Among other things, courts could lose the very considerable power they now enjoy.

For the time being, though, the courts do have power — because in lieu of ways of enforcing their decisions directly, legalistic norms that determine what is and is not possible continue in force.

This is not so much a distinctively American phenomenon as an epochal historical one. In the modern era, tyrannies, without exception, have sought to justify themselves by reference to legal procedures and norms already in place.

True revolutions aside, where the idea is to smash the old ways in order to “build a new world on the ashes of the old,” even outright seizures of state power are ultimately defended in ways that the perpetrators seek to justify legalistically.

Where legalism reigns, arguments must be made in ways that accord with the precepts and traditions of prevailing legal systems. This is less of a constraint than one might suppose. Where there are lawyers clever enough, a legalistic justification for almost anything, even for staying in office longer than the Constitution prescribes, can probably be concocted.

Not all the “originalism” in the world can change that, even if, contrary to what would be the case were Trump to call on “his judges” to do well by him, those judges had the courage and the will.

For those who doubt that even something that plainly egregious could be made to pass, or seem to pass, constitutional muster, proof could soon come if Trump calls for it, and the forces now arrayed against him are unable to find it in themselves to fight back as boldly as need be. With Bidenite Democrats leading the way, that is a distinct possibility.

ANDREW LEVINE is the author most recently of THE AMERICAN IDEOLOGY (Routledge) and POLITICAL KEY WORDS (Blackwell) as well as of many other books and articles in political philosophy. His most recent book is In Bad Faith: What’s Wrong With the Opium of the People. He was a Professor (philosophy) at the University of Wisconsin-Madison and a Research Professor (philosophy) at the University of Maryland-College Park.  He is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).

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