At present, the Republican primaries are dominated by a neo-fascist who seems to think he can “Make America Great Again” by breaking all the rules of normal American politics and imposing his will on everyone else by whatever means he thinks most expedient. Democrats are right to be horrified by Donald Trump—but they should pause to ask where he could have gotten such an idea. ~ A. Barton Hinkle in Reason
Hinkle points to several instances where President Obama values democracy and democratic processes abroad, but subverts democracy and democratic processes at home. We have become so accustomed to a president who does what he likes, that a fairly large number of citizens appear ready to elect an authoritarian strongman.
However different their operating styles, Barack Obama and Donald Trump share this trait: they want to use executive power independent of constitutional restraints. Obama has stated that if Congress does not conform to his desires, he will bypass it. He has shown in several key instances – the Affordable Care Act in particular, as well as the nation’s war making power – that he means what he says. Donald Trump indicates the same intent. He won’t let normal democratic processes stop him.
So we have to ask, with respect to any lawmaker who claims powers not enumerated in the constitution: which comes first, the law or the lawmaker? If the lawmaker comes first, that’s just a dictatorship. If the law comes first, from where does it derive its force? How do we credit the statement, “that enactment has the force of law”?
People invented constitutions to solve this problem. Constitutions bind lawmakers to act only as permitted by the people they serve, who make a covenant when they subscribe to this fundamental law. When lawmakers act under a constitution, their laws have implicit approval, because they follow written rules that govern lawmakers.
For almost two centuries, our constitution served this purpose reasonably well. Beginning with the gradual rise of a national security state after World War II, constraints imposed by the constitution became weaker. Nearly 230 years after the states ratified it, we perceive correctly that our fundamental law does not function according to the founders’ intent. It appears more as an historical artifact: you can view it in the national archives, but it does not govern our national politics. It does not constrain lawmakers or their agents.
If the constitution does not serve its original purpose, what legal restraints prevent people like Barack Obama and Donald Trump from doing what they like? If they can get themselves into office, nothing prevents them. Without constitutional restraints, lawmakers look after themselves and their buddies. They undertake no actions contrary to their own interests, or the interests of those who support them. The only action that has not yet occurred is a president who contrives to stay in office more than eight years. We may see that yet.