16 Pages Posted: 9 Jun 2017
Date Written: June 2017
In this short essay I assess the meaning of Trump’s election for the future of our constitutional order. The efficacy and, perhaps, stability of our constitutional order are in question and we should try to understand why. In particular, I argue that we should consider the possibility that Trump’s success is the product of longstanding trends that show the Constitution to be more crisis-prone than many would like to admit. These crises are internal to the constitutional order, based in the reality that it has long placed political elites in the position of informally adapting an obdurate Constitution to the changing responsibilities placed on the national state.
Given this perspective, I provide three takes on Trump and the future of the constitutional order. Part I argues that Trump’s victory was enabled by the long-term decline in political trust. It is important to understand that no matter whether President Trump succeeds or fails, the problems of trust and dysfunctional government will remain front and central.
Part II contends that the challenge Trump presents cannot be remedied by returning to the verities of the Constitution because the Constitution is part of the problem. I critique the view that the Constitution’s checks and balances will be sufficient to steer the Trump administration within safe boundaries. Instead we should face the music and acknowledge that the dysfunctional operation of the contemporary constitutional order made Trump’s rise possible in the first place. The reality is that our governing order, weakened by a systemic loss of trust, is increasingly unable to reproduce those conditions that contribute to its maintenance and success.
In Part III, I briefly discuss to what extent the Trump presidency is consistent with political regime theory, particularly the highly influential theory of “political time” put forward by Stephen Skowronek. Skowronek’s theory depends on the recurrence of “reconstructive” presidencies that open up new possibilities for the national agenda. I argue that the dysfunction at the heart of our constitutional order has made those sorts of presidencies difficult, if not impossible. The last three presidencies of Bush, Obama, and now Trump suggest strongly that this dysfunction that must be addressed before American politics and policy can move forward.
Keywords: President Trump, trust in government, constitutional order, dysfunctional government, political time, presidency
Suggested Citation: Suggested Citation
Griffin, Stephen M., Trump, Trust and the Future of the Constitutional Order (June 2017). 77 Maryland Law Review __ (2017); Tulane Public Law Research Paper No. 17-8. Available at SSRN: https://ssrn.com/abstract=2981350