Donald Trump and Other Agents of Constitutional Change

Abstract

The death of Justice Antonin Scalia and the almost immediate announcement by Senate Republicans that they would not even consider anyone nominated by President Barack Obama to fill his seat ensured that the 2016 election would have a major impact on American constitutional law. If sufficient numbers of Republicans adhere to their plan to give the public "a voice" in the selection process by rejecting Judge Merrick Garland's nomination, I the election will be, among other things, a referendum on Scalia's successor. Given the Court's current division between four justices appointed by Republican presidents, who are all more conservative than the four justices appointed by Democratic presidents, much of the election's influence on constitutional law will run through the appointment process.

Yet appointments to the Supreme Court and the lower federal courts are not the only-and perhaps not even the most important- mechanism by which politics affects the course of constitutional law. Even without a change in Court personnel, "th' supreme coort follows th' iliction returns."2 Indeed, even a political defeat can result in changes in constitutional understanding.

In this Essay, I begin by enumerating some leading mechanisms by which changes in the Constitution or the dominant understanding of the Constitution can occur in response to political developments, even without any change in Supreme Court personnel. I then turn to the 2016 race and ask how the unusual candidacy of Donald Trump might affect our understanding of the Constitution, even assuming Trump does not become president. I point to two mechanisms of constitutional change suggested by Trump's candidacy: agenda setting and backlash. Trump has placed an aggressively antiegalitarian understanding of the Constitution on the national agenda. I conclude that, ironically, his most lasting contribution to constitutional law could be the rejection of that understanding due to the backlash he inspires.

Keywords: Supreme Court, Senate, Republican, Democratic, 2016 Presidential Race, Donald Trump, Antiegalitarian, Constitution, constitutional law,