Without quite saying so, Jack Balkin hints that he may be. Others, like his Balkinization colleague Sandy Levinson, are more confidant that he is. So is he?
Let’s start with Trump’s policies. He is skeptical about international trade and immigration, supports law and order, and wants to reduce regulation and taxes. His position on social issues is ambiguous and probably moderate. This is an unusual combination of views for a presidential candidate, but these positions are hardly beyond the pale. There are respectable (if not necessarily correct) arguments for all these commitments, and they enjoy the support of millions of Americans, and have at various times in recent history been pursued by the national government, as well as the governments of other liberal democracies. If President Trump kept his campaign promises in good faith, he would hardly be a threat to the constitutional order, whether the policy consequences would be good or bad.
The real source of alarm seems to be Trump’s incivility, and his reckless and frequently erroneous statements—including sarcastic asides, jokes, and semi-deniable provocations that have offended millions of people. Yet most of these statements are not statements of policy or intention but merely (incredible) rudeness to people who are generally treated respectfully by politicians even in the heat of a campaign. It is possible to argue that a person who says that a judge is biased against him because of the judge’s Mexican heritage would also, as president, defy the Supreme Court. Or that someone who would ban Muslims from entering the United States would also be willing to round up American Muslims and put them in internment camps after the next Islamist terrorist attack. But these are leaps of logic—like saying that because Hillary Clinton is willing to accept Syrian refugees onto American soil, she wants to forcibly convert all Americans to Islam. Trump’s offensive verbal attacks might disqualify him from the presidency on political grounds, but they do not show that he plans to violate constitutional norms.
The major import of these statements is what they say about his temperament. But here again, while I agree that Trump lacks the temperament to be president, this is a political, not a constitutional, judgment, unless perhaps one thinks that he is literally insane, say a “sociopathic narcissist,” to quote Sandy. But he’s not insane, and this flinging around of medical vocabulary words as if they meant anything should be avoided.
Jack concludes his post with these words:
On the other hand, it’s also possible that if Trump wins in November, people will become increasingly fearful about what he and his allies will do. As the time grows closer to Trump’s actually taking office, people’s views about what the Constitution allows may undergo significant change. For example, we might see vigorous debates about the responsibility of members of the electoral college to vote their consciences rather than for the candidates who won their respective states. We might also see debates about what will throw the election into the House of Representatives (for the Presidency) and the Senate (for the Vice-Presidency). We may even see schemes floated that try to place Mike Pence, or Tim Kane, or even Speaker Paul Ryan in office instead of Trump or Clinton following a deadlock in the House; or schemes that try to use the Twenty-Fifth Amendment to keep Trump from exercising the powers of the Presidency on the grounds that he is mentally unstable or incompetent.
The striking claim here is that even before Trump takes office, some substantial portion of the public—or (more likely) of the elites—will try to block a democratically elected president from taking office (albeit by reinterpreting the Constitution as though they were law professors). I don’t think there is any possibility that this will happen—unless Trump announces during his campaign that he plans to shut down the courts and Congress. (Which is unlikely but I suppose one can’t rule out anything this campaign season.) Trump will likely lose the election just because all of offensive statements will cost him political support, as they should; that’s how democracy works. And if he doesn’t, our panicking liberal elites will need to decide whether to throw their lot against democracy as Jack predicts they will (as the liberals did in Egypt but not in Turkey), but if they do, then they will need to acknowledge that the threat to constitutional order is not Trump, but they.
Trump is a recognizable type. He is the twenty-first century version of the billionaire rabble-rouser who gains power by appealing to the mob—almost a stock character in the waning years of the Roman Republic. The founders certainly feared such a person, but the major obstacles to the presidency that they created or kept in place in order to keep a demagogue out of the office—property qualifications for voting, indirect elections, federalism, separation of powers—have mostly been dismantled. Even in our democratic age, it seems that some people are coming to appreciate the vision of elite-led democracy that these institutions were meant to sustain. Trump may not threaten the constitutional order himself, but he is provoking the elites to reconsider their support for a constitutional order in which someone like Trump could be elected president.