The one-way constitution

Some say Trump and his circle are disregarding the constitution - but that is only half right

We have a tendency to think in binaries - and this is certainly true about when we think about constitutions and constitutionalism.

We will take a view on whether a politician is acting either within a constitution or not.

And if not, we may use emphatic phrases with redundant adverbs: “[A] is completely disregarding the constitution” or “[B] is totally ignoring the constitution” - and so on.

But with the case of Trump and others, this is not correct, “completely” or “totally” or otherwise.

For in practice Trump keen on the constitutional protections that protect him and confer on him powers, and his various supporters are keen on the constitutional provisions that protect them and give them powers.

The constitution is not disregarded or ignored when it is to their advantage.

When it suits them, the constitution is very much intact.

They just do not want those elements of the constitution that check and balance them, or which confer rights on those they want to attack

It is one-way constitutionalism.

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Over at Prospect (click here) my latest “weekly constitutional” post applies this general observation to a couple of concrete examples: about how the Trump-allied Speaker of the House of Representatives is using his powers to not swear in a political opponent over a month after she was elected, and how the conservative majority on the Supreme Court are using a “shadow docket” to determine cases in the government’s favour without full hearings.

But there are many other examples - consider Trump’s use of the pardon power to circumvent and frustrate accountability in the criminal justice system, or how is using executive orders to usurp the proper role of Congress (with Congress nodding-along).

All these examples are, in their different ways, uses and abuses of powers and rights allocated by the constitution.

If Trump and his allies were genuinely disregarding the constitution they would not be able to do these things.

Instead what they are doing is gaming the constitution.

A constitution for me, but not for thee.

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As such, they are adopting a similar approach to how they deal with other matters of first principle.

Free speech for me, but not for thee.

Law and order for thee, but not for me.

And so on.

As someone once described conservatism, though it also is wider application:

Conservatism consists of exactly one proposition, to wit:

There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

There is nothing more or else to it, and there never has been, in any place or time.

This is formal power using a one-way valve.

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If full, two-way constitutionalism is to be restored in the United States and elsewhere it will not be a case of building up from ground zero.

It will be a far more difficult exercise stabilising and remedying a structure which has half-fallen down - and against the unwilling occupants of the still-stable bits.

Restoring constitutionalism will be a big job - and it will be more demanding than, say, having a revolution and starting again.