The Second Amendment has been incorporated and, whatever the Connecticut Court would like to believe, it protects the right of Americans to bear arms.
The most compelling and prudent argument for Donald Trump’s candidacy remains the best one that can be made for his presidency: that he was, on balance, a better option than the other side of the ballot. Yet in the manner of recent politics, and in the style of Trump’s predecessor, an aura has attached to he alone who can fix it. The tragedy of contemporary conservatism is the extent, not universal but still substantial, to which it has succumbed to that fervor. The irony of contemporary conservatism is that it has given support and, at times, devotion to President Trump, who is at once a cult of personality yet also strangely devoid of personality. This has allowed the President to be both uniquely qualified by gale force of persona to transform politics yet also divested of all personal traits and rendered a mere vessel for the policy agendas of others who are willing to ignore or tolerate the man so long as he does what pleases them.
As to the policies, there has been some winning, and some of it considerable: Justice Gorsuch, the lower-court judges, the systematic attack on the administrative state and, if it is to one’s liking, the tax bill. The problem is that eggs have been broken to make these omelets. The question, then, is how many needed to be broken. If the President’s sole aim is to disrupt, that is no trick, and he will inevitably do some good in the process. “They who destroy every thing certainly will remove some grievance,” Burke teaches. “They who make everything new, have a chance that they may establish something beneficial.”
That was Burke’s description of the revolutionary French, and it would be facile simply to associate President Trump with them. “Jacobin” is a lazy epithet. There is purpose, or at least a discernible trajectory, to the President’s disruptions. But that does not answer the question Burke compels, which is the extent to which disrupting the customary is necessary to attain the desirable. We might, then, productively ask two questions about President Trump’s eventful first year. First, could his policy agenda have been achieved with fewer broken eggs? Second, will the negative consequences of the disruptions of custom and norms both outweigh and outlast the policy victories in which they are said to have eventuated?
Trump’s Policy Achievements
The first question—did the regime need to crack all those eggs to make these few, if important, omelets—must be confronted in both its theoretical and practical dimensions. Theoretically, there is nothing about the policy agenda that necessitates the lying, tweeting, erratic disposition, or the debasement of his office with commentary on everything from women’s appearances—which itself appears to have entailed a lie—to Arnold Schwarzenegger’s television ratings. Yet practically, it is equally true that it is difficult to identify any Republican—think Jeb Bush or even Ted Cruz—who was not disposed to such behavior who would have pursued this agenda so forcefully or unapologetically even to the extent he agreed with it.
While it is true that the President’s legislative achievements have been scant, his executive maneuvers, especially on the regulatory side, have been substantial. More important, they have been constitutionally intentional. Josh Blackman has persuasively drawn together several elements of the Trump agenda into a constitutionally principled assault on the administrative state that includes, significantly, a diminution of executive power. It emphasizes a reclamation of congressional power, agency adherence to proper procedure rather than circumventing it with informal “guidance” and, finally, less judicial deference to administrative decrees.
Blackman notes that this challenges the conventional wisdom that executive power only accretes and never diminishes:
These three planks of the Trumpian Constitution — delegation, due process, and deference — are remarkable, because they do the exact opposite by ratcheting down the president’s authority. If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude. If judges become more engaged and scrutinize federal regulations, the president receives less deference.
His nomination of Justice Gorsuch will serve this agenda by providing a voice on the Court for “fac[ing] the behemoth” of Chevron deference. So will his largely successful nominations of lower-court judges who appear disinclined to defer unreasonably to agencies.
The economy has been healthy during his time in office, an eternal instance of the post hoc fallacy to which Americans—unwilling to accept the mysteries and disparate forces that free economies entail—cling. The market is rising, and job growth is up. Those measures were on upward trajectories before he came into office, but he would have been blamed had it been otherwise, so give him credit at least for not doing what was decidedly within his power, which was taking measures to disrupt growth.
On the foreign front, ISIS has substantially shrunk. This, too, was happening before he came into office—and his much vaunted secret plan, kept under wraps to pacify the ghosts of Patton and MacArthur, never particularly materialized. But in this case as well, had it expanded or remained static, he would have been blamed. So credit him with the progress. He has generally delivered on his “America First” platform, withdrawing from, or at least not asserting, the burdens of global leadership.
What is striking about these achievements is how few of them pertain to the populism Trump stoked on the campaign trail. There is no border wall and still less any indication of Mexico paying for it. The infrastructure plan has gone nowhere, the United States is still in NAFTA, the promises of protectionism are unfulfilled. Those who said the glories of the unfettered market were bygone and had to be updated for the populism of a new economic reality can claim as their sole major legislative achievement a tax bill that would make Arthur Laffer blush. It might be said that the hollowing out of conservatism that Trump threatened on the policy front has not occurred.
Conservatives might welcome that. The populism has given way to conservative policies. But they are being achieved in an utterly unconservative manner. Does it matter?
The Price of Trump
Yet it is the second question that demands a conservative reckoning. Even when their impact is generational, policies are transient. Judges may outlast the executives who name them, but they do not last forever. To be sure, a good deal of the policy agenda, especially his executive actions with respect to the administrative state, has the effect of constitutional restoration. One hopes it will therefore endure, but the next executive, whose arrival Trump’s erratic behavior may hasten, can—except the judges, which is no small achievement—reverse it with comparable speed. These matter, and they matter a great deal. They should be credited to Trump’s constitutional account.
But to the extent he has undermined norms gratuitously, these must be deducted. Aristotle teaches that constitutions do not run on autopilot. In Book II of The Politics, he advises against rewarding even good changes in the law because doing so encourages gratuitous change, disrupting the habituation that is the real basis of obedience to the law. Federalist 49’s case for constitutional veneration understands matters similarly. Relentless constitutional upheaval, Madison writes, will “deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.” A premise of conservative constitutionalism is that the informal habits of political life matter as much as, if not more than, what Madison called “parchment barriers”: mere written commands there is no will to follow. They matter both because they are gentle substitutes for harsh coercion and because they are far easier to destroy than to build. (Burke: “Rage and phrenzy will pull down more in half an hour, than prudence, deliberation, and foresight can build up in an hundred years.) What Trump has called “modern-day presidential”—the tweeting, the vulgarity, the distortions, the yugeness—is now ensconced. A candidate who can compete with Trump will be one who can out-Trump him.
Which matters more? Put otherwise: What price winning? And if the toll being exacted for winning is too high, what are the options? A zealous and literal position of “Never” Trump is inherently immoderate, especially given the fact that the President was elected in no small part because he identified and tapped into issues that the much vilified “Conservatism Inc.” overlooked. Yet joining a personality cult is every bit as anti-conservative. So what to do?
Critics of Trump can hold their breath and stomp their feet, ignoring in the process what he identified and indulging in a longing for what once was that confuses conservatism with nostalgia and is better left to a President who thinks, or claims to, that the glory days of mining jobs are returning to Appalachia. Conservatives can jump enthusiastically aboard the Trump Train, with the clear threat to conservatism—the cult of personality, the coarsening of public manners, the dismantling of political norms—that all of it entails.
There is an alternative: an Aristotelian mean rooted in Burkean reform rather than Trumpian revolution. But first, it must be rooted in a fair assessment of the costs and benefits of the latter.
Donald Trump has forever changed the American presidency, and not for the better. There is virtually nothing conservative about his disposition. He displays a near total incapacity to take criticism or confess fault, a trait whose deeper implications include a likely inability of those around him to correct his notorious impulsivity, manifested most recently in his lashing out at British Prime Minister Theresa May, who quite properly upbraided him for (impulsively) associating himself with a British extremist group. There can be no question that he has given occasional comfort to—witness his embrace of Alex Jones, he of the Sandy Hook conspiracy theory—and only scantly admonished the homegrown extremist elements that seem to feel legitimized by his victory.
Perhaps more disturbing is the extent to which apologizing for such behavior has debased respectable conservatives, who have most recently followed him into outright defending or at least looking away from an apparent child molester seeking a seat in the United States Senate. The Republican congressional leadership—House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell, the former of whom once called candidate Trump’s conduct racist but supported him anyway, and the latter of whom Trump has openly ridiculed—increasingly look like abused spouses who stay true after the President tells them he loves them even though they know he will strike them again.
The tactics of explaining away Trump’s bad behavior are themselves profoundly unconservative. There is whataboutism, the suggestion that any accusation against the 45th President is unfair or incomplete unless it is accompanied by a ritual recitation of the sins of the previous 44 or some sacrificial Democrat such as Hillary Clinton, as though the President of the United States were incapable of standing alone and assuming responsibility for himself.
His notorious distortions, which range from the trivial to the serious, are so routine it is difficult to imagine negotiating partners either in Congress or abroad taking him seriously—as when, for example, he greeted the passage of his much desired tax bill by declaring his openness to a higher corporate rate. He assigns schoolyard nicknames to everyone from media personalities to foreign leaders with nuclear weapons.
Perhaps more disturbing, the lens through which he appears to look at the world is deeply narcissistic. Things are good or bad for Donald J. Trump. Consider, in this context, his repudiation of Paul Ryan’s entirely appropriate reminder that Trump had “inherited” a 150-year-old Republican legacy stretching unto Lincoln by saying he had, instead, “won it,” as though it were a personal plaything. It was a revealing moment. He does not think historically or generationally. He thinks now, and he thinks Trump. Thus he demands that the filibuster be jettisoned so that his agenda can be passed now: Whether it will be available to block some other President’s agenda tomorrow is someone else’s problem. There are no tapes of his conversations with former FBI Director James Comey, but surely his demand for personal loyalty at least rings plausible.
His on-and-off populism is constitutionally destructive. His tweeting is the vulgarization of Woodrow Wilson, who predicted the people would run to their President/father for opinions and assurances on all matters: “They are,” Wilson wrote, “as eager to have him settle a literary question as a political; hear him as acquiescently with regard to matters of special expert knowledge as with regard to public affairs, and call upon him to quiet all troubles by his personal intervention.” That and comment on Schwarzenegger’s ratings. Hamilton had something else in mind: that Presidents would correct the people’s errors, not fuel their passions. Thus Federalist 71: “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed, to be the guardians of those interests; to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.”
There is a school of thought according to which Trump is naturally yuge, operates at a volume of 11, and must be turned down to be understood outside his native habitat of Queens. That goes only so far. Politics operates by words. Presidents are understood abroad by words. The President has an obligation to make himself understood, not to operate by impulse on the understanding that everyone else will modulate him. This deflation of words—which Trump commits by lying and necessitates by exaggerating—is itself an attack on the institution of politics. Trump is not alone in it. But he alone occupies the presidency.
The attacks on custom have been furious and fast. They range from the traditional distance Presidents keep from law enforcement—the President has repeatedly harangued his own FBI on Twitter for investigating his own administration—to the traditional distance Presidents keep from the public. These customs are the vital glue of constitutional life. They might, in fact, have protected the President from some of his worst mistakes. They would certainly have protected the regime. They do far more to hold constitutional life together than the mere fact of a written constitution, which, as Aristotle reminds us, “has no strength in obedience apart from habit.” And they are almost certain to be a Trump legacy that endures long after the policies have passed. They are walls that, once breached, crumble quickly and are enormously difficult to rebuild, all the more so given the cultural and technological constraints before us: instant communication with no mediation, deep polarization and bifurcation of media to the point of creating divergent realities. Trump should know, given his penchant for making excuses, that precedents create licenses. Small lies from the next President will seem a welcome relief. Tweeting that emanates directly from the presidential thumbs will seem a requirement of the job.
And yet: If there is no going back from this damage, there is also no going back to what conservatism was before. The economic, social and cultural pain into which Trump tapped demands a reckoning. It is one thing to say “never” to Trump the constitutional phenomenon—the whole package—but it is another to look away from the Trump voter.
The Aristotelian Mean
Burke usefully distinguishes between revolution and reform, supplying several criteria he would use in altering the British regime:
I would not exclude alteration neither; but even when I changed, it should be to preserve. I should be led to my remedy by a great grievance. In what I did, I should follow the example of our ancestors. I would make the reparation as nearly as possible in the style of the building. A politic caution, a guarded circumspection, a moral rather than a complexional timidity, were among the ruling principles of our forefathers in their most decided conduct.
Trump quite decidedly is not burdened by “complexional” timidity, but he could use a dose of the “moral” sort. It might help him to see that the essential difference between revolution and reform is the direction in which it looks: whether it aims to create or restore. Certain of Trump’s changes can be understood to seek restoration. The reforms of the administrative state are among these. Others are fantasies so packaged: the false hopes for restoring the glory days of mining and manufacturing, for example. But others are essentially destructive and new. There is nothing restorative about transforming the presidency into a vehicle of immediate inflammation of the people, for example.
The challenge, then, is to grasp the elements of what Trump has identified that can be usefully converted into a spirit of Burkean reform. Surely the regime Publius explicated can be accommodated to the concerns of Appalachian families without needlessly destroying norms. “Never Trump” risks signaling to these families that no one is even going to run a route toward the deep ball they threw last November. But the cult of personality surrounding the President surrenders conservatism itself. The Aristotelian mean these voters deserve is attention to their concerns while also restoring what remains their inheritance: the constitutional regime. That ultimately entails something of which Trump appears incapable: separating those concerns from the man who identified them.
 It has become fashionable in some Trump circles to dismiss Burkeanism as the conservatism of losers (witness Publius Decius Mus). But even if President Trump can be said to have moved conservatism beyond Milton Friedman, if he has transcended Edmund Burke, then stop calling it conservatism.