Even legal protests mostly dumb democracy down, and when they are conjoined with illegality, they undermine respect for the rule of law.
The contretemps over a White House aide complaining anonymously in the New York Times about an erratic President of the United States puts into sharp relief the political chaos of the moment. According to the aide, inside the administration there are “adults in the room” saving President Trump, and the country, from “his worst inclinations.” Outside the administration, we have seen conservative intellectuals bending their principles in the name of justifying the Trump presidency.
Charles Kesler’s recent op-ed in the Times in defense of the President’s “norm-breaking” is a case in point. Kesler, the editor of the Claremont Review of Books, has done more than almost anyone else over the last 20 years to restore the meaning of the constitutional tradition. Prior to the intervention of the Harry Jaffa-inspired “Claremonsters,” the constitutional tradition was waning in the face of a progressivism that spurned it and a conservatism that theretofore did not know how to defend it. Beginning in the mid-20th century Herbert Storing, Martin Diamond, and Harry Jaffa were all, in their different ways, critical to the restoration of the meaning of both the Declaration of Independence and the Constitution.
The Claremont Review has been one of the principal instruments of this restoration ever since. Kesler and those around him reminded the American political culture of the importance of the Constitution for preserving a working democracy. Their rescue of the Founders’ ideas was sorely needed because democracy needs more than just democratic sentiments to survive; it needs a constitutional order that controls by moderating the democratic excesses of the people. That constitutional order requires, as Kesler points out in his Times article, well-structured institutions and a set of norms that support those institutions. Although an essential part of the equation, the Constitution was not sufficient on its own.
His description of the Founders’ understanding of all this is acute. He writes that our “terse” basic charter “left it largely up to our politicians, by a combination of written laws and unwritten customs and habits, to develop the culture of constitutionalism that it needed to endure and to fulfill its promise of good government. The resulting formal and informal norms helped both to grease the wheels of government and to legitimate them over time.” Said like a student of the Founding and a crucial player in proving its relevance to the present. And it is well and good to distinguish, as he does, important norms from less important ones. “The crucial question,” he writes, “is how the norms in question stand in relation to the Constitution and the common good.” Are the “norms President Trump is accused of breaking vital to American democracy and constitutionalism, or are they vital rather to the way government operates in contemporary Washington?”
President Trump is defensible, then, insofar as the norms he has broken are not vital to American democratic constitutionalism. Kesler mentions two that it would be defensible to break: “disturbing NATO’s slumber” and “choosing from a list of potential Supreme Court nominees prepared by outside experts.” If these were actually the most grave of the norms that Trump has been accused of breaking, Kesler would be right. There is no necessary reason why the President cannot unsettle the alliance with NATO or choose Supreme Court nominees from a list.
The problem is that these are not prominent in the serious criticisms of the President. Perhaps I do not pay enough attention to what is being said about him, but I can’t remember any one complaining about his picking his Supreme Court nominees from a list prepared by experts. So, it seems odd to defend him for an attack that has not been made and, even if were being made, would be rather stupid.
The NATO issue is weightier, although I am not sure that the Atlantic Alliance’s defenders ever couch their criticism in the form of a norms violation. Instead, they protest that it is unwise and imprudent for the American commander-in-chief to disturb NATO. They don’t tend to attack him because they think the norm itself upholding NATO is inherently good. To the extent they do—this does apply to some of them—Kesler’s defense of Trump is useful and legitimate. We should not continue our commitment to NATO for little reason other than that we have always had one.
These are “picayune” instances, as he says. Which is not to say that all of the charges leveled against Trump are insubstantial; it is only to say that the ones Kesler has chosen are. As he himself indicates, there exist more serious charges. He alludes to them right off the bat: “He tweets. He runs down the F.B.I., the intelligence community, his own attorney general. He makes fun of other politicians. He hires and fires cabinet secretaries, lawyers and communications people with abandon. He revokes a former C.I.A. director’s security clearance. He fails to disclose his tax returns.”
A persuasive defense of Trump’s norms-breaking would revisit these further down in the piece. They aren’t mentioned again, though. Nor is it clear which would be more problematic: defending Trump at a constitutional level for breaking these more serious norms or engaging in the “bait-and-switch” that we see here. At least the former would be an attempt to use Trump to create the kind of constitutional dialogue in which, seemingly, Kesler would be among the best to lead us.
Seeming to promise a defense of all of Trump’s norms-breaking, Kesler gives us a defense of inconsequential ones but leads his readers to think he has given a defense of all of them. It is a classic example of the ways of “artful men” to which the Founders drew our attention. Perhaps at best this could be said: By defending Trump only for breaking norms that are picayune and leaving others undefended, Kesler has unintentionally led us to think hard about the non-picayune norms Trump is accused of breaking. If this question-raising were actually Kesler’s esoteric intent, the article would still be bizarre, but it would at least have that redeeming quality.
Ultimately, though, this cannot be Kesler’s intent. The disapprobation of his unseemly tweets, his continuous campaign through angry rallies around the country, his attacks on members of his own administration, and his making fun of other politicians point to Trump’s undermining of the norms surrounding the presidency. I can’t imagine that Kesler would want to defend Trump for violating these. If he does, he should do so forthrightly so that the public can judge—by the very same Founding standards Kesler himself was so critical to restoring—whether he is right.
By constituting a strong presidency, the Founders aimed to create a path for constitutional leadership that could avoid the dangers of demagoguery (demagoguery being a subject of the very first essay in The Federalist). Their constitutionalization of a strong executive within a republic, despite the historic republican aversion to it, is perhaps their most important invention. As Publius recognized, republics, just like any other form of government, require a strong executive. Better to put one in the Constitution than to allow, as so many republics had before, a demagogue to arise outside of and against the Constitution.
The presidency requires more institutional independence than the other two branches of government. To understand and act upon the things necessary to preserve the Constitution against those exigencies that might arise requires more prudent statesmanship than legislators require. Moreover, the genius of the Founders’ invention is that the presidency embodies the sovereignty once embodied by monarchs. Although monarchies might sometimes have been corrupt, their very existence provided the ballast necessary for healthy government. The people could feel stable and confident that the government was working because there was a clear representative of its sovereignty. The President is meant to play that same role in the constitutional order.
Understanding that the constitutional nature of the office required gravity and dignity, George Washington both invested it with his own personal dignity and consolidated these virtues into the office itself by carrying himself with a certain bearing. The first President set a precedent that he hoped would continue long after him. The fact that we typically equate “presidential” behavior with “Washingtonian” behavior says a great deal about Washington’s success in this regard. And, if we think through what we mean by both, we can learn a great deal about what’s wrong with Trump.
Washington thought the presidency required dignity because it represented something other than mere partisanship. Embodying the unity of the nation rather than merely the victory of one side, the President makes, or should make, the citizenry feel they have a representative even (or especially) if their side didn’t win. The Founders understood the President as comparable to the captain of the ship. That is to say, the norms surrounding the office expect Presidents to unify rather than divide, and to represent all of us at our best. Those who occupy the office are expected to guide the nation calmly through still and rocky waters alike. If the captain of the ship is unstable, the boat starts rocking even in still waters.
What is striking over the course of American history is how consistent this norm of presidential dignity and unification remained despite other dramatic transformations of the office. Even as the President became more “rhetorical” in the wake of Woodrow Wilson and ever more partisan as the political primary process pushed Presidents in the direction of their more extreme electoral bases, they still aimed at unity and carried themselves with dignity once in office. Although they might, at times, become more aggressively partisan or less aware of the constitutional norms, both the political culture and their own understanding of the office pulled them back from the brink. As Washington hoped, the norms of the office shaped the behavior of its occupants. Without those norms, the national government seems to lose much of its dignity and unity, and, without these, it loses its strength.
This captain-of-the-ship norm is the one Trump should not be breaking. We as a people almost instinctively, as though it’s part of our constitutional genome, know that. The positive reactions to his first State of the Union address, which was tempered and gracious, indicate how much we want him to act better. We want him to represent all of us at our best. Even those who hate him, I suspect, would prefer it if he just carried himself with more dignity. Many might have supposed he would act on the lesson that was there to be learned from that first State of the Union address: he would enjoy much more political authority if he leveraged the distinctly presidential authority of the office.
We can only hope that the norms surrounding the presidency will bounce back in the wake of Trump. Unfortunately, however, as Charles Kesler recognizes, mere norms do not hold up under wear and tear. As constitutionalists who understand the critical importance of presidential norms, we should repudiate rather than implicitly applaud Trump’s departure from them.